State v. Turnidge ( 2016 )

No. 30 May 5, 2016 507
30
State v. Turnidge (S059156) 359
May 5, Or
2016
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent,
v.
BRUCE ALDON TURNIDGE,
Appellant.
(CC 08C53913; SC S059156)
On automatic and direct review of the judgment of convic-
tion and sentences of death imposed by the Marion County
Circuit Court.
Thomas M. Hart, Judge.
Argued and submitted January 15, 2015.
W. Keith Goody, Cougar, Washington, argued the cause
for appellant. Andy Simrin, Portland, filed the brief for
appellant.
Susan G. Howe, Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent.
With her on the brief were Anna M. Joyce, Solicitor General,
and Timothy A. Sylwester, Assistant Attorney General.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, Brewer, Justices, and Linder, Senior
Justice pro tempore.*
LINDER, S. J.
The judgment of conviction and sentences of death are
affirmed.
______________
* Nakamoto, J., did not participate in the consideration or decision of this
case.
508 State v. Turnidge (S059156)
Cite as 359 Or 507 (2016) 509
LINDER, S. J.
Defendant was convicted on 10 counts of aggra-
vated murder, as well as other felonies, following a joint trial
with his son, Joshua, whose criminal convictions we affirm
on this date. State v. Turnidge (S059155), 359 Or 364, ___
P3d ___ (2016) (Turnidge (Joshua)). Defendant and Joshua
both were sentenced to death. In this automatic and direct
review of his convictions and sentences of death, defendant
challenges the sufficiency of the evidence to support four of
his 10 aggravated murder convictions; he raises numerous
challenges to other trial court rulings as well. By way of
relief, defendant seeks outright reversal of four of his aggra-
vated murder convictions or, alternatively, remand for a
new trial on those charges or on all counts, and remand for
resentencing. For the reasons set out below, we affirm defen-
dant’s convictions and sentences of death.
This case arises from a December 2008 bombing
of a bank in Woodburn. After a life-threatening phone call
was made to an adjacent bank, and an employee was told
that the lives of employees in both banks were at risk, law
enforcement officers responded to the scene and discovered
the bomb, which they assessed and treated as a hoax device.
While law enforcement officers were trying to dismantle the
bomb, it exploded. Two law enforcement officers were killed;
a third law enforcement officer was critically injured, but
survived; a bank employee was also injured. The factual
details surrounding those events are set out at length in our
opinion in Turnidge (Joshua), 359 Or at 366-69, and we
incorporate and rely on them here.
The investigation of the bombing led to defendant
and Joshua as suspects. Within days of the bombing, they
were arrested. See id. at 370-73 (describing investigation
and arrests). Eventually, they were jointly indicted and
jointly tried, each on 10 counts of aggravated murder, which
included four counts of aggravated felony murder; they were
also charged with related felonies. After the jury returned
verdicts of guilt on all counts, separate penalty-phase trials
were conducted, and the jury voted to impose the death pen-
alty on both defendant and Joshua. The trial court merged
all the aggravated murder convictions relating to each
510 State v. Turnidge (S059156)
murder victim and then entered identical judgments, one
against defendant and one against Joshua, each setting out
two convictions for aggravated murder (one for each victim
who died) and two sentences of death.
On direct review, defendant raises 24 assignments
of error, many of which are identical or substantially simi-
lar to those that Joshua also has raised and that we have
rejected in Turnidge (Joshua). We reject those arguments
in this case for the same reasons that we did so in Turnidge
(Joshua). Defendant raises several additional assignments
of error to rulings that the trial court made or as to other
issues that arose during the pretrial, guilt, and penalty
phases of his trial. For those issues that merit discussion,
we address defendant’s arguments in that order below. As
needed for our analysis, we also set out additional historical
and procedural facts not set out in Turnidge (Joshua).
I.  PRETRIAL PHASE
A.  Excusal of Jurors for Cause and Destruction of Completed
Jury Questionnaires (Assignment Nos. 1-4)
In defendant’s first four assignments of error, he
raises claims that are essentially the same as those raised
and resolved against his position in Turnidge(Joshua).
