State v. Guzek , 322 Or. 245 ( 1995 )

UNIS, J.

This case is before this court on automatic and direct review of defendant’s sentence of death. ORS 163.150(l)(g). For the reasons that follow, we vacate defendant’s sentence of death.

In 1988, defendant was convicted of two counts of aggravated murder and sentenced to death.¹ On automatic and direct review of that judgment, this court affirmed defendant’s convictions, but vacated defendant’s sentence on the basis oí State v. Wagner, 309 Or 5, 14-20, 786 P2d 93, cert den 498 US 879 (1990) (Wagner II), and remanded the case for a new trial of the penalty phase or, at the election of the district attorney, for a life sentence. State v. Guzek, 310 Or 299, 305-06, 797 P2d 1031 (1990) (Guzek T).

In 1991, a new jury was empaneled for the penalty phase pursuant to ORS 163.150(5)(a)(B) (1989). Before the jury was empaneled for that penalty proceeding, defendant moved to exclude the introduction of all “victim impact evidence”² by the state, contending, among other things, that it:

“[i]s irrelevant, unduly inflamatory, wholly unrelated to the blameworthiness of this particular defendant, and likely to cause the sentencing decision to turn on irrelevant factors such as the degree to which the victim’s family is willing and able to articulate its grief, or the relative worth of the defendant’s character;

“[d]iverts a jury from deciding the case on the relevant evidence and data concerning the crime and defendant; [and]

“[violates the Eighth and Fourteenth Amendments to the United States Constitution[.]”³

The trial court granted defendant’s motion. At that time, the Supreme Court of the United States had held that the Eighth Amendment to the United States Constitution barred the admission of victim impact evidence in the penalty phase of capital trials. Booth v. Maryland, 482 US 496, 509, 107 S Ct 2529, 2536, 96 L Ed 2d 440, 452 (1987); South Carolina v. Gathers, 490 US 805, 811, 109 S Ct 2207, 2211, 104 L Ed 2d 876, 883 (1989).

After the new sentencing jury was empaneled, but before opening statements were made, the Supreme Court overruled Booth and Gathers in Payne v. Tennessee, 501 US 808, 111 S Ct 2597, 115 L Ed 2d 720 (1991). In Payne, the Supreme Court held that the Eighth Amendment did not erect a per se bar to the admission of victim impact evidence. 501 US at 827. Justice O’Connor explained the significance of that holding:

“We do not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merely that if a State decides to permit consideration of this evidence, ‘the Eighth Amendment erects no per se bar.’ ” Id. at 831 (O’Connor, J., concurring) (citations omitted).

Thus, whether victim impact evidence should be admitted during the penalty phase of a capital case is an issue of state law.

Believing that Oregon state law permitted the admission of victim impact evidence, the state timely notified the trial court and defendant that it intended to offer such evidence in this case.

Defendant renewed his objection to the admission of such evidence, arguing that victim impact evidence was not admissible as a matter of Oregon statutory and constitutional law. The trial court overruled defendant’s objection, ruling that such evidence is admissible.

During the penalty phase on remand, the state called some family members of the two victims in this case, a husband and wife, to testify. The brother of the husband described that victim’s personal characteristics and background. The couple’s daughter also described the personal characteristics and background of both victims and the impact of their deaths on the family.

After the conclusion of evidence and closing statements, the trial court instructed the jury:

“You will be given three questions that you must answer yes or no. The State has the burden of proving that the first two questions must be answered yes. The State must prove that that is the appropriate answer beyond a reasonable doubt. If the affirmative of the two questions is not proven beyond a reasonable doubt, the questions should be answered no. Neither party has any burden of proof as to the third question.

“In answering each of the three questions, each may be answered yes only if all twelve jurors agree that that should be the answer. If one or more jurors do not agree to a yes answer to any question, then that question must be answered no. In answering these questions, your answers must be based upon the evidence in this case and upon the Court’s instructions. The three questions that will be submitted to you are as follows.

“First, was the conduct of the [djefendant that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

“Two, is there a probability that the [djefendant would commit criminal acts of violence that would constitute a continuing threat to society? In determining the answer to this question, you shall consider any mitigating circumstances offered in evidence including but not limited to the [djefendant’s age, the extent and severity of the [djefendant’s prior criminal conduct, and the extent of the mental and emotional pressure under which the [djefendant was acting at the time the offense was committed.

“The third [question] is, should the [djefendant receive a death sentence? You answer this question no if you find that there is any aspect of the [djefendant’s character or background or any circumstance of the offense that you believe would justify a sentence less than death.

“In determining the answers to all three of these questions, you may consider any mitigating circumstances that have been offered in evidence. If you do not unanimously answer all three questions yes, then the [djefendant will be sentenced to life imprisonment without possibility of parole for at least 30 years on each count of aggravated murder so that there will be a separate sentence imposed for each verdict you return which has a no answer in it.

“If you do answer all three questions yes as to the death of either victim, the Court will sentence the [defendant to death. The burden of proof is on the State to prove beyond a reasonable doubt the yes answer to each of the first two questions submitted to you, and I just told you that. * * *

“And, as I told you, there is no burden of proof on either party as to the third question. You may consider any aspects of [djefendant’s life in your determination of the third question regarding appropriateness of the death penalty, and any aspect of [defendant's life that may be relevant in your determination in the first two questions. Defendant need not prove the existence of a mitigating circumstance. If you reasonably believe that a mitigating circumstance exists, you may consider it as established.” (Emphasis added.)

The jury deliberated and answered each of the three questions in the affirmative. The trial court scheduled sentencing for five days later and at that time pronounced defendant’s death sentence.

