State v. Rogers

Filed: October 11, 2012

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,
Plaintiff - Respondent,
v.

DAYTON LEROY ROGERS.
Defendant - Appellant.

(CC 88-355, 88-356, 88-357, 88-359, 88-360, SC S053466)

On automatic and direct review of the sentence of death imposed by the
Clackamas County Circuit Court.

Ronald D. Thom, Judge.

Argued and submitted January 12, 2012.

J. Kevin Hunt, Oregon City, and Richard L. Wolf, Portland, argued the cause and
filed the briefs for defendant-appellant.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and
filed the brief for plaintiff-respondent. With him on the brief were John R. Kroger,
Attorney General, and David B. Thompson, Interim Solicitor General.

Jeffrey E. Ellis, Oregon Capital Resource Center, Portland, filed a brief for amici
curiae Oregon Capital Resource Center; Oregon Criminal Defense Lawyers Association;
and American Civil Liberties Union Foundation of Oregon. With him on the brief were
Robert S. Raschio, The Dalles, and Kevin Diaz, Portland.

Before De Muniz, Durham, and Walters, Justices, Haselton, Chief Judge, and
Brewer, Judge.*

WALTERS, J.

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

*Balmer, C.J., and Kistler, Linder, and Landau, J.J., did not participate in the
consideration or decision of this case.
 1 WALTERS, J.

2 This is an automatic and direct review pursuant to ORS 138.012(1) of

3 sentences of death imposed on defendant after a "penalty phase" trial.1 Defendant raises

4 33 assignments of error. Five of them merit discussion, specifically, defendant's claims

5 that (1) the adoption of Article I, section 40, of the Oregon Constitution, which, provides

6 that, in specified circumstances, death shall be the penalty for aggravated murder,

7 violated the "separate vote" requirement of Article XVII, section 1, of the Oregon

8 Constitution; (2) the so-called "third question," which asks whether defendant's conduct

9 was "unreasonable in response to the provocation, if any, by the deceased," is

10 constitutionally infirm; (3) the trial court erred by refusing to admit evidence relevant to

11 the third question or failing to pose the question to the jury; (4) the trial court erred in

12 empanelling an "anonymous" jury; and (5) the trial court erred in allowing the state's

13 expert to testify about defendant's consensual homosexual experience as a teenager.

14 We discuss but reject defendant's arguments as to three of those

15 assignments of error. We conclude that his position as to the fourth and fifth are well-

16 taken. We conclude that the trial court erred in empanelling an "anonymous" jury

17 without finding, as required by this court's decision in State v. Sundberg, 349 Or 608, 247

1
This was the third such proceeding for defendant. This court vacated the
death sentences imposed in penalty-phase proceedings held in 1987 and 1994 and, in both
cases, remanded for retrial of the penalty issue. State v. Rogers, 313 Or 356, 836 P2d
1308 (1992), cert den 507 US 974 (1993) (Rogers I); State v. Rogers, 330 Or 282, 4 P3d
1261 (2000) (Rogers II).

1
1 P3d 1213 (2011), that there were strong and particular grounds for believing that the

2 jurors' identities needed to be protected. Because that error was not harmless, we vacate

3 the sentences of death and remand to the circuit court for a new penalty-phase trial. 2 We

2
As to defendant's other assignments of error, we either decline to consider
them because they are insufficiently developed, were not preserved in the trial court, are
essentially duplications of other assignments of error, or are unlikely to recur in any new
penalty-phase trial, or we reject them on their merits.

Included in the category of assignments of error that we decline to consider
are defendant's assignments of error 3 and 5 (claims pertaining to the so-called "third
question"), 6 and 7 (claims that the petit jury was drawn from a jury venire that was not
representative of the community and that the trial court erred by permitting that issue to
be litigated outside of defendant's presence), 8 (claim that the trial court improperly
excused certain prospective jurors), 10 (claim that state improperly used peremptory
challenges to exclude women from the jury), 11 and 12 (claims that trial court erred in
denying defendant's motions to excuse two jurors for cause), 15 (claim that state engaged
in prosecutorial misconduct by introducing victim impact evidence in spite of agreement
not to do so), 17 (claim that defendant was entitled to mistrial when state stated in closing
argument that defendant had never expressed remorse, 18 and 19 (claims that prosecution
misstated the burden of proof on the so-called "second question" and that the trial court
erred in declining to give a curative instruction or grant a mistrial), 25 (claim that trial
court erred in allowing the state to make two arguments on the so-called "fourth
question," and 26 (claim that court erred in denying post-verdict motion to examine a
certain juror).

Included in the category of assignments of error that we reject on the
merits, without further discussion, are assignments of error 13 and 14 (claims that delays
occasioned by multiple reversals and retrials are grounds for precluding death penalty in
defendant's case), 16 (claim that trial court erred by admitting photographs of the victims
as they appeared when alive), 21 (claim that trial court erred in refusing to give proffered
jury instruction pertaining to the meaning of "deliberately"), 22 (claim that issue of
defendant's future dangerousness for purposes of ORS 163.150(1)(b)(B) had been
decided in another capital case against defendant and that the state was estopped from
relitigating that issue), 23 (claim that there was insufficient evidence to support jury's
determining in guilt phase of trial that defendant had intentionally tortured his victims, 24
(claim that evidence was insufficient to support jury's determination regarding
defendant's future dangerousness), 27 (claim that legislature's enactment of the judicially

2
 1 also conclude that the trial court erred in denying defendant's motion to exclude evidence

2 of defendant's homosexual experiences as a teenager.

3 A. Defendant's challenge to Article I, section 40, of the Oregon Constitution.

4 The first claim that we discuss is defendant's "separate vote" challenge to

5 the validity of Article I, section 40, of the Oregon Constitution, a provision that was

6 adopted by the people in 1984 as "Ballot Measure 6." Article I, section 40, provides:

7 "Notwithstanding sections 15 and 16 of this Article, the penalty for
8 aggravated murder as defined by law shall be death upon unanimous
9 affirmative jury findings as provided by law and otherwise shall be life
10 imprisonment with minimum sentence as provided by law."

11 Defendant contends that Article I, section 40, was void ab initio because it was adopted

12 in a manner that violated the "separate vote" requirement, set out at Article XVII, section

13 1, of the Oregon Constitution, for constitutional amendments submitted to the people.

14 Defendant further contends that, because Article I, section 40, was void when adopted,

created "fourth question" results in ex post facto violation), 28 (various constitutional
challenges relating to "unconscionable delays inherent in any capital punishment
scheme"), 29 (claim that trial court erred in refusing to permit appellate counsel to
examine contents of box labeled "judge's notes"), 30 (reasserting various challenges
rejected by this court in State v. Wagner, 305 Or 115, 752 P2d 1136 (1988) and other
cases, 31 (claim that cumulative effect of all of the foregoing errors had rendered the
proceeding fundamentally unfair), and defendant's pro se claims that the trial court
abused its discretion in denying defendant's motion to have the jury view conditions on
death row and erred in excluding defendant from discussions about how to answer the
jury's questions.

Justice Durham concurs in the court's rejection of assignment of error 30,
regarding defendant's various challenges based on State v. Wagner, for the reasons
expressed in his concurring opinion in State v. Guzek, 336 Or 424, 465, 86 P2d 1106
(2004), and cases cited therein.

3
 1 the "entire statutory 'Oregon Death Penalty Scheme' (i.e., all substantive and procedural

2 statutes purporting to authorize and implement capital punishment in Oregon * * *)"3 also

3 is void because it is "dependent for constitutionality" on Article I, section 40.

4 Article XVII, section 1, of the Oregon Constitution provides, in part:

5 "When two or more amendments shall be submitted * * * to the voters of
6 this state at the same election, they shall be so submitted that each
7 amendment shall be voted on separately."

8 That "separate vote" requirement is "aimed at ensuring that the voters are able to express

9 their will in one vote as to only one constitutional change." Armatta v. Kitzhaber, 327 Or

10 250, 269, 959 P2d 49 (1998).

11 Armatta is the seminal case on the separate-vote requirement. There, the

12 court compared the wording, historical development, and case law surrounding Article

13 XVII, section 1, with the "single-subject" requirement for initiated measures, set out at

14 Article IV, section 1(2)(d),4 and concluded that the two constitutional provisions were

15 different in a number of respects. Most significantly, the court observed that, whereas the

16 single-subject requirement focuses on the content of a proposed statute or amendment,

17 the separate-vote requirement focuses on the form of submission of an amendment and
3
The group of statutes that defendant dubs "the Oregon Death Penalty
Scheme" were adopted contemporaneously with Ballot Measure 6 (1984) in another voter
initiative, Ballot Measure 7 (1984). The statutes have since been codified at ORS
163.095, ORS 163.105, ORS 167.150, ORS 138.012, and ORS 137.463 to 137.482.
4
Article IV, section 1(2), reserves to the people the power to enact laws and
adopt amendments to the constitution by initiative petition. The single subject
requirement is expressed in paragraph (d): "* * * A proposed law or amendment to the
Constitution shall embrace one subject only and matters properly connected therewith."

4
 1 the potential changes to the existing constitution that the amendment proposes. Id. at

2 274. Based on that analysis, the court concluded that, when faced with a claim that a

3 proposed constitutional amendment offends Article XVII, section 1, the proper inquiry is

4 "whether, if adopted, the proposal would make two or more changes to the constitution

5 that are substantive and that are not closely related." Id. at 277.

