Opposition Brief — Robert Paul Langley, Jr., Petitioner v. Oregon

Supreme Court briefApr 24, 2020

Ask Donna

What actually matters in this document.

Text

No. 19-7743

_____________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

___________________

ROBERT PAUL LANGLEY, JR.,

Petitioner,

STATE OF OREGON,

Respondent.

___________________

RESPONDENT’S BRIEF IN OPPOSITION

___________________

On Petition for Writ of Certiorari of the

Supreme Court of the State of Oregon

___________________

ELLEN F. ROSENBLUM

Attorney General

BENJAMIN GUTMAN*

Solicitor General

LAUREN P. ROBERTSON

Assistant Attorney General

1162 Court St. NE

Salem, Oregon 97301-4096

Telephone: (503) 378-4402

lauren.robertson@doj.state.or.us

Attorneys for Respondent

Counsel of Record

_______________________________________________________________

CAPITAL CASE

__________

QUESTIONS PRESENTED

At the time that petitioner was sentenced, Oregon law provided

that the jury must answer four questions during the penalty phase of a capital

murder trial in Oregon, and that a death sentence may not be imposed unless the

jury unanimously answers each of the four questions “yes.” Or. Rev. Stat.

§ 163.150(1) (2014). Each of the first three questions presents an issue of fact,

and Oregon law required that, to answer those questions “yes,” the jury must

find each fact “beyond a reasonable doubt.” Or. Rev. Stat. § 163.150(1)(e)

(2014). The fourth question presented only a discretionary decision for the

jury: “Whether the defendant should receive a death sentence.” Or. Rev. Stat.

§ 163.150(1)(b)(D) (2014). Oregon law did not impose a burden of proof on

either party with respect to the fourth question. Did the submission of the

fourth question create a sentence-enhancement fact for which the federal

constitution requires that the jury apply a standard of proof beyond a reasonable

doubt?

During the 2014 sentencing proceeding, was petitioner subject to

changes in the law that violated the Ex Post Facto Clause of Article I, section

10, of the United States Constitution?

TABLE OF CONTENTS

QUESTIONS PRESENTED................................................................................. i

STATEMENT OF THE CASE ............................................................................1

The aggravated murder convictions at issue....................................1

The Oregon Supreme Court rejected the arguments that

petitioner raises in this Court. ..........................................................5

REASONS TO DENY REVIEW .........................................................................9

The Oregon Supreme Court correctly rejected petitioner’s

standard-of-proof argument, because the jury’s decision to

impose a death sentence is not a factual finding..............................9

The Oregon Supreme Court correctly rejected petitioner’s ex

post facto challenges. .....................................................................14

The Oregon Supreme Court correctly rejected

petitioner’s constitutional challenge to Oregon’s

capital sentencing scheme as outlined in Or. Rev. Stat.

§ 163.150 (1987)................................................................. 15

Contrary to his assertions to this Court, petitioner was

never “entitled” to a new guilt phase proceeding. .............. 20

Petitioner’s claim regarding the introduction of

victim-impact evidence is not preserved and, in any

event, lacks merit. ............................................................... 22

CONCLUSION...................................................................................................26

TABLE OF AUTHORITIES

Cases

Alleyne v. United States,

570 U.S. 99 (2013) ...................................................................................14

Apprendi v. New Jersey,

530 U.S. 466 (2000) .................................................... 8, 10, 11, 13, 14, 19

Carmell v. Texas,

529 U.S. 512 (2000) .......................................................................... 24, 25

Dobbert v. Florida,

432 U.S. 282 (1977) .................................................................... 17, 19, 25

Hopt v. Utah,

110 U.S. 574 (1884) .................................................................................25

Hurst v. Florida,

136 S. Ct. 616 (2016) ...............................................................................12

Johnson v. Premo,

361 Or. 688, 399 P.3d 431 (2017)............................................................21

McKinney v. Arizona,

140 S. Ct. 702 (2020) ...............................................................................12

Oregon v. Ice,

555 U.S. 160 (2009) .................................................................................14

Payne v. Tennessee,

501 U.S. 808 (1991) .................................................................................23

Penry v. Lynaugh,

492 U.S. 302 (1989) ........................................................ 6, 7, 8, 16, 18, 19

Puckett v. United States,

556 U.S. 129 (2009) .................................................................................23

Ring v. Arizona,

536 U.S. 584 (2002) .................................................................................12

State v. Cuevas,

358 Or. 147, 361 P.3d 581 (2015)............................................................14

State v. Guzek,

336 Or. 424, 86 P.3d 1106 (2004)....................................... 8, 9, 15, 24, 25

State v. Hayward,

327 Or. 397, 963 P.2d 667 (1998)............................................................22

State v. Langley,

314 Or. 247, 839 P.3d 692 (1992)..........................................................2, 3

State v. Langley,

331 Or. 430, 16 P.3d 489 (2000)................................................................3

State v. Langley,

351 Or. 652, 273 P.3d 901 (2012)..............................................................4

State v. Longo,

341 Or. 580, 148 P.3d 892 (2006),

cert. den., 552 U.S. 835 (2007) ............................................................8, 11

iii

State v. Montez,

324 Or. 343927 P.2d 64 (1996),

cert den, 520 U.S. 1233 (1997) ................................................................19

