dissenting.
I agree with the majority opinion in all respects except for its conclusion that the trial court erred in admitting victim impact evidence in the penalty phase of defendant’s trial. Accordingly, I dissent.
The majority is correct that in Payne v. Tennessee, 501 US 808, 111 S Ct 2597, 115 L Ed 2d 720 (1991), the Supreme Court held that the Eighth Amendment does not bar states from choosing to allow the admission of victim impact evidence during sentencing proceedings in capital cases. I also agree with the majority that there are no constitutional issues raised in this case; rather, the question here is whether the evidence is admissible under applicable Oregon statutes. My disagreement with the majority is in its conclusion that the pertinent statutes do not allow the admission of victim impact evidence.
ORS 163.150(l)(a) specifies that in the penalty phase of a capital case, “evidence may be presented as to any matter that the court deems relevant,” except for repetitive evidence that was offered and received during the guilt phase. (Emphasis supplied.) The statute then provides, in subsection (l)(b), that at the conclusion of the evidence, the court must submit the following issues to the jury:
‘ ‘ (A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
*721“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and
“(D) Whether the defendant should receive a death sentence.” (Emphasis supplied.)
Finally, ORS 163.150(l)(c) requires the court to give certain instructions to the jury:
“(A) In determining the issues in paragraph (b) of this subsection, the court shall instruct the jury to consider any mitigating circumstances offered in evidence, including but not limited to the defendant’s age, the extent and severity of the defendant’s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed.
“(B) In determiningthe issue in subparagraph (b)(D) of this subsection, the court shall instruct the jury to answer the question ‘no’ if one or more of the jurors find there is any aspect of the defendant’s character or background, or any circumstances of the offense, that one or more of the jurors believe would justify a sentence less than death.”
The majority concludes that because the legislature enacted the fourth question to ensure consideration of mitigating evidence relevant to a criminal defendant’s character, background or crime, it necessarily precludes consideration of any other evidence. I believe that the majority has ignored the plain language of the above provisions to create an ambiguity where none exists. It then unnecessarily relies on legislative history to resolve that perceived ambiguity.
The real issue in this case is, what evidence does the statute authorize a jury to consider in the sentencing phase of a capital proceeding? In construing a statute, the best evidence of the legislature’s intent is the text of the provision itself. Also informative at this first level of the analysis is the context of the provision at issue. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). Here, the statute specifies that the parties may present any evidence that the sentencing court deems relevant to sentencing. ORS 163.150(l)(a). The text of ORS 163.150(l)(b)(D) provides that one of the issues that the jury must be asked is “[w]hether the defendant should receive a death sentence.” On its face, that language does not in any way limit the *722evidence that the jury may or may not consider in making its decision on the issue. As to the mandatory jury instruction that accompanies the question, ORS 163.150(l)(c)(B) provides only that the jury’s answer shall be “no” if one or more of certain specified findings are made. Significantly, it does not say that the jury shall answer “no” only if such findings are made. Absent some comparable limiting language, there is absolutely no basis to conclude that the legislature intended the jury to base its answer to the fourth question exclusively on the mitigating evidence relevant to the defendant’s background and character or the circumstances of the crime. What the legislature has omitted, we may not insert. ORS 174.010. In my view, the language of the fourth question does not preclude the jury from considering nonmitigating evidence that the sentencing court deems relevant to the sentence.1
Under my reading of the statute, the pertinent question is whether the sentencing court erred in concluding that the evidence offered here was relevant. In Payne, the Supreme Court made it clear that
“[a] State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.” 501 US at 827.
The sentencing court’s decision that the victim impact evidence was relevant to the question of whether defendant should receive a death sentence was completely consistent with Payne and, in my opinion, was correct.
Because the sentencing court concluded that the evidence here was relevant, it is not necessary to rely on ORS 137.013 as the statutory basis for allowing victim impact evidence. However, I would note that I disagree with the majority’s conclusion that that statute does not apply in *723capital sentencing proceedings. In adopting ORS 137.013, the voters made the choice that the Supreme Court in Payne said was permissible under the Eighth Amendment.2 It decided that crime victims and their next of kin have the right to appear at the time of sentencing and express their views concerning the crime that the defendant committed and the impact of the crime. That statute provides:
“At the time of sentencing, the victim or the victim’s next of kin has the right to appear personally or by counsel, and has the right to reasonably express any views concerning the crime, the person responsible, the impact of the crime on the victim, and the need for restitution and compensatory fine.” ORS 137.013.