6 The analysis in Armatta, and in other separate-vote cases that have

7 followed, establishes two principles that are important to determining whether a ballot

8 measure makes "two or more changes" to the Oregon Constitution that require separate

9 votes. First, if a measure proposes to add new matter to the constitution, the measure

10 proposes at least one constitutional change. Lehman v. Bradbury, 333 Or 231, 242-43, 37

11 P3d 989 (2002); Armatta, 327 Or at 277-78. Second, if a measure has the effect of

12 modifying an existing constitutional provision, it proposes at least one additional change

13 to the constitution, whether that effect is express or implicit. Meyer v. Bradbury, 341 Or

14 288, 297, 142 P3d 1031 (2006); Lehman, 333 Or at 243; Armatta, 327 Or at 278-80.

15 Applying those principles, defendant asserts that Measure 6 proposed to

16 change the Oregon Constitution in 15 separate ways. The state acknowledges three of

17 those changes: (1) the addition of a new constitutional requirement that a person

18 convicted of aggravated murder be sentenced to death or life imprisonment; (2) an

19 amendment to former Article I, section 15 -- specifically, an exemption from section 15's

5
 1 then-existing5 admonition that criminal penalties must be based on principles of

2 reformation rather than vindictive justice; and (3) an amendment to Article I, section 16,

3 specifically an exemption from section 16's prohibition on cruel and unusual punishment

4 and requirement of proportionate punishment.6 We agree that Article I, section 40,

5 proposed at least those three changes, but, before we analyze whether Measure 6 was

6 invalid because it did not permit a separate vote on each of those changes, we turn to the

7 question whether, as defendant contends, that measure also proposed additional changes

8 to the constitution.

9 We begin with defendant's assertion that Measure 6 proposed not one, but

10 two, new additions to the constitution. Defendant argues that that is so because the

11 measure declares that (1) the sentence for aggravated murder in certain specified

12 circumstances is death, and (2) the sentence for aggravated murder in other circumstances

5
At the time that Measure 6 was adopted, Article I, section 15, of the Oregon
Constitution provided:

"Laws for the punishment of crime shall be founded on the
principles of reformation, and not of vindictive justice."

Article I, section 15, has been amended since Measure 6 was adopted and no longer
requires that criminal punishment be based solely on principles of reformation.
6
Article I, section 16, of the Oregon Constitution provides:

"Excessive bail shall not be required, nor excessive fines imposed.
Cruel and unusual punishments shall not be inflicted, but all penalties shall
be proportioned to the offense. In all criminal cases whatever, the jury
shall have the right to determine the law, and the facts under the direction
of the Court as to the law, and the right of new trial, as in civil cases."

6
 1 is life imprisonment. We disagree. The measure provides that, "upon unanimous

2 affirmative jury findings as provided by law," death is the penalty for aggravated murder.

3 The measure then specifies the penalty that must be imposed when the jury does not

4 make those findings. The latter declaration merely completes the sentencing construct

5 that the former declaration describes; it does not propose to add a separate constitutional

6 provision.

7 Defendant also contends that Measure 6 proposed a separate amendment to

8 the constitution by "permitting" the death penalty. Although defendant does not explain

9 that contention, we assume that it relates to defendant's claim in a different assignment of

10 error that, at the time that Measure 6 was considered, the constitution contained an actual,

11 albeit implied, prohibition on the death penalty. Defendant's theory, in a nutshell, is that

12 the 1964 repeal of two constitutional provisions that authorized the death penalty revived,

13 sub silentio, a preceding (1920) provision that had abolished the death penalty.7

14 Defendant suggests that Measure 6 separately proposed to amend that prohibition by

15 declaring that the penalty for aggravated murder was, in certain circumstances, death.

7
Since statehood, the people of Oregon have at various times amended the
state constitution to provide for or repeal the death penalty. In 1914, the people voted to
amend the constitution to abolish the death penalty, but, after only six years, i.e., in 1920,
the people adopted a constitutional amendment that (1) repealed the 1914 ban and (2)
required the death penalty in first-degree murder cases (except when the jury
recommended life imprisonment). A 1964 ballot initiative, Ballot Measure 1, repealed
the 1920 amendments. Defendant contends that that 1964 amendment had the effect of
affirmatively prohibiting the death penalty and that it becomes effective again if Article I,
section 40, is shown to be invalid.

7
 1 Defendant's theory depends on our agreement with his idea that a

2 constitutional provision that is repealed by a later constitutional amendment is revived

3 when the amendment is itself repealed. That idea is contrary to this court's ordinary

4 method of constitutional interpretation, as described in ORS 174.090,8 and we reject it. It

5 follows that, although Measure 6 proposed the addition of a provision to the constitution

6 that "permitted" the death penalty for aggravated murder, it did not, as defendant seems

7 to suggest, also propose the revival of an earlier prohibition on the death penalty and

8 separately amend it.

9 Next, defendant contends that by using the introductory phrase

10 "notwithstanding sections 15 and 16 of this Article," Measure 6 proposed ten separate

11 constitutional changes. First, defendant argues, the measure effectively proposed to

12 amend the directive in Article I, section 16, that, "[i]n all criminal cases whatever, the

13 jury shall have the right to determine the law, and the facts under the direction of the

14 Court as to the law, and the right of new trial, as in civil case." Based on a reference to
8
ORS 174.090 provides:

"Whenever a constitutional provision which repeals or suspends in whole or
in part a former constitutional provision, either expressly or by implication,
is repealed, the former constitutional provision so repealed or suspended
thereby shall not be revived unless it expressly is so provided."

ORS 174.090 appears to codify this court's rejection of the idea that the "rule of implied
revival" extends to the construction of constitutional amendments. See Klamath Falls v.
Oregon Liquor Comm., 146 Or 83, 29 P2d 564 (1934) (rejecting, in constitutional
context, common law rule of statutory construction that when a repealing statute is itself
repealed, the first statute is revived); City of Coos Bay v. Eagles Lodge, 179 Or 83, 89,
170 P2d 389 (1946) (citing and applying rule announced in Klamath Falls).

8
 1 that directive in a dissenting opinion in State v. Boots, 315 Or 572, 592-93, 848 P2d 76,

2 cert den 510 US 1013 (1993), defendant argues that section 16 gives juries the authority

3 to acquit criminal defendants regardless of the overwhelming nature of the evidence and

4 that, as extended to the death penalty, it allows juries to "acquit" capital defendants of the

5 death penalty, even as against the evidence. This court has not determined that the cited

6 portion of Article I, section 16, operates in the manner that defendant suggests, but even

7 if it does, there is no logical basis for concluding that the "notwithstanding" clause of

8 Measure 6 interferes with that aspect of Article I, section 16. To the contrary, Measure 6

9 expressly acknowledges the role of the jury and prescribes the death penalty only "upon

10 unanimous jury findings." Measure 6 does not limit a jury's authority to make the

11 findings that it deems appropriate or to decide that a defendant should not be sentenced to

12 death.

13 Defendant calculates nine other proposed changes to sections 15 and 16 as

14 follows. Defendant first points out that sections 15 and 16 express three "penal

15 principles" that he contends are entirely separate from one another -- the ban on

16 "vindictive justice" expressed in Article I, sections 15, the ban on "cruel and unusual

17 punishment" expressed in Article I, section 16, and the requirement that "penalties [be]

18 proportioned to the offense," also expressed in Article I, section 16. Second, defendant

19 argues, sections 15 and 16 permit three different types of challenges to the death penalty -

20 - challenges to the death penalty per se, challenges to the "procedures for imposing a

21 death sentence," and challenges to the method and manner of execution. In defendant's

22 view, the measure precludes a defendant from using all three "penal principles" as a basis

9
 1 for all three types of legal challenges and, in doing so, makes a total of nine changes to

2 the constitution.

3 Defendant is correct that the text of sections 15 and 16 includes three

4 textually separate provisions -- a ban on "vindictive justice," a ban on "cruel and unusual

5 punishment" and a requirement that "penalties [be] proportioned to the offense."

6 Defendant also is correct that those separate provisions may serve as the basis for at least

7 three different types of constitutional challenges -- facial challenges to legislatively

8 imposed sanctions, challenges to the procedures prescribed or followed in the imposition

9 of sanctions, and challenges to the application of sanctions in particular circumstances.

10 However, defendant is incorrect that the measure prohibits each of the nine challenges

11 that he posits. As the state correctly explains, "the 'notwithstanding clause' can relate

12 only to what * * * follows it in the text," i.e., a declaration that, in certain specified

13 circumstances, death is the sentence for aggravated murder. Matters that are not

14 included within the text that follows the "notwithstanding" clause -- for example, issues

15 pertaining to the procedure followed in imposing that sanction, or to the manner and

16 method of execution -- are not affected by that clause. Thus, the measure changes

17 sections 15 and 16 by eliminating any constitutional barriers that those sections

18 potentially posed to death as a sanction for aggravated murder; it does not render sections

19 15 or 16 otherwise inoperable. In other words, the text of the measure appears to

20 preclude challenges to the death penalty as a sanction for aggravated murder; it does not

21 preclude other challenges under Article 1, section 15 and 16.

22 As a result, it is not surprising that defendant does not rely on the text of the

10
 1 measure for his argument that the "notwithstanding" clause has a more expansive effect.