State v. Wagner,

305 Or. 115, 752 P.2d 1136 (1988),

vacated and remanded 492 U.S. 914 (1989)..............................................7

State v. Wagner,

309 Or. 5, 786 P.2d 93,

cert. den., 498 U.S. 879 (1990) ....................................... 6, 7, 8, 16, 18, 21

State v. Washington,

355 Or. 612, 350 P.3d 596,

cert. den., 574 U.S. 1016 (2014) ..............................................................11

Constitutional and Statutory Provisions

Or. Laws 1989, ch. 720, § 2................................................................................21

Or. Laws 1989, ch. 790, § 135b..........................................................................21

Or. Rev. Stat. § 138.012(2).................................................................................21

Or. Rev. Stat. § 162.150(1)(b)(D) (1989).......................................................6, 16

Or. Rev. Stat. § 163.150............................................................................... 15, 21

Or. Rev. Stat. § 163.150 (1987)......................................................................5, 15

Or. Rev. Stat. § 163.150 (2014)..........................................................................13

Or. Rev. Stat. § 163.150(1) (2014) ..................................................... i, 10, 23, 24

Or. Rev. Stat. § 163.150(1)(b) (2014) ..................................................................4

Or. Rev. Stat. § 163.150(1)(b)(D) (2014)....................................................... i, 10

Or. Rev. Stat. § 163.150(1)(c)(A) (2014) ...........................................................10

Or. Rev. Stat. § 163.150(1)(c)(B) ................................................................ 13, 23

Or. Rev. Stat. § 163.150(1)(d) ............................................................................13

Or. Rev. Stat. § 163.150(1)(d)-(e) (2014).......................................................5, 10

Or. Rev. Stat. § 163.150(1)(e) (2014)................................................................... i

U.S. Const., Amend. VI ............................................................................... 11, 14

U.S. Const., Amend. VIII ...................................................................................11

U.S. Const., Art. I, § 10 .............................................................................. i, 9, 24

RESPONDENT’S BRIEF IN OPPOSITION

__________

STATEMENT OF THE CASE

This is a capital case in which petitioner presents two legal issues for this

Court’s review, contending that each of the federal-law issues he defines are

well-preserved and worthy of this Court’s attention. That is not correct. As

explained below, neither issue has merit or warrants review by this Court.

The aggravated murder convictions at issue

This matter comes before the Court following the fourth jury

determination that petitioner should be sentenced to death for the 1987

aggravated murder of A. Gray. At the time of Gray’s death, petitioner—while

serving a term of incarceration for crimes not at issue here—lived in a cottage

on the grounds of the Oregon State Hospital, where he participated in a lowsecurity Correctional Treatment Program for mentally or emotionally disturbed

inmates. (Pet. App. 6a). The program in which petitioner was enrolled was a

transition program in which inmates, nearing the end of a prison term, received

extensive psychological counseling, learned job and independent living skills,

and was assisted in establishing a productive post-prison life in the community.

Id.

Gray—a neighbor of petitioner’s girlfriend—disappeared on December

10, 1987. Id. That same day, petitioner enlisted his girlfriend’s help to

transport a large, awkward bundle wrapped in a comforter from Gray’s

apartment to the home of petitioner’s aunt. Id. In April 1988, Gray’s

decomposed body was found buried in a grave in petitioner’s aunt’s backyard.

Id. Gray died from asphyxiation, her body was very tightly bound in the fetal

position by multiple bindings, including duct tape wrapped around her head to

cover her nose and mouth, a shoestring-type ligature knotted tightly around her

neck, and numerous bandages, tapes and ropes tied around her wrists, ankles,

torso and legs. Id. Gray’s asphyxiation was caused by both the neck ligature

and the duct tape covering her nose and mouth. State v. Langley, 314 Or. 247,

251, 839 P.3d 692, 696 (1992) (Langley I).

The discovery of Gray’s body was facilitated by the discovery a day

earlier of petitioner’s second victim, L. Rockenbrant. Rockenbrant disappeared

in April 1988 after reportedly going out to meet with petitioner, and his

bludgeoned remains were found shortly thereafter buried behind petitioner’s

Oregon State Hospital cottage. (Pet. App. 6a n.1). The grave into which

Rockenbrant’s body had been placed was marked by a note identifying it as

“Cottage 18 garden plot. Please leave alone.” Id. When hospital staff

discovered the “garden plot” and attempted to speak with petitioner about it,

petitioner fled in an automobile that belonged to Rockenbrant.1 Id. Upon

learning of Rockenbrant’s murder, the daughter of petitioner’s aunt contacted

police concerning a large hole that petitioner had dug in her mother’s backyard

that previous winter. Id.

In December 1989, a jury found petitioner guilty of aggravated murder

for killing Gray and determined that he should receive a death sentence. In

1992, the Oregon Supreme Court affirmed petitioner’s convictions but set aside

his death sentence on the ground that the trial court failed to give a proper jury

instruction on the consideration and use of mitigating evidence. Langley I, 314

Or. at 247.

A second penalty-phase proceeding followed, and the jury again

determined that petitioner should receive a death sentence. On direct review,

the Oregon Supreme Court set aside petitioner’s death sentence, concluding that

the trial court erred by refusing to allow petitioner to waive any ex post facto

objection to having the jury consider a true-life sentencing option. State v.