Specifically, defendant challenges the trial court’s deci-
sion, during voir dire, to excuse three prospective jurors for
cause, based on their responses to questions assessing their
ability to follow the law and their oaths, and to impose the
death penalty if they found that the facts—under the law—
warranted that penalty. Defendant also challenges the
court’s decision to destroy the completed juror question-
naires after voir dire, over defendant’s objection, rather
than retain them as part of the record. We reject defendant’s
arguments for the reasons set out in Turnidge (Joshua), 359
Or at 406-26.
B.  Evidence of Defendant’s Views About Law Enforcement
and Other Political Beliefs (Assignment Nos. 9-15)
We next consider defendant’s arguments that the
trial court erred in denying his pretrial motions to exclude
various statements that he had made, before the crimes in
Cite as 359 Or 507 (2016) 511
this case, arguing that they were not relevant under OEC
401.1
1.  Additional facts and parties’ arguments on review
The statements at issue fall into three groups.
The first group involved statements that defendant made
approximately 30 years before the bombing; in those state-
ments, defendant talked about possibly detonating a bomb
during a police officer memorial with the objective of killing
police officers attending the memorial. The next group of
statements were made in 1995, when defendant cheered the
bombing of the federal courthouse in Oklahoma City and
made comments heroizing one of the individuals responsi-
ble for the bombing. See Turnidge (Joshua), 359 Or at 378
(generally describing defendant’s reaction to and statements
about Oklahoma City bombing). The final group of state-
ments reflected defendant’s antipathy toward the govern-
ment, his desires to form a militia to resist governmental
authority, his acquisition of ammunition and weapons, and
his threat to a person to whom he owed money.2
1
Below, in addition to relying on OEC 401, defendant cited OEC 403 and
OEC 404, but he made no specific argument explaining why the challenged evi-
dence was not admissible under either of those provisions. On review, defendant
again relies on OEC 401 (relevance), but does not make any argument about the
challenged evidence under either OEC 403 or OEC 404. Accordingly, we address
only defendant’s relevancy arguments.
2
In his motion in limine, defendant sought to exclude, among other things:
“Statements of [witness] Kerr, including the following: characterizing
financial arrangements with [defendant] during the 1990s and the alleged
theft of property in Nevada; [defendant] requesting a $75,000 loan to finance
the purchase of military grade weapons; statements that [defendant] was
burying weapons in the desert; statements that [defendant] felt that the FBI
were criminals; statements that [defendant] wanted to build a fort on the
Nevada property to be ready when the government came to get him; state-
ments that [defendant] Bruce Turnidge felt that Timothy McVeigh did a good
thing in Oklahoma City, and an episode in which * * * Kerr claims he was
threatened by [defendant].”
Defendant’s motion did not provide further information about the threat to Kerr,
and neither party discussed that specific evidence during the hearing. On review,
defendant does not make a legal argument specific to the threat; he instead
merely identifies it as part of the evidence of his anti-government beliefs and
activities that he asserts was not relevant or, if relevant, was too prejudicial to
be admissible. At trial, Kerr, who testified only briefly, described the threat as
having been made when Kerr tried to foreclose on property that defendant owned
in Nevada (which was the property on which defendant wanted to build an armed
fortress to resist the government). For purposes of review, in light of the context
in which the threat was made, we consider the evidence of that threat to be part
512 State v. Turnidge (S059156)
At a pretrial hearing on his motion, defendant
argued that statements about bombing the police memo-
rial and his support for the Oklahoma City bombing were
remote in time to the charged crimes and did not involve
anything similar to a bank robbery. Therefore, defendant
argued, that evidence was not relevant to establish intent.
As for the evidence of defendant’s anti-government sen-
timents, desires to form an anti-government militia, and
acquiring weapons and ammunition, defendant argued that
that evidence was not probative of any motive for commit-
ting the crimes charged in this case. The state responded
that, although some of the evidence was remote in time, it
demonstrated defendant’s longstanding anti-government
sentiments and support for killing government officials and
employees, all of which were probative of defendant’s motive
to orchestrate a bombing in circumstances that would draw
law enforcement to the bomb to respond. The state also
argued that the evidence of defendant’s attempts to form a
militia demonstrated his motive to rob a bank—to fund his
anti-government militia.
