State v. Washington ( 2014 )

612 June 19, 2014 No. 43
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL SPENCER WASHINGTON, JR.,
Defendant-Appellant.
(CC CR0701950; SC S058490)
En Banc
On automatic and direct review of the judgment of con-
viction and sentence of death imposed by the Clackamas
County Circuit Court.
Thomas Rastetter, Judge.
Argued and submitted June 4, 2013.
Bronson D. James, JDL Attorneys, LLP, Portland, argued
the cause and filed the briefs for defendant-appellant.
Timothy A. Sylwester, Assistant Attorney General,
Salem, argued the cause for plaintiff-respondent. With him
on the brief were Ellen F. Rosenblum, Attorney General,
Anna M. Joyce, Solicitor General, Christina M. Hutchines
and Jeremy C. Rice, Assistant Attorneys General.
LANDAU, J.
The judgment of conviction and sentence of death are
affirmed.
On automatic and direct review of the judgment of conviction and sentence
of death, defendant raised 22 assignments of error, including challenges to the
trial court’s order that he wear a stun device during trial, its empaneling of an
anonymous jury, and its implementation of additional security measures during
the penalty phase of his trial. Defendant also challenged the trial court’s denial
of his motions for judgment of acquittal, its admission of certain testimony about
the victim and his family, and its refusal to give his requested jury instruction
regarding mercy. Finally, he challenged the lawfulness of Oregon’s death penalty
sentencing scheme in various respects. Held: Evidence in the record supports the
trial court’s order that defendant wear a stun device during his trial, its empan-
eling of an anonymous jury, and its implementation of additional security mea-
sures during the penalty phase of defendant’s trial. The trial court did not err
in denying defendant’s motions for judgment of acquittal, because the testimony
Cite as 355 Or 612 (2014) 613
of defendant’s accomplice was sufficiently corroborated by other evidence. The
trial court also did not err in admitting testimony of the victim’s uncle about
the victim and his family. It did not err in refusing to give defendant’s requested
jury instruction on mercy because the instruction was not a correct statement of
the law. Finally, the Supreme Court rejected each of defendant’s challenges to
Oregon’s death penalty sentencing scheme.
The judgment of conviction and sentence of death are affirmed.
614 State v. Washington
LANDAU, J.
This case is before the court on automatic and
direct review of defendant’s judgment of conviction and sen-
tence of death for aggravated murder. ORS 138.012(1). On
review, defendant challenges 22 rulings the trial court made
during the guilt and penalty phases of his trial. He asks
this court to reverse his convictions for aggravated murder
and felon in possession of a firearm and remand for a new
trial or, alternatively, to vacate his sentence of death and
remand for resentencing. We affirm both the conviction and
the sentence.
I. BACKGROUND
We begin with an overview of relevant facts and
describe additional facts in our discussion of defendant’s
assignments of error. Because the jury found defendant
guilty, we view the evidence presented at trial in the light
most favorable to the state. State v. Bowen, 340 Or 487, 489,
135 P3d 272 (2006), cert den, 549 US 1214 (2007).
In 1991, defendant began a relationship with Stafford.
They had two children together. At various times over the
years, defendant and Stafford lived apart from each other,
and, during those times, each dated other people. Defendant,
however, did not approve of Stafford dating others.
In 2004, defendant and Stafford were living apart,
and the children lived with Stafford. In the meantime,
Stafford met Mohamed Jabbie, the victim in this case, and
the two began seeing each other romantically.
In July of that year, defendant learned of Stafford’s
relationship with Jabbie. Early in the morning of July 4,
while Stafford and Jabbie were in Stafford’s home, defen-
dant tried to call Stafford, but she refused to answer the
telephone. Moments later, the bedroom window shattered.
Stafford jumped out of the bedroom window and ran to a
neighbor’s house. She returned to her house when the police
arrived and found that two doors had been kicked off of
their hinges. Jabbie was not there. Stafford found Jabbie at
a hospital emergency room where he was being treated for
Cite as 355 Or 612 (2014) 615
various injuries. Following the July 4 incident, Stafford con-
tinued to see Jabbie.
A few weeks later, Stafford and defendant spoke by
phone. Stafford accused defendant of having broken into her
home and told him that he needed to pay for the damage “or
else he was going to jail.” Defendant admitted to Stafford
that he had broken into her apartment and that he had
assaulted Jabbie. But he replied that he was not going to
jail, “[n]ot without a witness.” Stafford immediately called
Jabbie to warn him that his life was in danger because he
had been a witness to the July 4 incident. Defendant later
met with Stafford and asked her to “help him take Jabbie
out.” Stafford refused, and defendant told her that he would
“do it himself.”
A grand jury convened to investigate the July 4 inci-
dent. The grand jury subpoenaed Stafford and Jabbie to tes-
tify about the incident. Defendant knew that Stafford had
been subpoenaed to testify. He went to her house and tried
to convince her to lie to the grand jury, threatening to kill
her and to take her children if she did not. He also asked
her to show him where Jabbie lived. Fearing what defendant
might do if she refused, Stafford showed him where Jabbie
lived, an apartment located near Clackamas Town Center
in Portland.
On September 23, Stafford testified to the grand
jury. Later that evening, she spoke with defendant by tele-
phone. Defendant told Stafford that he wanted her to go to
Jabbie’s apartment. He told her to meet him at Clackamas
Town Center.
Stafford arrived at the shopping center and called
defendant’s cell phone from a public phone booth, but received
no answer. When defendant arrived a few minutes later, he
gave Stafford one of his two cell phones. He told her to go to
Jabbie’s apartment and then call him as she was leaving. He
told her not to use the cell phone to call Jabbie, however.
Stafford went to Jabbie’s apartment, but he was
not at home. She returned to Clackamas Town Center and
called Jabbie from the same public telephone she had used
to call defendant. Jabbie answered and agreed to meet with
616 State v. Washington
her. Stafford told defendant that Jabbie was at home and
that she was going to meet him.
Stafford drove to Jabbie’s apartment and met him
in the parking lot. The two then went upstairs to the apart-
ment. Stafford was nervous because she “knew what was
coming.” While she was in the apartment talking to Jabbie,
the cell phone that she had in her possession, which was on
silent mode, showed several calls from defendant, which she
did not answer.
After about 15 minutes, Stafford left Jabbie’s apart-
ment and placed a call to defendant as defendant had
instructed her. When she opened the door to the apart-
ment, however, defendant was already standing outside the
door. He passed by her and went into the apartment. On
her way down the stairs, Stafford greeted a woman. As she
approached her car in the parking lot, Stafford “heard sev-
eral gunshots back to back.”
In the meantime, at about 10:30 that night, two of
Jabbie’s neighbors, Grooms and Alcantara, had stepped out-
side their apartment to smoke some cigarettes. They heard
an argument in Jabbie’s apartment. They then observed a
woman whom they later identified as Stafford come out of
Jabbie’s apartment, go down the stairs, and walk away. A
minute later, they heard several gunshots and saw flashes
through the window of Jabbie’s apartment. Shortly after the
shots, they saw a black male generally matching defendant’s
age, height, and weight leave Jabbie’s apartment, go down
a set of stairs at the back of the apartment building, and
briskly walk away.
There ensued several phone calls between Stafford
and defendant. The two met later that night, and Stafford
returned defendant’s cell phone to him.
A few days later, Stafford asked defendant where he
had shot Jabbie. Defendant replied that he had shot him in
the chest. Defendant also told Stafford that his cousin had
disassembled and disposed of the gun.
On September 28, police discovered Jabbie’s body,
shot seven times in the chest. When the discovery was
Cite as 355 Or 612 (2014) 617
reported on television, defendant called Stafford and told
her to watch the news, where she saw a picture of Jabbie.
Police investigated Jabbie’s murder. Among other
things, police obtained telephone records for defendant’s cell
phone for the day of the murder. Those records showed that,
on that day, several telephone calls were made to defen-
dant’s cell phone, including two from a payphone located
at Clackamas Town Center and several others between
defendants’ two cell phones placed between 10:00 p.m. and
10:30 p.m. using cell towers located within two blocks of
Clackamas Town Center.
On September 30, 2004, police stopped Stafford in
her car and asked about Jabbie’s death. She admitted that
she had been at Jabbie’s apartment and at Clackamas Town
Center on the night of September 24. She denied having seen
defendant after July 4 and denied having any involvement
in, or knowledge of, Jabbie’s murder. Meanwhile, defendant
and Stafford continued their relationship for the next three
years.
Police arrested defendant and Stafford for Jabbie’s
murder in 2007. When detectives first interviewed Stafford,
she lied about being involved with defendant and being
involved in Jabbie’s murder. She later agreed to testify
against defendant in exchange for dismissal of the aggra-
vated murder charge against her.
Defendant was charged with two counts of aggra-
vated murder, ORS 163.095, one count of murder, ORS
163.115, and three counts of felon in possession of a fire-
arm, ORS 166.270. He was tried to a jury on the aggravated
murder and murder counts and to the court on the felon-in-
possession counts. He was found guilty on all counts. In a
further proceeding under ORS 163.150, the jury answered
the applicable penalty-phase questions in the affirmative.
ORS 163.150(1)(b)(A), (B), (D). The trial court merged the
murder and aggravated murder convictions into one convic-
tion for aggravated murder, merged the three convictions
for felon in possession into one conviction for that crime,
entered a judgment of conviction, and sentenced defendant
to death. This automatic and direct review followed.
618 State v. Washington
II. ANALYSIS
As we have noted, on review, defendant advances
a total of 22 assignments of error concerning rulings of
the trial court during both the guilt and penalty phases
of the trial. We address each of those assignments in turn,
detailing additional facts relevant to those assignments as
necessary.
A.  Motions for Judgment of Acquittal (Assignments 1-5)
At trial, defendant moved for a judgment of acquit-
tal as to all six counts. He argued that the state’s case failed
for lack of sufficient evidence. Specifically, he argued that
the state’s case relied almost entirely on the testimony
of Stafford, and, because Stafford was an accomplice in
Jabbie’s murder, that evidence was insufficient. According
to defendant, ORS 136.440 provides that the testimony of
an accomplice must be corroborated by other evidence. In
this case, he argued, the state failed to introduce any such
corroborating evidence other than cell phone records. In
defendant’s view, that evidence was inadequate to provide
the required corroboration, because the state failed to estab-
lish that defendant possessed either of the cell phones at the
time that the calls were made on the date of the murder. The
state responded that, while the statute does require corrob-
orating evidence, there is in this case “evidence in droves”
connecting defendant to Jabbie’s murder. The trial court
denied defendant’s motions without elaboration.
On appeal, defendant now assigns error to the trial
court’s denial of his motion for a judgment of acquittal as to
the first five charges against him.1 Specifically, defendant
argues, as he did below, that the state’s case relied almost
entirely on the testimony of his accomplice, Stafford, and
that there was insufficient evidence to corroborate her tes-
timony, as required under ORS 136.440. Defendant begins
by asserting that the statute requires a reviewing court to
eliminate any reference to the testimony of the accomplice
1
As we have noted, the indictment included six counts. Defendant’s brief on
appeal assigns error to the denial of his motion for judgment of acquittal as to
only the first five. Given our disposition of the assignments of error that he does
advance, however, the failure to assign error to the denial of a motion for a judg-
ment of acquittal as to the final charge does not matter.
Cite as 355 Or 612 (2014) 619
and then determine whether the remaining evidence suf-
fices to connect him to the offense. Moreover, he argues, the
remaining evidence “cannot be equivocal”; rather, it must be
certain and “inconsistent with innocence.” In that regard,
defendant argues that evidence that establishes mere asso-
ciation with the accomplice or that establishes that defen-
dant was only in the general vicinity of the offense is insuf-
ficient to corroborate the testimony of an accomplice. With
that view of the law in mind, defendant then argues that
the evidence other than Stafford’s testimony was “virtually
non-existent,” consisting of cell phone data that established
“mere association and location.”
The state responds that defendant is incorrect in
asserting that the court must completely disregard Stafford’s
testimony and determine whether independent evidence
establishes defendant’s guilt. What the statute requires, the
state argues, is other evidence that “tends to connect” defen-
dant with the commission of the offense. In that regard,
the state argues that there is ample evidence that connects
defendant with Jabbie’s murder, including evidence that
defendant had previously broken into Jabbie’s apartment and
assaulted Jabbie; that Jabbie was scheduled to be a witness
in the case against him arising out of that incident; that wit-
nesses saw Stafford leave Jabbie’s apartment shortly before
the shooting, followed by a man generally matching defen-
dant’s description after the shooting; and evidence showing
the use of defendant’s cell phones at the time of the murder,
which precisely corroborates Stafford’s testimony about her
movements and defendant’s movements before, during, and
after the shooting.
