concurring in part, specially concurring in part, and dissenting in part.
I
I dissent because defendant did not receive a lawful jury trial during the penalty phase. The jury’s consideration of the life or death question was intentionally tainted by improper and prejudicial conduct of the prosecutor.
Under ORS 163.150(1)(b)(D), the fourth question asks the jury if there is any reason why a defendant convicted of aggravated murder should not be put to death. The instruction interpreting that question to the jury is phrased in terms of the jurors forming a positive belief about the crime or the defendant that would justify a sentence less than death.1 ORS 163.150 (1)(c)(B) mandates that the instruction must be given. In my view, the phrasing of the question, as stated in those instructions, operates as a presumption favoring death and requires that the jury must affirmatively find a reason to avoid that presumption. I do not think that such a presumption, in the area of a defendant’s background or character, complies with the mandate of the Supreme Court of the United States in Penry v. Lynaugh, 492 US 302, 109 S *22Ct 2934, 106 L Ed 2d 256 (1989), and Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989).2
However, this case goes beyond the issue of the propriety of a presumption favoring death. Other error, in relation to the fourth question, prevented the defendant from defending his life effectively before the jury.
Expert psychological evidence that defendant was a brain damaged person, offered in mitigation, was savaged by intentional, prejudicial statements made by the prosecutor about the expert’s personal character during cross examination. The trial court did not take the positive action necessary to assure that the prejudice did not infect the life or death question. Although a “cautionary” instruction was given, it was misdirected to other matters than the state’s attack on the experts character and, in any event, was not adequate to erase the prejudice intentionally created by the state.
The factual context, to which the psychological testimony about brain damage referred, must be briefly recounted. Defendant picked up homeless people from the streets of Portland and took them to central Oregon rural areas where he shot them. This cruel, wanton, and senseless act is beyond the ken of normal people. Why would anyone do it? No motives, such as robbery, perverted cruelty, or sexual exploitation, appear in the record to explain these cruel murders. The jury was left to speculate about what facets of defendant’s background and character produced those wanton homicides.
Two mental health professionals tested defendant and found that he did not have a normally functioning brain and that, in the words of one of them, there was “clear evidence of organic impairment of the right frontal area” of his brain.3 The psychologist just quoted based his opinion and *23testimony on scientific tests he administered to defendant after his arrest in this case.
During the state’s cross examination of that witness, the prosecutor attacked the psychologist’s character and moral credibility. The attack was based on the wording of a notice of hearing to be held in the future by the Board of Psychologist Examiners. The following occurred on the prosecutor’s cross examination of the defense psychologist:
“Q [By Prosecutor, Mr. Smith] And you indicate you’re closing down your practice in Oregon?
“A Yes.
“Q Where are you moving to?
“A I’m living in Oregon, but I’m just retiring.
“Q Oh, okay. And is it correct that basically your license has been revoked by the board of—
“A No, it is not correct.
“Q Aren’t you subject, at this point in time, to a revocation of your license based upon sexual contact that you had with your patients? Is that not correct, Dr. Metzger?
“A There is a — there was an allegation, and that has not been resolved.
“Q Well, in fact —
“MR. WISEMAN: Your Honor, I think that this is inappropriate, an attack of this —■
“MR. SMITH: This man has gave his credentials, Your Honor —
“MR. WISEMAN: I’m going to object to this as —
“THE COURT: Just a moment, just a moment. I’m going to ask the jury to step out for just a moment, please.
[JURY LEAVES]
“MR. WISEMAN: Your Honor, I’m going to move for a mistrial at this time. That’s wholly inappropriate, totally unprofessional on the part of Mr. Smith to being [sic] something like that up. That’s outrageous. That’s the most outrageous conduct I think I’ve seen in 25 years.
*24«* * * [Aftgj. stating that the matter contained in the prosecutor’s questions had been denied admission as evidence either two or three times previously, the court denied defendant’s motion for mistrial.]”
The trial judge gave the following cautionary instruction when the jury returned to the courtroom.
“THE COURT: “Right before I asked you to step out for moments [sic], there was a question asked by the state of this witness. And there may or may not have been a response. But you are instructed to disregard the question the last question asked by the state of this witness just prior to the recess and to disregard any response thereto if, in fact, there was any response made.” (Emphasis added.)
The implication of these several questions required a very clear and complete cautionary instruction as part of any attempt to cure what otherwise would be a relatively clear case requiring mistrial as to the penalty phase, in my opinion. The instruction given was not clear or complete and did not cure the trial error created by the prosecutor’s attack.
