No. 51 December 3, 2015 325

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ISACC CREED AGEE,

Defendant-Appellant.

(CC 09C41224; SC S059530)

En Banc

On automatic and direct review of the judgment of conviction and sentence of death imposed by Marion County 

Circuit Court.

Pamela L. Abernethy, Judge.

Argued and submitted on April 22, 2015.

Ryan T. O’Connor, O’Connor Weber LLP, Portland, 

argued the cause and filed the briefs for petitioner. With him 

on the briefs was Kenneth A. Kreuscher.

Timothy A. Sylwester, Attorney General, Salem, argued 

the cause and filed the brief for respondent. With him on the 

brief were Ellen F. Rosenblum, Attorney General, Anna M. 

Joyce, Solicitor General, and Susan G. Howe and Michael S. 

Shin, Assistant Attorneys General.

BALMER, C. J.

The judgment of conviction is affirmed. The sentence of 

death is vacated, and the case is remanded to the circuit 

court for further proceedings.

Case Summary: Defendant, an inmate as Oregon State Penitentiary, together 

with another inmate, killed a third inmate; he was convicted of aggravated murder and sentenced to death. On automatic and direct review, defendant sought 

reversal of his conviction and sentence of death. Held: (1) The trial court erred 

in permitting the prosecutor extensively to cross-examine a key defense witness 

outside the presence of the jury, but that error was harmless; (2) the trial court 

erred at a pretrial hearing to determine defendant’s eligibility for the death penalty when it used an inappropriate standard for determining that defendant had 

not met his burden of proving intellectual disability, and that that error required 

remand for a new hearing to determine defendant’s eligibility for the death penalty; (3) the trial court erred when it refused to permit the defendant’s experts 
326 State v. Agee

to testify during the penalty phase proceeding that they had diagnosed him as 

intellectually disabled, and that that error was not harmless; (4) the trial court 

did not err during the penalty phase when it declined to instruct the jury that it 

must determine whether defendant was intellectually disabled; and (5) the trial 

court erred during the penalty phase when it excluded evidence that defendant’s 

co-defendant received a life sentence for his role in the victim’s murder, and that 

error was not harmless. The judgment of conviction is affirmed.

The sentence of death is vacated, and the case is remanded to the circuit 

court for further proceedings.
Cite as 358 Or 325 (2015) 327

BALMER, C. J.

This case is before us on automatic and direct review 

of defendant’s judgment of conviction and sentence of death 

for aggravated murder. ORS 138.012(1). For the reasons 

that follow, we affirm the judgment of conviction, vacate the 

sentence of death, and remand this case to the circuit court 

for further proceedings.

I. BACKGROUND

We begin with an overview of relevant facts; we 

describe additional facts in our discussion of defendant’s 

assignments of error. Because the jury found defendant 

guilty, we view the evidence presented at trial in the light 

most favorable to the state. State v. Washington, 355 Or 612, 

614, 330 P3d 596 (2014).

In May 2005, defendant arrived at the Oregon 

State Penitentiary to begin serving a 40-year sentence for 

attempted murder and other offenses. In February 2008, 

defendant and his cell-mate, Davenport, entered the cell of a 

third inmate, the victim, when the doors to all the cells in the 

area were opened to permit the inmates to go to breakfast. 

Both defendant and Davenport were wearing gloves and were 

armed. Defendant had a seven-inch-long shank with a halfinch piece of sharpened metal on the end, sheathed in the 

plastic casing of a highlighter pen. Davenport was carrying a 

mesh laundry bag containing an almost four-pound piece of 

concrete wrapped in a stocking cap. The door to the cell closed 

after about 30 seconds, locking defendant and Davenport in 

the cell with the victim. Davenport began striking the victim 

in the head with the concrete block. Defendant stabbed the 

victim in the legs and torso 28 times with the shank.