ORS 136.440 provides:
“(1)  A conviction cannot be had upon the testimony of
an accomplice unless it is corroborated by other evidence
that tends to connect the defendant with the commission of
the offense. The corroboration is not sufficient if it merely
shows the commission of the offense or the circumstances
of the commission.
“(2)  As used in this section, an ‘accomplice’ means a
witness in a criminal action who, according to the evidence
adduced in the action, is criminally liable for the conduct of
the defendant under ORS 161.155 and 161.165 * * *.”
620 State v. Washington
In this case, the parties do not dispute that Stafford was
an “accomplice” within the meaning of subsection (2). Her
testimony, therefore, is insufficient to support a conviction
unless it was “corroborated by other evidence that tends to
connect the defendant with the commission of the offense,”
as required in subsection (1).
At the outset, we reject defendant’s contention that
ORS 136.440 requires “unequivocal” evidence that is “incon-
sistent with innocence” and establishes, independently of the
testimony of the accomplice, defendant’s guilt. This court
has long held that
“[t]he corroboration need not be of itself adequate to sup-
port a conviction *  * ‘Any corroborative evidence legiti-
*
mately tending to connect a defendant with the commis-
sion of the crime may be sufficient to warrant a conviction,
although standing by itself it would be only slight proof of
defendant’s guilt and entitled to but little consideration,
and even though it is not wholly inconsistent with the inno-
cence of the defendant.[’]”
State v. Reynolds, 160 Or 445, 459, 86 P2d 413 (1939).
Consistently with those principles, the court more recently
summarized the requirements of ORS 136.440 as follows:
“By its terms, ORS 136.440(1) requires only that the
corroborating evidence tend to connect the defendant with
the commission of the offense, here, aggravated murder.
That statute does not require corroboration of a particular
theory of the commission of the offense.
“It is not necessary that the corroborating evidence be
direct and positive; it may be circumstantial. Nor is it nec-
essary that there be independent corroborating evidence
with respect to every material fact necessary to be estab-
lished to sustain a conviction for the commission of a crime.
Where there is any evidence apart from that of the accom-
plice tending to connect the defendant with the commission
of the crime, the question of whether the accomplice’s testi-
mony is corroborated is one for the trier of fact.”
State v. Walton, 311 Or 223, 242-43, 809 P2d 81 (1991) (cita-
tions omitted; emphasis in original). To be sure, evidence of
a defendant’s association with an accomplice at a particular
location, by itself, is insufficient to satisfy the corroboration
Cite as 355 Or 612 (2014) 621
requirement of ORS 136.440. State v. Carroll, 251 Or 197,
200, 444 P2d 1006 (1968). But such evidence still may be
considered in conjunction with other evidence that, taken as
a whole, tends to connect the defendant with the commission
of the offense. See id.With those principles in mind, we conclude that the
record contains sufficient evidence to corroborate Stafford’s
accomplice testimony relating to the commission of Jabbie’s
murder. There is evidence that defendant broke into Jabbie’s
apartment on July 4, 2004, and assaulted Jabbie. There is
further evidence that Jabbie testified before a grand jury
about the incident and that, the day before the murder, the
grand jury issued an indictment charging defendant with
first-degree burglary and fourth-degree assault. The evi-
dence at trial thus established that defendant had assaulted
Jabbie once and had motive to assault him—a key witness
against defendant—the day after the indictment was issued.
See State v. Klein, 243 Or App 1, 12, 258 P3d 528 (2011), aff’d,
352 Or 302, 283 P3d 350 (2012) (accomplice’s “rendering of
the motive for the crimes” was confirmed by other evidence
relating to the events giving rise to the alleged motive).
In addition, the evidence at trial included the tes-
timony of Grooms and Alcantara, who saw Stafford leave
Jabbie’s apartment at about 10:30 p.m., heard gunshots
fired moments later, and witnessed flashes through the
window of Jabbie’s apartment. They also saw a man gener-
ally matching defendant’s description leave the apartment
immediately after that.
The evidence at trial also included cell phone data
corroborating precisely Stafford’s testimony about her and
defendant’s movements the night of the murder. Specifically,
the cell phone records show that a number of calls were
placed to defendant’s cell phone, including two from a pay
phone located at Clackamas Town Center and several others
between defendant’s two cell phones placed between 10:00 p.m.
and 10:30 p.m. using cell towers located within two blocks of
Clackamas Town Center. Taken in isolation, the cell phone
data constitute mere association and location evidence, as
defendant suggests. But in the context of the other evidence,
it “tends to connect” defendant with the murder.
622 State v. Washington
In evaluating the sufficiency of the foregoing evi-
dence, we stress that ORS 136.440(1) does not require com-
plete corroboration of all of the elements of the offense. Nor
does it require that corroborating evidence be direct and
unequivocal. As this court emphasized in Walton, where
there is “any evidence * * * tending to connect” the defendant
with the commission of the offense, the question whether
evidence corroborates the accomplice’s testimony is one for
the trier of fact. 311 Or at 243. The evidence produced in this
case meets that standard. The trial court therefore did not
err in denying defendant’s motions for judgment of acquittal
on the first five charges against him.
B.  Use of Stun Device (Assignment 6)
In his sixth assignment, defendant asserts that
the trial court erred in ordering that he wear a stun device
during trial. The facts relevant to that assignment are as fol-
lows. In a pretrial hearing, the Clackamas County Sheriff’s
Office required defendant to appear in court wearing a stun
device. Defendant also learned that he would be required to
wear a similar device during the trial. He objected, argu-
ing that requiring him to wear a stun device during trial
would violate his right to communicate with counsel and
assist in his defense as guaranteed by Article I, section 11,
of the Oregon Constitution and the Sixth and Fourteenth
Amendments to the United States Constitution.
The trial court held a hearing on defendant’s objec-
tion. At that hearing, the state offered the testimony of
Sergeant Phillips of the sheriff’s office in support of requir-
ing defendant to appear in court wearing a stun device.
Phillips explained that the sheriff’s office was responsible
for security at the courthouse. He testified that defendant
was a member of a gang, that he had “about 40 to 50” associ-
ates, and that the sheriff’s office was concerned that—either
working alone or in concert with defendant—those persons
might aid him in escaping from the courthouse; when asked,
he agreed that gangs like the one with which defendant was
associated “use power, influence, and violence to intimi-
date others.” Phillips also agreed that, based on defendant’s
“athletic ability and strength,” he was capable of overpow-
ering a deputy in the courtroom. The deputy was aware of
Cite as 355 Or 612 (2014) 623
the charges in the case and that defendant had a “criminal
history of violence” and agreed that defendant’s reported
threats against Stafford were a “concern.” Phillips stated
that defendant was classified as a “dangerous inmate” and
that he was aware that defendant had told a deputy at the
jail that the deputy was “not his boss.” He said that, without
the use of the stun device, he could not “assure” the secu-
rity of the courtroom. He noted that, in the courtroom, there
would be numerous persons within 30 feet of defendant and
that defendant could cover that distance in the time it would
take a deputy to react.
Phillips also described the stun device that the
sheriff’s office planned to use. The device was manufactured
by the Stinger Company and was called a “React Band-it.”
It was rectangular in shape and approximately four inches
wide, six inches high, and one and one-half inches deep; it
weighed approximately one pound. The device was meant to
be worn on a limb or on the lower back underneath the sub-
ject’s clothing. It was classified as a “neuromuscular inca-
pacitation” device that used “high levels of voltage with very
low amperage” to deliver an electric shock to the wearer.
Typical effects caused by activation of the device included
pain, loss of mental focus, and uncontrollable muscle contrac-
tions in the area of the body where the device was located;
Phillips testified that “people tend to fall down when they’re
shocked” and “make loud noises” and that “[s]ome people
freeze up in place.” He also explained that, more rarely, per-
sons urinate or defecate when shocked. Phillips noted that
defendant would be able to walk with the device in place and
that, depending on the cut of his clothing, the device would
not be visible to the jury. He said that the device could only
be activated by the deputy holding the triggering device.
Phillips further testified that the “next most restric-
tive device” that was available was shackles and that those
would be “observable,” and that a leg brace which could be
worn under clothing was not “reliable” in preventing a defen-
dant from escaping custody. He stated that other available
security devices included handcuffs, fabric hobbles, Tasers,
pepper spray, “impact weapons,” and firearms. Phillips
described the “general nature” of security in the court
624 State v. Washington
building, including the fact that it had multiple unlocked
exits.
On cross-examination, Phillips testified regarding
a notification form that persons signed when the device was
used. The form explained the results of activation of the
device, including falling to the ground and the “possibility”
of “self-urination” and “self-defecation.” The form also indi-
cated that certain medical conditions were relevant to the
decision whether to use the device, including heart disease,
multiple sclerosis, and pregnancy. The form listed the types
of actions by a wearer of the device that might result in its
activation, including “any outburst or quick movement,” “any
hostile movement,” “tapping of the belt,” failure to comply
with verbal commands, any attempt to escape custody, the
custodial deputy’s “loss of vision[  of the wearer’s hands,
]”
and “any overt act against any person or deputy.”
When asked whether defendant would be “conscious
of the fact that you have this on,” Phillips responded, “Yes.”
He confirmed that, as he had testified on direct examina-
tion, the plan to require defendant to wear the stun device
was based in part on the “possibility,” not the “probability,”
of “gang activity.” Phillips was not aware of any history
of escape attempts, violence in the jail, or “acting out in a
courtroom” by defendant. He testified that it “could be” that
someone in the courtroom could see the deputy holding the
triggering device.
Defendant argued to the trial court that there was
nothing to suggest that he was an escape risk or that he
was dangerous in the current proceeding. He asserted that,
“[w]hen you talk about gang activity it’s speculative.” He
argued that the device “would be likely to inhibit his ability
to assist in his own defense” and that it would be an “impo-
sition” on his ability to testify. He argued that there was no
factual basis for the use of the device and that the court was
required to consider “lesser” alternatives.
The trial court found and ruled as follows:
“*  * that [defendant] is a convicted felon and also has a
*
history of convictions of person crimes involving violence;
that in this case [defendant] faces a—if he is convicted
Cite as 355 Or 612 (2014) 625
faces a substantial sentence and the risk of the death pen-
alty; that [defendant] has a history of gang contacts and
affiliations; that [he was] alleged to have intimidated wit-
nesses in this case, and to have murdered a witness regard-
ing charges in [another county]; that we have a lack of a
secure courtroom; that there are exits from courtrooms
into public areas, and many exits from the courthouse to
the street; that the defendant if he were not encumbered in
some way he would have a means of escape if there were no
security device; that he will be in civilian clothing which
would aid in his escape; that the Sheriff’s Department can-
not guarantee security in this case without some sort of
device; [g]iven the defendant’s size and physical capacities
[defendant] poses the risk of overpowering a deputy or a
witness if he’s not restrained; that given the facts of this
case it would be difficult for law enforcement or person-
nel [sic] to identify any of [defendant’s] confederates that
might be present in the courtroom; that the stun device
will be operated only by trained personnel; that the device
*  * will not be visible under clothing; that the defendant
*
will be seated at counsel table furthest away from the jury
so as to minimize any possibility that something might
be visible; that unless the device was activated it would
not impede the defendant’s movements or ability to con-
sult with his attorney; that this device is the least visible,
least intrusive means of providing the security necessary
for this trial; that because of these factors the defendant
poses an immediate and serious risk of escape during the
trial and [an] immediate and serious risk of disrupting
the proceedings, and that because of all those [factors],
the Stinger React Band-it, [is] an appropriate device for
security in this case.”
After the trial court made those findings, Phillips
further explained that the deputy holding the triggering
device would be in uniform and that, in his experience, mem-
bers of the public would not recognize the triggering device
as part of a stun device system. The trial court ordered that
the deputy holding the triggering device be in uniform. The
next day, before jury selection began, the trial court found
that the device, which was on defendant’s leg, was not visi-
ble and that the hands of the deputy holding the triggering
device “would probably not be visible to the jurors.” The trial
court made a similar finding at the beginning of each day of
trial.
626 State v. Washington
On review, defendant again contends that use of the
stun device failed to comport with Article I, sections 11 and
13, the Sixth Amendment, and the Due Process Clause of
the Fourteenth Amendment. Specifically, defendant argues
that, if seen by a jury, such a device might prejudice the
jury against a defendant, thereby impairing his right to a
fair trial; and that, even if the device is not seen, it might
impede a defendant’s ability to communicate with counsel
and participate in his or her defense. Defendant notes that
the latter concern is exacerbated in the case of a stun device
as opposed to other forms of physical restraint, due to the
possibility of its deliberate or accidental activation.
Defendant argues that the use of stun devices poses
an issue of first impression for this court. He proposes that
we adopt a detailed set of criteria that a trial court should
be required to meet before it approves the use of a stun
device, including holding a pretrial hearing if requested by
the defendant and making findings on the record showing
a “manifest need” for physical restraint of the defendant.