2 Rather, he argues that application of ordinary interpretive principles, including,

3 particularly, the idea that this court's interpretations of a constitutional text provide

4 context for interpretation of its terms, lead inevitably to the conclusion that Measure 6

5 precludes any and all constitutional challenges based on the relevant provisions of Article

6 I, sections 15 and 16.9 Defendant particularly relies on Clark v. Paulus, 295 Or 673, 677,

7 669 P2d 794 (1983), in which this court broadly described Measure 6 as exempting the

8 death penalty from the constitutional guarantees "embodied" in Article I, sections 15 and

9 16, and State v. Wagner, 305 Or 115, 139, 752 P2d 1136 (1988), vac'd and remanded 492

10 US 914 (1989), in which the court, after examining the "notwithstanding" clause, stated

11 in very expansive terms, that, in light of the "notwithstanding" clause of Measure 6, in

12 capital cases the court would not

13 "consider further any argument * * * that depends on contentions grounded
14 in Article I, section 15 and 16, or the Oregon Constitution."

15 Defendant's theory fails. Although it is true that, in some cases, the court

16 has described the clause's effect in broad terms, a careful examination of those cases, and

9
Defendant also argues that the historical milieu in which Measure 6 was
adopted supports that interpretation of the measure. That suggestion is unavailing. The
historical events that defendant mentions -- the fact that an earlier and nearly identical
measure adopted by the people had been invalidated by this court in State v. Quinn, 290
Or 383, 623 P2d 630 (1981), and the fact that Measure 6 followed, by some few years,
the United States Supreme Court issued its decision in Furman v. Georgia, 408 US 238,
92 S Ct 2726, 33 L Ed 2d 346 (1972) -- simply are not relevant to the interpretation that
defendant seeks to prove.

11
1 all other cases in which challenges to a death sentence under Article I, sections 15 or 16,

2 were at play, reveals that the court has never applied Measure 6 to bar all challenges that

3 rely on those sections.10 In short, the interpretation of Measure 6 upon which defendant's

10
Defendant submits a lengthy list of cases that, in his view, show that the
court has interpreted the Measure 6's "notwithstanding" clause as barring any challenges
to imposition of the death penalty under Article I, section 15 and 16. In the first case he
cites, Clark, the court merely decided the proper ballot title for Measure 6. In the next
cited case, Wagner, the only challenges under Article I, section 15 and 16 that were
before the court were vague challenges to the death penalty per se and to the failure of
the statutory death penalty scheme to sufficiently narrow the application of the death
penalty. However broad the court's statement about the "notwithstanding" clause's effect
may have been, the holding decided only the claims that defendant actually asserted. The
same is true of the third case that defendant cites -- State v. Montez, 309 Or 564, 789 P2d
1352 (1990): the court held only that the "notwithstanding" clause precluded section 16
challenges to the death penalty itself and to the death penalty statutes that implement it;
the court was not confronted with the full panoply of potential challenges under Article I,
section 16.

In fact, in several of the cases that defendant cites -- State v. Rogers, 313 Or
356, 836 P2d 1308 (1992); State v. Isom, 313 Or 391, 837 P3d 496 (1992); State v.
McDonnell, 313 Or 478, 837 P2d 941 (1992); and State v. Langley, 314 Or 247, 839 P2d
692 (1992) -- and at least one that defendant does not cite -- State v. Moen, 309 Or 45,
786 P2d 111 (1990) -- the court actually considered, and rejected on the merits, certain
challenges based on the "cruel and unusual" and "proportionate penalty" provisions of
Article I, section 16. Those cases are inconsistent with defendant's argument that Article
I, section 40 bars all such challenges.

Finally, in the other cases that defendant cites -- State v. McDonnell, 310 Or
98, 794 P2d 780 (1990), State v. Guzek, 322 Or 245, 906 P2d 272 (1995), and State v.
Guzek, 336 Or 424, 86 P3d 1106 (2004), cert den 544 US 979 (2005) -- the court did not
consider the defendants' challenges to their death sentences under Article I, section 16,
because it resolved the cases in the defendants' favor on different grounds.

In short, defendant does not cite a single case in which the court
considered, much less decided, whether Measure 6 bars challenges to the "procedures for
imposing a death sentence" or the method or manner of carrying out the death penalty --
the two types of challenges that, in defendant's view, are foreclosed.

12
 1 theory is premised has no textual or contextual support.

2 Finally, defendant contends that other short phrases in the body of Measure

3 6 proposed two changes to Article I, section 11, of the Oregon Constitution.11 Defendant

4 first notes that Article I, section 11, permits criminal defendants to be found guilty by

5 non-unanimous verdicts, with an exception requiring unanimous verdicts in cases of first

6 degree murder. Defendant suggests that, by requiring "unanimous jury findings,"

7 Measure 6 adds a second exception to Article I, section 11, requiring unanimous verdicts

8 in death penalty cases. However, Article I, section 11, prescribes only the number of

9 jurors who must agree on "verdicts" of "guilty or not guilty," whereas the "unanimous

10 affirmative jury findings" requirement of Measure 6 applies to the findings necessary to

11 support the imposition of the death penalty after a jury has reached a guilty verdict.

12 Moreover, to the extent that Measure 6 may be interpreted as requiring unanimous jury

13 findings to support a guilty or not guilty verdict, it is consistent with, and does not

14 change, the requirement in Article I, section 11, that "verdicts of guilty of first degree

15 murder [(the historical analog of aggravated murder)] [be] found only by a unanimous

16 verdict."

17 Defendant also appears to suggest that the right of criminal defendants to

18 jury trial, also guaranteed by Article I, section 11, is separately affected by Measure 6's

11
Article I, section 11, provides a right to trial by jury in criminal
prosecutions, and further provides that "in the circuit court ten members of the jury may
render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree
murder, which shall be found only by a unanimous verdict and not otherwise."

13
 1 reference to jury findings "as provided by law." But defendant does not show, and this

2 court has no reason to believe, that that reference in any way alters the jury trial

3 guarantee afforded by Article I, section 11. The measure does not explicitly or implicitly

4 amend Article I, section 11.

5 We conclude that sections 15 and 16 of Article I include three textually

6 separate provisions -- a ban on "vindictive punishment," a ban on "cruel and unusual

7 punishment" and a requirement that "penalties [be] proportioned to the offense" -- that

8 are implicated by Measure 6. We further conclude that, insofar as Measure 6 eliminated

9 the barriers to the imposition of the death penalty posed by each of those provisions, it

10 made three, not two, separate changes to the Oregon Constitution. As the parties

11 acknowledge, the measure also made a fourth constitutional change, namely, creating the

12 new constitutional requirement that persons convicted of aggravated murder be sentenced

13 to death or life imprisonment. Those four changes are all substantive, and the parties do

14 not argue otherwise.

15 That leaves us to determine whether the four identified changes are

16 "closely-related." In Lehman v. Bradbury, 333 Or 231, 246, 37 P3d 989 (2002), the court

17 described the "closely-related" inquiry in the following terms:

18 "First, we examine the relationship among the constitutional
19 provisions that the measure affects, both explicitly and implicitly. If the
20 affected provisions of the existing constitution themselves are not related,
21 then it is likely that changes to those provisions will offend the separate
22 vote requirement * * *. [T]he fact that a proposed amendment asks the
23 people, in one vote, substantively to change multiple provisions of the
24 Oregon Constitution that are not themselves related is one indication that
25 the proposed amendment might violate the separate-vote requirement.

14
 1 "Next, we must consider the constitutional changes themselves.
2 * * * If they are closely related, the measure under consideration survives
3 scrutiny under Article XVII, section 1. If they are not, it does not."

4 In Swett v. Bradbury, 333 Or 597, 43 P2d 1094 (2002), the court observed that that

5 statement was "descriptive not prescriptive," and that it was "equally valid analytically to

6 start the inquiry by focusing on the changes themselves." Id. at 607. For reasons that

7 will become clear, we choose that option.

8 One thing that should be immediately obvious about Measure 6 is that it

9 contains only one provision and proposes to do only one thing -- prescribe the penalty for

10 aggravated murder. All of the other changes that Measure 6 effects are directed at

11 eliminating the potential constitutional barriers to the imposition of that penalty posed by

12 Article I, sections 15 and 16. Said another way, the three changes that the measure

13 makes to Article I, sections 15 and 16, are necessary corollaries to the new provision that

14 permits the imposition of the death penalty.