On review, defendant reiterates his argument that
the challenged evidence is not relevant because neither his
anti-government sentiments nor his militia-related activi-
ties were sufficiently connected or similar to the bombing
at issue in this case. He argues that, because the bank was
privately owned, his anti-government sentiments were not
relevant to its bombing and that the state’s theory that his
motive was to fund militia-related activities was purely
speculative.
2.  Analysis
Relevant evidence is evidence that has “any ten-
dency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or
less probable than it would be without the evidence.” OEC
401. The threshold for admissibility under that relevancy
standard is “very low”—as long as the evidence, based on
logic and experience, can support a reasonable inference
and parcel of the general evidence relating to defendant’s anti-government senti-
ments and his efforts to form a militia.
Cite as 359 Or 507 (2016) 513
that is material to the case, then the evidence is sufficiently
relevant to be admissible, even if that is not the only infer-
ence that the evidence would support. State v. Titus, 328 Or
475, 480-81, 982 P2d 1133 (1999).
As described, the state argued at trial that evidence
of defendant’s statements was relevant to motive. Renewing
its position on review, the state relies on State v. Hayward,
327 Or 397, 963 P2d 667 (1998), for the proposition that evi-
dence that provides a logical inference of motive is relevant
in a criminal prosecution, even though motive is not an ele-
ment that the state must prove. The facts and analysis in
Hayward helpfully illustrate that general proposition. We
therefore begin with that case.
In Hayward, the defendant and his accomplices,
some of whom considered themselves satanists, listened to
death metal music before going to a Dari Mart convenience
store and robbing it. Id. at 399-400. During the robbery,
they killed one clerk and attempted to kill a second. The
defendant sought to exclude the evidence of their obsession
with satanism and death metal music as irrelevant. Id. at
406. This court concluded, however, that the trial court
had properly admitted that evidence as probative of motive,
explaining:
“One of the theories underlying [the] charges was that
death metal music and satanism provided at least one of
the motives for defendant [and his accomplices] when they
planned and committed the Dari Mart crimes. The tes-
timony to which defendant objected was relevant to the
state’s theory that defendant and the others intended to
commit murder, not merely robbery, when they entered the
Dari Mart. The evidence also was relevant to help explain
the brutality of the attacks on [two victims] and to explain
the group’s intention that [the murder victim] also die, not
merely to cover up evidence of their other crimes, but also
to allow them to carve satanic symbols on the bodies or to
leave other blood evidence of satanism at the scene.”
Id. at 407; see also State v. Brumwell, 350 Or 93, 103-04, 249
P3d 965 (2011) (evidence of satanism and death metal music
in context of Dari Mart murder was relevant and admissible
during penalty phase of trial of different participant who
514 State v. Turnidge (S059156)
later committed another murder); Turnidge (Joshua), 359
Or at 451-52 (explaining that, in Hayward and Brumwell,
after evaluating nature of disputed evidence in light of cir-
cumstances of crime, court concluded that record in both
cases showed connection between disputed evidence and
defendants’ motives and intent).
Likewise, here, evidence of defendant’s longstand-
ing anti-government sentiments, his professed desire to kill
police officers, his interest in and enthusiastic approval of
bombings of governmental facilities, and his efforts to form
and arm an anti-government militia all logically tended to
support to the state’s theory about why defendant commit-
ted the charged crimes. The key evidence supporting the
state’s theories of motive is described in detail in Turnidge
(Joshua), id. at 377-78. But to briefly recap, from the state’s
evidence, the jury reasonably could find that defendant and
Joshua had purchased items with which to construct a highly
lethal bomb, had constructed that bomb in a pole barn on
defendant’s property, and had called in a threat to a bank
next-door to the bank where they had planted the bomb,
mentioning both banks in that call. The phone call included
a death threat and instructions that, the jury reasonably
could find, were designed to facilitate a bank robbery and
to draw law enforcement to the scene. The state’s theory of
the case was that defendant had a mixed motive in taking
those actions: He wanted to rob one or both banks, and he
wanted to kill law enforcement officers who responded to the
bomb threat. Evidence of defendant’s anti-government sen-
timents and activities, his desires to form anti-government
militias, his celebration of the Oklahoma City bombing, and
his infatuation with the idea of killing police officers at a
police memorial all logically supported the state’s theory of
why defendant engaged in the bombing.