According to defendant, factors relevant to the latter inquiry
include the charges in the case; the defendant’s criminal and
escape history, if any; any “special risks” posed by the pro-
ceeding; the physical characteristics of the courtroom and
courthouse; and the availability of other security devices
or measures. Other criteria advocated by defendant include
that the device not pose an unacceptable medical risk to the
defendant; that it not be capable of inflicting pain or suffer-
ing that would constitute “unnecessary rigor” in contraven-
tion of Article I, section 13; that it not be visible to the jury;
and that it not prevent the defendant from communicating
with counsel.
Defendant argues that, in his case, the trial court
erred as a procedural matter in failing to consider on the
record any less restrictive alternatives to the stun device,
failing to consider any possible medical risk to defendant of
using it, and failing to consider whether the pain that the
device was capable of causing would constitute unnecessary
rigor. Defendant also asserts that, as a substantive matter,
use of the device was not justified in his case because he had
no history of escape attempts, because he planned to remain
Cite as 355 Or 612 (2014) 627
seated at counsel table throughout the proceeding, and
because there were other courthouse security mechanisms
available. Finally, he asserts that the trial court’s error was
not harmless.
The state acknowledges that defendant had no his-
tory of escape attempts or misconduct while in custody, but
contends that the nature of the current charges, defendant’s
“history of violence,” his affiliation with a “dangerous street
gang,” his previous intimidation of witnesses, his custody
classification as a “dangerous inmate,” and his physical abil-
ity to overcome a deputy in the courtroom justified the use
of restraints and that the stun device was the only available
form of restraint that would not be visible to the jury. The
state further contends that the risk of accidental discharge
of the device was low and that defendant was fully informed
of the actions that might prompt a discharge. It also con-
tends that the trial court did, in fact, consider less restric-
tive alternatives and that, in any event, defendant declined
to wear any device that would be visible, which included var-
ious less restrictive devices.
The state further asserts that any error was harm-
less because the stun device was not visible to jurors and
because nothing in the record suggests that use of the device
adversely affected defendant’s defense. As to the latter
point, the state notes that defendant did not testify at trial,
that nothing in the record demonstrates that he would have
testified in the absence of the device, and that nothing in
the record demonstrates that use of the device interfered
with his ability to interact with counsel. The state urges
this court not to presume prejudice from the mere possibil-
ity of mental and psychological effects arising from the use
of such a device, but to find error only when adverse effects
are affirmatively and concretely demonstrated.
The use of restraints during a criminal trial is not
an issue of first impression. As this court stated in Bowen,
340 Or at 495, “[t]his court long has recognized the right of
a criminal defendant to appear free of physical restraints
during a jury trial.” See also State v. Smith, 11 Or 205, 207,
8 P 343 (1883) (citing with approval principles enunciated
in State v. Kring, 1 Mo App 438 (1876), pertaining to the
628 State v. Washington
common-law privilege to appear in court unfettered). That
right is grounded in Article I, section 11, of the Oregon
Constitution, which guarantees a defendant the right to a
public trial by an impartial jury and the right to be heard
“by himself [sic] and counsel,” and in the Sixth Amendment
to the United States Constitution, which provides in part
that, “[i]n all criminal prosecutions, the accused shall
enjoy the right *  * to have the Assistance of Counsel for
*
his defence [sic].” See also ORS 136.415 (“A defendant in a
criminal action is presumed to be innocent until the con-
trary is proved.”); State v. Wall, 252 Or App 435, 437-38,
287 P3d 1250 (2012), rev den, 353 Or 280 (2013) (physically
restraining a defendant implicates Article I, section 11, and
the Due Process Clause); State v. Bates, 203 Or App 245,
250, 125 P3d 42 (2005), rev den, 340 Or 483 (2006) (same).
Specifically, the use of physical restraints can impinge on
the presumption of innocence to which a defendant is enti-
tled and may also impair a defendant’s ability to participate
in his or her defense, such as by consulting with counsel or
by taking the stand as a witness. See Bates, 203 Or App at
251.
Nevertheless, a trial court has discretion to order
physical restraint of a defendant if there is sufficient evi-
dence of a substantial risk of dangerous or disruptive behav-
ior, including the risk of assaultive conduct toward other
persons and the risk of an attempted escape from custody.
See State v. Long, 195 Or 81, 90-93, 244 P2d 1033 (1952)
(citing with approval cases from other jurisdictions holding
that trial courts had discretion to order that a defendant be
restrained when evidence showed that the defendant might
attempt to escape, that he might attack other persons, or
that he was of dangerous character, as evidenced by his pre-
viously having killed a guard).
Such evidence should be placed on the record in a
hearing for that purpose. After hearing relevant evidence
from the state and the defendant, the trial court must make
a record of its factual findings and reasoning in support of
its order. See generally McCarthy v. Oregon Freeze Dry, Inc.,
327 Or 185, 188, 957 P2d 1200 (1998) (“the practical needs of
meaningful appellate review underlie the court’s obligation
Cite as 355 Or 612 (2014) 629
to make explanatory findings” to support the exercise of
discretion). We review a trial court’s order requiring that
a defendant be physically restrained for purposes of court-
room security, including restraint by means of the electronic
stun device at issue here, for abuse of discretion. See State
v. Farrar, 309 Or 132, 156-58, 786 P2d 161, cert den, Oregon
v. Wagner, 498 US 879 (1990) (trial court did not abuse dis-
cretion in ordering that defendant be restrained at trial by
leg cuffs joined by a chain, because affidavits and a signed
statement attested that defendant had threatened witnesses
and had engaged in violent conduct toward other persons
before his arrest).
Also pertinent to the inquiry is the extent to which
a defendant establishes that the use of restraints interfered
with his or her ability to participate with counsel in the
defense of his case. See Bowen, 340 Or at 496 (declining to
consider unpreserved claim of error relating to requirement
that the defendant wear a stun belt during his trial, because
“defendant failed to provide evidence or point to anything in
the record indicating that the stun belt affected his ability
to assist in his defense”).
In this case, evidence concerning defendant’s dan-
gerousness and the risk of possible escape was placed on the
record. And, based on that evidence, the trial court found
that defendant had a history of violent person crimes; that
the current charges involved a substantial sentence includ-
ing the risk of a death penalty; that defendant had a history
of gang affiliations; that he was alleged to have intimidated
witnesses in this case; that his “size and physical capacities”
might allow him to overpower other persons in the court-
room; and that the victim in this case had been a witness in
another case. The court also referred to the features of the
courtroom and the courthouse that pertained to the security
of the proceedings. The trial court found that the stun device
would be operated by trained personnel, that it would not
be visible, that it would not impede defendant’s movements
or his ability to consult with counsel, and that it was the
“least visible, least intrusive” means of providing the neces-
sary security. The court concluded that defendant posed an
immediate and serious risk of escape and of disrupting the
630 State v. Washington
proceedings and that use of the stun device therefore was
appropriate. In addition to those findings, the trial court
also made findings on each day of defendant’s trial that the
device was in fact not visible to the jury; defendant does not
contend otherwise.
Evidence in the record supports each of those find-
ings. Moreover, defendant failed to offer any evidence or
point to anything in the record that suggests that, because
of the stun device, he was impeded in his effort to assist
in his defense. On this record, we cannot say that the trial
court abused its discretion in requiring that defendant be
restrained by use of a stun device.
C.  Anonymous Jury (Assignment 7)
In his seventh assignment of error, defendant
argues that the trial court erred in empanelling an anony-
mous jury. The facts that are relevant to that assertion are
as follows. Before the commencement of voir dire in defen-
dant’s trial, the trial court and counsel for defendant and
the state discussed, by e-mail and in chambers, the ques-
tion whether and to what extent juror names would be dis-
closed. In an e-mail to counsel for the parties, sent two days
before trial began, the court stated, “Given the nature of
this case[,] I do not want jurors’ names to be used during
voir dire, and do not want those names to be visible to the
defendant or anyone else in the courtroom.”
On the morning that jury selection began, the pros-
ecutor and defense counsel further discussed the subject
with the court in chambers. Following that discussion,
defense counsel noted for the record that the parties had
discussed in chambers and by e-mail “whether or not the
attorneys would be allowed to use or refer to the jurors by
the last name.” Defense counsel explained that “[w]e would
expect that the attorneys be allowed to.” Counsel urged the
court on the record to permit the use of prospective jurors’
names in open court. Counsel noted that he was “aware that
a number of these jurors have been on jury service,” that
they “have been referred to by name previously in jury selec-
tion,” and that to deviate from what counsel characterized
as standard practice would create “a sense of a need for ano-
nymity” that would be prejudicial to defendant.
Cite as 355 Or 612 (2014) 631
The prosecutor replied that “we are neutral on this
subject,” but wanted to note for the record “that the court
has allowed the parties to have the names of the individual
jurors, and I appreciate that very much,” because, as defense
counsel explained, having those names aids in “identifica-
tion of the jurors and understanding who they are and the
relationships, too, and we think that’s very important.”
The trial court ordered that jurors be referred to
in court “by number only” and that the names not be made
available to the public. The court further stated that it
would explain to jurors that “this is done in every case.” The
trial court then provided such an explanation to each and
every group of jurors questioned during voir dire. In a typ-
ical example of the explanation, the trial court explained
to the first prospective juror that “[i]t’s how we do it on all
cases. It may seem kind of impersonal, but it’s how we do it
in all trials * * *.”
On review, defendant argues that the trial court
erred in empanelling an anonymous jury without finding, on
the record, a sufficient basis for doing so. Defendant argues
that the trial court’s ruling violated the impartial jury guar-
antee of Article I, section 11, of the Oregon Constitution. He
further argues that, for the same reasons that empanelling
an anonymous jury violated his rights under the Oregon
Constitution, it likewise violated his rights under the Sixth,
Eighth, and Fourteenth Amendments to the United States
Constitution.
The state advances three arguments in response.
First, the state argues that the jury empanelled in this case
was not an “anonymous” jury. The state acknowledges that,
in a pretrial ruling by e-mail, the trial court ordered that
defendant not be allowed access to the prospective jurors’
names and that only counsel be given that information.
Nevertheless, the state contends that, on the first day of jury
voir dire, the prosecutor stated that the court had allowed
“the parties” access to juror identities and nothing in the
record suggests that defendant was not included. Second, the
state argues that, in any event, defendant failed to preserve
“[m]ost of the arguments” asserted in this assignment of
error. In particular, the state contends that defendant failed
632 State v. Washington
to ask the trial court to make findings supporting the use of
juror numbers rather than names and failed to argue that
use of an anonymous jury would violate his state or federal
constitutional rights to an impartial jury or a public trial.
Third, the state contends that the trial court’s directive did
not prejudice defendant, because the court explained to the
jurors that referring to them by number in open court was
the practice used in all cases and because the jurors under-
stood that the parties had been provided with their names
and other personal information.
This court has addressed the circumstances under
which it may be permissible to empanel anonymous juries
in two recent cases, State v. Sundberg, 349 Or 608, 247 P3d
1213 (2011), and State v. Rogers, 352 Or 510, 288 P3d 544
(2012). Because those decisions are dispositive, we consider
each of them in some detail before addressing the arguments
that the parties dispute in this case.
In Sundberg, the defendant had been charged with
several sex crimes. Prospective jurors in the case were
directed by the trial court not to disclose their names, their
addresses, or the names of their employers during voir dire,
and neither the defendant nor defense counsel was permitted
access to the restricted information. The defendant objected
to the court’s procedure, arguing that failing to disclose juror
identities compromised his ability to evaluate the prospec-
tive jurors. The trial court overruled the defendant’s objec-
tions, explaining that it, and a number of other judges in
that circuit, had adopted the practice in all cases in response
to concerns about juror privacy. 349 Or at 610-12.
After the jury returned a guilty verdict, the defen-
dant renewed his objections by means of a motion for a new
trial. Id. at 612. The defendant noted that some of the jurors
had participated in or watched voir dire in other courtrooms
in which juror anonymity was not required. Those jurors,
he argued, might have concluded that the anonymity in
his case was required because the court thought him to be
dangerous, thus violating his right to an impartial jury and
the presumption of innocence. Id. at 612-13. The trial court
denied that motion, and the Court of Appeals affirmed on
other grounds.
Cite as 355 Or 612 (2014) 633
On review before this court, the defendant argued
that the trial court had erred in empanelling an anonymous
jury without making findings justifying the procedure. The
state’s initial response was that the defendant had failed to
preserve that contention, by neglecting to ask the trial court
to make findings before voir dire. Id. at 614. On the merits,
the state argued that legitimate concerns for juror privacy
justify anonymity and, in any event, it was highly unlikely
that jurors would draw an inference from the practice that
the defendant was dangerous or guilty. Id. at 618.