Defendant raises numerous assignments of error. Defendant first assigns as error the decision of the trial court to admit the victim impact evidence. Defendant makes both statutory and constitutional arguments that the victim impact evidence was not admissible. We begin with defendant’s subconstitutional arguments. See State v. Stevens, 319 Or 573, 579, 879 P2d 162 (1994) (Stevens II) (court decides subconstitutional issues before addressing constitutional issues).

Defendant argues that the victim impact evidence was not admissible because it was not relevant to any of the substantive issues submitted by the court to the jury pursuant to ORS 163.150(l)(b) (1989). We agree.

ORS 163.150(l)(a) (1989), which was the statutory scheme in effect at the time, provided that “evidence may be presented as to any matter that the court deems relevant to sentence.” The standard of relevance in OEC 401 applies in penalty phase proceedings. Stevens II, 319 Or at 580. Under OEC 401, “ ‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” “Evidence which is not relevant is not admissible.” OEC 402.

The function of the doctrine of relevancy is to require that there be some rational relationship between the item of evidence offered by a litigant and the substantive issues properly provable in the case. 22 Wright & Graham, Federal Practice & Procedure: Evidence § 5164, at 37 (1978). Relevancy under OEC 401 is a relational concept that carries meaning only in context. See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 4.1, at 183 (1995) (stating principle). Stated differently, “[r]elevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.” OEC 401 Commentary, reprinted in Laird C. Kirkpatrick, Oregon Evidence at 104 (2d ed 1989).

Relevance under OEC 401 merges two traditional concepts — relevance and materiality — into a single definition, using the term “relevant” to embrace the two. OEC 401 Commentary, reprinted in Kirkpatrick, Oregon Evidence at 105. The traditional concept of relevance concerns the relation between the facts in evidence and the conclusions to be drawn from them, while materiality concerns the relation between the proposition for which evidence is offered and the issues in the case. Id. Under OEC 401, an offered item of evidence may be excluded as irrelevant for either of two quite distinct reasons: (1) because it is not probative (i.e., does not have any tendency to prove or disprove, or to make more probable or less probable) of the fact or proposition at which it is directed, or (2) because that fact or proposition at which the item is directed is not provable in the case, i.e., is not “of consequence [‘material’] to the determination of the action.” OEC 401. Thus, relevance under OEC 401 is not only a relational concept, it is also a legally substantive or definitional one. Whether a fact or proposition is provable in the case is determined not by the rules of evidence, but by the pleadings, the other evidence introduced in the case, and the applicable substantive law. State v. Clowes, 310 Or 686, 691-92, 801 P2d 789 (1990).

Defendant does not dispute that the state’s victim impact evidence tends to prove the fact or proposition at which it was directed, namely, the victims’ personal characteristics and the impact of the victims’ deaths on their families. The question before us, therefore, is whether that evidence was “material,” i.e., whether the impact of the crime on the victims’ families was a matter properly provable in the penalty phase of defendant’s capital trial.

As the trial court’s jury instructions in this case indicate, there were three substantive issues which the jury had to consider. To be relevant, the victim impact evidence must tend to prove one of those three substantive issues. The three issues were presented to the jury pursuant to ORS 163.150(l)(b) (1989), as interpreted by this court in Wagner II, 309 Or at 19.

ORS 163.150(l)(b) (1989) provided:

‘Upon the conclusion of the presentations of the evidence, the court shall submit the following issues to the jury:

“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;

“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;

“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and

“(D) If constitutionally required, considering the extent to which the defendant’s character and background, and the circumstances of the offense may reduce the defendant’s moral culpability or blameworthiness for the crime, whether a sentence of death be imposed.”⁴

The first three statutory factors listed above, ORS 163.150(l)(b)(A)-(C) (1989), all require that the jury consider specific aggravating circumstances {i.e., deliberateness, future dangerousness, and unreasonable response to provocation). The existence of an “aggravating circumstance” leads a jury to answer the question “whether the sentence of death [should] be imposed” in the affirmative. The existence of a “mitigating circumstance” weighs against the imposition of the death sentence. The trial court instructed the jury to consider two aggravating circumstances, deliberateness and future dangerousness.⁵ The state makes no argument that the victim impact evidence establishes either of those two statutory aggravating circumstances. The state agrees that the victim impact evidence does not tend to prove either defendant’s deliberateness in carrying out the crime or defendant’s likelihood of future dangerousness.

The state argues that the victim impact evidence tends to prove the existence of an aggravating circumstance under the fourth statutory question,⁶ “whether a sentence of death [should] be imposed.” ORS 163.150(l)(b)(D) (1989). Defendant argues that the fourth question under ORS 163.150(l)(b)(D) (1989) only permits the consideration of mitigating evidence. For the reasons that follow, we conclude that only evidence relating to the existence of mitigating circumstances is relevant to the fourth statutory question provided by ORS 163.150(l)(b)(D) (1989).

To determine whether victim impact evidence is relevant to the fourth statutory question, we look to the legislature’s intent in drafting the fourth question. In doing so, the first level of analysis is to examine the text and context of the statute. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). The context of the statute includes other provisions of the same statute and other related statutes. Id. at 611.

To review, ORS 163.150(l)(b) (1989) provided that the court shall submit to the jury the fourth question as follows:

“(b) Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

“(D) If constitutionally required, considering the extent to which the defendant’s character and background, and the circumstances of the offense may reduce the defendant’s moral culpability or blameworthiness for the crime, whether a sentence of death be imposed.” (Emphasis added.)