Contrary to defendant’s suggestion, any connection
between the bombing of the bank in this case and his past
statements and actions was not entirely speculative. Motive,
like other mental states, often can be established only cir-
cumstantially. State v. Rose, 311 Or 274, 283, 283 n 7, 810
P2d 839 (1991). The fact that the evidence is circumstan-
tial does not make it speculative. Here, the challenged evi-
dence provided a direct basis on which a jury could factually
Cite as 359 Or 507 (2016) 515
determine that defendant harbored hostility toward govern-
ment officials and law enforcement. Those were not abstract
hostilities, however. The challenged evidence was a basis on
which the jury could conclude that defendant spent time, in
his own mind’s eye, visualizing acting on those hostilities in
violent ways that were designed to give him the satisfaction
of killing officials and law enforcement officers. That was
direct evidence of what defendant subjectively believed and
desired to do, which in turn provided an inferential basis
from which a jury could find that defendant was motivated
by his beliefs and hostility to plant a bomb in circumstances
that would result—or so defendant intended—in obtaining
money from a bank and killing law enforcement officers who
might try to disarm the bomb. Although that inference of
motive might not be compelled by the evidence, it is one that
a jury reasonably and logically could draw.
The challenged evidence was, therefore, admissible
over defendant’s relevancy objection. See Turnidge (Joshua),
359 Or at 452-53 (similarly concluding that sufficient con-
nection existed between Joshua’s anti-government views
and motive). The trial court properly denied defendant’s
motion in limine to exclude the challenged evidence.
II.  GUILT PHASE
A.  Jury Instructions, “Acquittal-First” (Assignments No.5-6)
Defendant next argues that, on the four aggravated
felony murder charges, the trial court erred by giving an
“acquittal-first” jury instruction based on ORS 136.460(2).3
3
Although defendant did not except to the jury instruction, we conclude
that he adequately raised the constitutional issue that we address in Turnidge
(Joshua) by joining in Joshua’s motion to have ORS 136.460(2) declared uncon-
stitutional based on the Eighth Amendment and the Due Process Clause of the
Fourteenth Amendment of the United States Constitution.
Defendant also urges this court to consider an unpreserved statutory argu-
ment that felony murder is not a “lesser-included offense” of aggravated felony
murder for purposes of ORS 136.460(2) because ORS 136.460(1) refers to crimes
“of different degrees.” Defendant appears to assert that ORS 136.460 does not
apply to aggravated felony murder because the murder statutes do not describe
murder offenses in terms of “degrees.” Defendant notes that this court has often
indicated its willingness to consider unpreserved questions that provide a sub-
constitutional basis for deciding a legal issue. See, e.g., Li v. State of Oregon, 338
Or 376, 391, 110 P3d 91 (2005) (“This court decides cases on subconstitutional
516 State v. Turnidge (S059156)
We also addressed that same issue in Turnidge (Joshua) and
concluded that the trial court properly gave the challenged
instruction. Id. at 497. We reject defendant’s arguments for
the reasons set out in that case.
B.  Motion for Judgment of Acquittal, Proof of “Intent,” and
“Personally” Elements (Assignment Nos. 7-8)
Defendant moved for judgment of acquittal on the
four counts of aggravated felony murder, urging that the
evidence was insufficient to prove that he committed the
murders “personally and intentionally,” as required by ORS
163.095(2)(d). The arguments that he made in support of
his motion, and that he renews before this court, are essen-
tially the same arguments that we rejected in Turnidge
(Joshua), 359 Or at 458-59; id. at 463-68; id. at 485-91.
Consequently, we reject his arguments for the reasons set
out in our opinion in that case.