This court began by rejecting the state’s argument
that the defendant had failed to preserve the issue. The
court stated that the defendant plainly had preserved the
“core claim” that empanelling an anonymous jury violated
his rights to an impartial jury and the presumption of inno-
cence. Id. at 614. The court acknowledged that the defendant
had failed to request findings, but it concluded that, under
the circumstances, that did not matter. The court noted, in
particular, the fact that the trial court had stated categor-
ically that it had decided, as a matter of general policy, to
employ its procedure of empanelling anonymous juries and,
implicitly, that findings were not needed to justify the proce-
dure in any particular case. Id.Turning to the merits, this court concluded that,
although trial courts possess inherent authority to empanel
anonymous juries in criminal cases, that authority is lim-
ited by a defendant’s right to an impartial jury, guaranteed
by Article I, section 11, of the state constitution. 349 Or at
617. The court further concluded that the use of anonymous
juries can impair that constitutional right in either of two
ways:
“Empanelling an anonymous jury can affect a defendant’s
right to such an impartial jury, first, by hindering his abil-
ity to conduct voir dire and select jurors who are impar-
tial, and second, because it is an external factor—not the
facts or the law—that may compromise the jury’s ability to
remain impartial by implying that a defendant is danger-
ous, thus undermining the presumption of innocence. To
be sure, anonymity may also imply a legitimate concern for
juror privacy unrelated to the dangerousness of a defen-
dant. But in a criminal case, there is a significant risk that
634 State v. Washington
members of the jury might infer that their names were
being withheld to protect them from defendant or others
acting on his behalf.”
Id. at 620 (citations omitted).
Because of that potential to impair a defendant’s
constitutional rights, the court concluded that anonymous
juries are permissible on only two conditions. First, the
trial court must make findings “that the circumstances of
the particular trial provide sufficient grounds to believe
that jurors need the protection provided by anonymity.”
Id. at 621. While it endorsed no particular factors that a
trial court may consider, the court stated that courts have
authority “to protect jurors from the risk of physical harm,
intimidation, or harassment—whether by parties, the press,
or the public—by withholding juror names and other identi-
fying information.” Id. at 622. The court emphasized, how-
ever, that the need for an anonymous jury “must be made on
the facts of each case—and not on the basis of a generalized
desire to protect the anonymity of jurors in all cases in the
interest of juror privacy.” Id.Second, if the trial court makes appropriate find-
ings that grounds exist to empanel an anonymous jury, then
the court “must take reasonable precautions to ensure that
the defendant’s right to an impartial jury is protected.” Id.Those precautions may include permitting extensive voir
dire and providing a neutral explanation to the jury regard-
ing the need for anonymity. Id. at 622-23.
The court in Sundberg concluded that the trial court
had erred in failing to make any findings about the need for
an anonymous jury. Id. at 624. The court further concluded
that the error was not harmless. The court noted that “the
use of an anonymous jury can cause prejudice to a defendant
by suggesting to jurors that the defendant may be dangerous
and, by extension, guilty.” Id. at 624-25. That possibility, the
court said, was heightened because some of the jurors had
participated in other cases in which anonymous juries had
not been used. Id. Particularly in a case in which the state’s
case largely turned on the credibility of the witnesses, the
court concluded that “the unexplained use of an anonymous
jury created too great a risk that the jury may have believed
Cite as 355 Or 612 (2014) 635
that defendant was dangerous—and, therefore, that he was
more likely to be guilty, denying defendant the right to a
trial by an impartial jury.” Id.In Rogers, the defendant had been convicted of multi-
ple counts of aggravated murder and sentenced to death; the
convictions had been affirmed on appeal, but the sentence
had been vacated and remanded for resentencing. State v.
Rogers, 313 Or 356, 836 P2d 1308 (1992), cert den, 507 US
974 (1993). On remand, a jury was empanelled solely for
the purpose of sentencing. The trial court gave prospective
jurors the option of withholding certain identifying informa-
tion requested on juror questionnaires. It also prohibited the
use of juror names in open court and prohibited the defen-
dant from having access to juror names and other identi-
fying information. The court did provide the defendant’s
attorneys with prospective jurors’ names and addresses and
permitted them to question individual jurors about withheld
information and informed at least some members of the jury
of that fact. It also informed the jury that the described pro-
cedure was for the sole purpose of protecting their privacy
from the public, consistent with an informal policy adopted
by some of the judges in that particular circuit. 352 Or at
534-37.
On review, the defendant argued—relying on
Sundberg—that the trial court had erred in overruling his
objections to empanelling an anonymous jury. The state
responded that the jury was not, in fact, “anonymous” within
the meaning of Sundberg, because, although the defendant
was not permitted to know the names of the jurors, his law-
yers were. Id. at 537.
This court rejected the state’s argument, explain-
ing that
“[j]urors may be ‘anonymous’ in different ways—from the
defendant’s perspective, because the defendant does not
know their identifying information, from counsel’s per-
spective, because counsel does not know their identifying
information, and from their own perspective, because they
understand that identifying information that they ordi-
narily would be required to provide may be withheld, and,
in any event, will not be provided to the defendant.”
636 State v. Washington
Id. at 540. The court explained that, when a jury is anony-
mous from the perspective of the defendant, it may prevent
the defendant from assisting in identifying jurors who may
be biased against him or her. The court further explained
that, when a jury is anonymous from the perspective of the
jury itself—particularly when a jury is aware that anonym-
ity is not the norm—that circumstance may suggest that
their identities are being protected because the defendant is
dangerous. Id. at 540-41. The court reasoned that the pro-
cedure that the trial court used “gave rise to the same risks
that the court identified in Sundberg.” Id. at 541. The court
concluded that the principles relating to anonymous juries
therefore were applicable. Id.
On the merits, this court concluded that the trial
court erred in failing to make the required findings and had
instead relied on a generalized policy that it apparently had
applied to all cases. Id. at 542. The court further concluded
that the error was not harmless, particularly in light of the
fact that concerns about the inference of dangerousness that
jurors may draw from their anonymity are “amplified” in
the context of a capital penalty-phase proceeding, in which
a defendant’s future dangerousness is “specifically at issue.”
Id. at 544.
With this court’s decisions in Sundberg and Rogers
in mind, we turn to this case. We begin with the state’s
contention that the jury was not actually “anonymous.” As
we have noted, the state advances two arguments in sup-
port of that contention: First, because the record does not
demonstrate that juror identities were not made available
to both defendant and his lawyers, and second, because,
in any event, the information was made available to his
lawyers.
The first of the state’s arguments is defeated by the
pretrial ruling that, “Given the nature of this case[,] I do
not want jurors’ names to be used during voir dire, and do
not want those names to be visible to the defendant.” The
state acknowledges that ruling, but it insists that the court
might have changed its mind after further in-chambers dis-
cussions, as reflected by the prosecutor’s later summary of
Cite as 355 Or 612 (2014) 637
the court’s decision to allow “the parties” to have the names
of the individual jurors. As we have noted, however, defen-
dant’s lawyer summarized the same decision as allowing
“the attorneys” to have access to juror identities. Moreover,
nothing that the court said during the proceedings suggests
that it had changed its mind about providing defendant
access to the information.
As for the contention that jurors are not “anony-
mous” if their names are revealed to counsel, Rogers is dis-
positive. The state made precisely the same argument in
that case, and this court rejected it. We do so likewise in
this case.
We turn to the state’s argument that defendant
failed to preserve the contention that the trial court was
required to make findings before empanelling an anon-
ymous jury. Defendant concedes that he did not ask the
court to make any particular findings before empanelling
the jury. He argues, however, that neither did the defendant
in Sundberg. According to defendant, just as the court in
Sundberg found that the defendant in that case nevertheless
adequately preserved the issue, so also should we conclude
in this case, based on the fact that, in light of the court’s
statement that anonymous juries were required in all cases,
a request for findings would have been superfluous.
We need not address that argument because, even
assuming that defendant is correct that his failure to ask
for findings may be excused, the trial court did not commit
reversible error in empanelling an anonymous jury. As we
have noted, both Sundberg and Rogers stated that, before
empanelling an anonymous jury, a trial court must make
findings that the particular circumstances of the case pro-
vide strong grounds for the practice. The requirement, how-
ever, does not exist for the mere sake of making findings. It
exists for the purpose of ensuring that the trial court care-
fully considers the justifications for empanelling an anon-
ymous jury in the context of the particular case. In this
case, the record reflects that the trial court carefully took
into consideration the particular circumstances of this case
before deciding to empanel an anonymous jury.
638 State v. Washington
The trial court explained that it believed that “the
nature of this case” justified the practice. To be sure, the
trial court did not spell out precisely what it meant by “the
nature of the case.” But it is not difficult to determine what
the trial court meant.
In that regard, it is useful to note that the trial
court’s consideration of the parties’ arguments about the
use of an anonymous jury followed immediately on the heels
of its consideration of their contentions concerning the use
of a stun device. Indeed, the arguments are separated by a
few lines on the same page of the transcript of pretrial pro-
ceedings. The trial court had just found, in some detail, that
defendant was a convicted felon with a history of convic-
tions for person crimes involving violence; that he had a his-
tory of connections with gangs; that he faced a substantial
sentence that included a risk of the death penalty; that he
already had been alleged to have intimidated witnesses in
the case; that the courtroom was not secure; that there were
many exits directly from the courtroom to the street; that
defendant posed a significant risk of attempting to escape
from the courtroom; and that, given his size and weight,
defendant could readily overpower court security personnel
or others in the courtroom.
In Sundberg, this court enumerated a “nonexclusive
list” of factors that trial courts may consider in determining
when it is appropriate to empanel an anonymous jury. Those
factors include the defendant’s involvement with organized
crime, the defendant’s participation in a group with poten-
tial to harm jurors, the defendant’s past attempts to inter-
fere with the judicial process or witnesses, and the risk of
lengthy incarceration if the defendant is convicted. 349 Or at
621-22. In this case, the trial court’s findings concerning the
need to require defendant to wear a stun device addressed
each of those factors.
Defendant did not object at trial that the trial
court’s findings were inadequate. Nor does he suggest on
appeal that the findings do not meet the requirements of
Sundberg and Rogers. Instead, as we understand it, defen-
dant’s argument is that the trial court erred in failing to
repeat the same findings that it had just made with respect
Cite as 355 Or 612 (2014) 639
to one aspect of courtroom security when addressing another.
Although repeating the findings—or at least adopting them
by reference—certainly may be preferable, we cannot say
that it amounts to reversible legal error to fail to do so. Here,
the trial court made the record that Sundberg and Rogers
require a trial court to make.
There remains the question whether the trial court,
having made the necessary findings to support withholding
juror names from defendant, took reasonable precautions
to ensure that defendant’s right to an impartial jury was
protected. In Sundberg, the court explained that the precise
nature of those precautions “may differ depending on the
circumstances at trial.” 349 Or at 622. One precaution that
the court mentioned, however, was a trial court’s provision
of “a neutral explanation[ ] for withholding juror identities.”
Id. at 623.
In this case, the trial court did just that. As we have
noted, the trial court advised every group of jurors during
voir dire to the effect that referring to jurors by number,
and not by name, “is how we do it in all cases” and “it’s
how we do it in all trials.” Such an explanation provided
the jury with a plausible and nonprejudicial reason for not
using their names and minimized the extent to which jurors
might draw a negative inference from the practice. Under
the circumstances, we conclude that the trial court did not
err in empanelling an anonymous jury.
D.  Penalty Phase Security Measures (Assignments 8-10)
In his eighth, ninth, and tenth assignments of error,
defendant challenges the trial court’s implementation of var-
ious additional security measures during the penalty phase
of the trial without first informing the parties. Specifically,
in his eighth assignment, defendant argues that the trial
court erred in failing to inform him earlier that some jurors
had expressed concerns to the judge’s clerk about court-
room security. In his ninth assignment, defendant argues
that the trial court erred in adopting additional security
measures without informing the parties. And, in his tenth
assignment, he argues that the trial court erred in denying
his request to interview the jury regarding the effect, if any,
of the security measures on its penalty-phase deliberations.
640 State v. Washington
The trial court’s errors, defendant argues, deprived him of
the right to a fair trial and an impartial jury guaranteed
by Article I, section 11, of the Oregon Constitution and the
Sixth and Fourteenth Amendments to the United States
Constitution.
The relevant facts are as follows. On the day that
the jury notified the court that it had reached a verdict in
the guilt phase of defendant’s trial, “at least half of” the
jurors expressed concern to the trial judge’s judicial clerk,
Hauck, about security in the courtroom as the verdict was
read. Jurors expressed concern that spectators would be
“audible” or “upset,” that jurors would have to pass near
“family members or people from the courtroom” while leav-
ing the courtroom, and that they would be followed out-
side the courthouse; they asked for an escort to their vehi-
cles. Hauck later described jurors’ concerns as relating to
“[r]eactions from people in the courtroom.” One juror told
Hauck that, during an earlier part of the trial, as she was
leaving the courthouse, “she thought that someone from the
gallery had said something to her in the hallway.” Hauck
testified that, when conveying their concerns, many of the
jurors were “crying,” “upset,” “concerned,” and “scared”; she
also described them as “excited, emotional.” Hauck immedi-
ately informed the trial judge of the jurors’ concerns.