Langley, 331 Or. 430, 16 P.3d 489 (2000) (Langley II).

For killing Rockenbrant, petitioner was separately convicted of

aggravated murder and received a life sentence with the possibility of parole

after 30 years. See State v. Langley, 314 Or. 511, 840 P.2d 691 (1993). Those

convictions are not at issue in this case.

On remand for a third penalty-phase proceeding, petitioner—this time

representing himself—was once again sentenced to death. On direct review in

2012, the Oregon Supreme Court concluded that the trial court erred by not

securing a valid waiver of petitioner’s right to counsel, and petitioner’s case

was remanded for another penalty-phase proceeding. State v. Langley, 351 Or.

652, 273 P.3d 901 (2012) (Langley III).

The penalty phase was tried for a fourth time in 2014, and a jury again

sentenced petitioner to death. At the time that petitioner was sentenced, Oregon

law required trial courts to submit four questions to the jury:

(b) Upon conclusion of the presentation of evidence, the court

shall submit the following issues to the jury:

(A) Whether the conduct of the defendant that caused the death of

the deceased was committed deliberately and with reasonable

expectation that death of the deceased or another would result;

(B) Whether there is a probability that the defendant would

commit criminal acts of violence that would constitute a

continuing threat to society;

defendant in killing the deceased was unreasonable in response to

the provocation, if any, by the deceased; and

(D) Whether the defendant should receive the death sentence.

Or. Rev. Stat. § 163.150(1)(b) (2014). Oregon law required that to answer each

of the first three questions “yes,” the jury must find each fact unanimously

beyond a reasonable doubt, but Oregon law did not impose a burden on either

party with respect to the fourth question. Or. Rev. Stat. § 163.150(1)(d)-(e)

(2014).

The trial court instructed the jury in accordance with that statute. The

jury unanimously answered each of the four questions “yes,” and the trial court

imposed a death sentence. (Pet. App. 5a-6a).

The Oregon Supreme Court rejected the arguments that petitioner

raises in this Court.

On direct review, petitioner raised 77 claims of error, all of which the

Oregon Supreme Court rejected in affirming the death sentence. (Pet. App. 5a,

35a). Petitioner raises two issues in this Court, both of which stem from

changes to Oregon’s capital sentencing scheme after petitioner committed the

murder. In rejecting those assignments of error, the Oregon Supreme Court

outlined relevant portions of the history of Oregon’s capital sentencing scheme.

(Pet. App. 30a-31a). Because that history is important to understanding the

context of petitioner’s claims in this Court, the state presents it here.

At the time that petitioner killed the victim, Oregon law required jurors to

consider three statutory questions—the first three questions outlined in the 2014

statute—regarding the applicability of the death penalty. Or. Rev. Stat.

§ 163.150 (1987). Each question had to be proved beyond a reasonable doubt,

and if the jury unanimously answered each question affirmatively, the trial

court was required to impose a death sentence. Id.

Two years after petitioner’s crime, this Court decided Penry v. Lynaugh,

492 U.S. 302 (1989). In Penry, the Texas statutory capital sentencing

procedure required a trial court to submit three questions to the jury. 492 U.S.

at 310. The defendant in Penry requested a special instruction on the use of

mitigation evidence that the trial court refused to give. This Court held, as

relevant here, that the trial court erred in refusing to give the defendant’s

requested instruction because in the absence of an instruction informing the jury

that it could consider and give effect to mitigating evidence by declining to

impose the death penalty, the jury had not been provided with a vehicle for

expressing a reasoned and moral response to such evidence in reaching its

capital sentencing decision. Id. at 328.

At the time, Oregon’s death penalty instructions had been modeled after

the Texas statutory scheme applied in Penry. (Pet. App. 30a). In an effort to

codify this Court’s decision in Penry, the Oregon legislature amended its capital

sentencing statute, adding a fourth question that provided jurors with a

discretionary decision of whether the death penalty should be imposed and

permitted them to use mitigating evidence in answering that question. Or. Rev.

Stat. § 162.150(1)(b)(D) (1989). One month after the legislature added the

fourth question, the Oregon Supreme Court took up Wagner II. State v.

Wagner, 309 Or. 5, 786 P.2d 93, cert. den., 498 U.S. 879 (1990) (Wagner II).

Wagner II became necessary after this Court required the court to reexamine its

first decision in State v. Wagner, 305 Or. 115, 752 P.2d 1136 (1988) (Wagner

I), vacated and remanded 492 U.S. 914 (1989), in light of Penry.

In Wagner II the Oregon Supreme Court considered, among other things,

the constitutionality of Oregon’s pre-Penry 1987 capital sentencing statute—the

statute in effect at the time that petitioner committed the murder in this case.

The Oregon Supreme Court concluded that the pre-Penry statute was

constitutional because (1) it allowed the introduction of all constitutionally

relevant mitigating evidence, and (2) state law otherwise allowed trial courts to

submit a fourth question to juries, to comply with the Eighth Amendment, that

would permit them to spare a capital defendant from death—the type of

instruction that the defendant in Penry did not receive. Wagner II, 309 Or. 6,

15-16.