ORS 163.150(l)(b)(D) (1989) focuses on mitigation as the purpose of the fourth question. That statute requires the trial court to instruct the jury to consider the extent to which the defendant’s character and background and the circumstances of the offense may “reduce the defendant’s moral culpability or blameworthiness for the crime.”⁷ Thus, the text of the statute, and particularly the word “reduce,” suggest that the issue before the jury under the “fourth question” is the existence of mitigating circumstances, not aggravating circumstances. The context of ORS 163.150-(l)(b)(D) (1989) further indicates that the issue submitted to the jury under the “fourth question” is the existence of mitigating circumstances.

ORS 163.150(l)(d) (1989) provided:

“The state must prove each issue submitted under sub-paragraphs (A) to (C) of paragraph (b) of this subsection [i.e., deliberateness, future dangerousness, unreasonable response to provocation] beyond a reasonable doubt, and the jury shall return a special verdict of‘yes’ or ‘no’ on each issue considered.”

The statute imposed no similar burden on the state to prove beyond a reasonable doubt the issue submitted to the jury under the “fourth question.” See Wagner II, 309 Or at 18 (there is no burden of proof on the fourth question). Thus, for each of the first three questions under ORS 163.150(l)(b)(D) (1989), which required the jury to consider enumerated aggravating circumstances, the state had the burden to establish the aggravating circumstance beyond a reasonable doubt. The “fourth question” (whether defendant should receive a death sentence), however, did not refer to aggravating circumstances, and provided no burden of proof.

The statutory requirement that the state must prove beyond a reasonable doubt the issues concerning aggravation submitted under the first three questions indicates that the legislature intended that the death penalty would be imposed only on the basis of the enumerated statutory aggravating factors that the state establishes beyond a reasonable doubt. Interpreting the “fourth question,” on which neither party has any burden of proof, to allow proof of nonenumerated aggravating factors would allow the imposition of the death penalty on the basis of nonenumerated aggravating factors that were not established beyond a reasonable doubt. Such an interpretation would be inconsistent with the legislature’s intent to require proof beyond a reasonable doubt of the enumerated aggravating circumstances. Thus, the lack of a burden of proof as to the issue submitted to the jury under the “fourth question” indicates that the legislature did not intend that issue to involve a consideration of aggravating circumstances.

The context of a statute also includes this court’s interpretations of the statute. Gaston v. Parsons, 318 Or 247, 252, 864 P2d 1319 (1994). In Wagner II, this court recognized the lack of grammatical clarity of ORS 163.150(l)(b)(D) (1989) and stated that the following jury instruction was correct for the “fourth question” under ORS 163.150(l)(b)(D) (1989):

“Should defendant receive a death sentence? You should answer this question ‘no’ if you find any aspect of defendant’s character or background, or any circumstances of the offense, that you believe would justify a sentence less than death.” 309 Or at 19.

Again, the jury instruction formulated by this court focused solely on whether the evidence of mitigating circumstances justified a sentence of less than death. That statutory interpretation confirmed that the statute referred solely to mitigating circumstances, not to aggravating circumstances.

Following Wagner II, this court held on several occasions that the fourth question was enacted to permit the jury to consider the existence of mitigating circumstances. In State v. Miranda, 309 Or 121, 131, 786 P2d 155, cert den 498 US 879 (1990), this court observed:

“In the fourth question proposed above we are asking the jury to consider any mitigating aspect of defendant’s life, alone or in combination, not necessarily related causally to the offense, in making its finding.”

In Stevens II, 319 Or at 585 (quoting Wagner II, 309 Or at 13), we also stated:

“The fourth question ‘is a mechanism for the sentencing jury to give meaningful effect to its consideration of the entire range of mitigating evidence])]’ ”

In each of those cases, this court clearly explained that the purpose of the fourth question was to permit consideration of mitigating evidence that weighs against the sentence of death. See also State v. Pinnell, 311 Or 98, 117, 806 P2d 110 (1991) (Pinnell I) (the fourth question permits the jury to spare a defendant’s life if the jury believes, under all the circumstances, that it is appropriate to do so); State v. Simonsen, 310 Or 412, 414, 798 P2d 241 (1990) (Simonsen I) (the fourth question permits a jury to spare a defendant from the death penalty).

The text and context of ORS 163.150(l)(b)(D) (1989) clearly indicate that the fourth question under that statute only permits the jury to consider mitigating evidence. The dissent reaches the opposite conclusion. Tb support that conclusion, the dissent looks to the text, context, and legislative history to determine the statute’s meaning. See 322 Or at 274-78 (Graber, J., dissenting).

The dissent argues that legislative history of ORS 163.150(l)(b)(D) (1989) indicates that victim impact evidence is admissible under the fourth question. We disagree. Our review of legislative history supports the opposite conclusion. In order to accurately portray the legislative intent of ORS 163.150(l)(b)(D) (1989), it is necessary to examine the background surrounding the enactment of that statute.

Oregon’s death penalty scheme originally consisted of three statutory questions. ORS 163.150(2) (1985). Those three questions related to the existence of enumerated aggravating circumstances. See id. (future dangerousness, deliberation, and unreasonable response to provocation). Under that initial statutory scheme, only those three enumerated aggravating circumstances justified the imposition of a sentence of death, hi 1989, the legislature added the “fourth question.” Or Laws 1989, ch 790, § 135b. Thus, the question becomes whether, by adding the “fourth question” to Oregon’s death penalty scheme, the legislature intended to allow the jury to consider additional non-enumerated aggravating circumstances in deciding whether a defendant should receive a death sentence.

This court recently examined the legislative history of the “fourth question” in Stevens II, 319 Or at 580-83. In that case, this court recalled that the “fourth question” was enacted to make Oregon’s death penalty scheme comply with the requirements of the Eighth Amendment to the Constitution of the United States, as those requirements were interpreted in Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989). Stevens II, 319 Or at 581.