A corrections officer heard panting and investigated. He saw two inmates standing in the cell, out of breath, 

and another on the ground; he yelled to another corrections 

officer for help. The two corrections officers saw Davenport 

standing in the back of the cell near the victim’s head and 

defendant standing to the side of the cell, near the victim’s 

torso and legs and next to a table in the cell. While the officers waited for other guards to arrive (to enable them safely 

to open the cell door), they saw Davenport strike the victim 

in the head about 20 times with the concrete block, and saw 
328 State v. Agee

defendant kick the victim in the ribs and punch him in the 

chest with a closed fist. Defendant walked to the cell door 

and submitted to wrist restraints as Davenport continued to 

strike the victim’s head with the concrete block. Davenport 

also eventually submitted to restraints. Officers removed 

Davenport and defendant from the cell and a nurse confirmed that the victim was dead. While defendant was being 

escorted from the scene, a corrections officer asked him 

whether he was in possession of any weapons. Defendant 

responded no, he had left his weapon on the table in the 

cell. The shank was later found on the table. According to 

the state medical examiner, the victim died from the blows 

to the head with the concrete block. The shank caused only 

superficial wounds.

Defendant and Davenport were jointly charged with 

aggravated murder for the intentional homicide of a prison 

inmate by another inmate. ORS 163.095(2)(b) (defining 

aggravated murder as murder committed when defendant 

was confined in a correctional facility at time that murder 

occurred). The state declared its intention to seek the death 

penalty for both defendants. After Davenport provided the 

state with evidence of his mental incapacity dating back to 

his early teen years, the state conceded that Davenport was 

“mentally retarded”1

 and therefore ineligible for the death 

penalty under the controlling United States Supreme Court 

case, Atkins v. Virginia, 536 US 304, 321, 122 S Ct 2242, 

153 L Ed 2d 335 (2002) (holding that execution of “mentally retarded” persons violates Eighth Amendment’s ban 

on cruel and unusual punishment). Davenport subsequently 

pleaded guilty and was sentenced to life in prison without 

the possibility of parole.

Defendant also moved the trial court to declare him 

intellectually disabled and ineligible for the death penalty, 

but the state did not concede the issue as to him. Because, 

as we discuss in more detail below, there are no specific 

1 At the time of defendant’s trial, the terms “mental retardation” and “mentally retarded” were in common usage in court opinions and in the medical literature. The mental health community now agrees that the preferred clinical 

terms are “intellectual disability” and “intellectually disabled.” Throughout the 

remainder of this opinion, therefore, we use those terms unless we are directly 

referring to a source that uses one of the now-disfavored terms.
Cite as 358 Or 325 (2015) 329

procedural or substantive guidelines in Oregon for determining when a defendant is ineligible for the death penalty 

under the general holdings of Atkins, the trial court determined that it would conduct a pretrial hearing at which 

defendant would have the burden of proving that he is 

intellectually disabled by a preponderance of the evidence. 

Defendant acceded to that procedure.2

In an April 2011 hearing, both the state and defendant offered evidence from psychologists and psychiatrists 

concerning defendant’s mental health and intellectual abilities. The trial court found that defendant suffered from partial fetal alcohol syndrome but concluded that defendant had 

not established an intellectual disability that would make 

him constitutionally ineligible for the death penalty. In May 

2011, a jury was empanelled and, after a guilt-phase trial, 

the jury found defendant guilty of aggravated murder. At 

the conclusion of a further, penalty-phase proceeding under 

ORS 163.150, the jury determined that defendant had acted 

deliberately in committing the murders, that he posed a continuing risk to society, and that he should receive a death 

sentence. ORS 163.150(1)(b)(A), (B), (D). The trial judge 

then entered a sentence of death. This automatic and direct 

review followed.

II. ASSIGNMENTS OF ERROR

On review before this court, defendant raises 29 

assignments of error. We have reviewed all those assignments of error and conclude that many of them are not well 

taken and do not merit further discussion.3

 We address 

defendant’s remaining assignments of error below.

2 In fact, defendant suggested that procedure in a brief to the trial court 

outlining the various ways that other states have handled similar situations.

3 With respect to several of the assignments of error that we do not address—

those relating to (1) the trial court’s admission, during the guilt phase, of an 

audio recording of a telephone conversation between defendant’s mother and 

his incarcerated brother; (2) the trial court’s admission, during the guilt phase, 

of two pieces of paper found after the murder in defendant’s prison cell among 

defendant’s other property; and (3) the trial court’s imposition of a death sentence 

notwithstanding defendant’s argument that the jury was not given proper accomplice liability instructions—we conclude either that the error was not preserved 

or that the trial court did not err. The others have been answered adversely to 

defendant’s position in prior decisions by this court, and, therefore, further discussion will not benefit the public, the bench, or the bar. 
330 State v. Agee

We discuss five assignments of error. Only one 

assignment of error concerns a ruling made during the guilt 

phase; we begin there.