15 In that way, Measure 6 is very different from the measures that the court

16 considered in Armatta and in the "separate vote" cases it decided after Armatta. Each of

17 those measures contained more than one provision, and it would have been possible for

18 voters to separately decide (1) which of many procedural rights they wished to grant to

19 victims (Armatta);12 (2) whether to impose term limits for state and/or federal offices

12
The measure that was at issue in Armatta, Ballot Measure 40 (1996), was
expansive and multi-faceted. It added a new section to Article I of the Oregon
Constitution, and the new section was composed of nine separate paragraphs, which
prescribed various procedural rights to which crime victims would be entitled in the pre-

15
 1 (Lehman); (3) whether to require disclosure of campaign contributions and/or impose a

2 requirement that signature gatherers for initiative petitions be registered Oregon voters

3 (Swett); (4) whether to require payment of just compensation for the financial impact of

4 all regulations on private real property and/or except certain kinds of uses from that

5 compensation requirement (League of Oregon Cities v. State of Oregon, 334 Or 645, 56

6 P3d 892 (2002)); (5) which of a number of different substantive and procedural

7 protections to provide to persons whose property is subject to forfeiture, and how to use

8 forfeiture proceeds (Lincoln Interagency Narcotics Team v. Kitzhaber, 341 Or 496, 145

9 P3d 151 (2006));13 and (6) whether to permit the legislature to prohibit or limit campaign

10 contributions and expenditures and, if so, whether to require more than majority approval

11 for such legislation (Meyer v. Bradbury, 341 Or 288, 142 P3d 1031 (2006)).14

and post-trial phases of a criminal prosecution or juvenile proceedings, declared how
those rights were to be construed in light of other Oregon and federal constitutional
provisions, and defined certain relevant terms. Measure 40 did not expressly repeal or
modify any existing constitutional provisions; however, it had the effect of modifying six
separately-enumerated, individual rights (pertaining to search and seizure, unanimous
jury verdicts, waiver of jury trial, former jeopardy, self-incrimination, and bail) and the
legislature's constitutional authority to establish juror qualifications in criminal cases.
This court held that the ballot measure proposed "two or more changes that [were]
substantive and not closely related" and, therefore, that it violated the separate vote
requirement. Armatta, 327 Or at 283-84.
13
In Lincoln Interagency, the court held that a constitutional change that
provided "administrative detail" to another constitutional change in the same measure
was "closely related" to the latter change, as was a constitutional change that placed a
limitation on what another constitutional change otherwise would have allowed. 341 Or
at 510-12.
14
In Meyer, the court rejected an argument that, in Initiative Petition 8

16
 1 Defendant argues that the same is true of Measure 6 -- that a voter

2 conceivably could favor one or more of the changes that Measure 6 effects and oppose

3 others. For example, defendant suggests, a voter could support the measure's directive

4 that the penalty for aggravated murder is death, but oppose excepting that directive from

5 the relevant provisions of Article I, sections 15 or 16. But, in so contending, defendant

6 fails to recognize the limits of the measure's effect on those sections. As we have

7 explained, Measure 6 ensures that Article I, sections 15 and 16, will not stand as barriers

8 to imposition of the death penalty. It does not otherwise permit that penalty to be

9 imposed in violation of those sections -- for example, by methods that are cruel and

10 unusual. Because the measure did not propose to eliminate all or any of the protections

11 afforded by sections 15 and 16, it was not possible for voters to separately decide whether

12 they wished to do so. A voter who favored death as a penalty for aggravated murder

13 could not achieve that objective without also favoring removal of potential barriers to

14 imposition of that penalty, specifically those found in Article I, Sections 15 and 16.

15 So understood, the four separate and substantive changes that Measure 6

16 made to the Oregon Constitution are "closely related." It is not simply that those separate

(2006), the creation of legislative authority to enact laws regulating campaign finance,
which constituted one constitutional change, was not closely related to the other
constitutional change contained in the same measure -- the imposition of a three-quarter
supermajority requirement on the enactment of such laws. The court reasoned that,
insofar as the latter constitutional change was simply a "procedural condition" of the
former, the constitutional changes were closely related and did not offend the separate
vote requirement. 341 Or at 300-01.

17
 1 constitutional changes are bound by a shared goal or subject matter -- a relationship that

2 this court concluded, in Swett, was insufficiently close to pass muster under Article XVII,

3 section 1. 333 Or at 609. Rather, those changes were necessary to imposition of death as

4 a penalty for aggravated murder in this state.

5 As articulated in the passage from Lehman quoted above, 333 Or at 246,

6 the next step in the separate vote analysis would require that we consider whether the

7 constitutional provisions that Measure 6 affects are closely related. However, it should

8 be clear from the foregoing discussion that that step is not relevant here. Because the

9 changes that Measure 6 proposed to make to the existing constitution were necessary to

10 give effect to the death penalty scheme that is at the measure's heart, a separate vote on

11 whether those effects should logically follow was not possible. Therefore, whether the

12 existing constitutional provisions that were affected by the new constitutional provision

13 were themselves closely related is an unnecessary inquiry. Where, as here, a measure

14 contains only one new provision and the changes that the measure makes to existing

15 provisions are only those necessary to effectuate that provision, the only conclusion that

16 we can reach is that those necessary changes are closely related.

17 We conclude that, although Measure 6 made more than one substantive

18 change to the Oregon Constitution, those changes were closely related. It follows that

19 Measure 6 did not violate the "separate vote" requirement of Article XVII, section 1, and

20 that Article I, section 40, is not, as defendant asserts, "void ab initio." It also follows that

21 defendant's challenge to the validity of Oregon death penalty scheme, which depends on

22 that assertion, is without merit. That statutory scheme remains in effect.

18
 1 B. The "third question," ORS 163.150(1)(b)(C).

2 The next assignments of error that we consider are those that concern the

3 so-called "third question," ORS 163.150(1)(b)(C). The "third question" is one of four

4 questions that are submitted to the jury at the close of a penalty-phase trial, the jury's

5 answers to which determine whether a death sentence will be imposed. The question and

6 the relevant statutory context are as follows:

7 "Upon the conclusion of the presentation of the evidence, the court
8 shall submit the following issues to the jury:

9 "* * * * *

10 "(C) If raised by the evidence, whether the conduct of the defendant
11 in killing the deceased was unreasonable in response to the provocation, if
12 any, by the deceased * * *."

13 ORS 163.150(1)(b)(C).

14 In one of his assignments of error, defendant contends that the inclusion of

15 the "third question" in Oregon's statutory death penalty scheme renders it

16 unconstitutional. In another, defendant contends that the trial court erred in failing to

17 pose the "third question" to the jury. Defendant's positions on those issues are

18 interwoven and somewhat inconsistent. We discuss the latter issue first to give context to

19 the former.

20 In his challenge to the rulings of the trial court, defendant claims that the

21 trial court erred by (1) failing to instruct the jury on the third question, and (2) excluding

22 evidence related to the third question. The state contends that neither of those claims

23 were preserved.

19
 1 We agree with the state. At no point in the proceedings did defendant ask

2 that the court instruct the jury on the third question or attempt to offer evidence relating

3 to provocation. Defendant argues, however, that those kinds of direct actions were not

4 required, and that he adequately preserved his present claims by (1) resisting the state's

5 repeated requests that he acknowledge having waived his right to request an instruction

6 on the third question or offer provocation evidence; and (2) attempting to explain to the

7 trial court his various reasons, most of which had to do with the meaning and

8 constitutional implications of ORS 163.150(b)(C), for not seeking an instruction on the

9 third question. Neither of those actions was sufficient to preserve this assignment of

10 error.

11 As far as we are able to tell, the trial court never questioned defendant's

12 right to offer evidence or request that the court instruct the jury on the "third question."

13 Although defendant insists that, early in the proceedings, the trial court ruled that no

14 evidence going to the issue of provocation "could" be offered by either party, the record

15 suggests that the trial court was responding to what it perceived to be the parties'

16 positions on the matter, and would have considered admitting evidence on provocation if

17 defendant at any point had stated that that was his wish. Instead, defendant repeatedly

18 told the court that he did not intend to offer provocation evidence and, although

19 defendant explained that he had well-considered reasons for declining to seek a third

20 question instruction, the fact is that he repeatedly told the court that he was not seeking

21 such an instruction. In light of those statements, defendant's present claims that the court

22 erred in failing to admit evidence or instruct the jury on the third question are not

20
 1 preserved.

2 Defendant did, however, preserve his arguments that the "third question"

3 renders the death penalty statutes facially invalid, and we turn to that assignment of error.

4 We begin with defendant's contention that the "third question" is facially vague, and

5 thereby violates the fair notice requirement of the federal Due Process Clause, the equal

6 privileges and immunities provision of Article I, section 20, of the Oregon Constitution,

7 and the ban on ex post facto laws found in Article I, section 21. Defendant mentions in

8 passing the statutory terms "reasonable" and "provocation" as contributing to that

9 vagueness, but concentrates his arguments on the phrase "if raised by the evidence." He

10 contends that that phrase is problematic because it offers no guidance on a myriad of

11 questions: whether, before the trial court poses the third question, evidence must be

12 offered, and, if so, how much, or whether the trial court must pose the third question in

13 any event; when the trial court must make the determination of whether to pose the third

14 question; whether a court's determination that it will not pose the third question precludes

15 the parties from presenting evidence that is directed at the question; and whether the court

16 is even permitted to decide whether to pose the third question or must leave it to the jury

17 to decide whether the reasonableness of defendant's conduct has been "raised by the

18 evidence."

19 Defendant misapprehends what it means for a statute to be

20 unconstitutionally vague. A statute is unconstitutionally vague if it gives the police, the

21 prosecutor, or the court, uncontrolled or unbridled discretion to punish defendants or to

22 decide what is prohibited, or fails to inform persons subject to it of what conduct on their

21
 1 part will render them liable. State v. Illig-Renn, 341 Or 228, 238-42, 142 P3d 62 (2006).