With that history in mind, the Oregon Supreme Court rejected both

claims that petitioner raises in this Court. (Pet. App. 24a-35a).

First, the Oregon Supreme Court rejected petitioner’s claim that the trial

court erred by failing to instruct the jurors that the fourth question posed to the

jury had to be proved by the state beyond a reasonable doubt. (Pet. App. 35a).

Petitioner asserted that the addition of the fourth question—whether he should

receive the death sentence—was a sentence enhancement fact because, in his

view, it made the death penalty a constitutional possibility when it had not

existed before. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (other

than the fact of a prior conviction, any fact that increases a criminal penalty

beyond the statutory maximum must be submitted to a jury and proved beyond

a reasonable doubt). But the Oregon Supreme Court rejected that argument,

concluding—as it had in State v. Longo, 341 Or. 580, 605-06, 148 P.3d 892

(2006), cert. den., 552 U.S. 835 (2007)—that Apprendi does not require the

state to prove the fourth question beyond a reasonable doubt because the

question calls for a discretionary decision rather than a factual determination.

(Pet. App. 35a).

Second, relying on its well-established precedent, the Oregon Supreme

Court rejected petitioner’s ex post facto challenges based on changes to

Oregon’s capital sentencing structure after Penry. The court rejected

petitioner’s constitutional challenge to Oregon’s pre-Penry capital sentencing

structure—as it had over 30 years earlier in Wagner II—because petitioner’s

argument hinged on a misinterpretation of Oregon caselaw and this Court’s

decision in Penry, 492 U.S. 302 (1989). (Pet. App. 32a-35a). The Oregon

Supreme Court also relied on its established caselaw—State v. Guzek, 336 Or.

424, 86 P.3d 1106 (2004) (Guzek III)—in rejecting petitioner’s argument that

the introduction of victim impact evidence violated the ex post facto clause of

Article I, section 10, of the United States Constitution. The court noted that it

rejected the same argument in Guzek III and declined to revisit its holding in

that case. (Pet. App. 29a n.12). Rather than discussing petitioner’s claim

regarding the “sentencing-only remand,” the court summarily rejected it. (Pet.

App. 35a).

__________

REASONS TO DENY REVIEW

The Oregon Supreme Court correctly rejected petitioners’ constitutional

challenges to Oregon’s death penalty statutes. As discussed further below, none

of the claims that petitioner asserts in his petition has merit or warrants review

by this Court. The issues that petitioner raises do not implicate any split of

authority and have only limited forward-looking significance. In this case, the

Oregon Supreme Court simply applied this Court’s settled law—and interpreted

its own state law—in rejecting petitioner’s varied challenges to his death

sentence.

The Oregon Supreme Court correctly rejected petitioner’s standardof-proof argument, because the jury’s decision to impose a death

sentence is not a factual finding.

The trial court instructed the jury that it could impose a death sentence

only if it unanimously determined that no mitigating circumstances warranted a

lesser sentence. The court explained that that was a discretionary determination

for each juror, and that the burden of proof beyond a reasonable doubt did not

apply to that question. The Oregon Supreme Court correctly rejected

petitioner’s argument that the instructions violated this Court’s holding in

Apprendi that facts that increase a penalty must be proved beyond a reasonable

doubt. (Pet. App. 35a). Because the jury was not asked to make a factual

determination, Apprendi’s rule was not implicated.

As discussed, Oregon law at the time that petitioner was sentenced

provided that the jury must answer four questions during the penalty phase and

that a death sentence may not be imposed unless the jury unanimously

answered each of the four questions “yes.” Or. Rev. Stat. § 163.150(1) (2014).

Each of the first three questions presented an issue of fact, and Oregon law

required that, to answer each of those questions “yes,” the jury must find that

fact beyond a reasonable doubt. Or. Rev. Stat. § 163.150(1)(d)-(e) (2014).

After answering the first three questions the jury then considered the fourth

question, which presented only a discretionary decision: “Whether the

defendant should receive a death sentence.” Or. Rev. Stat. § 163.150(1)(b)(D)

(2014). In answering that question, the jury was instructed to consider “any

mitigating circumstances offered in evidence,” Or. Rev. Stat.

§ 163.150(1)(c)(A) (2014), but the jury was not charged with making any

specific “findings” of mitigating circumstances.

The Oregon Supreme Court has repeatedly held that the fourth question

does not present an issue of fact and so Oregon law does not require jurors to

apply a standard of proof beyond a reasonable doubt when they answer that

question and that neither the Sixth nor the Eighth Amendment imposes such a

requirement. See State v. Longo, 341 Or. 580, 605-06, 148 P.3d 892 (2006),

cert. denied, 552 U.S. 835 (2007) (“[b]ecause the fourth question does not

involve a determination of fact, Apprendi/Blakely does not require the state to

prove it beyond a reasonable doubt.”); see also State v. Washington, 355 Or.

612, 664, 350 P.3d 596, cert. den., 574 U.S. 1016 (2014) (observing that the

fourth question frames a discretionary inquiry).