A. The Trial Court’s Decision to Permit Extensive CrossExamination of Codefendant Outside Presence of Jury

At defendant’s trial, after the completion of jury 

selection but prior to the jury being sworn, the trial court 

and both parties called to the stand eight inmates for the 

limited purpose of inquiring whether the inmates intended 

to invoke their privileges against self-incrimination if called 

as witnesses in front of the jury. One of those witnesses was 

Davenport. The trial court swore in Davenport and defendant 

conducted a limited examination about whether Davenport 

was willing to testify about the events on the day that the 

victim was killed and Davenport’s involvement with a particular prison gang.4

 Defense counsel asked and received 

answers to the following questions: whether Davenport 

understood that he would be asked about the events surrounding the murder and his involvement with the gang, 

whether Davenport would testify about those things, and 

whether he would invoke his Fifth Amendment privileges.

On cross-examination, after confirming that 

Davenport would testify about the events of the day of 

the murder, the prosecutor asked whether Davenport was 

prepared to testify about what happened during the week 

before the murder. Davenport initially responded that nothing had happened the week before. The prosecutor then 

asked Davenport if he was a “gangster.” Davenport replied 

that he would not answer that question, but would testify 

about his involvement in the murder and exactly what happened that day. The prosecutor told Davenport that he was 

required to answer any question that was put to him and 

again asked whether Davenport was a gangster. Davenport 

4 Part of the defense theory was that Davenport was a member of a prison 

gang and wanted to kill the victim because the gang leadership had directed that 

the victim be killed. Defendant’s theory was that he went along with Davenport 

because he was Davenport’s childhood friend and a “follower,” even though he 

was not a member of the gang. Davenport’s testimony supported that theory: 

Davenport maintained that he alone was the mastermind and executor of the 

murder and that defendant was merely a spectator whom Davenport had goaded 

into accompanying him into the victim’s cell.
Cite as 358 Or 325 (2015) 331

continued to refuse to answer that question, and defense 

counsel began to object. The prosecutor interrupted the 

defense objection to complain to the judge that, if Davenport 

were not willing to answer the prosecutor’s questions, 

he should not be allowed to testify at the trial at all. The 

court then conducted a colloquy with Davenport in which 

Davenport agreed to answer questions from both parties if 

he were called as a witness. The court directed the prosecutor to ask again about Davenport’s gang involvement, to 

“test” Davenport’s willingness to cooperate. The prosecutor 

posed multiple questions about Davenport’s gang membership, his gang tattoos, his relationship with various gang 

members, his knowledge of the gang’s power structure, and 

the role of the gang in the murder. During that questioning, 

Davenport at first attempted to avoid giving direct, truthful 

answers, even though the court reminded him several times 

that this was a “test run” to determine if he would cooperate with cross-examination. Davenport eventually began to 

answer the prosecutor’s questions, although he frequently 

answered, “I don’t know.” From there, the prosecutor moved 

on to questions about Davenport’s relationship with defendant, which Davenport answered directly.

The prosecutor then began asking Davenport specific and detailed questions about his and defendant’s actions 

on the day of the murder:

“[PROSECUTOR]: And on the 14th, you keep saying 

that you’re the one that did the killing.

“[DAVENPORT]: Yes, I did.

“[PROSECTUTOR]: What weapons did you use?

“[DAVENPORT]: I used a knife and a chunk of cement.

“[PROSECUTOR]: Okay. Where was the defendant?”

Defendant objected for a second time, arguing that 

Davenport had made clear that he would answer questions 

about the day of the murder. The trial court overruled the 

objection and allowed the prosecutor to continue examining 

Davenport. The prosecutor resumed asking Davenport questions about his and defendant’s actions during the murder, 

including asking leading questions to draw out a momentby-moment description of defendant’s and Davenport’s 
332 State v. Agee

actions and statements leading up to and during the assault 

on the victim, and including eliciting testimony about how 

Davenport coerced defendant into entering the victim’s cell.