C.  Jury Instructions, “Causation” (Assignments Nos. 16-20)
Defendant proposed jury instructions on causation
that the trial court declined to give. He assigns error to the
trial court’s refusal to give those instructions and requests
reversal on all counts. The instructions that defendant
requested, and the supporting arguments that he made
below and now renews on review, are not, in any substantive
way, distinguishable from the proposed instructions and
arguments in their support that we addressed in Turnidge
(Joshua), 359 Or at 482-85. For the same reasons that led
us in Turnidge (Joshua) to conclude that the trial court
properly declined to give those requested instructions, we
reject defendant’s parallel arguments in this case.
grounds when it can, even if the parties present only constitutional arguments
for the court’s consideration.”). That is a prudential rule, however, and it is not
appropriate in every case. Defendant’s subconstitutional argument that the
acquittal-first statute, ORS 136.460, does not apply to aggravated felony murder
because felony murder is not a “lesser included offense” of that crime is poten-
tially more problematic under Beck v. Alabama, 447 US 625, 100 S Ct 2382, 65 L
Ed 2d 392 (1980), than construing ORS 136.460 to apply here. That construction
would leave defendant in a position of having no lesser-included instruction at all
despite evidence that would support it, which Beck held is unconstitutional, as we
have discussed in Turnidge (Joshua), 359 Or at 496. Accordingly, we decline to
address defendant’s subconstitutional argument, which, in all events, consists of
only two sentences and is significantly underdeveloped.
Cite as 359 Or 507 (2016) 517
III.  PENALTY PHASE
A.  Right to Allocution (Assignment No. 23)
Defendant next raises an unpreserved argument
that he urges us to consider as plain error. In particular, he
argues that the trial court erred in making a statement to
him about the nature of his right to allocution at the pen-
alty phase. He claims that that statement caused him not
to address the jury on the issue whether he should be sen-
tenced to death, which in turn potentially affected the jury’s
decision. As a remedy, defendant seeks to have the sentences
of death vacated and the case otherwise remanded for a
new penalty-phase proceeding. As explained below—even
assuming that the issue raised is one of law—we conclude
that the legal point is reasonably in dispute and, addition-
ally, that the record gives rise to competing inferences about
the statement’s import, given the context in which the court
made it. Accordingly, we conclude that the alleged error does
not satisfy the requirements for plain error review.
1.  Additional facts and parties’ arguments on review
At the conclusion of the evidence during defendant’s
penalty-phase trial, the trial court engaged in the follow-
ing on-the-record colloquy with defendant, after clearing
the courtroom of everyone except defendant and defense
counsel:
“THE COURT:  You have a right to address the jury that
has the decision for making the sentence in your case. It’s
called a right to allocute, right to speak aloud to them, to
tell them what you think the sentence ought to be, and it’s
been indicated to me by counsel that you have chosen not to
come to the stand and talk to the jury about what you think
the sentence ought to be. Is that your decision?
“MR. BRUCE TURNIDGE:  Yes.
“THE COURT:  Do you have any questions for me about
that right?
“MR. BRUCE TURNIDGE:  No. I don’t think—they will
make up their mind. They don’t [sic] me to enter—
“THE COURT:  I don’t disagree with that either, but you
have a right, and I need to deal with that. And, of course,
518 State v. Turnidge (S059156)
you would also be subject probably to cross-examination
were you to do that, too. So you understand the choices that
you’re making. You appear to have been attentive to all of
your choices so far. So at least we’ve made this part clear
on the record, that—
“MR. BRUCE TURNIDGE:  Yes.
“THE COURT:  —this is your choice even after talking
with counsel.
“MR. BRUCE TURNIDGE:  Yeah.”
(Emphasis added.) Neither defendant nor his counsel objected
or otherwise voiced any concern about that exchange or the
adequacy of defendant’s waiver of his right to allocution.
On review, defendant argues that the trial court
plainly erred when it stated that defendant would “be sub-
ject probably to cross-examination” during allocution. The
state responds that defendant did not preserve that argu-
ment and that the error does not qualify as one that we can
reach as plain error. Our analysis thus is framed by State v.
Brown, 310 Or 347, 355, 800 P2d 259 (1990), which explained
that an appellate court may review an unpreserved error as
plain error if (1) it is an error of law; (2) it is apparent, that
is, “the legal point is obvious, not reasonably in dispute”;
and (3) it appears on the face of the record, meaning that
the court “need not go outside the record or choose between
competing inferences to find it, and the facts that comprise
the error are irrefutable.”