In Penry, the Supreme Court of the United States held that a death sentence imposed under the Texas three-question statutory sentencing scheme, on which Oregon’s scheme was based, was unconstitutional, because it did not give the jury a meaningful opportunity to “give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.”⁸ Penry, 492 US at 328. In Penry, the Supreme Court stated:

“In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence. * * * Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense. Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a reasoned moral response to the defendant’s background, character, and crime. * * * In order to ensure reliability in the determination that death is the appropriate punishment in a specific case, * * * the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime.” 492 US at 327-28 (emphasis in original; citations and internal quotation marks omitted).

Thus, under Penry, the constitution requires that the jury have broad discretion in considering relevant mitigating circumstances, and it imposes “carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence.”

In enacting ORS 163.150(l)(b)(D) (1989), the legislature was attempting to bring Oregon’s death penalty scheme in compliance with Penry. Stevens II, 319 Or at 581. When the “fourth question” (whether the defendant should receive a death sentence) was added, the Oregon death penalty scheme already had “carefully defined standards” that narrowed the imposition of the death sentence, in the form of three questions relating to enumerated statutory aggravating circumstances. Thus, in order to comply with Penry, the legislature added the fourth question to allow the jury to “consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime.” Penry, 492 US at 327-28.

In Wagner II, this court explained how adding a fourth question to Oregon’s original three-question death penalty scheme was required to satisfy the requirements of Penry. This court explained:

“In June 1989, the United States Supreme Court so held [that the federal constitution requires some avenue for the sentencing jury to give meaningful effect to mitigating evidence relevant outside or beyond the statutory issue] in Penry, a case involving the Texas statute in which the Oregon statute has its roots. In Penry, the Supreme Court appears to have put its imprimatur on a fourth question as one mechanism for the sentencing jury to give meaningful effect to its consideration of the entire range of possible mitigating evidenced” 309 Or at 13 (emphasis added).

When Penry was decided, ORS 163.150 (1987) provided that the jury was to be instructed in the penalty phase of a capital trial as to three issues (deliberateness, future dangerousness, and response to provocation). The statute did not expressly provide for a “fourth question.” The court recognized, however, that if the statute did not permit a “fourth question,” the statute would be facially unconstitutional. Wagner II, 309 Or at 8.

The Wagner II court’s discussion of the facial validity of ORS 163.150 (1987) makes clear that the focus of the constitutionally required mechanism of a fourth question was on the consideration of mitigating circumstances. This court held that Oregon’s death penalty scheme was not unconstitutional because “ORS 163.150 [(1987)] permits a general mitigation question.” 309 Or at 14. The Wagner II court proceeded to adopt the approach suggested by Justice Gillette’s dissenting opinion in Wagner I:

“Justice Gillette’s dissent in Wagner [I] states:

“ None of the foregoing [discussion of the federal precedents] necessarily requires holding that the Oregon statutory scheme is unconstitutional on its face. This court could so construe the statute as to permit the admission of all mitigating evidence and to require an instruction to the jury delineating the scope of the jury’s authority to reprieve an otherwise death-eligible defendant on the basis of that [mitigating] evidence.

“ T do not here propose any particular solution. One solution perhaps would be to instruct the jury that, even if it concludes that all three statutory questions should be [309 Or at 14] answered “yes,’ it nonetheless should answer one of them ‘no’ unless it unanimously concludes that the mitigating evidence does not call for a lesser penalty. A second alternative might have the jury answer a fourth, constitutionally-required question after the three statutory ones: After considering all the mitigating evidence, does the jury still unanimously conclude that the prisoner should be put to death, rather than spared?’ * * * 305 Or at 232-33, 752 P2d 1136 (Gillette, J., dissenting). (Emphasis added.)

“In view of what we have learned from Penry, it is now clear that mitigating evidence beyond the scope of the statutory issues is indeed constitutionally “relevant to sentence” and, accordingly, statutorily admissible. See State v. Wagner, 305 Or at 156-67, 752 P2d 1136; ORS 163.150(l)(a) [(1987)]. The step from admissibility of such evidence to meaningful consideration by the jury, suggested by Justice Gillette as a possibility of statutory construction in Wagner and required by the Supreme Court in Penry for a constitutionally valid death sentence, is the step we now take.” Wagner II, 309 Or at 13-14 (emphasis added).

Thus, the fourth question (whether the defendant should receive a death sentence), which this court created in Wagner II, was developed for the sole purpose of giving effect to the constitutional requirement that the jury must consider mitigating evidence. Indeed, the point of the fourth question was to give the jury an opportunity, after considering all mitigating evidence, to decide to spare a defendant’s life, notwithstanding affirmative answers to the first three questions which related to the existence of aggravating circumstances.

We now turn to the legislative history that followed this court’s decisions discussed above.

The dissent contends that the legislative history of ORS 163.150 (1989) provides support for its position that the fourth question permits the consideration of aggravating evidence. Ib that end, the dissent argues that the testimony of Dale Penn, a representative of the Oregon District Attorney’s Association, sheds significant light on the purpose of ORS 163.150(l)(b)(D) (1989). 322 Or at 277 (Graber, J., dissenting). There are several problems with the dissent’s approach. First, the dissent relies almost exclusively on the inconclusive testimony of one person, Penn. Penn is a witness and representative of a district attorney’s association; he is not a legislator. As such, his statements say little about the intent of the Oregon Legislative Assembly as a whole.