Defense counsel raised a third objection, noting that 

the purpose of the hearing was limited to an inquiry about 

whether the inmate witnesses would be invoking their Fifth 

Amendment right not to testify. Defendant conceded that 

the prosecutor had had reason to ensure that Davenport 

would testify about his gang involvement and who ordered 

the murder, but he argued that this was not an opportunity 

for a pretrial deposition about the murder; Davenport had 

no arguable Fifth Amendment right not to testify about the 

murder itself and, therefore, the prosecutor should not be 

allowed effectively to depose him on that topic at that hearing. The prosecutor responded that “[t]his is not about him 

taking the Fifth.” Rather, the prosecutor argued, the issue 

was whether Davenport would answer the state’s questions. 

The prosecutor argued that he should be permitted to determine whether Davenport would “talk through the incident 

in its entirety,” and, if not, then his testimony should not 

be allowed. The trial court overruled defendant’s objection 

and directed the prosecutor to continue, which he did, in the 

same vein as earlier, questioning Davenport in detail about 

his and defendant’s roles in the murder, his and defendant’s 

statements during the murder, and what information defendant would have known prior to the murder.

Defendant argues in this court that, generally, trial 

courts do not have authority to compel a criminal witness 

to be deposed or give pretrial testimony outside the presence of the jury. See State ex rel O’Leary v. Lowe, 307 Or 

395, 401-02, 769 P2d 188 (1989) (issuing writ of mandamus 

directing trial court to withdraw order requiring prosecutor to produce some of state’s criminal witnesses for pretrial 

deposition by defendant, holding that “[t]here is no statutory right in Oregon for a criminal defendant to depose a 

potential state’s witness”). Although O’Leary involved a 

defendant’s effort to compel pretrial testimony from a state 

witness, defendant argues that the same rule would apply 

to the prosecution. Defendant acknowledges the trial court’s 

authority to permit examination of a witness outside the 

presence of the jury for purposes of trial management, but 
Cite as 358 Or 325 (2015) 333

he argues that, under O’Leary, trial courts have no authority to compel a defendant or a witness in a criminal trial to 

submit to pretrial depositions. Defendant contends that the 

holding in O’Leary is consistent with ORS 136.420, which 

precludes (with two exceptions not relevant here) any form 

of “testimony,” including depositions, in a criminal case, 

other than oral testimony in the presence of the court and 

jury.5

 Defendant argues that the pretrial examination and 

deposition of Davenport allowed the prosecution to conduct 

essentially full discovery of Davenport, under oath and outside the presence of the jury, and that it is hard to overstate 

the utility of that sort of prior opportunity to question a central defense witness.

Trial courts have explicit and inherent authority to 

control courtroom proceedings. See State v. Mains, 295 Or 

640, 656, 669 P2d 1112 (1983) (so stating); ORS 1.010 (every 

court has power to regulate proceedings before it and to control, in furtherance of justice, conduct of persons connected 

with judicial proceedings); OEC 611(1) (court shall exercise 

reasonable control over presentation of evidence); see also

ORS 135.037(3) (providing for omnibus pretrial hearings 

where trial court “may also consider any matters that will 

facilitate trial by avoiding unnecessary proof or by simplifying the issues to be tried, or that are otherwise appropriate under the circumstances to facilitate disposition of the 

proceeding”). Moreover, a trial court has broad discretion 

when exercising its authority to control the presentation of 

evidence.6 State v. Cox, 337 Or 477, 495, 98 P3d 1103 (2004) 

(trial court had authority to strike from record entirety of 

5 ORS 136.420 provides:

“In a criminal action, the testimony of a witness shall be given orally in 

the presence of the court and jury, except:

“(1) In the case of a witness whose testimony is taken by deposition by 

order of the court in pursuance of the consent of the parties, as provided in 

ORS 136.080 to 136.100 [providing that trial court may require, as precondition for granting postponement of trial, requesting party’s consent to depositions of its witnesses]; or

“(2) As provided in ORS 131.045 [permitting court appearances by 

simultaneous electronic transmission].”