Nevertheless, in this case, petitioner asked the trial court to instruct the

jurors that they had to apply the standard of proof beyond a reasonable doubt

when they answered the fourth question. (Pet. App. 35a). The trial court

denied that request and instructed the jury in accordance with Oregon law, the

jury imposed a death sentence, and petitioner complained on direct review that

the trial court erred when it denied his requested jury instruction. In rejecting

that claim of error, the Oregon Supreme Court—citing Longo—reiterated that

the fourth question does not carry a burden of proof because it is discretionary

inquiry and does not “involve a determination of fact.” (Pet. App. 35a).

The Oregon Supreme Court correctly concluded that petitioner’s contrary

argument fails to appreciate the fundamental distinction between factual

findings and a discretionary decision. (Pet. App. 35a). In support of his

argument, petitioner relies on Ring v. Arizona, 536 U.S. 584 (2002), and Hurst

v. Florida, 136 S. Ct. 616 (2016). (Pet. 13-20). But the Oregon Supreme

Court’s ruling is entirely consistent with both of those decisions, which require

only that a jury find the aggravating circumstance that makes the defendant

death eligible. Hurst, 136 S. Ct. at 619; Ring, 536 U.S. at 612. As this Court

recently reiterated, Ring “has nothing to do with jury sentencing[,]” and

requires only that a capital jury must “find the existence of the fact that an

aggravating factor exists” in order to impose a death sentence. McKinney v.

Arizona, 140 S. Ct. 702, 707-08 (2020). Notably, both Ring and Hurst

approved of capital jurors exercising discretion during sentencing proceedings

so long as the sentence is within the range prescribed by statute. Id. at 707.

And, as McKinney makes clear, a capital jury is not constitutionally required to

weigh aggravating and mitigating circumstances when making the ultimate

sentencing determination. Id. at 708-09.

As discussed, under Oregon law the fourth question posed to jurors is

discretionary and they answer that question only if they have found—

unanimously and beyond a reasonable doubt—the existence of the three

aggravating factors outlined in the first three questions that make defendant

eligible for the death penalty, the statutory maximum. Or. Rev. Stat. § 163.150

(2014). In answering the fourth question, jurors are not required to make any

factual determinations, nor expressly balance the aggravating factors against the

mitigating circumstances in order to determine whether one outweighed the

other. Rather, Oregon law required that if any juror concluded, “after

considering” whatever mitigating circumstances the defendant proffered, that a

sentence less than death should be imposed, then the jury must answer the

fourth question “no.” Or. Rev. Stat. § 163.150(1)(c)(B) (2014). And under that

statutory scheme, a juror may choose to answer the fourth question “no”

without finding that the defendant established any mitigating circumstances.

Because the fourth question did not entail a factual determination, the Oregon

Supreme Court correctly held that the federal constitution did not impose a

standard of proof beyond a reasonable doubt. 2

In any event, regardless of whether the fourth question is a

“discretionary” decision, Apprendi is not implicated for a second reason: the

fourth question is a mitigating determination that exempts a defendant from the

In 2019, the Oregon legislature amended the statute to require that

the state to prove each question submitted under Or. Rev. Stat. § 163.150(1)(d)

beyond a reasonable doubt. That change, which has no bearing on the

constitutionality of petitioner’s sentencing procedure, diminishes the forwardlooking significance of the issue raised here.

maximum sentence that is otherwise authorized by law based on the jury’s other

factual findings. The fourth question is the mechanism for jurors nonetheless to

exercise their discretion to impose a lesser sentence. But this Court’s holding

in Apprendi only requires jurors to find, beyond a reasonable doubt, “any fact

that increased the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury[.]” 530 U.S. at 490 (emphasis added); accord

Alleyne v. United States, 570 U.S. 99 (2013) (holding that factual findings that

increase mandatory minimum sentences are subject to Apprendi).

Consequently, Apprendi does not apply to the fourth question. See, e.g., State

v. Cuevas, 358 Or. 147, 158-59, 361 P.3d 581 (2015) (concluding that Apprendi

does not apply to factual findings that limit or reduce the length of sentence);

Oregon v. Ice, 555 U.S. 160, 164 (2009) (when a state statute imposes a

presumptive consecutive sentence, it is “undisputed” that states may permit

sentencing judges, rather than juries, to make findings for the imposition of

concurrent sentences “without transgressing the Sixth Amendment”).

The decision below is consistent with this Court’s Sixth Amendment case

law and does not warrant further review.

The Oregon Supreme Court correctly rejected petitioner’s ex post

facto challenges.

Petitioner’s fourth sentencing proceeding in 2014 was held largely under the

statute in effect at the time rather than the statute in effect in 1987, when he

committed the crime.3 Any changes to the statute that were applied to

petitioner’s trial were procedural or ameliorative. None of them reduced the

state’s burden or made a death sentence more likely. The Oregon Supreme

Court therefore correctly held that the sentencing proceeding did not violate

petitioner’s rights under the Ex Post Facto Clause.

The Oregon Supreme Court correctly rejected petitioner’s

constitutional challenge to Oregon’s capital sentencing scheme

as outlined in Or. Rev. Stat. § 163.150 (1987).

As discussed, at the time that petitioner killed the victim Oregon law

required that a jury that had convicted a defendant of aggravated murder answer

three statutory questions regarding the applicability of the death penalty. Or.

Rev. Stat. § 163.150 (1987). If the jury unanimously answered each question

affirmatively, the trial court was required to impose a death sentence.