The jury then went to the courtroom to deliver its
guilt-phase verdict. The trial judge cautioned persons in the
courtroom to turn off all electronic devices and not to react
in any way to the verdict. The subsequent pronouncement
of the verdict was outwardly uneventful, and the trial court
instructed the jury to report the following week for com-
mencement of the penalty phase.
After jurors returned to the jury room, they expressed
to Hauck further concerns about the court having instructed
them in open court about the time and place they were to
return the following week for the penalty phase. The jurors
decided to meet at a parking area and walk to the court-
house together. Hauck informed the trial judge of those con-
cerns as well. At the end of the day, the jurors left the court-
house by way of fire stairs and a van took them to their cars;
neither of those methods had previously been used. At her
Cite as 355 Or 612 (2014) 641
request, one juror was escorted across the street to meet a
family member.
On Monday of the following week, the trial judge and
courthouse security staff decided that jurors should meet on
Tuesday at a public parking area, where a county van would
pick them up and bring them to the courthouse. A member of
the judge’s staff telephoned the jurors and informed them of
the arrangement, which continued throughout the penalty
phase.
The next day, in its opening statement in the penalty
phase, the state discussed defendant’s gang affiliation and
his history of violent conduct and informed the jury that its
penalty-phase evidence would focus on the second applica-
ble question: whether there was a probability that defendant
“would commit criminal acts of violence that would consti-
tute a continuing threat to society.” ORS 163.150(1)(b)(B).
According to Hauck, when the jurors returned to the jury
room, they were “pretty upset,” “shocked,” had “the deer in
the headlights look,” and “seemed scared.” That same day,
they asked if their lunch would be provided and, when told it
would not, “they started to coordinate amongst themselves
to go to one location to eat and eat together.” When advised
later that day that lunch would be provided, they “seemed
happy” that they would not have to leave the courthouse.
In the evidentiary portion of the penalty phase, the
state offered the testimony of a number of witnesses, includ-
ing law enforcement officials, a juvenile custody service
worker, a parole and probation officer, corrections officials,
and Stafford. Those witnesses testified about defendant ‘s
long affiliation with the Six Deuce Crips gang, the nature of
gang culture generally and the propensity of gang members
to pose prison security problems, and defendant’s record of
gang-related criminal activity in particular, including his
involvement with illegal drugs and weapons, violent crime,
sex abuse, and “aggressive and hostile” behavior while in a
correctional institution.
Defendant also called a number of witnesses, includ-
ing family members and personal acquaintances, who testi-
fied that defendant is a caring son, a compassionate father to
642 State v. Washington
his children, and a protective brother to his siblings. Defen-
dant also called a forensic psychologist, who testified that,
although defendant had a history of violence in the commu-
nity, he had no record of reported incidents of violence, pos-
sessing a weapon, or acting on behalf of a gang during five
years in various adult correctional institutions. The psychol-
ogist acknowledged, however, the possibility that defendant
could influence other gang members to engage in violent
acts outside the prison. Finally, defendant called a prison
consultant, who testified that, although defendant had been
sanctioned for being disobedient to institutional staff mem-
bers, he believed that the Department of Corrections could
“manage” defendant’s conduct in an institution.
After the presentation of evidence in the penalty
phase, and outside the presence of the jury, the trial court
informed the parties that, from the beginning of the penalty-
phase proceeding, it had implemented certain additional
security measures. The following day, the court placed on
the record the following summary of its disclosure:
“Last evening after trial, I disclosed to the attorneys that
certain security measures had been implemented around
the courthouse for the security of the jury. I did not disclose
this earlier, because of the need to preserve the integrity of
that security. I did disclose it last night in order to give the
defense an opportunity to make a record about any effects
those security measures could possibly have on the jury’s
decision-making.
“I want to make a record about the jury’s request for
security and what the Court did in response to the jury’s
request. I also want to make a record about what security
threats were perceived by law enforcement personnel and
what they did to address those threats.”
The trial court then took evidence specifically relat-
ing to the implementation of the additional security mea-
sures, including testimony by the court’s judicial clerk
about the concerns expressed to her by the jury at the con-
clusion of the guilt phase, as described above. In addition,
Sergeant Phillips—who, as previously noted, was responsi-
ble throughout the guilt and penalty phases for courtroom
and courthouse security—testified that three persons iden-
tified as having past gang associations had attended parts
Cite as 355 Or 612 (2014) 643
of defendant’s trial and that, when that occurred, deputies
made special efforts to keep track of those persons; he stated
that deputies were particularly concerned about defendant’s
brother, who was scheduled to testify for the defense and
whom Phillips described as a “very dangerous, violent” per-
son. On one occasion, Phillips was informed by another dep-
uty that one of the identified gang associates had made a
comment to the victim’s uncle. Another witness told Phillips
that he was “scared to death.” Phillips generally described
the security surrounding defendant’s trial as being raised
“to a new height” due to concerns about defendant’s own
capabilities and also about “what his extended network of
associates would be willing to do for him and with him.”
He testified that defendant’s codefendant, Stafford, was
afforded “special transportation” to and from the courthouse
on the days that she testified.
Phillips testified that, after the jury rendered its
guilt-phase verdict, he was notified by the judge’s staff
about the jury’s safety concerns; he believed that the mea-
sures that were implemented at the beginning of the pen-
alty phase were, “at the very minimum, appropriate.” He
also stated that, if further resources had been available, he
would have provided a higher level of security. He testified
that the capacity of the gallery was approximately 50 per-
sons and that he was unable to distinguish which persons
were associated with defendant and which with the victim;
that, if special transport methods had not been instituted,
there would have been an increased risk of contact between
jurors and spectators; and that keeping the security mea-
sures secret was itself a component of the security plan.
Phillips testified that he did not discuss the jurors’ concerns
with them and that officers involved in transporting jurors
were instructed not to have any conversations with them;
for example, when a juror asked another deputy about defen-
dant’s whereabouts, the deputy declined to respond.
The prosecutor also testified in regard to the per-
ceived need for the penalty-phase security measures. He
testified that, as he and the victim’s uncle were leaving the
courtroom after the jury gave its guilty verdict, he observed
an associate of defendant make a threatening comment to
644 State v. Washington
the victim’s uncle; that two other witnesses expressed fears
about their safety; and that telephone threats were made
to another witness to the effect of, “You testify, and you’re
dead.” The prosecutor testified that he informed the sheriff’s
department of those incidents and asked them to take them
into account in formulating security measures for the pen-
alty phase. The prosecutor believed that the security risks
associated with defendant’s trial were “the gravest that I
have ever encountered.”
Following presentation of the described testimony
regarding the jury’s penalty-phase security concerns, defen-
dant moved for a mistrial or, in the alternative, for a directed
verdict in the penalty phase of life in prison. Specifically,
counsel argued that individual jurors’ expressions of their
fears tainted other jurors’ views of the trial and that, the
court, in responding to those concerns, effectively “vali-
dated” them. He argued that, although the court could have
come to the conclusion that the additional security measures
were appropriate, the defense should have been informed.
Counsel argued that, “at least the parties would have had
an opportunity to tailor a case differently, maybe address
certain fears that even the jurors would have, through ques-
tioning.” Counsel did not otherwise elaborate, however, on
what he would have done differently had the court informed
the parties of the jurors’ concerns earlier—what additional
witnesses might have been called, what different questions
might have been asked, what different testimony might
have been elicited, or what different arguments might have
been advanced.
The state acknowledged that “it would have been
better” if “both parties” had been aware of the security mea-
sures, but argued that the case had presented “unique”
security concerns and that keeping the security plans secret
was an appropriate part of the court’s response to those con-
cerns. The state argued that the trial court had inherent
authority to impose the measures and that there was no evi-
dence of any jury “taint.”
The trial court denied defendant’s mistrial motions.
Defendant then moved to be allowed to question the jurors
Cite as 355 Or 612 (2014) 645
with respect to the security measures. The trial court denied
that motion as well.
The parties then proceeded to closing arguments.
The state focused primarily on the second penalty-phase
question: whether there was a probability that defendant
would commit criminal acts of violence that would consti-
tute a continuing threat to society. The state pointed in part
to evidence that, even when he was incarcerated, defendant
had a motive to carry out acts of violence against persons
outside the prison, including “snitches,” and that he had
the means to do so through gang members who were “dedi-
cated” to him as a “leader” and were willing to commit acts
of violence at his direction. The state also noted defendant’s
record of recidivism, including convictions for violent crimes
after serving sentences on previous convictions. Finally, it
pointed to the nature of the particular murder in this case,
murder of a witness.
Defense counsel’s closing argument (both of defen-
dant’s attorneys gave closing arguments) addressed the sub-
ject of the jurors’ fears of defendant. Counsel emphasized
that the law required the jurors to act on the evidence and
the law, not on their fears: “Are you afraid of [defendant]?
Are you in fear of [defendant]? If you answer these ques-
tions based on emotion, he dies. That’s not the law.” Counsel
told the jury that the state “tried to scare you. They tried to
scare you by using the word ‘gang’ with virtually every wit-
ness.” But the evidence, counsel explained, did not support
the state’s contentions. According to defendant’s counsel, the
evidence showed that defendant was a caring family man
who, at age 37, posed no future risk of danger while serving
a life sentence in prison.
Following the parties’ closing arguments, the trial
court offered to instruct the jury as follows:
“Security Measures Not to Be Considered By the Jury. Vari-
ous security measures are implemented in all court pro-
ceedings. Such measures should in no way be construed by
you as any indication that the Court has formed an opinion
about the matters you are to consider in your deliberations,
and should have no weight or bearing whatsoever in your
deliberations.”
646 State v. Washington
Defendant declined that instruction, and the state deferred
to defendant’s choice in that regard. As previously noted,
the jury answered the three applicable penalty-phase ques-
tions in the affirmative, and the trial court sentenced him
to death.
Again, in his eighth and ninth assignments of error,
defendant asserts that the trial court erred in failing to
disclose to him communications between the jury and the
court and in failing to notify him of the additional security
measures. At the outset, the precise nature of defendant’s
assignments is not clear to us. Ordinarily, an assignment
of error is required to target a particular ruling of the trial
court. See ORAP 5.45(3) (“Each assignment of error shall
identify precisely the * * * ruling that is being challenged.”).
In this case, defendant’s eighth and ninth assignments do
not address any particular rulings. As we understand it,
however, the trial court’s failure to disclose the jury’s com-
munications with the court and the implementation of addi-
tional security measures without notice provided the bases
for defendant’s motion for a mistrial. Consistently with that
understanding, we note that defendant states in his brief
that he preserved the eighth and ninth assignments of error
by moving for a mistrial. Accordingly, we take defendant’s
eighth and ninth assignments of error to be directed at the
trial court’s denial of his mistrial motion.
We review the denial of a motion for a mistrial for
abuse of discretion. State v. Davis, 345 Or 551, 582-83, 201
P3d 185 (2008). To the extent that the trial court’s ruling
was predicated on a conclusion of law, however, we review
that aspect of the decision for errors of law. See State v.
Rogers, 330 Or 282, 310, 4 P3d 1261 (2000) (when discre-
tionary ruling is based on legal ruling, that component of
the decision is reviewed for legal error).
In his eighth assignment, defendant argues that
the trial court erred as a matter of law in failing to disclose
to counsel and the parties its communications with the jury.
According to defendant, Uniform Trial Court Rule (UTCR)
3.120 requires courts to disclose their communications with
juries, and the trial court’s failure to do so here was both
improper and presumptively prejudicial.
Cite as 355 Or 612 (2014) 647
The state responds that UTCR 3.120 is inapplica-
ble here because it prohibits court employees from initiating
contact with jurors whereas, in this case, jurors initiated the
contact with court personnel regarding their security con-
cerns, and neither court staff nor the trial judge responded
to or communicated with the jurors directly regarding their
expressed concerns. The state argues that, accordingly, no
improper ex parte contacts occurred. Rather, the contacts
were in the nature of “housekeeping” or “incidental” con-
tacts, unrelated to the substance of the case; in those cir-
cumstances, reversal is not warranted absent harm to a
defendant’s substantive rights.
UTCR 3.120 provides that, subject to certain excep-
tions, “parties, witnesses or court employees must not initi-
ate contact with any juror concerning any case which that
juror was sworn to try.” In this case, it is undisputed that
no party, witness, nor court employee initiated any contact
with any juror. In light of the fact that there was no violation
of UTCR 3.120, we need not address defendant’s contention
that the violation was presumptively prejudicial.