The majority opinion, on the other hand, attempts to discern the general intent of the Legislative Assembly when it enacted ORS 163.150(l)(b)(D) (1989). Our opinion does so by analyzing ORS 163.150(l)(b)(D) (1989) as a legislative response to the Supreme Court’s decision in Penry. The general intent of the Legislative Assembly was to make ORS 163.150 (1989) constitutional in light of Penry by providing a mechanism for the consideration of mitigating evidence. This is the same approach we took when we examined the legislative history of ORS 163.150(l)(b)(D) (1989) in Stevens II, 319 Or at 581.

It is curious that the dissent relies so heavily on the testimony of one witness. Recently, the author of the dissenting opinion made a general observation about the use of legislative history. The author stated:

“In general, an examination of legislative history is most useful when it is able to uncover the manifest general legislative intent behind an enactment. By contrast, an examination of legislative history is most fraught with the potential for misconstruction, misattribution of the beliefs of a single legislator or witness to the body as a whole, or abuse in the form of ‘padding the record’ when the views of only a small number of persons on a narrow question can be found.” Errand v. Cascade Steel Rolling Mills, Inc., 320 Or 509, 539 n 4, 888 P2d 544 (1995) (Graber, J., dissenting).

Penn’s opinions concerning ORS 163.150(l)(b)(D) (1989) are merely the views of one witness and do not evidence the general intent of the Legislative Assembly.

Even if we were to find Penn’s views persuasive, they do not support the dissent’s conclusion that ORS 163.150(l)(b)(D) (1989) permits the jury to consider victim impact evidence under the fourth question. Penn testified that the fourth question

“allows all the mitigating circumstances to be in there, all kinds of arguments by the state and the defense both for or against death whether or not it — the other three questions are relevant and that’s the intent of the Supreme Court’s opinion [in Penry].” Senate Judiciary Committee, June 29, 1989, Tape 256, Side A at 160-75.

First, we point out what Penn did not say. He did not say that the fourth question permits the state to introduce evidence of aggravating circumstances. Rather, he stated that the fourth question would permit both the state and the defense to make arguments “for or against death.” Penn’s statement simply confirms that the state and defense may make arguments for or against the death penalty under each question. See ORS 163.150(l)(a) (1985) (“the state and the defendant * * * shall be permitted to make arguments for or against a sentence of death” (emphasis added)); ORS 163.150(l)(a) (1989) (same); ORS 163.150(l)(a) (1993) (same). For example, the state may argue that, under the fourth question, any mitigating circumstances offered by defendant should not lead the jury to spare defendant’s life. Penn’s statement that the state has the right to make arguments for the death penalty is not, as the dissent asserts, the same as saying that the state has the right to introduce aggravating evidence under the fourth question.

If the intent of Penn’s testimony was that the state has the right to introduce aggravating evidence under the fourth question, it is curious that he concluded his remarks by stating “that’s the intent of the Supreme Court’s opinion [in Penry].” The intent of the Supreme Court’s opinion in Penry was not to let in more aggravating evidence. In fact, it was just the opposite; the intent of the opinion was to allow the jury to consider mitigating circumstances that may weigh against the imposition of the death sentence. Penry, 492 US at 327-28.

If the dissent believes that we can glean some legislative intent from the statements of witnesses who testified before the legislative committees, the dissent has overlooked the statements of two important witnesses. Both the Attorney General and the Solicitor General, acting in their official capacities, testified as to the purpose of ORS 163.150-(l)(b)(D) (1989). The Attorney General, Dave Frohnmayer, remarked:

“It is our judgment that legislative clarification which involves the addition explicitly in the statute of a fourth factor that is a consideration of mitigating circumstances which the United States Supreme Court has suggested may be constitutionally required would be desirable by this Legislative Assembly in order to eliminate lack of clarity or possible concern about the reach and scope of Oregon’s present capital punishment law.” Senate Judiciary Committee, June 29, 1989, Tape 255, Side A at 45 (emphasis added).

The Solicitor General, Virginia Linder, then added:

“The language we’ve chosen is, as, as best we can, a model of what the U.S. Supreme Court really has said in its decision in Penry. Essentially, it [the proposed amendment] would require a fourth question or issue to be submitted to the jury in those circumstances where the constitution requires that some other factor related to a defendant’s background, character, or circumstances of the offense mitigate against a sentence of death, but that factor is not otherwise encompassed within the three issues that have already statutorily been required.” Id. at 60 (emphasis added).

The comments of the Attorney General and Solicitor General provide additional support to the view that the fourth question was enacted in order to allow the jury to take into account mitigating circumstances that weigh against a sentence of death.

This was the view taken by this court in Wagner II. In Wagner II, we concluded that in order to comply with Penry, Oregon’s death penalty scheme must include a mechanism that allows the jury an opportunity to spare a defendant’s life in light of any mitigating circumstances. 309 Or at 14. Accordingly, the “fourth question” was intended as a mechanism to allow the jury to give full effect to any mitigating circumstances.

Based on the text, context, and legislative history of ORS 163.150(l)(b)(D) (1989), we conclude that the issue submitted to the jury under the “fourth question” is whether any mitigating circumstances exist that would justify a sentence of life rather than death. Tb conclude otherwise would allow the jury to consider a nonstatutory aggravating factor beyond the three aggravating factors specifically enumerated in the statute. We find nothing in the text, context or legislative history of ORS 163.150(l)(b)(D) (1989) to indicate that the legislature intended that the jury could consider aggravating victim impact evidence under the fourth question.

The victim impact evidence presented in this case was not relevant to any of three substantive issues (deliberateness, future dangerousness, and whether defendant should receive a death sentence) that the court instructed the jury to consider in the penalty phase of defendant’s capital trial under ORS 163.150(l)(b) (1989).