6 Exercising control over the presentation of evidence helps to reduce verbal 

conflicts between counsel, to eliminate “speaking” objections, to prevent abuse 

or harassment of witnesses during questioning, to restrict closing arguments to 

legal limits, and to avert error. Mains, 295 Or at 656. 
334 State v. Agee

defendant’s trial testimony after he refused to answer three 

questions posed to him by the state on cross-examination); 

see also State v. Rogers, 330 Or 282, 302, 4 P3d 1261 (2000) 

(Rogers I) (trial court has authority to pre-approve contents 

of aggravated murder defendant’s allocution statement).

However, although the trial court’s discretion is 

broad, it is limited by the rules governing the conduct of the 

trial. In a criminal prosecution, the trial court may not permit either party to conduct pretrial examination of witnesses 

except in certain limited circumstances. For example, the 

statutes governing pretrial discovery in criminal matters do 

not permit either the defendant or the state to take pretrial 

depositions. ORS 135.805 to 135.873 (setting out rules for 

pretrial discovery in criminal prosecutions). Moreover, ORS 

136.420 provides that, in a criminal trial, after the jury is 

sworn, all testimony “shall be given orally in the presence 

of the court and jury,” except in certain circumstances not 

relevant here. This court has held that that statute “‘was 

intended to make the general rule, concerning the taking 

of depositions, inapplicable to criminal trials.’” State v. 

Lamphere, 233 Or 330, 332-33, 378 P2d 706 (1963) (quoting 

State v. Walton, 53 Or 557, 565, 99 P 431 (1909)) (referring 

to virtually identically worded earlier version of statute); 

State ex rel Gladden v. Lonergan, 201 Or 163, 181, 269 P2d 

491 (1954) (to same effect). In this case, as we shall explain, 

we conclude that the trial court, in permitting the prosecutor to question Davenport extensively about the events 

surrounding the murder, exceeded its discretion to manage 

courtroom proceedings, and, instead, effectively permitted 

an unlawful pretrial deposition of a defense witness.

As noted, after the jury was selected in this case 

but before it was sworn, the trial court conducted a hearing, 

the stated purpose of which was to determine whether certain witnesses would testify at trial. It is indisputable that 

it was within the trial court’s discretion to determine, at 

that point, whether the witnesses would testify, including 

whether the witnesses would respond to questions from both 

defense counsel and the prosecutor, and to do so by permitting the prosecutor to question the witnesses. Although the 

trial court later would have the option of excluding some or 

all of a witness’s testimony if the witness refused to answer 
Cite as 358 Or 325 (2015) 335

the prosecutor’s questions at trial, Cox, 337 Or at 493, the 

court reasonably could have concluded that permitting the 

prosecutor to question the witness at the hearing to test the 

witness’s compliance was preferable to that course of action. 

However, with respect to Davenport, the trial court went 

well beyond simply determining whether the witness would 

testify. Before the prosecutor started to question Davenport 

about the events surrounding the murder, Davenport had 

stated under oath that he would testify about those events, 

and he had amply demonstrated that he would answer the 

prosecutor’s questions.

It is true that Davenport initially resisted answering questions about his relationship with a certain prison 

gang, but he did eventually answer all of the prosecutor’s 

questions on that topic, and he had appropriately answered 

questions about his relationship with defendant. At the 

point when defense counsel interposed his second objection 

to the prosecutor’s questions, Davenport also had answered 

several questions about the murder itself. At that point, 

requiring Davenport to answer questions from the prosecutor that essentially revealed the entirety of Davenport’s 

substantive testimony about defendant’s participation in 

the murder exceeded the legitimate purpose of the hearing. 

The prosecutor’s continued questioning of Davenport constituted, in essence, a pretrial deposition—the sort of discovery that is not permitted under the statutes governing 

pretrial discovery in criminal matters and that is prohibited 

by the requirement in ORS 136.420 that all testimony “shall 

be given orally in the presence of the court and jury.” We 

conclude, therefore, that the trial court erred in overruling 

defense counsel’s second and third objections to the prosecutor’s continued questioning of Davenport about the events 

surrounding the murder.

As this court has often explained, however, not all 

errors require reversal. An error is not a ground for a new 

trial if it is harmless—that is, if the court determines that 

there is little likelihood that it affected the verdict. State 

v. Rogers, 352 Or 510, 543, 288 P3d 544 (2012) (Rogers II). 