2 Vagueness concerns typically arise when a statute contains terms that are so

3 indeterminate or standardless that they leave questions about its application to the ad hoc

4 judgments of judge, jury, or police. Id. The uncertainties that defendant identifies in this

5 court do not raise those kinds of concerns. Although defendant raises legitimate

6 questions about the circumstances in which a court must pose the third question, those

7 questions are no different from questions that frequently arise about the meaning of many

8 statutes. The fact that a court may be required to interpret a statute does not necessarily

9 make it unconstitutionally vague. As discussed above, defendant had the opportunity, at

10 trial, to press his interpretation of the death penalty statutes and to ask the court to

11 conduct his penalty-phase trial in accord.15 If defendant had done so, and if the trial court

12 had disagreed, the appellate process would have provided defendant with a means of

13 assuring that his penalty phase trial was lawfully conducted. Although questions may

14 remain as to the correct interpretation of the statutory provisions pertaining to the "third

15 question," those questions do not raise the specter of unbridled discretion that renders a

16 statute constitutionally invalid.

17 Defendant also contends that, if ORS 163.150(1)(b)(C) permits or requires

15
For example, if defendant had concluded that the statute required the trial
court to ask the jury to determine whether the "response to provocation" issue was raised
by the evidence, defendant could have asked the court to so instruct the jury; if the trial
court had refused because it interpreted the statute differently than did defendant,
defendant could have raised the court's refusal, and the underlying dispute about the
statute's meaning, on appeal.

22
 1 the trial court to withhold the third question from the jury on the court's finding that the

2 issue of provocation is not raised by the evidence, it violates the clear import of Article I,

3 section 11, of the Oregon Constitution16 -- the provision that the accused in a capital case

4 may not be tried by the court alone. As we will explain, that argument is too abstract and

5 hypothetical to be a proper subject for this court's jurisdiction.

6 Defendant's argument is based on the contention that a proper interpretation

7 of ORS 163.150(1)(b)(C) requires the court to submit the "third question" to the jury in

8 every case. Under that interpretation, the jury, not the court, must decide whether the

9 issue of provocation is raised by the evidence and, if so, whether defendant's response

10 was unreasonable. However, as explained above, although defendant informed the trial

11 court that he did not intend to offer evidence of provocation, he never took the position

12 that the court was, nevertheless, required to submit the "third question" to the jury. In

13 fact, defendant told the court that he was not seeking such an instruction. Consequently,

14 the trial court was not called on to interpret the statute and did not give it the

15 interpretation that defendant claims would make it unconstitutional. As the case comes

16 before us, we understand defendant to ask us to decide whether, if the trial court had

17 interpreted the statute to permit the court to withhold the third question from the jury, that

18 interpretation would have been unconstitutional. That is an undertaking in which we will

16
The relevant provision of Article I, section 11, states: "[P]rovided, * * *
that any accused person in other than capital cases, and with the consent of the trial judge,
may elect to waive trial by jury and consent to be tried by the judge of the court alone,
such election to be in writing."

23
 1 not engage. This court simply does not decide hypothetical or abstract questions. See

2 Strunk v. PERB, 338 Or 145, 154, 108 P3d 1058 (2005) (to be justiciable, controversy

3 must involve present facts as opposed to a dispute which is based on future events or a

4 hypothetical issue").

5 Defendant's contention that the third question violates Article I, section 16,

6 of the Oregon Constitution, and the Eighth and Fourteenth Amendments to the United

7 States Constitution, because it makes the death penalty statutes irrational or "vertically

8 disproportionate," is similarly problematic. Defendant asserts that if a jury were to

9 answer the "third question" in the negative -- that the conduct of a defendant in killing the

10 deceased was not unreasonable in response to the provocation, if any, by the deceased --

11 then it would be irrational and disproportionate for the defendant to be convicted of, and

12 suffer the penalties associated with, aggravated murder. In other words, defendant

13 contends that a negative answer to the third question would constitute a jury finding that

14 the defendant had acted reasonably in response to provocation by the deceased, and

15 would preclude a guilty verdict on the aggravated murder charge. To impose the

16 punishment for aggravated murder in that circumstance would, in defendant's view, be

17 arbitrary and "vertically disproportionate."

18 As is obvious, however, that circumstance did not occur here. Defendant

19 told the court that he did not intend to offer provocation evidence and that he was not

20 seeking an instruction on the "third question." As a result, the trial court did not submit

21 that question to the jury. Whether a negative answer to that question could, when

22 relevant and submitted, result in disproportionate punishment is an abstract question that

24
 1 we will not answer.

2 In summary, we reject, in their current posture, each of defendant's

3 arguments that the statutory provision that sets out the third question is constitutionally

4 invalid.

5 C. Defendant's challenge to use of "anonymous jury" procedures.

6 We next address defendant's claim that the trial court violated various

7 constitutional provisions, including Article I, sections 10 and 11, of the Oregon

8 Constitution, and the Sixth Amendment to the United States Constitution,17 by

9 empanelling an "anonymous jury" to hear and decide whether defendant should be

10 subjected to the death penalty. We first consider defendant's contention that the

11 empanelling of an "anonymous jury" denied him a fair trial and an impartial jury, in

12 violation of Article I, section 11, of the Oregon Constitution, under this court's recent

17
Article I, section 10, provides, in part:

"No court shall be secret, but justice shall be administered, openly and
without purchase, completely and without delay, and every man shall have
remedy by due course of law for injury done him in his person, property or
reputation."

Article I, section 11, provides, in part:

"In all criminal prosecutions, the accused shall have the right to public trial
by an impartial jury * * *."

The Sixth Amendment to the United States Constitution provides, in part:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury[.]"

25
 1 opinion in State v. Sundberg, 349 Or 608, 247 P3d 1213 (2011).18

2 In Sundberg, the trial court denied a criminal defendant's motion for a new

3 trial, which the defendant sought on the ground that an "anonymous jury selection

4 procedure" that the trial court had employed over the defendant's objection was an

5 "irregularity" that denied him a fair trial and an impartial jury, in violation of Article I,

6 section 11. In Sundberg, the issue arose out of the trial court's decision that the parties

7 would not be provided with, and would not be permitted to learn through the voir dire

8 process, the names, addresses or employers of the potential jurors. When the defendant

9 objected to the court's insistence on an "anonymous jury," the court overruled the

10 objection, explaining that its decision reflected a circuit-wide response to concerns

11 expressed over the years by jurors about having their names known to the litigants. 349

12 Or at 610-11. As it turned out, however, a significant number of the jurors who

13 underwent voir dire under the "anonymous jury" procedure in the defendant's case had

14 also undergone voir dire in a different case on the same day, before a judge that did not

15 employ the "anonymous jury" procedure. After the defendant was found guilty, he

16 moved for a new trial, arguing that, particularly when some of the jurors had been

18
This court's decision in Sundberg significantly post-dates the trial court
decisions that are at issue in this case, and even slightly post-dates defendant's opening
brief to this court. From the beginning, however, defendant has argued, in terms that
echo the arguments that this court considered in Sundberg, that the "anonymization"
procedures employed in voir dire of the jury panel in his case violate the impartial jury
requirement of Article I, section 11. After our decision in Sundberg issued, defendant
adapted his arguments more specifically to the analysis and holding of that case.

26
 1 exposed to a non-anonymous voir dire procedure, the use of the anonymous procedure

2 would have suggested to the jurors that defendant might pose some sort of danger to them

3 and, thus, might have affected the jurors' ability to be impartial. The trial court denied

4 the motion. Id. at 612-13.

5 On review, the defendant asked this court to apply the rule that many

6 federal and state courts have applied -- that anonymous juries are permitted only when

7 there are strong grounds for believing that the jury needs the protection of anonymity and

8 the trial court takes reasonable precautions to minimize the prejudicial effects on the

9 defendant and to ensure the protection of the defendant's constitutional rights. The

10 defendant argued that, under that rule, the decision to employ an anonymous jury in his

11 case was error, because there had been no finding of any need to protect jurors and no

12 attempt to minimize possible prejudice to him.

13 In considering the question the defendant raised, the court first observed

14 that, while trial courts have inherent authority to empanel an anonymous jury, that

15 authority must be exercised in a way that does not violate defendant's constitutional

16 rights, including his or her right under Article I, section 11, of the Oregon Constitution to

17 "trial by an impartial jury." The court next determined that anonymity procedures could

18 affect a defendant's right to an impartial jury in two ways:

19 "first, by hindering his ability to conduct voir dire and select jurors who are
20 impartial, and second, because it * * * may compromise the jury's ability to
21 remain impartial by implying that a defendant is dangerous, thus
22 undermining the presumption of innocence."

23 Sundberg, 349 Or at 620. With respect to the first effect, the court noted that, although

27
 1 knowledge of names, addresses and employers is not always necessary to achieve an

2 impartial jury, such knowledge is helpful and in some cases, may be crucial ("If a McCoy

3 is on trial, she will want to know if any of the prospective jurors are Hatfields"). Id. at

4 621. With respect to the second effect, the court observed that anonymous juries have

5 not been the norm in Oregon and elsewhere and, as such, might suggest dangerousness

6 (and, thus, guilt) to prospective jurors. Id. In light of those potential effects, the court

7 concluded that that the approach that the defendant had proposed was essentially the

8 correct one, and the court adopted the rule as expressed in one of the federal cases that

9 the defendant had cited:

10 "[A]nonymous juries are permissible only if the trial court 'concludes that
11 there is a strong reason to believe that the jury needs protection' and the
12 court takes 'reasonable precautions to minimize any prejudicial effects on
13 the defendant and to ensure that his fundamental rights are protected.'"

14 Id. (quoting U.S v. Paccione, 949 F2d 1183, 1192 (2d Cir 1991), cert den 505 US 1220

15 1992)).

