§ 27.10 Penalty Phase

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 27.10 PENALTY PHASE

§ 27.10-1 Relevant Issues and Procedures for an Oregon Penalty Phase: The Three Questions

Although ORS 163.095 defines the crime of aggravated murder, ORS 163.150 defines both the procedural structure and the relevant issues at the penalty phase of an Oregon capital trial. The relevant penalty-phase issues are addressed in § 27.10-1(a) to § 27.10-1(b).

§ 27.10-1(a) Penalty-Phase Issues

After a finding of guilt on the charge of aggravated murder, the court convenes a separate sentencing proceeding, at which the jury hears evidence relevant to three penalty-phase questions. ORS 163.150(1)(b). The answers to the questions determine whether the defendant receives the death penalty. See ORS 163.150(2)(a). The questions are

(1) whether the conduct of the defendant that caused the victim's death "was committed deliberately and with the reasonable expectation" that the victim or someone else would die;

(2) if raised by the evidence, whether the defendant's conduct in killing the victim "was unreasonable in response to the provocation, if any," by the victim; and

(3) "[w]hether the defendant should receive a death sentence."

ORS 163.150(1)(b).

The court must instruct the jury to consider, in answering the three penalty-phase questions, "any mitigating circumstances offered in evidence, including but not limited to the defendant's age, the extent and severity of the defendant's prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed." ORS 163.150(1)(c)(A). See § 27.10-4(b)(3) to § 27.10-4(b)(3)(iv) (mitigating evidence).

The jury must answer no to the third question if, "after considering any aggravating evidence and any mitigating evidence concerning any aspect of the defendant's character or background, or any circumstances of the offense and any victim impact evidence . . . , one or more of the jurors believe that the defendant should not receive a death sentence." ORS 163.150(1)(c)(B).

ORS 163.150(1)(a) allows evidence on "any matter that the court deems relevant to sentence including, but not limited to, victim impact evidence relating to the personal characteristics of the victim or the impact of the crime on the victim's family and any aggravating or mitigating evidence relevant to the" third question—whether the defendant should receive a death sentence. This provision was added specifically to allow for the admission of victim-impact evidence, after the Oregon Supreme Court found such evidence irrelevant under an earlier version of the statute. See State v. Guzek (Guzek II), 322 Or 245, 270, 906 P2d 272 (1995), superseded by statute, Or Laws 1995, ch 531, § 2; Or Laws 1995, ch 657, § 23. Additionally, "all evidence previously offered and received may be considered for purposes of the sentencing hearing." ORS 163.150(1)(a).

Victim-impact evidence is admissible during the penalty phase even when the state chooses not to seek the death penalty. ORS 163.150(3)(a)(B).

§ 27.10-1(b) Penalty-Phase Procedure

If a defendant is found guilty of aggravated murder, the court must conduct a separate sentencing proceeding before the trial jury "as soon as practicable." ORS 163.150(1)(a). At that sentencing proceeding, the court, based on the findings of the jury, must sentence the defendant to either life imprisonment with a 30-year minimum under ORS 163.105(1)(c), life imprisonment without the possibility of parole under ORS 163.105(1)(b), or death. See ORS 163.150(1)(f).

If a trial juror is unable to continue as a sentencing juror, the court must dismiss that juror from the sentencing proceeding and choose one of the alternate jurors to take the first juror's place, even though the alternate juror never deliberated on the issue of guilt. ORS 163.150(1)(a).

At the penalty phase neither party can reintroduce evidence that was already presented at the trial phase on the issue of guilt, and the court must instruct the jury that all trial-phase evidence may be considered at the penalty phase. The court must allow the state and the defendant or the defense lawyer to present arguments for or against the three penalty-phase options. ORS 163.150(1)(a). See § 27.10-1(a) (penalty-phase issues).

The state must prove the penalty-phase questions beyond a reasonable doubt, and the jury must return a special verdict of yes or no on each of the three questions. ORS 163.150(1)(d). A vote of yes to any one of the three penalty-phase questions must be unanimous. ORS 163.150(1)(e). If the jury makes affirmative findings on each of the three questions, the court must sentence the defendant to death. ORS 163.150(1)(f).

If the jury reaches a negative finding on any of the three questions, the court must sentence the defendant to life imprisonment without the possibility of parole, unless 10 or more jurors find sufficient mitigating circumstances to warrant a sentence of life imprisonment with a 30-year minimum. ORS 163.150(2)(a)-(b).