2.  Analysis
Article I, section 11, of the Oregon Constitution,
provides, in part, that, “in all criminal prosecutions, the
accused shall have the right * * * to be heard by himself and
counsel.” An accused defendant’s right to be heard under that
provision encompasses the common-law right to allocution—
that is, “a convicted defendant’s opportunity to speak before
sentencing.” DeAngelo v. Schiedler, 306 Or 91, 93-94, 93 n 1,
757 P2d 1355 (1988). In exercising that right, a defendant
generally is permitted to “make any statements relevant to
existing sentencing and parole practices”; “state any reason
why he or she feels sentence should not be pronounced[;]
Cite as 359 Or 507 (2016) 519
and, in addition to presenting mitigating evidence, be given
an opportunity to make any relevant personal comments[.]”
Id. at 95-96. Because the right to allocution evolved in a con-
text in which sentencing was a function of the court rather
than of a jury, this court initially characterized it in terms
of a defendant’s right to make statements about sentencing
“to the court.” Id. at 96. In State v. Rogers, 330 Or 282, 4 P3d
1261 (2000), however, this court clarified that a defendant
also is entitled to allocute to a jury during the penalty phase
in a capital proceeding. Rogers provides significant context
for the issue present in this case, and, accordingly, we dis-
cuss it at some length.
In Rogers, the defendant, who had been convicted
on multiple charges of aggravated murder, sought to make
an unsworn statement to the penalty-phase jury. The trial
court ruled that the defendant could make such a statement,
but needed to submit what he intended to say in writing to
the court in advance. The defendant did so, and the court
permitted him to read an edited version of his statement to
the jury. Id. at 292-93. On review, the defendant argued that
the court violated his right to allocution by requiring him to
submit his statement in advance, by editing his statement,
and by requiring him to read a prepared statement rather
than speak extemporaneously. Id. at 293. As a threshold
proposition, the state responded that the right to allocution
did not encompass making an unsworn statement; rather,
a defendant’s constitutional right to be heard was satisfied
by the ability to “take the stand and offer sworn testimony
subject to cross-examination.” Id. at 294.
This court therefore first addressed whether the
defendant in Rogers “had a right to make an unsworn state-
ment to the jury, apart from any right to take the stand and
testify under oath.” Id. at 296. The court began its analysis
by noting that the phrasing of Article I, section 11, indicat-
ing that the right was “to be heard by himself and counsel,”
suggested a right to “present argument without taking the
stand, similar to the way in which his counsel may make
an unsworn closing statement to the factfinder.” Id. at 297.
The court then reviewed the historical context of Article I,
section 11, ultimately concluding that the right to allocution
520 State v. Turnidge (S059156)
guaranteed by that constitutional provision includes the
right to make an unsworn statement to the jury in the pen-
alty phase of a capital proceeding.
The court in Rogers went on to conclude, however,
that, “especially in the case of statements by a defendant
not made in response to questioning under oath, the trial
court has a legitimate concern with assuring that the defen-
dant does not make irrelevant or prejudicial statements.”
Id. at 301. The court therefore reasoned that, although a
trial court is obliged to accommodate a defendant’s exercise
of constitutional rights, it has discretion to ensure that the
trial is carried out in an “orderly and expeditious” man-
ner. Consequently, the restrictions placed on the defendant
in that case did not violate the defendant’s rights under
Article I, section 11. Id.Defendant argues that the trial court’s state-
ment, in the colloquy quoted above, that defendant would
“be subject probably to cross-examination,” should be
reviewed “for errors of law” and was legally incorrect.
Given the context in which the trial court made the
challenged statement and the nature of our review, as
explained below, we conclude that the court did not com-
mit a plain error of law.