The meaning of the statute is clear on its face; there is absolutely nothing in the statute that limits this right to certain types of crimes. The plain language of the statute specifically authorizes victim impact evidence at all sentencing proceedings.
The majority concludes that ORS 137.013 is not applicable here, because it believes that the specific provisions of ORS 163.150, concerning death penalty proceedings, prevail over what it characterizes as the more general provisions of ORS 137.013. While the rule of statutory construction that it recites is correct, the majority’s conclusion is based on an incorrect assumption; namely, that these two statutes are inconsistent. In my view, they are not inconsistent, and they can and should be read together to give meaning to both.
The majority concludes that ORS 137.013 and ORS 163.150 are inconsistent because “[t]he four questions prescribed by ORS 163.150(l)(b) circumscribe the jury’s inquiry *724in capital cases.” 131 Or App at 718. As discussed above, ORS 163.150 does limit the issues that the court is to submit to the jury in making its decision on the death sentence; however, one of those issues is “whether the defendant should receive a death sentence.” As the Supreme Court held in Payne v. Tennessee, supra, 501 US at 825, victim impact evidence may be relevant in deciding this question if a state authorizes its consideration:
“We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. ‘[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family. ’ Booth [v. Maryland], 482 US [496], 517, 96 L Ed 2d 440, 107 S Ct 2529 (White, J., dissenting) (citation omitted).”
The voters’ adoption of ORS 137.013 did authorize the consideration of victim impact evidence in sentencing proceedings. The majority disregards the voters’ decision to allow victim impact evidence in a sentencing proceeding in a capital case because of its conclusion that the general authorization of ORS 137.013 is inconsistent with ORS 163.150. That view, however, is premised on its erroneous conclusion that the provisions of ORS 163.150(l)(c), which direct the court to instruct the jury to fully consider mitigating evidence, are a limitation on what the jury may consider in such proceedings. As discussed above, I do not read those provisions as representing a legislative decision to preclude otherwise relevant evidence. Because ORS 137.013 represents a statutory determination that victim impact testimony is relevant as a matter of law, it is not inconsistent with ORS 163.150(1). The statutes at issue can and should be read together so as to give meaning to both and to carry out the state’s choice in enacting them.
Defendant also argues here that ORS 137.013 does not authorize the admission of the evidence in this case because “it does not allow the family of the victim to testify about the impact of the crime upon them or other family *725members. It allows only an expression of the ‘impact of the crime on the victim.’ ” The definition of victim, however, “includes, in the case of a homicide * * *, a member of the immediate family of the decedent.” ORS 131.007. Further, it would be ludicrous to read this statute to mean that if the victim is killed, there is no right under ORS 137.013 to express views on the impact of the crime. The text of the statute is broadly worded, allowing the expression of “any views concerning the crime,” and does not support defendant’s argument.
For all of the above reasons, I would hold that the victim impact testimony here was admissible, and I would affirm the defendant’s sentence. I respectfully dissent.
In State v. Stevens, 319 Or 573, 879 P2d 162 (1994), the Supreme Court also addressed the admissibility of evidence under the fourth question. Although the decision does include some broad language, the issue in that case was quite narrow; namely, whether the testimony offered by the defendant was admissible as relevant mitigating evidence. The focus of the court was on whether the legislature intended that type of evidence to be considered by the jury as mitigating evidence.
ORS 137.013 codifies part of Ballot Measure 10, enacted by initiative in 1986. Ballot Measure 10 was the Crime Victims’ Bill of Rights, the stated purpose of which was to protect victims’ rights “at each stage of the criminal justice system” and “to secure balanced justice by eliminating unbalanced rules.” Or Laws 1987, ch 2, § 2. The comprehensive measure represented the voters’ rejection of “the notion that a criminal defendant’s rights must be superior to all others,” Or Laws 1987, ch 2, § 2, and provided for victims’ rights at trial, at sentencing and after sentencing. In view of the voters’ clear intent to achieve broad-based recognition of victims’ rights in the criminal justice system, it is hardly speculative to assume that the specific provision at issue was intended to apply to all sentencing proceedings, including capital ones. Because victim impact evidence is not constitutionally impermissible in capital sentencing proceedings, I believe that we should give full effect to the voters’ decision.