16 The court explained that, to satisfy the first part of that test, the trial court

17 must determine that the circumstances of the particular trial provide sufficient grounds to

18 believe that the jurors need the protection of anonymity. The court noted that some

19 courts had identified a specific group of factors to be considered in making that

20 determination, but it declined to endorse any particular list of factors. The court added,

21 however, that the determination "must be made on the facts of each case -- and not on the

22 basis of a generalized desire to protect the anonymity of all jurors in all cases in the

23 interest of juror privacy." Sundberg, 349 Or at 622. The court went on to explain that,

28
 1 "[i]f grounds exist to empanel an anonymous jury, then the trial court may do so, but it

2 must take reasonable precautions to ensure that defendant's right to an impartial jury is

3 protected." Id. Depending on the particular circumstances, such precautions might

4 include permitting extensive voir dire of each juror regarding potentially relevant matters

5 and providing a "plausible and nonprejudicial" explanation to jurors for not disclosing

6 their identities. Id. at 623.

7 Applying the foregoing analysis to the circumstances that were at issue, the

8 court concluded that, because the trial court had not made any finding that the

9 circumstances of the particular case would support a need to protect the jurors' identities,

10 the use of an anonymous jury was error. The court further concluded that the error was

11 not harmless, because, in the circumstances, "the unexplained use of an anonymous jury

12 created too great a risk that the jury may have believed that defendant was dangerous,

13 and, therefore, that he was more likely to be guilty." Id. at 625.

14 Defendant argues that Sundberg controls the present case. He contends

15 that, as in Sundberg, the trial court erred in deciding to use an anonymous jury when it

16 had not determined, and had no grounds for determining that there were "strong reasons"

17 for believing that the jury needed the protection of anonymity that were particular to

18 defendant's case. In response, the state argues that the rule from Sundberg is inapplicable

19 for a number of reasons -- including that the jury in this case was not an "anonymous

20 jury" within the meaning of Sundberg. The state notes, in that regard, that, although the

21 trial judge in the present case did not permit prospective juror's names to be used in open

22 court and gave the jurors the option of withholding certain other identifying information

29
 1 requested on juror questionnaires, the court provided the attorneys with a list of the

2 jurors' names and addresses and told them that, assuming the information became

3 relevant, they could question individual jurors about other information that the jurors may

4 have withheld in responding to their juror questionnaires. Furthermore, the state notes,

5 the trial court told the jurors that they had been given the option of withholding

6 identifying information "for no other reason than to help protect your anonymity from the

7 public and the press." The state contends that those circumstances stand in stark contrast

8 to the circumstances in Sundberg, where the court prevented even the parties' attorneys

9 from discovering the jurors' names, addresses, and employers, and where the trial court

10 gave the jury no explanation of its reason for requiring anonymity. The state adds that, to

11 the extent that defendant wishes to argue that the jury in this case was "anonymous," as

12 that term is used in the Sundberg analysis, because he, as opposed to his attorney, was

13 precluded from learning the jurors' identities, he is precluded from doing so by his failure

14 to argue that particular nuance before the trial court.

15 The facts material to those arguments are as follows. Defendant's penalty

16 phase proceeding was scheduled to begin early in 2006, and two orientation meetings for

17 prospective jurors were scheduled for January 17, 2006. During the months that

18 preceded the scheduled meetings, counsel for the parties met a number of times in the

19 chambers of the judge who would be presiding in the trial to discuss what should be

20 included in the juror questionnaire. All eventually agreed to a final questionnaire that

21 included, among other things, questions about the juror's name, address, and employer,

22 the name and employer of the juror's spouse, the names, ages, and occupations of juror's

30
 1 children, the names, ages, and occupations of the juror's siblings, and whether the juror,

2 or any of the juror's friends or family members were or had been involved in certain

3 organizations or activities.

4 On January 13, 2006, at an off-the-record meeting with the parties' counsel

5 on a different matter, the judge announced that, in filling out the juror questionnaire,

6 prospective jurors would not be required to reveal identifying information about

7 themselves or any other person. It was decided (it is not clear by whom and by what

8 process) that prospective jurors would be given a list of the questions on the juror

9 questionnaire that would be considered optional. As a result of that decision, when juror

10 questionnaires were distributed to the jury venire at the January 17 orientation meetings,

11 they were accompanied by a separate instruction sheet that advised the prospective jurors

12 that they were not required to reveal, in certain designated questions, their names or

13 addresses, the names of their spouses or children or anyone else, or the names of their

14 employers. The trial court also orally advised the prospective jurors that they did not

15 have to answer the designated questions and that the option was being provided to protect

16 jurors' identities. Although the trial court disputed that it had done so, defense counsel

17 understood that the court had informed the jurors that the questionnaires would be

18 provided only to the lawyers and not to anyone else.

19 Defendant objected to the court's decision to thus "anonymize" the jury

20 panel and moved for dismissal of the jury venire and an evidentiary hearing. In the

21 motion, defendant argued that the trial court's instructions regarding the jury

22 questionnaires might result in a biased jury because it might lead jurors to infer that their

31
 1 anonymity was required because defendant was dangerous. Defendant also argued that

2 permitting jurors to withhold complete information would affect defendant's ability to

3 conduct voir dire and to intelligently utilize peremptory challenges, implicating his right

4 to an impartial jury. Defendant argued that the only remedy that could cure the resulting

5 prejudice was dismissal and replacement of the jury venire.

6 The requested evidentiary hearing was held on January 19, 2006. Through

7 testimony from the jury coordinator and presiding judge for the county, defendant

8 established that, some months before, the county's judges had informally, and not

9 necessarily unanimously, adopted a policy that, in every case, juror names would not be

10 used in open court. The purpose of the policy was to ensure the privacy of jurors.

11 After defendant elicited that evidence, he reiterated his position that the

12 potential jurors should not have been told that they could omit identifying information

13 from their questionnaires, concentrating his oral arguments on a concern that the

14 anonymous jury procedure could send a message to the jurors that there was reason to

15 fear defendant. The trial court attempted to respond to that concern by instructing the

16 state to submit a draft of a curative instruction to the defense. The court said that

17 defendant would "sign off on it, and then we'll proceed." However, defense counsel

18 informed the court that defendant would not sign off on a curative instruction because

19 "our position is that no curative instruction is going to fix the taint."

20 In an apparent response to defendant's contention that the provision of the

21 anonymity option would affect his ability to conduct voir dire effectively, the trial court

22 observed that many of the jurors had chosen to answer all of the questions. The court

32
 1 also advised the parties that, "if, for some reason, any of this information, what is left

2 blank on the questionnaires, becomes somehow relevant during the voir dire process,

3 we'll deal with that on a case-by-case basis." Finally, the court pointed out that the names

4 of jurors would be supplied to the attorneys "with the instructions that those were not to

5 be released to any third parties." The court explained that, by "third parties," it meant

6 "people who are not employees or agents of the attorneys," and added that "we should

7 probably have a protective order regarding that."

8 Later in the same hearing, the prosecutor presented a draft protective order

9 and the court inquired whether defense counsel was comfortable with it. Counsel

10 responded that "as a substitute measure for getting what I actually want, I don't have any

11 objection to the form of the order." The order, which the judge ultimately signed,

12 provided that the jurors' names and addresses, which would be provided to counsel, "may

13 not be viewed or otherwise used except in connection with representation of a party." It

14 also specifically provided that the names and addresses "may [not] be provided or viewed

15 in any way by the defendant."

16 Some days later, as voir dire was prepared to commence, the parties were

17 provided with the judge's "opening remarks" to the jury, which included the anticipated

18 curative instruction. It read:

19 "When you filled out the questionnaire, you were given the option to
20 withhold certain personal identifying information. This option was
21 provided to you for no other reason than to help protect your anonymity
22 from the public and the press, as some of the questions you will be asked
23 may involve personal answers, and this is a public setting. For that reason
24 alone, the parties have been provided with your name but will refer to you
25 only by your juror number. You may be asked to reveal other information

33
 1 that you have omitted as it becomes relevant."19

2 However, in giving its opening remarks to individual prospective jurors, the court did not

3 always repeat that instruction as drafted. The court separately addressed each juror and,

4 more often than not, told the juror that "the attorneys," rather than "the parties," had been

5 provided with the juror's name. In fact, of the 12 jurors who were selected to hear

6 defendant's case, only four were told that "the parties" had been provided with their

7 names. The rest heard that "the attorneys" had been provided with that information.

8 A few days into voir dire, counsel for defendant filed a "renewed objection

9 to the "anonymization" of juror data and identities and demand for dismissal of tainted

10 jurors" -- specifically arguing both that the selection procedure implied to the jury that

11 defendant was presently dangerous and that the procedure prevented counsel from

12 eliciting information about potential jurors that was essential to the intelligent and

13 meaningful exercise of peremptory challenges. The court denied the "renewed

14 objections" motion.

15 As noted, defendant contends that, in taking the described actions, the trial

16 court empanelled an anonymous jury in violation of this court's decision in Sundberg.

17 The state responds that the anonymity with which Sundberg is concerned is confined to

18 circumstances that exactly mirror the facts of that case -- a trial court's prohibition on the

19 parties and their attorneys learning jurors' names or identifying information, and that here

19
When presented with the curative instruction, defense counsel reiterated her
position that the curative instruction was inadequate.