In his ninth assignment, defendant contends that
the trial court abused its discretion in implementing var-
ious additional security measures without first informing
the parties. Defendant acknowledges that he is unaware of
any case law holding that a trial court abuses its discretion
in failing to inform the parties of additional security mea-
sures. Nevertheless, he argues that, because the adoption of
additional security measures has the potential to influence
the jury’s assessment of a defendant’s dangerousness, that
potential, in turn, could cause the jury improperly to infer a
greater likelihood of guilt. Accordingly, defendant argues, the
trial court’s decision—although concededly discretionary—
should be subject to “close scrutiny.”
The state contends that the trial court did not abuse
its discretion in adopting the additional security measures
or in failing to tell the parties, in advance, of its decision to
do so. According to the state, the measures themselves were
not “extraordinary” or of a type that is “inherently prejudi-
cial,” such as the use of shackles visible to a jury. Moreover,
the state argues, the record supports the implementation of
648 State v. Washington
the additional security measures. In that regard, the state
observes that there is little likelihood that the jury drew
any adverse inferences from the additional security as to
defendant, given that what prompted the additional security
was the jury’s concern about others in the courtroom, not
defendant. Finally, the state notes that defendant declined
the trial court’s offer to instruct the jury not to consider the
measures.
Defendant’s arguments concerning the trial court’s
decision to implement additional security measures with-
out first informing the parties implicates two distinct trial
court decisions. First, there is the court’s decision to imple-
ment the additional security measures. Second, there is
the court’s failure to advise the parties of that decision in
advance. Those two decisions implicate distinct concerns,
and so we address them separately.
We begin with the court’s decision to implement
additional security measures. As we have noted, defendant
argues that the additional security measures threatened
his right to an impartial jury because such additional mea-
sures suggested that defendant was especially dangerous.
Defendant acknowledges that the trial court’s decision in
that regard was a matter of discretion. Nevertheless, he
argues that, under the circumstances of this case, the trial
court abused that discretion.
Assuming for the sake of argument that the adop-
tion of additional security measures suggests to the jury that
it was defendant—as opposed to others in the courtroom—
who was dangerous, defendant’s argument appears to
assume that all security measures are equally prejudicial.
We are not persuaded that the assumption is justified.
Instructive in that regard is the United States
Supreme Court’s decision in Holbrook v. Flynn, 475 US 560,
106 S Ct 1340, 89 L Ed 2d 525 (1986). At issue in that case
was whether a criminal defendant was denied his consti-
tutional right to a fair trial when, at the defendant’s trial
with five codefendants, the trial court decided to supplement
the ordinary courtroom security detail with four additional
uniformed state troopers sitting in the first row of the spec-
tators’ section. The Court began its analysis by noting that
Cite as 355 Or 612 (2014) 649
central to the right of a fair trial guaranteed by the Sixth
and Fourteenth Amendments is the principle that a per-
son accused of a crime “is entitled to have his [or her] guilt
determined solely on the basis of the evidence introduced at
trial, and not on grounds of official suspicion, indictment,
continued custody, or other circumstances not adduced as
proof at trial.” Id. at 567 (citation omitted). “This does not
mean,” the court then qualified, “that every practice tending
to single out the accused from everyone else in the courtroom
must be struck down.” Id. Only when a security measure is
“inherently prejudicial” is “close scrutiny” required. Id. at
568. Even then, the court observed, such inherently preju-
dicial measures may be justified by the circumstances of the
particular case. Id. But, in the absence of such inherently
prejudicial security measures as visible shackles and gags,
it is the defendant who bears the burden of proving that the
security measures caused actual prejudice. Id. at 572.
In State v. Cavan, 337 Or 433, 98 P3d 381 (2004),
this court addressed the right to an impartial jury under
Article I, section 11, of the state constitution in similar fash-
ion. At issue in that case was the constitutionality of con-
ducting the defendant’s criminal trial in the Snake River
Correctional Institute. Specifically, the defendant argued
that conducting his trial in prison violated his rights to an
impartial jury under Article I, section 11, and his rights to
due process under the Fourteenth Amendment.
The Court of Appeals held that the defendant did
not state a cognizable claim under Article I, section 11. State
v. Cavan, 185 Or App 367, 372-73, 59 P3d 553 (2002). As for
the due process claim, the court, citing Holbrook, concluded
that the defendant’s federal constitutional rights were impli-
cated, because conducting a trial in a prison was “inherently
prejudicial.” Id. at 373-75. Nevertheless, the court concluded
that the trial court’s security concerns justified the practice
as a proper exercise of trial court discretion. Id. at 377.
This court reversed, concluding that conducting the
defendant’s trial in prison violated his rights under Article I,
section 11. Cavan, 337 Or at 449. Although the court based
its decision solely on the state constitution, it quoted exten-
sively from the Court of Appeals’ due process analysis under
650 State v. Washington
Holbrook and expressly concluded that conducting a crim-
inal trial in a prison is “inherently prejudicial.” Id. at 447.
That inherent prejudice is so great, the court ultimately con-
cluded, that the Court of Appeals erred in concluding that
the trial court’s decision did not amount to an abuse of dis-
cretion. See id. at 449.
Following Holbrook and Cavan, then, the first issue
is whether the security measures in question were “inher-
ently prejudicial,” a question of law. Defendant in this case
does not argue that the additional security measures qual-
ified as inherently prejudicial, and we are aware of noth-
ing in the record to suggest that they did. Accordingly, the
“close scrutiny” for which defendant contends does not apply.
Rather, defendant bears the burden of establishing that the
trial court abused its discretion in adopting the security
measures that it did. In that regard, we note that the court
did conduct an evidentiary hearing concerning the need for
those additional security measures and gave defendant the
opportunity to contest the adequacy of the record to sup-
port the trial court’s decision. Cf. United States v. Theriault,
531 F2d 281, 285 (5th Cir), cert den, 429 US 898 (1976)
(“Counsel, or the defendant himself in appropriate cases,
should be given an opportunity both to respond to the rea-
sons presented and to persuade the judge that such mea-
sures are unnecessary.”). Moreover, the trial court offered
to instruct the jury not to draw any adverse inferences from
the additional security measures. But defendant declined
the court’s offer. And, on appeal, defendant does not contest
the adequacy of the record to support the court’s decision to
implement the additional security measures. Under the cir-
cumstances, we find no abuse of discretion in the trial court’s
decision to implement those additional security measures.
We turn to the court’s failure to inform the par-
ties of its decision to implement those measures in advance.
Defendant argues that he should have been given notice of
the court’s decision before it implemented additional secu-
rity measures. In support, defendant cites federal circuit
court decisions in which the courts held that courts should
give criminal defendants the opportunity to contest the rea-
sons for additional security. See, e.g., United States v. Brazel,
Cite as 355 Or 612 (2014) 651
102 F3d 1120, 1158 (11th Cir), cert den, 522 US 822 (1997)
(“[When a] district court implements unusual visible secu-
rity measures, it is required to state reasons for doing so
on the record and give counsel an opportunity to respond.”
(Citing Theriault, 531 F2d 281)).
We need not address whether defendant is correct
that the trial court erred in failing to give such advance
notice, however. Even assuming that the trial court erred,
defendant has failed to explain how he was harmed by that
error. As we have noted, defendant argued to the trial court
that, had the court provided advance notice, “at least the
parties would have had an opportunity to tailor a case dif-
ferently, maybe address certain fears that even the jurors
would have, through questioning.” Counsel, however, did not
otherwise elaborate on what he would have done differently
had the court informed the parties of the jurors’ concerns
earlier—what additional witnesses might have been called,
what different questions might have been asked, what dif-
ferent testimony might have been elicited, or what different
arguments might have been advanced. Indeed, as we have
noted, on appeal, defendant has not contended that the trial
court’s decision to implement the additional security mea-
sures lacks support in the record. Under the circumstances,
we cannot say that any error that the trial court committed
in failing to provide notice of the additional security mea-
sures requires reversal.
That leaves defendant’s tenth assignment, in which
he contends that the trial court erred in denying him the
opportunity to question the jurors about the possible effects
of the security measures. The state argues that defendant’s
request to question jurors runs counter to the state’s strong
policy of protecting jury verdicts from attack. Moreover, the
state contends, examining the jurors about their “thought
processes” is an impermissible subject of inquiry. Defendant
relies on a dissenting opinion in the Court of Appeals case,
Koennecke v. State of Oregon, 122 Or App 100, 857 P2d 148,
rev den, 318 Or 26 (1993), in arguing that he should have
been given the opportunity to question jurors.
Once again, the trial court’s decision is reviewed
for an abuse of discretion. See State v. Moore, 324 Or 396,
652 State v. Washington
425-26, 927 P2d 1073 (1996) (denial of motion for evidentiary
hearing to determine whether there was juror misconduct
reviewed for abuse of discretion). The state is correct that
the courts of this state “strongly favor protecting jury ver-
dicts from attack on the basis of statements made during
jury deliberations.” Ertsgaard v. Beard, 310 Or 486, 497, 800
P2d 759 (1990). Strictly speaking, this case does not involve
a request to inquire into a jury verdict; defendant made his
request to question jurors immediately before the jury began
deliberations. Still, the general policy in favor of protecting
the jury deliberation process counsels against questioning
jurors, at least in the absence of some sort of showing that
there is reason to believe that the process has been compro-
mised. Even the dissent in Koennecke argued for permitting
questioning of a jury in response to evidence of actual juror
misconduct. 122 Or App at 106 (DeMuniz, J., dissenting). In
this case, defendant asked for permission to question jurors
about the mere possibility that one or more of them might
have been in some way influenced by the presence of addi-
tional security in the court room. Under the circumstances,
we find no abuse of discretion in the trial court’s denial of
that request.
E.  Jury Instruction on Mercy (Assignment 11)
In his eleventh assignment of error, defendant argues
that the trial court erred in declining to instruct the jury in
the penalty phase of his trial that each juror
“has the individual authority to extend [to defendant]
mercy for any reason whatsoever.
“The law recognizes and authorizes that any individual
juror may base a decision to impose a sentence less than
death on mercy alone.”
Defendant argues that the trial court’s instructions to the jury
effectively informed them that their decision whether to sen-
tence defendant to death must be based only on evidence pre-
sented, whereas, according to defendant, the law—including
decisions of the United States Supreme Court and various
state appellate courts, Oregon’s own “open-ended” capital
sentencing scheme, and, in light of the purported role of
mercy in human culture, the Sixth, Eighth, and Fourteenth
Cite as 355 Or 612 (2014) 653
Amendments to the United States Constitution—permits
the application of mercy without reference to such evidence.
Defendant further argues that mercy is a form of moral rea-
soning and thus is distinct from sympathy or forgiveness,
which he acknowledges to be improper bases for a verdict.
Defendant argues that, because no other instruction given
by the trial court incorporated the identified principles, the
trial court erred in failing to so instruct the jury.
The state first responds that defendant failed to
raise below most of his arguments in support of the giv-
ing of an instruction on mercy, including his constitutional
arguments, and that those arguments therefore are not
preserved. The state also argues that defendant’s proposed
instruction was not a correct statement of the law. According
to the state, mercy—like sympathy—is a form of emotion
and thus has no place in jury deliberations in either a guilt-
phase or a penalty-phase proceeding. The state also argues
that, to the extent that defendant’s requested instruction
correctly stated the law, it was redundant to other instruc-
tions given by the trial court, which, the state asserts, cor-
rectly and fully advised the jury of its role in determining
defendant’s sentence.
A party is generally entitled to a jury instruction
based on its theory of the case if the instruction is war-
ranted by the particular facts and correctly states the law.
State v. McBride, 287 Or 315, 319, 599 P2d 449 (1979). The
trial court does not err, however, in declining to deliver an
instruction that is not legally correct. Williams v. Philip
Morris Inc., 344 Or 45, 56, 176 P3d 1255 (2008), cert dis-
missed as improvidently allowed, 556 US 178 (2009).
Our analysis of the parties’ arguments in this case
is controlled by two prior cases. First, in State v. Moen, 309
Or 45, 786 P2d 111 (1990), the trial court instructed the jury
not to consider sympathy in determining whether to impose
the death penalty. On appeal, the defendant argued that
the trial court erred, arguing that the court should have
instructed the jury that it was entitled to take sympathy
into account in rendering its judgment. This court rejected
the argument, explaining that “general sympathy, or any
emotionalism, has no place in a capital sentencing decision,
654 State v. Washington
just as it has no place in the jury’s deliberations during
the guilt phase.” Id. at 92. The role of the jury, the court
explained, is “to reach a reasoned decision based solely on
the evidence before them.” Id. at 93 (emphasis in original).