The brief colloquy about defendant’s decision to
waive his right to allocution took place during the penalty
phase, after the close of defendant’s evidence. Significantly,
that colloquy also occurred—presumably at defendant’s
request—outside the presence of the prosecutors. The appar-
ent purpose of the colloquy was to put on the record defen-
dant’s choice not to allocute at sentencing, a choice that, the
record suggests, defendant by then already had made after
consulting with counsel. It was not until defendant advised
the trial court of his choice not to allocute that the court
remarked that defendant “would also be subject probably to
cross-examination.” (Emphasis added.) The court’s remark
was thus made in a context in which no ruling was either
requested or required. Given that fact, we fail to see how
the remark qualifies as an operative decision or ruling sus-
ceptible to challenge on review, either as a preserved issue
or a claim of “plain error.” See ORAP 5.45(3) (in assigning
Cite as 359 Or 507 (2016) 521
error on appeal, appellant must “identify precisely the legal,
procedural, factual or other ruling that is being challenged”
(emphasis added)). That conclusion follows with added force
when, as here, the trial court’s remark had no apparent
effect on either the defendant’s course of action or the course
of the trial or sentencing proceeding.
Defendant nevertheless argues that the colloquy,
and the fact that defense counsel did not object to the
trial court’s remark, demonstrates “that either Defendant
had been improperly informed when he was first apprised
of his right to allocution, or that he was never properly
informed about the nature of his right at all.” If we under-
stand defendant’s point, he asks us to infer from his
counsel’s failure to respond to the court’s remark that his
counsel must have advised him that he would be subject
to cross-examination if he exercised his right to allocute
or—at the least—that whatever advice his counsel had
given him was somehow not accurate. Based on those
alternative scenarios, defendant argues that his waiver of
his right to allocution could not have been knowing and
intelligent.
Defendant, however, cites no authority for the prop-
osition that speculation about what might or might not have
occurred off the record provides a basis for “plain error”
reversal of a conviction. Indeed, Brown indicates otherwise:
Even when the alleged error is one of law and the legal point
is beyond dispute, we nevertheless do not review the “plain
error” unless it appears “on the record,” meaning that we
“need not go outside the record or choose between competing
inferences to find it, and the facts that comprise the error
are irrefutable.” Brown, 310 Or at 355.4 Here, the record
does not indicate what defendant was or was not told about
4
Defendant urges that Rogers, 330 Or 301, held that a defendant could never
be subject to cross-examination during sentencing, but that case did not so hold.
And, as this court recently recognized in State v. Guzek, 358 Or 251, 278-79, 363
P3d 480 (2015), some—although not all—of the historical reasons for the right to
allocution no longer have vitality. Perhaps the most notable change, for purposes
of a capital case, is that the right to allocution is exercised in front of a jury, not
a judge, which raises evidentiary issues. How that and other changes might bear
on the scope of the right to allocution and on the potential for cross-examination
of a defendant who exercises that right in a way that places additional “evidence”
before the jury is far from beyond dispute.
522 State v. Turnidge (S059156)
his Article I, section 11, rights before he made his decision
not to allocute to the jury during the penalty phase. Neither
does the record suggest that the trial court’s comment had
any effect on defendant’s decision. Consequently, we con-
clude that no error is apparent on the record.5
B.  Prosecutor’s Closing Statement (Assignment No. 24)
Defendant’s next argument presents us with another
unpreserved issue that he asks us to consider as plain error.
Defendant contends that the trial court sua sponte should
have taken “corrective action” when the prosecutor, during
closing argument, made statements that, defendant asserts,
“urg[ed] the jury to sentence defendant to death in order
to silence him.” The statements that defendant challenges
were made after the prosecutor referred in closing argument
to the testimony of a witness—an inmate with a low level
of education—who had described defendant as “brilliant.”
The prosecutor then asserted that “[t]hat [type of person]
is who [defendant] will influence inside the prison, and then
when those people get out, he will influence them outside the
prison.” Later, at another point during closing argument, the
prosecutor urged the jury that the only sentence that would
“silence” defendant was a death sentence. As we understand
defendant’s point, defendant contends that the prosecutor’s
closing argument violated his free speech rights under the
First Amendment to the United States Constitution.6
5
In addition, even if we were to conclude that the trial court’s remark
amounted to plain error, we still would have to exercise our discretion to decide
whether to correct that error. One consideration that weighs against reaching an
unpreserved error is “whether the trial court was, in some manner, presented
with both sides of the issue and given an opportunity to correct any error.” Ailes
v. Portland Meadow, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991). The chal-
lenged remark that the trial court made here was made outside the presence of
the prosecutors. Thus, not only was the court not making an operative ruling
that defendant would be subject to cross-examination, but the court also was
not presented with legal arguments on the matter by either party. And because
defendant voiced no objection, the court had no opportunity to clarify what had
prompted its remark, to determine whether that remark had any bearing on
defendant’s decision, or to retract or clarify the remark. Those circumstances
would have significant bearing on whether we would exercise our discretion to
reach this issue, even if the issue qualified as plain error, which it does not.