The next issue for this court is whether victim impact evidence is made admissible during the penalty phase of capital cases under ORS 137.013 even though that evidence is not relevant under ORS 163.150(l)(b)(D) (1989).

ORS 137.013 provides:

“At the time of sentencing, the victim or the victim’s next of kin has the right to appear personally or by counsel, and has the right to reasonably express any views concerning the crime, the person responsible, the impact of the crime on the victim, and the need for restitution and compensatory fine.”

In essence, the state argues that ORS 137.013 makes victim impact evidence admissible in the penalty phase of defendant’s capital trial, irrespective of its relevance under ORS 163.150(l)(b)(D) (1989). We disagree. For the reasons that follow, we conclude that ORS 137.013 was not intended to render otherwise irrelevant victim impact evidence admissible in the penalty phase of a capital case.

Capital cases require our most vigilant and deliberative review. We agree with the United States Supreme Court statement that “[d]eath is a punishment different from all other sanctions in kind rather than degree” so that “there is a difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 US 280, 303-05, 96 S Ct 2978, 2991, 49 L Ed 2d 944, 961 (1976). Similarly, in this case, because “death is a punishment different from all other[J [sanctions],” we must be certain that the voters in enacting ORS 137.013 as part of Ballot Measure 10 intended that victim impact statements be admitted as evidence in capital cases. Of course, we are not authorized to rewrite a statute or ignore its plain meaning. Lane County v. Heintz Const. Co., et al, 228 Or 152, 157, 364 P2d 627 (1961). We cannot insert into a statute what has been omitted, nor omit what has been inserted. ORS 174.010.

As previously stated, this court considers the sub-constitutional arguments before it examines the state or federal constitutional issues, Stevens II, 319 Or at 579. We begin our analysis, therefore, by interpreting ORS 137.013. ORS 137.013 was enacted by the people as part of Ballot Measure 10 (the “Crime Victim’s Bill of Rights”) in the November 1986 general election. Or Laws 1987, ch 2, § 10. This court applies the same method of statutory analysis to a statute enacted by the voters as it would to a statute enacted by the Legislative Assembly. PGE, 317 Or at 612 n 4.

In interpreting a statute enacted by initiative, the court’s task is to discern the intent of the voters who passed the initiative. Id. at 610. As we said earlier, to determine the intent of the voters, we first look to the text and context of the statute. Id. at 610. The text of the statute is the starting point because the text is the best evidence of the voters’ intent. Id. at 610. Because ORS 137.013 was enacted by the voters as part of Ballot Measure 10, we examine the text of ORS 137.013 in the context of Ballot Measure 10.

The text of ORS 137.013 does not, by its terms, declare that victim impact evidence shall be admissible as evidence in the penalty phase of capital trials. By contrast, other provisions of Ballot Measure 10, by their terms, declare that certain evidence shall be admissible in criminal homicide trials. For example, ORS 41.415, which was enacted as part of Ballot Measure 10, provides:

“In a prosecution for any criminal homicide, a photograph of the victim while alive shall be admissible evidence when offered by the district attorney to show the general appearance and condition of the victim while alive.” (Emphasis added.)

The difference in wording regarding admissibility of evidence is significant. When the legislature uses different terms in related statutes, we presume that the legislature intended different meanings. See PGE, 317 Or at 611 (stating general principle). If the voters intended to require the admission of victim impact evidence in every criminal trial — whether relevant or not — they did not say so explicitly. Indeed, the text of ORS 137.013, in contrast to ORS 41.415 is qualified — “[a]t the time of sentencing,” a victim has a right “reasonably to express” his or her views. That change does not alter any rule regarding the admissibility of evidence in the penalty phase of a capital trial. The textual differences between ORS 137.013 and ORS 41.135 suggest that ORS 137.013 was not intended to provide for the admission of victim impact evidence in the penalty phase of a capital trial.

The text also contains no indication that the voters in enacting ORS 137.013 intended to amend either expressly or by implication the specific penalty phase procedures that ORS 163.150 (1985)⁹ required in capital cases. If the voters intended to alter the penalty phase procedures for capital cases set forth in ORS 163.150 (1985), they could have easily done so by expressly amending that statutory provision. However, the voters did not amend ORS 163.150 (1985). ORS 137.013 was specifically added to chapter 137 of the Oregon Revised Statutes. Ballot Measure 10, section 10, provided that “this section [now ORS 137.013] is added to and made a part of ORS Chapter 137.” See Ballot Measure No. 10, State of Oregon, 1986; Or Laws 1987, ch 2, § 10. Chapter 137 contains general provisions regarding sentencing, parole, and probation for noncapital cases. Specific procedures for sentencing in capital cases, as noted above, are set forth separately in chapter 163.

Nothing in the text of ORS 137.013 suggests that it was intended to alter the standards by which the court makes sentencing decisions under ORS 163.150 (1985). As stated previously, when we interpret a statute, we are prohibited from inserting what the lawmakers omitted. PGE, 317 Or at 611; ORS 174.010.

The voters also did not amend ORS 163.150 (1985) by implication when they enacted ORS 137.013. As a matter of statutory interpretation, “[w]e generally do not assume that a statute is intended to repeal or amend another by implication.” Wilson v. Matthews, 291 Or 33, 37, 628 P2d 393 (1981). Amendment by implication is “disfavored by this court” and is only recognized “when the matter is clear.” State ex rel Med. Pear Co. v. Fowler, 207 Or 182, 195, 295 P2d 167 (1956).