Second, in State v. Moore, 324 Or 396, 927 P2d 1073
(1996), this court addressed the propriety of delivering two
different jury instructions that pertained to the subjects of
sympathy and mercy. The first instruction informed the jury
that “a decision that death is not appropriate may be made
on the basis of sympathy for the [d]efendant if that sympa-
thy is based on mitigating evidence.” Id. at 427 (emphasis in
original). The court held that the instruction was proper,
because it informed the jury that its decision was required
to be based on mitigating evidence. Id.The second instruction was one that the trial court
declined to deliver. That instruction would have informed
the jury that it “may be influenced by feelings of sympa-
thy or mercy toward defendant, even if those feelings were
not based upon any mitigating evidence.” Id. (emphasis in
original). The court held that the trial court did not err in
failing to deliver that instruction. Citing Moen, the court
reiterated that considerations of sympathy have no place in
jury’s penalty determination in a capital case. 324 Or at 428.
Rather, the court explained, “any instruction that appeals
to the jurors’ sympathies also must instruct the jurors that
such sympathy must be based upon the mitigating evidence
before them.” Id.Defendant argues that Moen and Moore are distin-
guishable because they involve instructions regarding sym-
pathy, not mercy, which defendant insists is different. We
need not address whether, in the abstract, there is a mean-
ingful distinction between an instruction involving “sympa-
thy” and one involving “mercy.” That is because, in assert-
ing a distinction between the two, defendant has missed the
significance of this court’s prior decisions. Both Moen and
Moore turned not on the fact that the requested instructions
involved appeals to sympathy, but on the fact that those
requested instructions failed to inform the jury that their
decisions must be based on the evidence before them. Moore,
324 Or at 428; Moen, 309 Or at 93.
Cite as 355 Or 612 (2014) 655
In this case, defendant’s requested instruction would
have instructed the jury that it could base its decision on
mercy “alone” and “for any reason whatsoever,” without
respect to the evidence. That instruction cannot be recon-
ciled with Moore and Moen.
The result is the same under the federal constitu-
tion. Controlling in that regard is California v. Brown, 479
US 538, 107 S Ct 837, 93 L Ed 2d 934 (1987). In that case,
the Court addressed whether an instruction that jurors
must not be swayed by “mere *  * sympathy” in the pen-
*
alty phase of a capital case violated the defendant’s rights
under the Eighth and Fourteenth Amendments. Holding
that it did not, the Court emphasized that the key was not
the meaning of the word “sympathy,” but the fact that the
instruction properly cautioned the jury to base its decision
only on the evidence before it. Id. at 541. In the Court’s view,
the instruction properly “limit[ed] the jury’s sentencing con-
siderations to record evidence” and, in so doing, “ensure[d]
the availability of meaningful judicial review” of the jury’s
decision. Id. at 543.
We conclude that the trial court did not err in fail-
ing to deliver defendant’s requested instruction.
F.  Victim Impact Evidence (Assignments 13-14)
In his thirteenth assignment of error, defendant
argues that the trial court erred by admitting, during the
guilt phase of his trial, victim impact evidence in the form
of testimony by a witness—the victim’s uncle. In his four-
teenth assignment of error, defendant argues that the trial
court erred in denying his motion for a mistrial based on
the admission of that evidence. Defendant acknowledges
that ORS 163.150(1)(a) provides for admission of such evi-
dence during the penalty phase following a defendant’s con-
viction of aggravated murder and that, moreover, the United
States Supreme Court has held that the introduction of such
evidence during the penalty phase of a capital murder trial
does not infringe on a defendant’s constitutional rights. He
argues, however, that, in the guilt phase of a trial, such evi-
dence is irrelevant under Oregon Evidence Code (OEC) 401
and is unduly prejudicial under OEC 403. He further argues
656 State v. Washington
that the trial court’s error in admitting the evidence in the
guilt phase of his trial was not harmless; he notes that, at
the conclusion of the challenged testimony, at least one juror
was crying and other jurors were “visibly shaken,” and the
state may have rekindled those emotions by referring to the
testimony in its guilt-phase closing argument.
The state first responds that, at trial, defendant
insufficiently identified the specific portions of the victim’s
uncle’s testimony that he asserted to be inadmissible victim
impact evidence and that he therefore cannot now challenge
the admission of those portions. We disagree. The record
shows that, in addition to requesting and obtaining a con-
tinuing objection, defendant objected to particular portions
of the witness’s testimony.
The state also asserts that the challenged evidence
was not victim impact evidence but was mere “victim back-
ground” or “family background” evidence that provided con-
text to the jury and that in effect “humanized” the proceed-
ing, and that the evidence therefore both met the “very low”
standard for relevance under OEC 401 and was not unduly
prejudicial under OEC 403. The state further asserts that,
to the extent that defendant is challenging the uncle’s tes-
timony as a whole by challenging the trial court’s denial of
his motion for a mistrial, the trial court did not abuse its
discretion in denying that motion. Finally, the state argues
that, in any event, admission of the evidence was harmless
because the state provided similar information in its open-
ing statement, because other witnesses also testified with-
out objection about the victim, and because the trial court
instructed the jury not to base its guilt-phase verdict on
sympathy for any of the parties involved.
The testimony of the witness—again, the victim’s
uncle—included information about the witness’s relation-
ship to the victim; about the victim’s home country, Sierra
Leone, and his extended family there; and about the circum-
stances of the victim’s immigration to the United States, his
residency status in this country, and his residential, edu-
cational, and employment history in Oregon. The witness
also testified about the frequency and nature of interactions
Cite as 355 Or 612 (2014) 657
between himself and the victim in the time leading up to the
murder, such as the witness’s brief statement that the vic-
tim came to his house and helped him with chores. The wit-
ness testified that, to his knowledge, the victim did not own
any firearms. He testified that he had met two of the victim’s
women friends but had not met Stafford. He also testified
that, after July 4, 2004—the date on which someone broke
into Stafford’s apartment—the victim was “scared, really
scared.”
The witness also described the circumstances sur-
rounding his learning of the victim’s death. At various points
during his testimony, the witness also testified about him-
self, including his age, when he came to the United States,
and his educational and employment background. At sev-
eral points during his testimony, he was prevented by the
prosecutor or by the trial court’s rulings on defense counsel’s
objections from giving details about the political situation
in Sierra Leone, from making more than a single passing
reference to the victim’s personality and his liking for music
and soccer, and from describing the content of any conver-
sation the witness had with the victim around July 2004
regarding “any concerns or fears” the victim may have had.
ORS 163.150(1)(a) sets out requirements for the
conduct of a “separate sentencing proceeding” following a
defendant’s conviction for aggravated murder and provides
in part that, in the proceeding,
“evidence may be presented as to any matter that the court
deems relevant to sentence including, but not limited to,
victim impact evidence relating to the personal character-
istics of the victim or the impact of the crime on the victim’s
family and any aggravating or mitigating evidence relevant
to the issue in paragraph (b)(D) of this subsection; how-
ever, neither the state nor the defendant shall be allowed
to introduce repetitive evidence that has previously been
offered and received during the trial on the issue of guilt.”
(Emphasis added.) The emphasized portion of ORS
163.150(1)(a) was added to the statute by the 1995 legis-
lature. Or Laws 1995, ch 531, § 2; Or Laws 1995, ch 657,
§ 23. This court has not previously considered precisely what
types of evidence constitute victim impact evidence, that is,
658 State v. Washington
evidence regarding “personal characteristics of the victim or
impact of the crime on the victim’s family.”
We need not do so here, however, because, even
assuming that any portion of the witness’s testimony falls
within that category of evidence; even assuming that admis-
sion of the evidence in the guilt phase of defendant’s trial
therefore was erroneous; and even assuming that the trial
court abused its discretion in denying defendant’s motion for
mistrial, any error was harmless. See State v. Davis, 336
Or 19, 32, 77 P3d 1111 (2003) (reviewing court will affirm
verdict despite error if there is little likelihood that the
error affected the verdict). Of approximately 2000 pages of
guilt-phase trial transcript, the witness’s actual testimony
occupied approximately 23 pages. And, in that testimony,
references to anything that arguably may have met the defi-
nition of victim impact evidence were minimal, including
the witness’s single brief statement that the victim was “a
nice person, he’s gentle, he loves music, he loves soccer” and
the fact that, after the witness learned of the victim’s death,
“[i]t’s never been the same.” Cf. State v. Johns, 301 Or 535,
559, 725 P2d 312 (1986) (in trial encompassing testimony of
60 witnesses and 1700 pages of transcript, Supreme Court
deferred to trial court’s exercise of discretion under OEC 403
as to whether particular item of evidence was unduly preju-
dicial). Moreover, similar testimony by other witnesses was
admitted without objection, including testimony by the vic-
tim’s friend, Carter, that, when the victim’s family learned
of the victim’s death, they “emotionally fell apart.” In short,
it is unlikely that admission of the challenged testimony,
even if erroneous, affected the jury’s guilt-phase verdict.
Defendant’s thirteenth and fourteenth assignments of error
do not afford him the requested relief.
G.  Prosecutor’s Penalty-Phase Opening Statement (Assign-
ment 15)
In his fifteenth assignment of error, defendant
argues that the trial court erred in denying his motion for
a mistrial based on the prosecutor’s statement to the jury
that, when Stafford had “other boyfriends over time, [defen-
dant] was so extremely possessive *  * to the point that he
*
would kill them. This is the mind we’re dealing with.” The
Cite as 355 Or 612 (2014) 659
prosecutor made that statement at the opening of the penalty
phase of defendant’s trial. Defendant immediately moved for
a mistrial, noting that the prosecutor had referred to “boy-
friends” in the plural and had stated that defendant “would
kill them,” and arguing that there was “no evidence of that.”
The trial court denied the motion.
On review, defendant argues that the prosecutor’s
comments were improper and sufficiently prejudicial so
as to create a bias against him in the minds of the jury
and therefore to deny him a fair trial, in violation of his
rights under the Due Process Clause of the Fourteenth
Amendment. Specifically, he argues that the comments
gave rise to an implication of ongoing dangerousness that
was relevant to the jury’s consideration of whether to sen-
tence him to death—specifically, its consideration, under
ORS 163.150(1)(b)(B), of “[w]hether there is a probability
that the defendant would commit criminal acts of violence
that would constitute a continuing threat to society[.]” Nor,
he argues, were the comments mitigated by any curative
instruction. He asks this court to vacate his death sentence
and remand for a new penalty phase.
The state responds that, for several reasons, the
trial court did not abuse its discretion in denying defen-
dant’s motion for a mistrial. The state argues that it was
“obvious” that the prosecutor was using the pronoun “them”
colloquially to refer to a single person, the victim, and that,
to the extent that the reference was ambiguous, none of the
prosecutor’s other statements suggested that defendant had
killed anyone other than the victim. The state also notes
that defendant did not ask for a curative instruction and
that, conversely, the jury was instructed to base its penalty-
phase verdict “only on the evidence” and that “[t]he lawyer’s
statements and arguments are not evidence.”
We review a trial court’s denial of a motion for a
mistrial for abuse of discretion. State v. Davis, 345 Or 551,
582-83, 201 P3d 185 (2008), cert den, 558 US 873 (2009). A
trial court is in the best position to assess the prejudicial
effect, if any, of a prosecutor’s statements to the jury. State v.
Barone, 328 Or 68, 83, 969 P2d 1013 (1998), cert den, 528 US
1135 (2000). We will not find an abuse of discretion in the
660 State v. Washington
trial court’s denial of a defendant’s motion for mistrial on
that basis unless the effect of the prosecutor’s comment was
to deny defendant a fair trial or penalty-phase proceeding.
State v. Smith, 310 Or 1, 24, 791 P2d 836 (1990). Generally,
a proper jury instruction is adequate to cure any presumed
prejudice from a prosecutor’s improper statement. Davis,
345 Or at 583. “Ultimately, we must decide whether, under
the circumstances as a whole, [the] defendant was denied
the right to a fair trial, as a matter of law, by the events that
transpired at trial.” Id. (citing State v. Compton, 333 Or 274,
293, 39 P3d 833 (2002), cert den, 537 US 841, reh’g den, 537
US 1068 (2002)).
In this case, the prosecutor’s statement to the jury
at the beginning of the penalty phase amounts to 26 pages
of the penalty-phase trial transcript, which also includes
approximately one thousand pages of witness testimony. In
addition to the challenged remark, the prosecutor informed
the jury that defendant was a “leader” of the Portland “set” of
the Crips gang; that he “engaged in daily illicit gang activi-
ties”; that he derived his income from the illegal distribution
of crack cocaine; that he possessed and used crack cocaine
and marijuana, and possessed and used illegal weapons;
that he exposed his children to criminal activity; that, at
age 15, he assaulted a store clerk; that, at age 16, he par-
ticipated in the gang rape of a 13-year-old girl; that, while
awaiting trial on that rape charge, he assaulted two guards
in a Portland detention facility; that he twice escaped from
a youth correctional facility; that he engaged in domestic
violence against women, including beating and strangling
them, in some instances in violation of restraining orders;
that some of his domestic violence conduct took place in the
presence of children; that he pistol-whipped his daughter’s
boyfriend; that he violated his adult probation; and that he
previously had been charged with assaulting the victim in
the present case. Thus, the prosecutor’s opening summary
to the jury included multiple references to violent or other-
wise unlawful conduct by defendant, thereby vitiating the
effect of the challenged statement.