The parties agreed not to apply the 1995 and 1997 amendments to

Or. Rev. Stat. § 163.150 that permitted jurors in 2014 to consider “any

aggravating evidence” in the context of the fourth question. (Pet. App. 25a);

accord Guzek III, 336 Or. at 430-39 (retroactive application of amendments to

death penalty statute allowing the admission of “any aggravating evidence” in a

penalty-phase violated ex post facto prohibitions where the defendant’s offenses

predated the amendments). On review, the Oregon Supreme Court rejected

petitioner’s claim that the trial court erred by not abiding by that agreement and

held that “the trial court did not permit aggravating facts relevant only to the

fourth question to be presented to the jury, nor did the trial court instruct the

jury to consider such facts as part of its fourth-question determination.” (Pet.

App. 29a).

Two years after petitioner’s crime, this Court decided Penry and held that

the trial court erred in refusing to give the defendant’s proffered instruction on

mitigating evidence because, in the absence of an instruction informing the jury

that it could consider and give effect to mitigating evidence presented by the

defendant, the jury was not provided with a vehicle for expressing a reasoned

and moral response to such evidence in reaching its capital sentencing decision.

Penry, 492 U.S. at 328.

In response to Penry, the Oregon legislature amended the state’s death

penalty statute adding a fourth question that directed trial courts to instruct

jurors, when constitutionally required, to consider mitigating evidence

presented by the defendant in deciding whether to impose a death sentence. Or.

Rev. Stat. § 162.150(1)(b)(D) (1989). And shortly thereafter, the Oregon

Supreme Court construed that fourth question and the constitutionality of

Oregon’s pre-Penry death penalty statute—the version in effect when petitioner

committed his crimes—in Wagner II. The court held that the pre-Penry statute

was facially constitutional, and that Penry did not require a different conclusion

because Oregon law in effect before Penry required trial courts, upon request,

to submit instructions to capital jurors on the use of mitigating evidence.

Wagner II, 309 Or. at 15-16.

Despite that holding, petitioner insists that Oregon’s capital sentencing

scheme in place at the time that he murdered Gray was facially unconstitutional.

Based on that assertion, petitioner reasons that the imposition of a death

sentence amounts to an ex post facto violation.

But this Court rejected the same argument in Dobbert v. Florida, 432

U.S. 282, 297 (1977). There, as here, the petitioner claimed that at the time he

murdered his victim, “there was no [constitutionally valid state] death penalty

‘in effect[.]’” Id. Dobbert claimed that was so because “after the time he

acted,” the state death penalty statute was found to be invalid by the state

supreme court. Id. As a result, Dobbert claimed, “there was no valid’ death

penalty in effect in [the state] as of the date of his actions” and applying the

amended statute to him violated the Ex Post Facto Clause. Id. This court

rejected that argument, concluding that it “mocks the substance of the Ex Post

Facto Clause” because the existence of the statute “provided fair warning” that

the state would seek the death penalty for murder. Id. As in Dobbert, the

Oregon statute in effect when petitioner murdered Gray gave him fair notice

that it was a capital crime. For that reason, his ex post facto argument fails.

Indeed, this Court has long held that changes in the law that are

procedural or ameliorative do not trigger ex post facto protections. Id. at 29395. Yet petitioner’s complaints about Oregon’s death penalty statute target only

changes that are procedural or ameliorative. Petitioner’s complaint to this

Court hinges on the incorrect premise that Oregon’s pre-Penry capital

sentencing scheme was unconstitutional given the absence of the fourth

question (or presumably another statutory provision requiring the consideration

of mitigating evidence by the sentencing jury). (Pet. 16, 25-26). But that

argument fails because his challenge to the statute targets an amendment that

merely codified what was already the law.

As discussed, that is precisely why the Oregon Supreme Court long ago

held in Wagner II that Oregon’s pre-Penry capital sentencing statute—the

version in effect at the time of petitioner’s crime—was constitutional. In

rejecting petitioner’s argument in this case, the Oregon Supreme Court

concluded that his claim was indistinguishable from the claim it rejected in

Wagner II:

The principle that we draw from our discussion of Wagner II

is this: With regard to mitigating evidence in capital sentencing

proceedings held before Penry and Wagner II, Oregon law did not

prohibit a capital defendant from presenting mitigating evidence to

the jury or having that jury rely upon such evidence to spare the

defendant’s life. Thus, the proposition advanced here by defendant

that those rights did not exist before Penry does not square with

Wagner II and the Supreme Court’s decision in Jurek. Defendant

is correct that, after Penry, the legislature added a statutory fourth

question and this court articulated a fourth question in Wagner II.

However, the majority of this court in Wagner II had already

rejected defendant’s current arguments[.]

(Pet. App. 34). Thus, petitioner’s challenge fails because the subsequent

amendment to Oregon’s death penalty statute did not represent a change in

Oregon law. See e.g., Dobbert, 432 U.S. at 293-94; and State v. Montez, 324

Or. 343, 363-64, 927 P.2d 64 (1996), cert den, 520 U.S. 1233 (1997) (same).