It is clear from the protracted argument in the record that the effort to blacken the expert’s character by charges of unrelated misconduct was an intentional strategy employed by the prosecutor as an officer of the state. Intentional prosecutorial misconduct is a proper basis to grant mistrial. State v. White, 303 Or 333, 736 P2d 552 (1987). That case involved prosecutorial misconduct in the context of drawing attention to a defendant’s exercise of the right to remain silent. State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983) also supports mistrial here. That case discusses intentional provocation of mistrials at 274-76. In State v. Jones, 279 Or 55, 566 P2d 867 (1977), it was held to be intentional prosecutorial misconduct to imply defendant had previously committed rape and that a mistrial was required notwithstanding a cautionary instruction. Id. at 62-63. Furthermore, OEC 103(3) provides:
“In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.”
*25The admonition of that statute, designed to prevent prejudice created by inadmissible statements, was not honored by the state in tías case.
The prosecution’s misconduct was not cured by the confusing and expressly limited “cautionary” instruction. The court only asked the jury to forget what they had heard as to the “last question,” and implied that, as to the single, last question to which the court’s cautionary instructions were alone directed, there may not have been any response. In the last question, the prosecutor made no statement degrading the defense witness. The cautionary instruction failed to cover the next to last and second to last prior questions to which responses indeed had been given and which contained the prosecutor’s accusatory statements. A juror, listening carefully to the judge’s instruction and taking it literally, would not have disregarded the knowledge that defendant’s psychologist was under attack as to his professional license to practice and that the attack was based on sexual contact with more than one of his patients. In Shepard v. United States, 290 US 96, 54 S Ct 22, 78 L Ed 196 (1933), the Supreme Court of the United States rejected arguments that the jury would not be misled by an improper prosecutorial accusation during trial. The court stated:
“The reverberating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed.” 290 US at 104.
Although Shepard involved error in admitting evidence of an accusation in the form of hearsay, the concept applies to the highly charged accusations injected into this case by the state. Given that intentional prosecutorial misconduct injected the prejudice, it was error to deny the mistrial. The ineffective “curative” instruction compounded the error by leaving the accusatory statements uncorrected.
As we shall shortly see, the brain damage evidence savaged by the officer of the state was the only substantial evidence in mitigation made available to the jury. In carrying out its duty to reach a reasoned moral response to the defendant and the crimes, the jury is required to consider evidence in mitigation under the fourth question. Given that the *26expert’s evidence about brain damage was the only significant mitigation evidence to reach the jury, the unsubstantiated attack on the witness as a bad person prejudiced the jury in their consideration of mitigation. The trial court’s ineffective instruction and the majority’s attitude that leaves mistrial questions up to the trial judge combine with the state’s effort to prejudice the jury about the mitigation witness in this case. Defendant did not have a fair trial as to the fourth question and mitigating brain damage. That error and the gravity of its consequence require a new penalty phase hearing.
II
Defendant claims that he was prevented from making a full defense to the state’s demand that his sentence be death because of exclusion of lay opinion evidence offered by defendant under the fourth question.
A trial court ruling completely excluded the lay opinion evidence of defendant’s acquaintances offered in mitigation. The trial court ruled that the offered testimony was not “relevant” to the answer to the question whether there is anything about defendant’s background that would “justify” a sentence less than death. The opinion was offered in the same words as are used by the statutory fourth question, that is: ‘Whether the defendant should receive a death sentence.”4 I specially concur in the result the majority achieves, for the reasons stated.
The only basis given by the trial court for the exclusionary ruling was a general lack of relevance. I disagree with that generality. What acquaintances think of a person is inherently part of that person’s background in society. However, I would affirm the trial ruling on a different basis. OEC 701 (opinion testimony by lay witnesses) provides:
“If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are:
*27“(1) Rationally based on the perception of the witness; and
“(2) Helpful to a clear understanding of testimony of the witness or the determination of a fact in issue.”
An opinion thus is relevant and admissible if the opinion or inference would help in the determination of a fact in issue, namely, in this case, whether death is the appropriate penalty for this particular individual convicted of aggravated murder.
The lay opinion rule requires, however, that the opinion have a rational basis coming from the perception of the opining witness, and also that it be helpful to a determination of a fact or an understanding of the testimony of the witness. The offer in this case indicated that the persons knew defendant and thus gave a basis for the witness’ perception. To the question whether that basis was rationally connected to the described testimony, I would grant that it is.
OEC 401 defines relevancy as: “any tendency to make the existence of any fact * * * more probable or less probable than it would be without the evidence.” Whether acquaintances of a specific person have the opinion that the person should not die has at least some tendency to prove that a sentence less than death is justified.