6
The First Amendment provides that “Congress shall make no law * * *
abridging the freedom of speech[.]” It applies to the states through the Due
Process Clause of the Fourteenth Amendment. Presley v. Georgia, 558 US 209,
211-12, 130 S Ct 721, 175 L Ed 2d 675 (2010).
Cite as 359 Or 507 (2016) 523
The state responds that defendant takes those state-
ments out of context. The state asserts that the prosecutor was
appropriately addressing the issue of defendant’s future dan-
gerousness, which the jury was required to consider during
the penalty phase of the trial. See ORS 163.150(1)(b)(B)
(penalty-phase jury must answer question whether probabil-
ity exists that defendant will commit violent criminal acts
constituting continuing threat to society). The prosecutor
had pointed to penalty-phase evidence of defendant’s past
threats and offers to kill others, as well as to defendant’s
zeal to form an anti-government militia and spread his vio-
lent anti-government ideologies. In that context, according
to the state, the prosecutor was referring to defendant’s
dangerousness in terms of his willingness to commit crimes
based on his violent ideologies and his desire to influence
others to commit crimes in pursuit of those same ideologies.
We agree that the prosecutor’s comments, taken
as a whole and in context, support the interpretation that
the state advances. Thus, the prosecutor’s argument was a
permissible one, based on the evidence before the jury and
the question of future dangerousness that the jury had to
decide.
Defendant cites no authority for the proposition
that a jury may not consider that type of evidence in assess-
ing future dangerousness in the penalty phase of a capital
proceeding or that the prosecutor is barred from making
arguments pertaining to evidence of that kind. The primary
case on which defendant relies is Dawson v. Delaware, 503
US 159, 112 S Ct 1093, 117 L Ed 2d 309 (1992). There, the
United States Supreme Court held that evidence of a defen-
dant’s membership in a racist Aryan Brotherhood prison
gang was irrelevant and inadmissible in a capital murder
proceeding. The victim in Dawson had been white, and the
murder had been carried out in the course of a robbery that
the defendant allegedly had committed after escaping from
prison. The Supreme Court reasoned that the evidence at
issue did not establish any connection between the Aryan
Brotherhood and violent escape attempts, but, instead,
established only that the Aryan Brotherhood was a prison
gang that held white racist beliefs. Id. at 165-66. The Court
524 State v. Turnidge (S059156)
specifically noted, however, that it had “previously upheld
the consideration, in a capital sentencing proceeding, of evi-
dence of * * * subversive advocacy where such evidence was
relevant to the issues involved.” Id. at 164 (citing Barclay v.
Florida, 463 US 939, 103 S Ct 3418, 77 L Ed 2d 1134 (1983));
see also id. at 166 (“A defendant’s membership in an organi-
zation that endorses the killing of any identifiable group, for
example, might be relevant to a jury’s inquiry into whether
the defendant will be dangerous in the future.”).
Contrary to defendant’s assertions, this is not a sit-
uation in which the prosecutor’s statements urged the jury
to punish defendant because of his abstract political beliefs
or statements. Rather, the state had presented evidence of
defendant’s beliefs that directly bore on his motivation for the
murders at issue in this case, on his reasons for threatening
to commit other crimes, and on his willingness to encourage
others to follow those beliefs. Based on that evidence, the
prosecutor’s comments invited the jury to draw reasonable
and permissible inferences about defendant’s future danger-
ousness. The trial court did not err in failing to sua sponte
prevent the prosecutor from making those arguments.
IV. CONCLUSION
We reject defendant’s remaining assignments of
error without discussion, including those advanced in defen-
dant’s supplemental pro se brief. Having rejected all defen-
dant’s assignments of error, we affirm the judgment of con-
viction and the sentences of death.
The judgment of conviction and sentences of death
are affirmed.