Defendant argues that the trial court’s decision to allow the 

pretrial examination of Davenport was harmful to his case 

and likely affected the verdict, because the prosecution was 
336 State v. Agee

able to use Davenport’s hearing testimony not only to decide 

which questions to ask Davenport, but also to impeach 

Davenport with his prior answers when his trial testimony 

diverged from his testimony at the hearing. Defendant 

argues that Davenport’s credibility was key to the jury’s 

determination of defendant’s guilt and that the prosecution 

was able to use Davenport’s hearing testimony to undermine his credibility.

We agree that Davenport’s testimony was central to 

the defense case; his testimony, if believed, tended to exculpate defendant. However, we are not persuaded that the 

prosecutor’s improper pretrial questioning of Davenport had 

a significant effect on Davenport’s credibility at trial or was 

likely to have affected the verdict.

Defendant identifies no significant benefit that the 

prosecution gained at trial from improperly cross-examining 

Davenport during the pretrial hearing. With respect to the 

prosecution’s use of Davenport’s pretrial hearing testimony 

to decide which questions to ask him at trial, defendant 

argues only that the prosecutor “confidently used previewed 

** * testimony” about Davenport’s relationship with and 

knowledge of the gang during extended questioning on that 

topic at trial and, in closing, repeatedly urged the jury to 

find that Davenport had lied in his responses to that questioning. However, as described above, the trial court did 

not err in permitting questioning about Davenport’s gang 

involvement; rather, the error that we have identified relates 

to questioning that took place after that line of questioning 

concluded. It follows that defendant cannot rely on the prosecution’s use of Davenport’s pretrial testimony about his gang 

involvement for cross-examination purposes to support an 

argument that the trial court committed reversible error.

As for the prosecution’s use of Davenport’s pretrial 

hearing testimony for impeachment purposes at trial, defendant points to only one instance in which the prosecutor used 

Davenport’s hearing testimony to undermine his credibility 

at trial. During cross-examination, the prosecutor pointed 

out that Davenport had testified at the pretrial hearing 

that defendant had had no knowledge of Davenport’s plan 

to murder the victim and that defendant had done nothing 
Cite as 358 Or 325 (2015) 337

to prepare himself before entering the victim’s cell. But on 

direct examination at trial, Davenport testified that both he 

and defendant had donned gloves before entering the cell, 

which he conceded was a step in preparation for what was 

going to happen. The prosecutor focused on that inconsistency to undermine Davenport’s testimony at trial. However, 

any damage to Davenport’s credibility from the prosecutor’s ability to draw attention to that one small discrepancy 

between Davenport’s hearing testimony and his trial testimony is dwarfed by the fact that much of Davenport’s trial 

testimony was contradicted or undermined by other evidence and testimony admitted independently of the prosecutor’s use of Davenport’s hearing testimony for impeachment 

purposes.

For instance, on direct examination by defendant, 

Davenport testified, among other things, that he goaded and 

threatened defendant into entering the victim’s cell against 

his will; that Davenport and Davenport alone murdered 

the victim, using both the concrete block and the shank to 

inflict all of the injuries on the victim while defendant cowered and watched; and that defendant knew nothing about 

what would happen in the victim’s cell other than that the 

victim had offended Davenport and Davenport wanted to 

teach the victim a lesson. That story was not plausible, and 

it was inconsistent with other testimony and evidence presented at trial. Specifically, it was undisputed that defendant entered the victim’s cell wearing gloves and that he 

did not leave when Davenport began hitting the victim with 

the concrete block, even though the cell doors were still open 

at that time. Several corrections officers testified that they 

saw defendant punching and kicking the victim, and there 

was blood on defendant’s gloves and shoes to support that 

testimony. And, when defendant was asked by a corrections 

officer after the murder whether he was carrying a weapon, 

defendant responded that he had left his weapon on a table 

in the victim’s cell, where the shank was later found.