Whether there is “any aspect of the defendant’s character or background that * * * would justify a sentence less than death,” as the mandatory instruction interpreting the fourth question asks, is certainly a matter “properly provable in the case,” as State v. Guzek, 322 Or 245, 251, 906 P2d 272 (1995) puts it. In State v. Tucker, 315 Or 321, 341, 845 P2d 904 (1993) (Unis J., concurring) the resident evidence expert on this court laid out why a lay opinion should have been admitted in the guilt phase of a death penalty case. That essay on the subject is commended to the reader. Under its tenets, the judge in the present case would not have erred if the judge had admitted the opinion, subject to the opinion being connected later to observed and articulated aspects of defendant’s background. However, the offer of proof on the record here lacks that connection to any articulable reasons why the witness’ opinion that death is not appropriate may *28be a reasoned moral response to an item or items in defendant’s background known to the witness. Because the offer was deficient, however, the trial court did not err in denying admission of the bare lay opinion of acquaintances that was offered. In Tucker the cell mate of defendant testified that defendant stated he shot the victim at close range and that:
“He seemed real proud of the fact that he did that.” Id. at 339.
Justice Unis wrote in Tucker that this lay opinion was a shorthand description of what the witness concluded from observations of defendant, and “added something helpful” for the jury. Unis stated:
“Tsow’s characterization satisfied OEC 701’s standards of admissibility. Tsow had personal knowledge of the facts from which his characterization of defendant’s attitude was derived, the characterization is one that a normal person could form on the basis of the perceived facts, and the characterization is helpful to a clear understanding of Tsow’s testimony, as well as to the determination of a fact in issue in this case. The characterization provided the jury with information that it would not otherwise have had and was useful to the jury in performing its factfinding function. Defendant was charged with personally and intentionally killing two people. Tsow’s ‘shorthand’ description that defendant ‘seemed real proud of the fact that he [shot the victims point blank]’ provided the jury with evidence from which it could infer that defendant acted with the requisite mental state (intent) and that the shootings were not attributable to accident, mistake, or negligence. See State v. Wright, 315 Or 124, 132, 843 P2d 436 (1992) (‘[p]eople often speak in the shorthand of opinions or conclusions, not in the form of a recitation of pure fact’) (quoting State v. Lichty, 313 Or 579, 585, 835 P2d 904 (1992)); State v. Lerch,[296 Or 377, 383, 677 P2d 678 (1984)] (referring to legislative commentary approving proposition in prior case that ‘a lay witness may testify as to what he has perceived by using a ‘shorthand’ description’). Thus, Tsow’s characterization added something helpful to the description of defendant’s statements about the shootings.” (Footnote omitted.) Id. at 341.
In this case, the opinion testimony offered by the defendant was clearly of a mitigating nature. Had the offer of *29proof been more extensive, the evidence might very well have been demonstrated to be related to defendant’s background and therefore helpful and relevant. In determining whether an evidentiary ruling is error, OEC 103(1)(b) provides:
“In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.”
Defendant did not make an offer that included evidence specifically intended to satisfy conditions of admissibility for a lay opinion.
Defendant’s offer in this case does not include an offer that the witness or logic connects the opinion to a fact in issue as should be the case in order to determine whether the opinion helps to determine a fact in issue. The bare opinion is not yet demonstrated to be admissible; it was not error to exclude it.51 specially concur in affirming that ruling.
III
I dissent from the affirmance without discussion of that part of defendant’s constitutional challenges to Oregon’s death penalty statutes that relate to the fourth question put to the sentencing jury, including the lack of proportionality or excessiveness review of the answer given to that question. State v. Cunningham, 320 Or 47, 75, 880 P2d 431 (1994); Excessive Review for Capital Defendants After Honda Motor Co. v. Oberg, 108 Harv. L Rev 1305 (April 1995).
IV
I would affirm the conviction and specially concur in the holding that excluding the lay opinion was not error in view of the defective offer of proof. I would, however, reverse the penalty phase decision on the mistrial issue and remand for a new sentencing, or a new penalty phase trial.
The fourth question is, by implication, to be answered “yes,” i.e., for a death sentence, unless jurors make a finding and on that basis form a belief. If no finding is made or no belief is formed thereon, the instruction calls for the death answer. The mandatory instruction statute provides:
“In determining the [life or death] issue inparagraph (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 circumstance of the offense, that one or more of the jurors believe would justify a sentence less than death.” ORS 163.150(1)(c)(B).
The Oregon law makes the jury the sole and final arbiter of whether the penalty is death, but apparently limits their opportunity to choose less than death to their finding of mitigation. Unlike the law in many states, the jury’s separate penalty phase verdict is not a sentencing recommendation to the judge; nor is it, as in many other states, a presumptive sentence that the judge may for stated reasons override or modify. It does not say that the jury must make the decision in ignorance of a defendant’s mitigation claims, however.
Oregon’s mental disease or defect statute excludes brain damage of that sort from the definition of disease or defect, where mental health experts may classify the brain impairment solely as a personality disorder. ORS 161.295(2).
OEC 704 provides:
“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
However, the court would not have erred to admit it conditionally under OEC 104(2), “subject to * * * evidence sufficient to support a finding of the fulfillment of the condition” being introduced subsequently.