In sum, petitioner’s ex post facto argument fails because his challenge to

the statute is based an amendment that merely codified what was already the

law, and it codified a procedural rule that (as compared to the 1987 law)

benefits capital defendants by giving capital jurors an opportunity to impose a

lesser sentence than what is supported by their findings on the first three

questions and by allowing defendants to argue mitigation evidence in support of

such a sentence. Any changes were procedural and ameliorative and therefore

do not violate the Ex Post Facto Clause. And to the extent that petitioner

disagrees with the Oregon Supreme Court’s interpretation of the state’s prePenry capital sentencing statutes, this Court does not have authority to review

that purely state-law question. 4

Petitioner also argues that the Ex Post Facto Clause was violated

by the trial court’s submission of the fourth question to the jury without

requiring that the jury find that question beyond a reasonable doubt, but that

argument fails for three reasons already discussed: (1) Apprendi does not apply

to discretionary determinations, (2) Oregon’s pre-Penry statute is constitutional,

and (3) the submission of a discretionary question—one that benefitted

petitioner by permitting any juror to exercise his or her discretion to vote “no”

on a death sentence for any reason—did not increase the penalty of the crime or

lower the burden of proof.

Contrary to his assertions to this Court, petitioner was never

“entitled” to a new guilt phase proceeding.

Petitioner asserts that he was “denied the entitlement, under the statutes

in effect at the time of the crimes,” of a new guilt phase trial rather than “a

sentencing-only remand.” (Pet. 20). But petitioner was never “entitled” to a

new guilt phase trial.

The Oregon Supreme Court long ago held that under the 1987 capitalsentencing scheme—the version that was in effect when petitioner committed

his crimes—when it finds on direct review of a judgment imposing a death

sentence that no error was committed in the guilt phase that requires a new trial

but that the trial court committed a reversible error in the penalty phase, the

proper remedy is to affirm the defendant’s convictions for capital murder and to

remand for a retrial only of the penalty phase. The court explained:

We do not agree with defendant’s contention that the

requirement in ORS 163.150(1)(a) that the sentencing proceeding

“shall be conducted * * * before the trial jury as soon as

practicable” has any implications in the case of a remand for

resentencing. (Emphasis added.) That provision is nothing more

than a procedural directive to the trial court in the ordinary of

events. There is no statutory or constitutional requirement, or

persuasive jurisprudential rationale, to compel a resentencing

before the original trial jury (to the contrary, a new statute

requires a new jury) or to require a new guilt trial or default

sentencing to something less than death simply because the

original guilt phase jury has been discharged. If the state elects

to pursue the death penalty, the new sentencing jury shall be

selected in the same manner that the trial jury in a capital case is

selected.

Wagner II, 309 Or. at 17-18 (italics in original; boldface added). To be sure,

Oregon later enacted statutes that expressly provided for a remand for a retrial

only of the penalty phase. See Or. Laws 1989, ch 720, § 2, and ch 790, § 135b

(amending Or. Rev. Stat. § 163.150); Or. Rev. Stat. § 138.012(2). But the

Wagner II decision was based on the law as it existed in 1987, not on the

curative statutory amendments that were enacted in 1989.

Thus, contrary to petitioner’s argument to this Court, the application of

the penalty-phase only remand was not a change in Oregon law as of the date

that petitioner committed the murder. Still further, to the extent that Wagner II

was an interpretation of state law, this Court does not have authority to review

it. At the least, any change was procedural and did not trigger ex post facto

protections. 5

Petitioner also argues that the penalty-phase remand denied him

the opportunity to present a “unified defense theory” to the same jury at the

guilt and penalty phases. (Pet 20-21). But such a claim provides no basis for

review for the reasons discussed above. Nor does it make sense: The idea

behind the unified-defense theory—a trial strategy—is to minimize the risk that

the same jury, having already rejected a defendant’s argument that the

defendant was not guilty, will be predisposed to impose the death penalty. See

Johnson v. Premo, 361 Or. 688, 710, 399 P.3d 431 (2017). When a new

sentencing jury is empaneled on remand, that risk has already been minimized.

Petitioner’s claim regarding the introduction of victim-impact

evidence is not preserved and, in any event, lacks merit.

Next, petitioner argues that he was disadvantaged by the introduction of

“aggravating victim impact evidence in the context of the Fourth Question.”

(Pet. 22). But the Oregon Supreme Court correctly rejected that claim.

As a threshold matter, there is a substantial question whether petitioner

adequately preserved his federal-law argument for this Court’s review.

Although he sufficiently raised a general, categorical ex post facto objection to

the admission of “victim impact” evidence, he made no attempt to identify for

the trial court any specific evidence or testimony that he believed would qualify

as such and that would not otherwise be independently admissible, let alone

identify any specific evidence that he found to be “aggravating” victim impact

evidence. That is significant because before this Court—as he did before the

Oregon Supreme Court—petitioner continues to fail to identify any specific

evidence actually presented that he deems to be “aggravating victim-impact

evidence” or explain why such evidence would not otherwise have been

admissible under Oregon statute or the rules of evidence. Thus, with respect to

the admission of what petitioner may now view to be aggravating victim-impact

evidence, he failed to preserve his claim for review. See, e.g., State v. Hayward,

327 Or. 397, 414, 963 P.2d 667 (1998) (the defendant’s “generic objection” to

admission of victim-impact evidence was not sufficient to preserve ex post

facto claim to specific evidence, because much of the evidence at issue was

independently admissible); Puckett v. United States, 556 U.S. 129, 134 (2009)

(explaining that preservation circumscribes appellate review). Consequently,

his complaint does not warrant this Court’s review.6

But even if petitioner preserved his claim, it still fails. In Payne v.