Similarly, Davenport’s testimony about his gang 

involvement was internally inconsistent and in conflict 

with the testimony of other witnesses. Davenport admitted that he had been a member of a gang for some time, 

that he had been the cellmate of two other gang members, 
338 State v. Agee

and that he had known most of the other gang members 

for years. Additionally, another member of the gang testified 

about Davenport’s participation in gang activities, including 

that Davenport had attended multiple meetings at which 

gang leaders talked about having the victim killed and that 

Davenport had volunteered to kill the victim. Nonetheless, 

at defendant’s trial, Davenport consistently denied knowing 

anything about how the gang operated, its power structure, 

the nicknames or roles of any the gang’s other members, or 

that its leaders wanted the victim murdered.

Because defendant has identified no specific testimony from the pretrial hearing that the prosecutor was able 

to use in cross-examining Davenport that was not also supported by other evidence, and because there were other inconsistencies in Davenport’s testimony that called his credibility into question, we conclude that the prosecutor’s improper 

cross-examination of Davenport at the pretrial hearing was 

not likely to have affected the verdict. We therefore hold that, 

although the trial court erred in permitting the prosecutor 

to examine Davenport extensively about the murder outside 

the presence of the jury, that error was harmless.

As previously noted, we have considered the other 

assignments of error that defendant claims arose during 

the guilt phase and found them to be without merit. Having 

found no reversible error during that phase of the trial, we 

affirm defendant’s conviction for aggravated murder.

B. Trial Court’s Ruling that Defendant Is Not Ineligible for 

the Death Penalty Due To Intellectual Disability

Three assignments of error relate in some way to 

defendant’s contention that he is intellectually disabled. We 

begin by addressing defendant’s argument that the trial 

court erred in denying, before trial, defendant’s “Motion 

Number 20,” in which defendant moved the court for a ruling that he was ineligible for the death penalty because he 

was intellectually disabled.7

7 After the jury’s penalty-phase verdict, defendant also filed a sentencing 

memorandum in which he argued that the verdict did not authorize a death 

sentence, because, among other things, it would be unconstitutional to sentence him to death when he had established functional deficits equivalent to, 

and in many instances worse than, other individuals who have been deemed 
Cite as 358 Or 325 (2015) 339

We discuss the law governing defendant’s eligibility 

for the death penalty in detail below. To put the description of defendant’s assignments of error in context, however, it is helpful at this point to explain that, in 2002, the 

United States Supreme Court held in Atkins that, in light 

of evolving standards of decency, the death penalty is excessive, cruel, and unusual under the Eighth Amendment to 

the United States Constitution when applied to intellectually disabled offenders.8

 536 US at 321. The Court explained 

that the intellectually disabled should be held responsible 

for their crimes and they should be punished for them, but 

that, “[b]ecause of their disabilities in areas of reasoning, 

judgment, and control of their impulses, * ** they do not act 

with the level of moral culpability that characterizes the 

most serious adult offenders.” Id. at 306. However, the Court 

stated, not all people who claim to be intellectually disabled 

“will be so impaired as to fall within the range of mentally 

retarded offenders about whom there is a national consensus.” Id. at 317. The Court noted that “clinical definitions 

of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive 

skills such as communication, self-care, and self-direction 

that become manifest before age 18.” Id. at 318. But the 

Court declined to set a standard for determining whether an 

offender is intellectually disabled or to specify a particular 

procedure for making that determination. Rather, the Court 

left it to the states to develop “appropriate ways to enforce 

intellectually disabled. He argued that, because the court found that he suffered 

from partial fetal alcohol syndrome, the Eighth Amendment and the Privileges 

and Immunities Clause prohibited his execution, because there is no rational 

way to distinguish defendant from those individuals found to be exempt from the 

death penalty. Defendant contended that, although his IQ might be higher, he 

functions in the real world with the same deficits as, or worse than, individuals

classified as intellectually disabled. Defendant orally renewed that argument 

during the sentencing hearing. The trial court sentenced defendant to death 

without expressly ruling on or otherwise addressing that particular argument. 

In his brief to this court, defendant assigns error to the trial court’s effective 

rejection of his argument. However, defendant does not make a separate argument relating to the trial court’s failure to respond to his post-verdict arguments. 

We therefore address that matter in the context of our discussion of the denial of 

defendant’s pretrial motion for a ruling that he was ineligible for the death penalty because of his intellectual disability.

8 The Eighth Amendment to the United States Constitution provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor 

cruel and unusual punishments inflicted.” 
340 State v. Agee

the constitutional restriction” on executing intellectually 

disabled persons. Id. at 317.