Construing these two statutes so as to give effect to both, we hold that ORS 137.013 does not amend by implication the penalty phase procedures for capital cases set forth in ORS 163.150 (1985). Wilson, 291 Or at 37. Both statutes can be given effect if we interpret ORS 137.013 to apply only to noncapital cases. This construction preserves ORS 137.013 by giving victims the right to make statements in all noncapital cases “at the time of sentencing.” Because the voters specifically added ORS 137.013 to the chapter which provides the procedure for sentencing, parole and probation for all noncapital cases, this construction appears consistent with the voters’ intent when they enacted ORS 137.013.

This construction also gives effect to ORS 163.150 (1985) by preserving the carefully drafted penalty phase procedures that statute requires in capital cases. If the people intended to amend by implication the penalty phase procedures for capital cases set out in ORS 163.150 (1985), that amendment would have the effect of expanding the scope of aggravating circumstances that could be considered in the sentencing decision by the jury. ORS 163.150 (1985) specifically designates the three aggravating factors that justify a sentence of death. Reading ORS 137.013 to require the admission of aggravating evidence that is unrelated to those three aggravating factors would have the effect of implicitly altering the carefully drafted penalty phase procedures set forth in ORS 163.150 (1985). Nothing in the text of ORS 137.013 indicates that the people intended to alter that carefully drafted penalty scheme.

The context of Ballot Measure 10 also indicates that the drafters of that measure were aware that special procedures applied to capital cases because certain sections of the measure expressly apply to capital cases. See Or Laws 1987, ch 2, § 7 (amending ORS 136.230 to make limits on peremptory challenges apply to “capital offense[s]” ); id., § 8 (providing for admission of photograph of the victim “in a prosecution for any criminal homicide”). (Emphasis added.) By contrast, the text of ORS 137.013, also enacted as part of Ballot Measure 10, makes no special reference to changing the penalty phase procedures in capital cases or in cases involving criminal homicide. In light of the express changes made to the penalty phase procedures in capital cases by other provisions of Ballot Measure 10, we conclude that ORS 137.013, which makes no special reference to changing the procedures for capital cases, did not alter the penalty phase procedures for capital cases set forth in ORS 163.150 (1985).

Our analysis of the context of the statute also includes consideration of rules of construction because some of those rules “bear directly on the interpretation of the statutory provision in contextPGE, 317 Or at 611; Gaston, 318 Or at 253. One rule of construction which bears directly on the interpretation of ORS 137.013 is set forth in ORS 174.020, which provides:

“In the construction of a statute the intention of the legislature is to be pursued if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it.”

Thus, when one statute deals with a subject in general terms and another deals with the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, while giving effect to a consistent legislative policy. State v. Pearson, 250 Or 54, 58, 440 P2d 229 (1968). However, if the two statutes cannot be harmonized, “the specific statute is considered an exception to the general statute.” Id.; Smith v. Multnomah County Board of Commissioners, 318 Or 302, 309, 865 P2d 356 (1994) (citing Colby v. Larson, 208 Or 121, 126-27, 297 P2d 1073, 299 P2d 1076 (1956)).

This case involves the interpretation of two statutes, a general and specific statute. ORS 137.013 is a general statute that appears in a chapter containing the sentencing procedures for noncapital cases. ORS 137.013 gives victims or their next of kin the right to make impact statements in person or by counsel at the time of sentencing in criminal cases generally.

ORS 163.150(1) (1989) is a more specific statute. ORS 163.150(1) (1989) sets forth the specific procedures for a jury to follow in the penalty phase prior to the pronouncement of sentence in a capital case. As we previously stated, ORS 163.150(1) (1989) provides four specific questions — three questions in this case — that a jury must resolve before a trial court sentences a defendant in a capital case.

If we were to adopt the state’s interpretation of ORS 137.013, that statute would conflict with ORS 163.150(1) (1989). The state maintains that ORS 137.013 provides that victim impact evidence is admissible during the penalty phase of a capital case. ORS 163.150(l)(a) (1989), however, provides that only relevant evidence may be presented during the penalty phase of a capital case. As we have demonstrated earlier in this opinion, victim impact statements are not “relevant to sentenc[ing]” in capital cases under ORS 163.150(l)(b) (1989), because those statements are not relevant to any of the four substantive questions that a juiy must answer pursuant to that statute and Wagner II, 309 Or at 18.

Under the state’s interpretation, therefore, there is an inconsistency between the two statutes. ORS 137.013, according to the state, provides that victim impact evidence is admissible in the penalty phase of a capital case. As we have shown earlier in this opinion, ORS 163.150(l)(b)(D) (1989) bars the admission of such evidence in the penalty phase of a capital case.

Any inconsistency between those two statutes can be resolved, however, if we construe ORS 137.013 to apply only to sentencing in noncapital cases. That construction gives effect to both statutes. As we stated above, that construction preserves the legislative policy of ORS 163.150(1) (1989) by preserving the carefully drafted sentencing scheme evident in that statute. It also ensures that the jury consider only relevant evidence during their deliberations in the penalty phase of a capital case.

That construction also preserves the legislative policy of ORS 137.013. Our interpretation of ORS 137.013 ensures that victims and their next of kin have the right to make impact statements in person, during sentencing, and before a judge in all noncapital criminal trials. Before the enactment of ORS 137.013, victims did not have the right to make victim impact statements in person. First, the trial court was not required to conduct a sentencing hearing. See ORS 137.080 (1985) (trial judge had discretion as to whether to conduct a sentencing hearing). More significantly, victims only had the right to express their views in writing as part of a presentence report. ORS 137.530(2) (1985) provided in part:

“Whenever a presentence report is made, the preparer of the report shall make a reasonable effort to contact the victim and obtain a statement describing the effect of the defendant’s offense upon the victim. * * * The preparer of the report shall include the statement of the victim in the presentence investigation report.”