Again, at the conclusion of the penalty phase, the
trial court instructed the jury that it was to base its answers
to the penalty-phase questions “only on the evidence and
Cite as 355 Or 612 (2014) 661
these instructions” and that “[t]he lawyer’s statements and
arguments are not evidence.” See Smith, 310 Or at 26(absent an overwhelming probability that they would have
been unable to do so, jurors are presumed to have followed
their instructions).
In light of the prosecutor’s entire opening presenta-
tion to the jury in the penalty phase, as well as the witness
testimony and the trial court’s instructions to the jury in
that phase, we cannot say that the trial court abused its
discretion in denying defendant’s motion for a penalty-phase
mistrial based on the challenged statement. We reject defen-
dant’s fifteenth assignment of error.
H.  Lethal Injection Protocol (Assignment 16)
In his sixteenth assignment of error, defendant con-
tends that the trial court erred in imposing the death pen-
alty over his objection, under the Eighth Amendment to the
United States Constitution, to Oregon’s method of execution.
According to defendant, the statutes and rules governing
Oregon’s three-drug lethal injection protocol do not ade-
quately ensure that persons administering the drugs have
sufficient qualifications and training to properly do so and
do not adequately provide for “backup” drugs and equipment
if the initial administration of drugs is unsuccessful, either
by failing to cause death or by causing the person to expe-
rience such effects as severe pain or suffocation, in viola-
tion of the constitutional prohibition on cruel and unusual
punishment.
The state responds that defendant’s challenge to
the method of his execution is premature because, in capital
cases, exhaustion of a defendant’s appeals and other state
and federal post-conviction remedies typically takes many
years and, by the time defendant has completed or waived
his right to those procedures, Oregon’s execution protocol
may have been revised; moreover, whether or not that is the
case, defendant will have the opportunity at that time to
challenge it. On the merits, the state notes that Oregon’s
three-drug lethal injection protocol is similar to the one
approved by the United States Supreme Court in Baze v.
Rees, 553 US 35, 128 S Ct 1520, 170 L Ed 2d 420 (2008).
In that case, the Court held that any risks of improper
662 State v. Washington
preparation or administration of the first of the three drugs,
the anesthetic sodium thiopental—including calculation
and preparation of an adequate dose of the solution, proper
insertion of intravenous lines for its injection, and adequate
monitoring of the drug’s effects—were not “so substantial or
imminent as to amount to an Eighth Amendment violation.”
Id. at 54-62.
We agree with the state that the specific method
of defendant’s execution—as opposed to the death sentence
itself—is not ripe for consideration by this court, nor will it
be until all direct and collateral review proceedings have
concluded and a death warrant has issued under ORS
137.463. See ORS 138.686 (providing for stay of execution
of death sentence during pursuit of state and federal direct
and collateral review of the defendant’s conviction and sen-
tence). We therefore reject defendant’s sixteenth assignment
of error without further discussion.
I.   Facial Unconstitutionality of ORS 163.150(1)(b)(D) (Assign-
ment 18)
In his eighteenth assignment of error, defendant
argues that the trial court erred in denying his demurrer
to Counts 1 and 2 of the indictment, the aggravated mur-
der counts. The demurrer sought to challenge the facial
constitutionality of Oregon’s capital-sentencing scheme—
specifically, ORS 163.150(1)(b)(D) (the so-called “fourth ques-
tion”), as modified by ORS 163.150(1)(a) and by the jury
instruction required under ORS 163.150(1)(c)(B). According
to defendant, as so modified, ORS 163.150(1)(b)(D) is uncon-
stitutional on its face under the Eighth and Fourteenth
Amendments because it permits the admission of “any”
aggravating evidence, including evidence that is outside
the kinds of victim impact evidence approved by the United
States Supreme Court in Payne v. Tennessee, 501 US 808, 111
S Ct 2597, 115 L Ed 2d 720 (1991), and that is not relevant to
any corresponding factual issue on which the state has the
burden of proof; and because it permits the penalty-phase
jury to disregard or fail to give full effect to mitigating evi-
dence. Defendant also argues that ORS 163.150(1)(b)(D) is
facially unconstitutional because it permits the imposition of
a death penalty without the jury having found the relevant
Cite as 355 Or 612 (2014) 663
facts beyond a reasonable doubt or unanimously. Finally, he
argues that it is facially unconstitutional because its open-
ended nature precludes meaningful appellate review.
The state responds that, in the first instance, it did
not present any victim-impact evidence in this case that
was not otherwise admissible and that defendant fails to
identify any aggravating evidence that did not relate to the
penalty-phase questions. The state also asserts that, in any
event, this court previously has rejected facial challenges
to ORS 163.150 on those grounds. As to defendant’s other
challenges to ORS 163.150(1)(b)(D), the state notes that
the penalty-phase jury must find unanimously and beyond
a reasonable doubt the facts supporting an affirmative
response to each of the first three penalty-phase questions,
ORS 163.150(1)(b)(A)-(C), and that additional facts, if any,
that the jury relies on in answering the question stated in
ORS 163.150(1)(b)(D) are, by comparison, “mere evidence”
that the jury is not required to find at all, and therefore need
not find unanimously or beyond a reasonable doubt. The
state also argues that, in any event, ORS 163.150(1)(b)(D)
is not facially unconstitutional because it is capable of con-
stitutional application. Finally, the state notes that this
court repeatedly has rejected demurrers to Oregon’s capital
sentencing scheme based on the purported unavailability of
meaningful appellate review.
ORS 163.150(1)(b)(D) provides that the trial court
submit to the penalty-phase jury the question “[w]hether the
defendant should receive a death sentence.” ORS 163.150(1)(a)
provides in part for the admission, in the sentencing pro-
ceeding, of evidence
“as to any matter that the court deems relevant to sen-
tence including, but not limited to, victim impact evidence
relating to the personal characteristics of the victim or the
impact of the crime on the victim’s family and any aggravat-
ing and mitigating evidence relevant to the issue in [ORS
163.150(1)(b)(D)][.]”
(Emphasis added.) ORS 163.150(1)(c)(B) provides:
“The court shall instruct the jury to answer the ques-
tion in [ORS 163.150(1)(b)(D)] ‘no’ if, after considering any
aggravating and any mitigating evidence concerning any
664 State v. Washington
aspect of the defendant’s character or background, or any
circumstances of the offense and any victim impact evi-
dence as described in [paragraph (a) of this subsection], one
or more of the jurors believe that the defendant should not
receive a death sentence.”
(Emphasis added.) The emphasized portion of ORS
163.150(1)(a) was added to the statute by the 1995 legis-
lature. Or Laws 1995, ch 531, § 2; Or Laws 1995, ch 657,
§ 23. The emphasized portions of ORS 163.150(1)(c)(B) were
enacted by the 1997 legislature. Or Laws 1997, ch 784, § 1.
We previously have determined that ORS 163.150 is
not facially unconstitutional by reason of the fact that ORS
163.150(1)(b)(D) does not expressly require jury unanimity
or proof beyond a reasonable doubt. See State v. Brumwell,
350 Or 93, 111-12, 249 P3d 965 (2011), cert den, 132 S Ct
1028 (2012) (even assuming that the Sixth Amendment
requires jury unanimity on penalty-phase aggravating evi-
dence under ORS 163.150(1)(b)(D) as qualified by ORS
163.150(1)(c)(B), the latter is capable of constitutional appli-
cation because it does not preclude the trial court from also
instructing the jury in that regard to the extent that such
an instruction is constitutionally required; accordingly, the
statute is not facially unconstitutional); State v. Fanus, 336
Or 63, 70-74, 79 P3d 847 (2003), cert den, 541 US 1075 (2004)
(ORS 163.150(1)(b)(D) frames a discretionary inquiry for
the jury and is not subject to any burden of proof). As to
whether ORS 163.150(1)(b)(D) precludes meaningful appel-
late review, we rejected that argument in Moore. 324 Or at
429-34 (where ORS 163.150(1)(b)(D) frames a discretionary
determination for the jury that is not subject to a burden
of proof but that nevertheless must be based on evidence
presented at trial, the reviewing court has the function of
reviewing the jury’s decision to determine whether, in view
of the evidence, a rational juror could have concluded that
the defendant should be sentenced to death).
We turn to defendant’s assertions that ORS
163.150(1)(b)(D) renders Oregon’s death penalty scheme
facially unconstitutional by reason of permitting the admis-
sion of overly broad classes of aggravating and victim impact
Cite as 355 Or 612 (2014) 665
evidence. This court has not expressly considered those argu-
ments since the enactments of the above-quoted 1995 and 1997
amendments to ORS 163.150(1)(a) and ORS 163.150(1)(c).
Again, defendant contends that ORS 163.150(1)(b)(D) and
its related statutes are facially unconstitutional because
they permit the admission of “any” aggravating evidence,
including evidence that is outside the kinds of victim impact
evidence approved by the United States Supreme Court in
Payne and that is not relevant to any corresponding fac-
tual issue on which the state has the burden of proof; and
because they permit the penalty-phase jury to disregard or
fail to give full effect to mitigating evidence in violation of
the Eighth and Fourteenth Amendments.
We disagree. As to aggravating evidence, again, ORS
163.150(1)(a) provides in part that, in the penalty-phase pro-
ceeding,
“evidence may be presented as to any matter that the court
deems relevant to sentencing, including, but not limited to,
victim impact evidence relating to the personal characteris-
tics of the victim or the impact of the crime on the victim’s
family and any aggravating or mitigating evidence relevant
to the issue in [ORS 163.150(1(b)(D)].”
(Emphasis added.) Consistently with the emphasized por-
tions of that provision, and notwithstanding the legislature’s
use of the adjective “any,” aggravating evidence presented
to the penalty-phase jury must be “relevant to sentencing.”
And, notwithstanding the fact that admissible evidence is
“not limited to” the expressly stated types of evidence,
the provision nevertheless is capable of being applied in a
manner that is consistent with the strictures of the United
States Supreme Court as set out in Payne. See, 501 US at 825(although the Eighth Amendment does not prohibit admis-
sion of victim impact evidence, the Due Process Clause pro-
tects against admission of victim impact evidence that is “so
unduly prejudicial that it renders the trial fundamentally
unfair”). Defendant’s facial constitutional challenge to ORS
163.150(1)(b)(D) based on the admission of aggravating evi-
dence is not well taken.
Similarly, we reject defendant’s argument that ORS
163.150(1)(b)(D) is facially unconstitutional in regard to the
666 State v. Washington
admission, and the jury’s consideration, of mitigating evi-
dence, by permitting the jury to disregard such evidence
altogether or, at a minimum, by failing to guide its discre-
tion or to provide it with a “vehicle” for giving such evidence
its “full effect.” Again, ORS 163.150(1)(c)(A) provides:
“The court shall instruct the jury to consider, in deter-
mining the issues in [ORS 163.150(1)(b)], any mitigating
circumstances offered in evidence, including but not limited
to the defendant’s age, the extent and severity of the defen-
dant’s prior criminal conduct and the extent of the mental
and emotional pressure under which the defendant was act-
ing at the time the offense was committed.”
(Emphases added.) Also, as previously described, ORS
163.150(1)(c)(B) in part directs the trial court to instruct
the jury that, in answering the question set out in ORS
163.150(1)(b)(D), it
“consider[  any aggravating evidence and any mitigating
]
evidence concerning any aspect of the defendant’s character
or background * * *.”
(Emphases added.) Thus, both of the quoted provisions
expressly require the trial court to instruct the jury to “con-
sider” mitigating evidence, and the required instructions
provide at least some guidance to the jury regarding the
nature of the mitigating evidence that it is to consider—in
the former case, by listing various specific types of miti-
gating evidence that the jury may consider and the latter
by generally characterizing such evidence as relating to a
defendant’s “character or background.” Presuming, as we
must, that a jury follows a trial court’s instructions, those
features have the effect of both directing the jury to consider
mitigating evidence and guiding it in doing so. Accordingly,
ORS 163.150 is not facially unconstitutional by reason of
permitting a jury to ignore or improperly consider mitigat-
ing evidence.
For all of the above reasons, we reject defendant’s
eighteenth assignment of error.
J.  Remaining Assignments of Error
Defendant’s remaining assignments of error we reject
without discussion.
Cite as 355 Or 612 (2014) 667
CONCLUSION
The judgment of conviction and sentence of death
are affirmed.