34
 1 the court disclosed the names of jurors to defense counsel. Moreover, the state contends,

2 we may not consider the fact that defendant was prohibited from obtaining that

3 information, because defendant did not specifically object to that prohibition below.

4 In Sundberg, the defendant articulated, as the basis for his objection at trial

5 to the anonymous juror procedure, that the procedure would preclude him from

6 conducting "adequate voir dire." The defendant did not argue until after the jury

7 returned a guilty verdict (in a post-trial motion), that that procedure was improper

8 because it may have affected the way that the jurors perceived him and, therefore, their

9 impartiality. However, the defendant's failure to timely state that second concern did not

10 prevent this court from considering, in its analysis, the effect that the trial court's

11 procedure may have had on jurors' perception of the defendant.

12 In this case, defendant voiced the same two concerns about the

13 "anonymous" jury procedure that the defendant in Sundberg voiced and that the court

14 considered in that case. Although defendant focused in oral argument primarily on the

15 effect that the trial court's selection procedure could have on the jurors' ability to be

16 impartial and stated his objection that that procedure interfered with his ability to conduct

17 voir dire only in writing and in general terms, we do not think that defendant's choices

18 confine this court's analysis. As in Sundberg, we will consider the full effect of the

19 procedure that the trial court imposed in deciding whether it met constitutional

20 requirements.

21 Important to our willingness to do so is the fact that defendant did alert the

22 trial court in written memoranda that he objected to its jury selection procedure on the

35
 1 basis that that procedure would affect his ability to conduct voir dire. Before the off-the-

2 record meeting on January 13, the parties had agreed on a juror questionnaire that asked

3 jurors to disclose identifying information about themselves, their families and employers.

4 The parties apparently understood, at that point, that juror numbers, instead of names,

5 would be used in open court, but that defense counsel and defendant would have access

6 to the juror questionnaires and all of the information that jurors provided in response,

7 including their names and addresses. Defendant did not object to that procedure. At the

8 January 13 off-the-record meeting, however, the court announced that prospective jurors

9 would be permitted the option of refusing to provide certain of the information requested

10 in the questionnaire. Defense counsel understood the judge as also instructing the jurors

11 at that meeting that their questionnaires would be provided to the attorneys "and not to

12 anyone else," which defense counsel took to mean "and not to defendant." Thus, when

13 defense counsel filed her motion for an evidentiary hearing on the court's decision to

14 "anonymize" the jury, it was her belief that the procedure that the court was imposing

15 would permit her but not defendant to learn the information on the juror questionnaires.

16 In the memorandum that counsel filed in support of that motion, counsel objected that the

17 court's withholding of complete information would "affect defendant's ability to conduct

18 voir dire" and to intelligently utilize peremptory challenges. Counsel thereby objected

19 generally to the procedure that she understood the trial court to have imposed and did not

20 limit her objection to any particular aspect of that procedure.

21 Although the trial court disputed that it had told the jurors that the juror

22 questionnaires would be provided to the attorneys and "not to anyone else," the trial court

36
 1 knew when it considered that memorandum that the procedure that it was imposing

2 would in fact permit defense counsel to learn the names and addresses of the jurors, but

3 preclude defendant from doing so. At the hearing on the motion, the court explained that

4 defense counsel would be provided with juror names but that those names were not to be

5 released to "third parties." The court explained that, by third parties, it meant "people

6 who are not employees or agents of the attorneys." When the trial court entered its

7 protective order, it specifically prohibited counsel from releasing juror names and

8 addresses to defendant. Thus, the trial court adopted a procedure that expressly

9 precluded defendant from learning the names and addresses of jurors, and defendant had

10 objected generally and in writing to that procedure on the basis that it would affect his

11 ability to conduct voir dire.

12 It is true, as the state observes, that defendant focused much of his oral

13 argument on his contention that, by permitting jurors the option of withholding certain

14 information in responding to the juror questionnaires, the court had tainted their view of

15 defendant and his dangerousness. It also is true that the court and the parties extensively

16 discussed the extent of that taint and the "curative instruction" that the state proposed to

17 address it. But at no time during that discussion did defendant abandon his position,

18 conveyed in his written motion, that the procedure that the court had announced also had

19 the effect of preventing him from obtaining the information that he needed in voir dire.

20 Defendant did not waive that argument when counsel stated that she did not have any

21 objection to the form of the protective order that prohibited counsel form sharing juror

22 names with defendant. Instead, defendant specifically renewed that argument in his

37
 1 written, renewed objection to "anonymization" of juror data. The fact that defendant

2 concentrated, in oral argument, on the effect of the court's procedures on the jurors'

3 impartiality does not preclude this court from considering the fact that the trial court

4 entered an order precluding defendant from learning the identity of the jurors who were

5 charged with meting out his penalty. We will therefore include that fact in our analysis

6 of whether the selection procedure that the trial court imposed was sufficiently different

7 from that used in Sundberg that its holding is inapplicable here. We turn to that question

8 now.

9 As noted, the state argues that, under the procedure the trial court used in

10 this case, the jury was not "anonymous" in the Sundberg sense -- first, because the trial

11 court disclosed juror identifying information to counsel, and, second, because the court

12 informed jurors that the procedure was for the sole purpose of protecting their privacy

13 from the public. We disagree. Jurors may be "anonymous" in different ways -- from the

14 defendant's perspective, because the defendant does not know their identifying

15 information, from counsel's perspective, because counsel does not know their identifying

16 information, and from their own perspective, because they understand that identifying

17 information that they ordinarily would be required to provide may be withheld, and, in

18 any event, will not be provided to the defendant. In Sundberg, the court discussed the

19 concerns that arise when a jury is anonymous from two of those perspectives -- the

20 defendant's perspective and the jurors' own perspective. The court described the problem

21 that arises when juror are anonymous from the defendant's perspective by observing that

22 "[i]f McCoy is on trial, she will want to know if any of the prospective jurors are

38
 1 Hatfields." Providing jurors' names and addresses to counsel may mitigate the potential

2 harm that flows from thus anonymizing the jury, but it cannot completely eliminate it:

3 That is so because, in colloquial terms, the defendant may be the only person who is

4 aware of the dispute between the Hatfields and the McCoys.

5 In Sundberg, the problem that the court identified when considering

6 anonymity from the jurors' perspective was that anonymous juries have not been the

7 norm in Oregon, and a deviation from the norm of full disclosure might suggest the

8 defendant's dangerousness. The court explained that, when jurors learned that they

9 would remain anonymous and were aware that such anonymity deviated from Oregon's

10 norm of full disclosure, they could conclude that their privacy was being protected

11 because the defendant was dangerous. In this case, the jurors also would have been

12 aware that their ability to remain anonymous was a deviation from the norm. We can

13 infer that awareness from the fact that the jurors received pre-printed questionnaires that

14 requested their names and other personal information, but were then told, both orally and

15 in writing, that they had the option of withholding that information.

16 It is, of course, true that the trial court made an effort to explain that there

17 was a non-prejudicial reason for the deviation -- that they were being permitted to

18 withhold information "for no other reason than to protect their anonymity from the public

19 and the press." However, the court also made a statement that the jurors could

20 understand as an indication that their identities were being protected from defendant. The

21 court told eight of the 12 jurors that it would furnish their names, not to "the parties," but

22 to "the attorneys." Under the circumstances, we do not think that the trial court's

39
 1 explanation for permitting anonymity negated the risk to juror impartiality that the

2 unusual anonymity procedure posed.

3 We conclude that, in spite of the differences that the state has noted, the

4 procedure that the trial court followed in this case gave rise to the same risks that the

5 court identified in Sundberg. And, because those risks are the same, the rule of Sundberg

6 is applicable. According to that rule, a court may empanel an anonymous jury "only

7 when the trial court finds that the circumstances of a particular case justify that practice

8 and takes steps to mitigate any prejudice to defendant." Sundberg, 349 Or at 624. It may

9 not empanel an anonymous jury based on "a generalized desire to protect the anonymity

10 of all jurors in all cases in the interest of juror privacy." Id. at 622.

11 In the present case, the trial court did not make the required findings.

12 Instead, the court explained that it was merely carrying out a county-wide policy of

13 protecting the identities of jurors -- seemingly relying on the very kind of "generalized

14 desire to protect the anonymity of all jurors in all cases" that this court suggested was

15 inadequate in Sundberg. Id. At no point did the trial court state that the circumstances of

16 the particular case provided grounds for believing that the jurors needed the protection of

17 anonymity -- even when the scope and bona fides of the "policy" were questioned. In

18 fact, when counsel for the state suggested that the procedures could be explained to the

19 jury in terms of concerns about publicity, the trial court responded emphatically that

20 "[t]he publicity surrounding this case has nothing to do with * * * what I'm doing by way

21 of anonymity."

22 The state points out that, by instructing the prospective jurors that the

40
 1 procedures had been used to protect their anonymity "from the public and the press," the

2 trial court took the very kind of "reasonable precautions to ensure that the defendant's

3 right to an impartial jury is protected" that the Sundberg rule demands. Id. at 622. But,

4 under Sundberg, the requirement that the trial court take "reasonable precautions" is

5 necessary but secondary: It does not absolve the court from the rule's primary

6 requirement -- that it determine that particular circumstances of the case provide grounds

7 for believing that the jurors need the protection of anonymity.20 The trial court did not

8 make the required determination. Under Sundberg, the use of an anonymous jury in the

9 absence of such a determination was error.