Under ORS 137.090 (1985), the trial court was permitted, but was not required, to consider the presentence report before sentencing the defendant. ORS 137.090 (1985). In the context of noncapital indeterminate sentencing, ORS 137.013 removes a trial court’s discretion in deciding whether a victim will be heard personally at the time of sentencing, as opposed to having the victim’s views expressed through the presentence report.

Our analysis of the text and context of ORS 137.013 leads us to these conclusions: ORS 137.013 was not intended to render otherwise irrelevant evidence admissible during the penalty phase of capital trials;¹⁰ rather, ORS 137.013 was intended to give victims or their next of kin the right to appear in person or through an attorney at the time of sentencing in all reorecapital criminal trials.

In summary, the victim impact evidence presented during the sentencing proceeding in this case was not relevant to any fact or proposition provable under ORS 163.150(1) (1989) and, therefore, was inadmissible under that statute. In addition, an analysis of the text and context of ORS 137.013 indicates that ORS 137.013 did not alter the specific capital sentencing procedures set forth in ORS 163.150(1) (1989). The trial court erred in admitting the victim impact evidence in this case.¹¹

The error in this case was not harmless. We cannot say that there was little likelihood that the error affected the verdict. See State v. Johnson, 313 Or 189, 201, 832 P2d 443 (1992) (standard for determining whether evidentiary error is harmless is consistent with the standard for reversible error set forth in Article VII (Amended), section 3, of the Oregon Constitution. Under that standard, error is harmless if there is little likelihood that the error affected the verdict.).

The sentence of death is vacated. This case is remanded to the circuit court for further proceedings.

1 The facts of this case are set forth in this court’s opinion in State v. Guzek, 310 Or 299, 797 P2d 1031 (1990) (Guzek I).

2 In this opinion, we use the term “victim impact evidence” to mean evidence presented at the penalty phase on remand relating to the victim’s personal characteristics and the emotional impact of the victim’s death on the victim’s family.

3 The Eighth Amendment to the Constitution of the United States provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The cruel and unusual punishments clause applies to the states through the due process clause of the Fourteenth Amendment. Robinson v. California, 370 US 660, 667, 82 S Ct 1417, 1420-21, 8 L Ed 2d 758, 763 (1962).

4 In State v. Wagner, 309 Or 5, 786 P2d 93, cert den 498 US 879 (1990) (’Wagner ID, which we discuss more fully below, this court held that the fourth statutory question, ORS 163.150(l)(b)(D) (1989), lacked “grammatical clarity” and, therefore, provided a new standard instruction for trial courts to read to juries during the penalty phase of a capital trial.

It is within the context of the fourth statutory question, set out in full following our discussion of Wagner II, that the state argues that victim impact evidence was admissible in this case.

5 The third statutory question, i.e., the issue of unreasonable response to provocation, was not raised by the evidence in this case and, therefore, was not presented to the jury for its consideration.

6 We refer to the query “whether a sentence of death should be imposed” as the “fourth question” because it is the fourth question listed in ORS 163.150OKbXD) (1989). In this case, because there were only three substantive questions at issue, the so-called fourth question was actually the third question presented to the jury.

7 Indeed, the trial court’s instructions to the jury focused solely on mitigation. The trial court instructed the jury to consider “any aspect of the defendant’s character or background or any circumstances of the offense that you believe would justify a sentence less than death.”

8 Penry followed a long line of Supreme Court cases on the Eighth Amendment which required that the factfinder consider the capital defendant as an individual person.

In Woodson v. North Carolina, 428 US 280, 96 S Ct 2978, 49 L Ed 2d 944 (1976), the Court concluded that, in a capital case, the respect for humanity underlying the Eighth Amendment required a trial court to consider the character and record of the individual and the circumstances of the offense. In Eddings v. Oklahoma, 455 US 104, 102 S Ct 869, 71 L Ed 2d 1 (1982), the sentencing judge refused to hear evidence of the defendant’s troubled youth, beatings by her father and severe emotional disturbance; the Supreme Court remanded, holding that the Eighth Amendment required consideration of the defendant’s character and record as well as the circumstances of the offense. This concept was carried further in Skipper v. South Carolina, 476 US 1, 106 S Ct 1669, 90 LEd 2d 1 (1986), where the Court held that testimony of two prison officials and a regular visitor of defendant during his incarceration between arrest and trial should have been admitted to show his adaptability to prison life.

9 We consider the 1985 statute at this point because that was the statute in effect at the time the voters enacted ORS 137.013 in the November 1986 election.

10 Our decision is based entirely on statutory law. In Payne v. Tennessee, 501 US 808, 827, 111 S Ct 2597, 2609, 115 L Ed 2d 720, 736 (1991), the United States Supreme Court held that the Eighth Amendment to the Constitution of the United States does not create a per se bar to the admissibility of victim impact evidence in the penalty phase of a capital case. Payne did not hold, however, that victim impact evidence must be admitted in capital cases, or even that it should be admitted. Payne made clear that whether such evidence is relevant is a matter of state law. 501 US at 827.

Nothing in our decision prevents the Oregon legislature from amending ORS 163.150 to change the inquiries relevant to sentencing under ORS 163.150 in such a way as to render victim impact evidence relevant in the sentencing phase of capital trials. Indeed, it appears that the 1995 Legislative Assembly may have done so. See Or Laws 1995, ch 531, § 3; Or Laws 1995, ch 657, § 23 (amending ORS 163.150).

11 Because of our disposition of this assignment of error, we are not required to consider any of defendant’s other assignments of error.