Tennessee, this Court concluded that the admission of victim-impact evidence

in capital-sentencing proceedings does not violate the Eighth Amendment

because such evidence is “relevant to the jury’s decision as to whether or not

the death penalty should be imposed.” 501 U.S. 808, 827 (1991). After the

decision in Payne, and after petitioner committed the aggravated murder at

issue here, the Oregon Legislature amended Or. Rev. Stat. § 163.150(1) to

allow for the admission at a capital-sentencing trial the type of victim-impact

evidence this Court approved in Payne. Similarly, Or. Rev. Stat. §

163.150(1)(c)(B) was amended to allow the jury to consider “any victim impact

evidence” when answering the fourth question.

Petitioner argues that the admission of aggravating victim-impact

evidence violated the ex post facto prohibitions of the Federal Constitution

To be sure, petitioner disputed the state’s assertion in the Oregon

Supreme Court that his claimed error was unpreserved. (App. Reply Br. at 17073). The court did not address the parties’ preservation arguments and rejected

petitioner’s arguments based on established precedent. The serious

preservation question, however, counsels against granting review here.

because those provisions were added to Or. Rev. Stat. § 163.150(1) after he

committed the aggravated murder and, in his view, increased the likelihood that

the jury would impose a death sentence. In a footnote, the Oregon Supreme

Court rejected petitioner’s argument observing that it had rejected the very

same argument in Guzek III, 336 Or. at 445-47, and it declined to reconsider

that holding. (Pet. App. 29a, n.12).

In Guzek III, the Oregon Supreme Court concluded that the admission of

victim-impact evidence did not amount to a per se violation of the Ex Post

Facto clause of Article I, section 10, of the United States Constitution. In

reaching that conclusion, the court applied the well-established ex post facto

principles outlined by this Court in Carmell v. Texas, 529 U.S. 512, 532-33

(2000). Guzek III, 336 Or. at 445-47. The court held that the statutory

amendments permitting the admission of victim-impact evidence did not trigger

ex post facto protections because the amendments did not lower the quantum of

proof necessary for the state to obtain a sentence of death:

With that standard in mind, we again turn to the 1995 and 1997

amendments to ORS 163.150(1)(a) and (c)(B) that permit the

admission of victim-impact evidence. We agree with the state that

nothing about those amendments lowers the quantum of proof

necessary for the state to obtain a sentence of death. The state

must prove each issue submitted to the jury under ORS

163.150(1)(b)(A) to (C) beyond a reasonable doubt, ORS

163.150(1)(d), just as Oregon law previously required it to do.

Although the retroactive application of a change in the law that

permits the state to introduce a new kind of evidence against a

defendant might tip the balance in favor of the state, it does not

“unfair[ly]” tip it, Carmell, 529 US at 533 n 23, for purposes of the

federal Ex Post Facto Clause, as does a change in the law that

reduces the sufficiency of the evidence standard. That distinction

is dispositive. As the Supreme Court explained in Carmell, not

every rule that increases the state's likelihood of success on the

merits constitutes an ex post facto law under Article I, section 10.

* * * Accordingly, the admission of victim-impact evidence

against defendant under the 1995 and 1997 amendments to ORS

163.150(1)(a) and (c)(B) does not violate the Ex Post Facto Clause

of the United States Constitution.

Guzek III, 336 Or. at 446-47 (footnotes omitted). Put simply, the retroactive

application of a change in the law that permits the state to introduce victimimpact evidence does not “unfair[ly]” tip the balance in favor of the state so as

to trigger federal ex post facto protections. Carmell, 428 U.S. at 533 n.23; see

also Dobbert, 432 U.S. at 293-94 (“even though it may work to the

disadvantage of a defendant, a procedural change is not ex post facto” if it does

not reduce the degree of proof necessary to establish guilt or increase the range

of punishment); Hopt v. Utah, 110 U.S. 574, 589-90 (1884) (change in law that

allowed for a convicted felon to testify as a witness was not ex post facto

because the crime for which defendant was indicted “the punishment prescribed

therefor, and the quantity or the degree of proof necessary to establish his guilt,

all remain unaffected by the subsequent statute”). At the least, petitioner fails

to show that, even if his claim theoretically had merit, he suffered any actual

prejudice.

In sum, petitioner fails to identify a legitimate basis for review because

no ex post facto violation occurred. Petitioner’s arguments for review amount

to nothing more than either a disagreement with the Oregon Supreme Court’s

application of settled federal law or a disagreement with the Oregon Supreme

Court’s interpretation of state law. Consequently, his claims do not warrant this

Court’s review.

CONCLUSION

This Court should deny the petition for a writ of certiorari.

Respectfully submitted,

ELLEN F. ROSENBLUM

Attorney General

/s/ Benjamin Gutman

_________________________________

BENJAMIN GUTMAN

Solicitor General

benjamin.gutman@doj.state.or.us

LAUREN P. ROBERTSON

Assistant Attorney General

lauren.robertson@doj.state.or.us

Attorneys for Respondent

State of Oregon

LR4:slc/10201845

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.