10 Still, the error is not a ground for a new penalty phase trial if it is found to

11 be harmless, i.e., if we determine that there is little likelihood that it affected the verdict.

12 State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). The state contends that there is little

13 likelihood that the anonymity procedures used in this case affected the jurors' decision-

14 making, because the trial court instructed the jurors that they were being used solely to

15 protect the juror's privacy from the press and public. The state also argues that, even if

16 the anonymity procedures may have conveyed some slight implication of dangerousness,

20
In Sundberg, this court first discussed the required determination regarding
grounds for believing that jurors need anonymity, 349 Or at 621-22, and then proceeded
to state that "if grounds exist to empanel an anonymous jury, the trial court may do so,
but it must take reasonable precautions to ensure that defendant's right to an impartial
jury is protected." Id. at 622. It is clear from that construction that the determination that
"grounds exist" is a necessary condition for a decision to use an anonymous jury
procedure.

41
 1 it would have been insignificant in the context of the overwhelming evidence that the jury

2 had heard about defendant's horrific crimes, and for that reason would have been unlikely

3 to influence the jury's ultimate decision on the fourth question -- whether "there is a

4 probability that [] defendant would commit criminal acts of violence that would

5 constitute a continuing threat to society." ORS 163.150(1)(b)(B). Finally, the state

6 argues that, because defendant's lawyers had all of the jurors' names and were permitted

7 to inquire about the information that the jurors withheld if it became relevant, the

8 anonymity procedures could not have hampered defendant's ability to conduct effective

9 voir dire.

10 For the reasons we have already stated, we are not persuaded. The trial

11 court did not decide that this case was different from others nor explain to the jurors why

12 this case was different from others -- leaving the jurors to speculate that, perhaps, in this

13 particular case, their disclosure of personal information might expose them to risks that

14 would not be present in other cases. We also cannot ignore the fact that eight of the

15 jurors were instructed that "the attorneys," as opposed to "the parties," had been provided

16 with their names. Jurors who heard that the trial court had given their names to "the

17 attorneys" would have assumed, correctly, that only the attorneys -- and not defendant --

18 had been provided with their names. That detail could have undermined the trial court's

19 general explanation of the procedure as protecting jurors' anonymity from the "press and

20 public," and focused the jurors on whether this defendant was, perhaps, more dangerous

21 than defendants in other cases. And the concerns about juror impartiality that arise in

22 connection with that kind of speculation by jurors would only be amplified in this context

42
 1 – a penalty phase proceeding where defendant's "future dangerousness" was specifically

2 at issue. ORS 163.150(1)(b)(B).

3 We also are unpersuaded by the state's suggestion that, in the context of the

4 evidence that the jurors would see and hear about the gruesome murders that defendant

5 had committed, the "small" implication of defendant's dangerousness that might be

6 associated with the trial court's anonymity procedures could have little force or effect on

7 the jurors' ultimate assessment of defendant's future dangerousness. Evidence of

8 defendant's obvious past dangerousness to his past victims certainly speaks to defendant's

9 future dangerousness at some level, but a suggestion that defendant constitutes a present

10 or future danger to jurors and their families cannot be dismissed as comparatively

11 negligible when the question under consideration is "probability that the defendant would

12 commit criminal acts of violence that would constitute a continuing threat to society."

13 Finally, we are not convinced that the anonymous jury procedures were

14 harmless with respect to defendant's ability to use voir dire effectively. As explained,

15 without being able to share juror's names with a defendant, counsel may not have the

16 information necessary to make effective use of that information. Here, defendant may

17 have been the only person who could connect a name with a potential bias. Moreover,

18 even leaving aside the question of whether defendant's lawyers' knowledge of those

19 names is an adequate substitute for defendant's knowledge, the fact remains that the

20 anonymity procedures that the trial court imposed prevented even the lawyers from

21 knowing other potentially relevant information (i.e., names of spouses, children,

22 employers) about the jurors who eventually were seated. Here, three of the jurors who

43
 1 sat on defendant's case declined to answer at least one of the other questions that the trial

2 court presented as "optional."21

3 The state points out that the trial court instructed the lawyers that, in their

4 oral examinations of jurors, they were free to inquire into any matters that a juror had

5 omitted from his or her questionnaire, "should those issues become relevant." The state

6 contends that, if the lawyers declined to pursue that option, it was their decision, and not

7 the court's procedure, that prevented them from obtaining the omitted information.

8 The state's argument misapprehends the utility of the requested information.

9 The information that the jurors were permitted to withhold -- about spouses, children,

10 workplaces, etc. -- were included in the questionnaires because the parties and the court

11 had agreed that they should be -- with the implication that answers to those questions

12 would be relevant or could suggest important avenues for further relevant inquiry. In

13 other words, the jurors' answers to the questions were, by agreement, either inherently

14 relevant or were triggers for further relevant questioning. When a juror withheld

15 information that may have alerted a party that further questioning might be fruitful, that

16 questioning could not occur: To return to the example that the court used in Sundberg,

17 without knowing that a juror is named Hatfield, a defendant may not think to ask the

18 juror if she was involved in the dispute with the McCoys and certainly could not

19 demonstrate to the court that the name of the juror had become relevant. Thus, the

21
Two jurors omitted the names of their spouses. One juror omitted all
identifying information about her children and the name of her employer.

44
 1 argument that the state interposes is circular and, ultimately, empty. Without the

2 background information that the answers would have provided, defendant could not meet

3 the trial court's standard for further inquiry, because he could not know and could not

4 show that that any particular line of inquiry was relevant.

5 In summary, the trial court and the parties designed a voir dire process that

6 was intended to provide the parties with the information that all agreed was necessary to

7 effective voir dire. The trial court then changed that process and precluded defendant

8 from learning the jurors' names and precluded counsel and defendant from learning other

9 potentially relevant information about potential jurors, including several jurors who were

10 seated on the jury and who heard defendant's case. The fact that defendant's lawyers had

11 access to the jurors' names and addresses and were permitted to inquire into other

12 withheld information "should those issues become relevant," did not cure the problem

13 that the change in process created.

14 Under these circumstances, we cannot say that there was little likelihood

15 that the error in employing anonymous jury procedures, without finding strong and

16 particular grounds to do so, affected the verdict. Because the error was not harmless,

17 defendant's sentence of death must be vacated.

18 D. Defendant's past homosexual experience.

19 The last assignment of error that we discuss is defendant's claim that the

20 trial court erred in permitting a psychiatrist to testify about a homosexual relationship that

21 defendant had had in his youth. In defendant's previous penalty phase trials, a

22 psychiatrist testified about that relationship. At the outset of this penalty phase trial, the

45
 1 defendant asked the court to exclude that same material on grounds of irrelevance and

2 unfair prejudice,22 citing Beam v. Paskett, 3 F3d 1301 (9th Cir 1993), cert den 511 US

3 1060 (1994). In Beam, the court held that evidence of a defendant's nonviolent,

4 consensual homosexual conduct was not admissible to prove that defendant would be a

5 "continuing threat" to society, when the state had not presented "evidence demonstrating

6 a close link between that history and the defendant's future dangerousness." Id. at 1309.

7 We agree with the court's statement in Beam that

8 "when the state seeks to rely on a defendant's non-violent, consensual or
9 involuntary sexual conduct as a basis for its decision to impose capital
10 punishment . . . there is a substantial danger that the sentencer will be
11 swayed by his own moral disapproval of the conduct and will not rationally
12 and impartially consider the relevance of the conduct to the defendant's
13 future dangerousness. To ensure that the conduct is properly considered, the
14 state must introduce more than the mere facts of the defendant's sexual
15 history; specifically, the state must, at the least, introduce evidence
16 demonstrating a close link between that history and the defendant's future
17 dangerousness."

18 Id.

19 In this case, the state failed to introduce evidence demonstrating a link

20 between defendant's homosexual experience as a teenager and his future dangerousness.

21 The state theorizes that such a link exists because defendant tortured and murdered his

22 female victims to satisfy sexual urges, and that defendant's youthful homosexual

22
Under OEC 401, evidence is relevant if it "has 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." Under OEC 403, even
relevant evidence "may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay or needless presentation of cumulative evidence."

46
 1 experience shows that those violent sexual urges, and the danger that defendant would act

2 on them, would continue to exist even in a prison setting where defendant only would be

3 interacting with males. But the state's theory is just that -- a theory. The state did not

4 present evidence that sexually obsessive and violent persons in general easily transfer

5 their deviant urges and behaviors from one sex to another -- or that defendant, himself,

6 was susceptible to that kind of adjustment. Neither did the state present evidence that,

7 regardless of defendant's apparent heterosexuality as an adult, his homosexual experience

8 in youth indicates an underlying flexibility in sexual preferences. In the absence of

9 factual evidence establishing such links, or some more direct link between homosexual

10 activity in youth and sexual violence toward males as an adult, the relevance under OEC

11 401of defendant's teenage experience to the issue of his future dangerousness is

12 questionable and, under OEC 403, the danger of its unfair prejudice certainly would

13 outweigh any slight relevance that it may have.

14 We agree with defendant that the trial court erred in allowing the state to

15 present this evidence. We need not, however, decide if this error, alone, requires

16 reversal. Because we already have identified one error in the proceedings below that was

17 sufficient to require reversal and remand, we need not proceed with a harmless error

18 analysis.

19 The sentence of death is vacated, and the case is remanded to the circuit

20 court for further proceedings.

47