If the defendant is a juvenile (and thus ineligible for the death penalty under ORS 137.707(2)) or if the state advises the court that it will not present evidence supporting a death sentence, the court must conduct a sentencing proceeding to determine whether the defendant will be sentenced to life without parole or to life with a 30-year minimum. If the defendant waives the right to a jury sentencing when death is not an option, the court must conduct the proceeding as the trier of fact. ORS 163.150(3)(a)(B). In these circumstances, the parties may also stipulate to the appropriate sentence or to particular sentencing facts if the defendant waives a jury sentencing. ORS 163.150(3)(c).

If a defendant has pleaded guilty to aggravated murder but has not waived a jury sentencing, the court must impanel a jury for the purpose of conducting the sentencing proceeding. ORS 163.150(1)(a).

If the court grants a mistrial during the penalty-phase proceeding, the court, at the election of the state, must either (1) sentence the defendant to life imprisonment with a 30-year minimum or (2) impanel a new sentencing jury to determine which of the three sentencing options the defendant should receive. ORS 163.150(5).

§ 27.10-2 Requirements for Constitutionally Adequate Defense Preparation of Penalty Phase

Constitutionally ineffective assistance of counsel at the penalty phase is a significant cause of death-penalty reversals nationwide. See, e.g., James S. Liebman, Jeffrey Fagan & Valerie West, Columbia Law School, A Broken System: Error Rates in Capital Cases, 1973-1995 (2000) (https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=2220&context=faculty_scholarship). The defense lawyer should thus give penalty-phase preparation special attention in every capital case.

A common deficiency in penalty-phase preparation is the defense lawyer's failure to conduct an adequate investigation on important mitigation issues and to adequately rebut the prosecution's aggravating evidence. See, e.g., Wiggins v. Smith, 539 US 510, 123 S Ct 2527, 156 L Ed 2d 471 (2003). The lawyer has a constitutional duty under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 US 668, 691, 104 S Ct 2052, 80 L Ed 2d 674 (1984). See § 27.7-4(c) (motion for investigative expenses).

COMMENT

In Wiggins, the Court granted much less deference to the so-called strategic decisions of the defense lawyer than in prior death-penalty cases it reviewed. But, in Harrington v. Richter, 562 US 86, 104, 131 S Ct 770, 178 L Ed 2d 624 (2011), and Cullen v. Pinholster, 563 US 170, 189-90, 196, 131 S Ct 1388, 179 L Ed 2d 557 (2011), the Court reaffirmed Strickland's "strong presumption" that trial counsel make reasonable tactical choices.

In Wiggins, 539 US at 524, the United States Supreme Court took a detailed look at the course of the lawyer's penalty-phase investigation and found it constitutionally inadequate in several respects. Of significant interest, in determining what constitutes a reasonable investigation under Strickland, Wiggins looked for guidance to the America Bar Association's (ABA's) Standards for Criminal Justice (2d ed 1980) and the ABA's Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989). For further discussion of Wiggins and the ABA standards, see § 27.7-4(c) (motion for investigative expenses). See also Bobby v. Van Hook, 558 US 4, 8, 130 S Ct 13, 175 L Ed 2d 255 (2009) (ABA guidelines are not "inexorable commands"); Cone v. Bell, 556 US 449, 470 n 15, 129 S Ct 1769, 173 L Ed 2d 701 (2009).

§ 27.10-3 Applicability of Oregon Evidence Code at Penalty Phase

Arguably, before 1995, the Oregon Evidence Code (OEC) did not apply to the penalty phase of a capital case because the penalty phase is a "sentencing proceeding" (ORS 163.150(1)(a), (3)(a)), and sentencing proceedings are specifically exempt from the code. OEC 101(4)(d) (ORS 40.015(4)(d)) (1993). In State v. Montez (Montez I), 309 Or 564, 605 n 13, 789 P2d 1352 (1990), the Oregon Supreme Court declined to "express [an] opinion as to the [OEC's] applicability generally to capital sentencing proceedings." See also State v. Farrar, 309 Or 132, 174-75, 786 P2d 161, cert den sub nom Oregon v. Wagner, 498 US 879 (1990) (noting the defendant's argument that the Evidence Code should apply but not resolving the issue).

The 1995 Legislature amended OEC 101(4)(d) to provide that the OEC applies to aggravated-murder sentencing proceedings under ORS 163.150. Or Laws 1995, ch 531, § 1. See State v. Barone (Barone I), 328 Or 68, 95, 969 P2d 1013 (1998), cert den, 528 US 1135 (2000).

§ 27.10-4...