In 2010, when defendant moved the trial court to 

declare him ineligible for the death penalty because of his 

intellectual disability, Oregon had not yet developed a way 

to enforce the constitutional restriction against executing 

intellectually disabled offenders. Indeed, in the years since 

the Supreme Court decided Atkins, the Oregon legislature 

has not adopted any procedure for determining whether a 

person accused of aggravated murder has an intellectual 

disability and, therefore, ineligible for the death penalty. 

Nor has the issue been addressed by the Oregon appellate 

courts before today.9

 Lacking such guidance, the trial court 

9 In fact, although Oregon’s Constitution, like the federal constitution, prohibits cruel and unusual punishment, Or Const Art I, § 16, this court has not 

previously announced a categorical prohibition on the execution of persons with 

intellectual disabilities. Defendant urges this court to adopt the same standard 

under Article I, section 16, that the United States Supreme Court has recognized 

for the Eighth Amendment. Defendant, however, having acknowledged that 

this court has never announced a categorical ban on the execution of any class 

of offenders, does no more than assert that “it stands to reason” that Article I, 

section 16, “does contemplate such categorical bans.” That is so, he states, 

because the texts of the state and federal constitutional provisions are similar 

and this court’s interpretations of Article I, section 16, have generally followed 

the Supreme Court’s interpretations of the Eighth Amendment. The state, for 

its part, argues that defendant failed to preserve an argument that Article I, 

section 16, prohibits the execution of intellectually disabled persons. Because 

neither party has made a developed legal argument about the scope of Article I, 

section 16, and because the Supreme Court’s Eighth Amendment jurisprudence 

clearly prohibits the execution of intellectually disabled persons, we depart from 

our normal course—starting our analysis by considering Oregon constitutional 

law—and begin instead with the parties’ federal constitutional arguments. 

Defendant also argues at length that both Article I, section 16, of the Oregon 

Constitution and the Eighth Amendment categorically prohibit the execution 

of any person with “reduced mental capacity,” whether the person suffers from 

“intellectual disability” as that term is defined in the medical literature, or from 

partial fetal alcohol syndrome like defendant, or from any condition that similarly reduces the person’s culpability for his or her actions. That is so, defendant 

argues, because inflicting the death penalty on such a person does not meaningfully advance the retributive or deterrent purposes of the death penalty. In 

response, the state points out that defendant does not define the contours of 

“reduced capacity,” other than to suggest that any person who “functions like an 

intellectually disabled person” is exempt from the death penalty. In addition, the 

state contends, defendant did not make that argument below, and, therefore, it is 

not preserved.

As discussed in the text, the Supreme Court has held that there is a national 

consensus against executing a person with “intellectual disability,” a diagnosis 

specifically defined in the medical literature. Assuming for purposes of argument 

that the Court’s rationale for categorically exempting intellectually disabled 
Cite as 358 Or 325 (2015) 341

in this case invited suggestions from the parties about how 

to proceed and ultimately concluded that it would conduct 

a pretrial hearing, which we refer to as an Atkins hearing, 

during which both sides would present evidence on defendant’s mental health and abilities as well as on the prevailing standards for making the determination of intellectual disability. For defendant to be found intellectually 

disabled and, therefore, ineligible for the death penalty, the 

trial court ruled, defendant would have to establish that 

he was intellectually disabled by a preponderance of the 

evidence.

At the ensuing hearing, in April 2011, both defendant and the state offered evidence from psychiatrists and 

psychologists on defendant’s intellectual functioning. The 

evidence at that hearing comprised expert testimony, written reports of experts, and documentary evidence of psychological and medical testing of defendant. The parties’ 

experts all generally agreed on the applicable criteria,10

defendant’s scores on standardized tests, and most of defendant’s diagnoses. They disagreed, however, about how to 

apply those criteria in evaluating defendant and about the 

significance of the standardized test scores in making the 

ultimate determination of whether defendant has an intellectual disability.

In 2011, the diagnostic criteria for intellectual disability, widely accepted and derived from the medical literature, amounted to a three-pronged inquiry into (1) the 

person’s intellectual functioning, (2) the person’s adaptive 

behavior (how the person functions in day-to-day life), and 

(3) whether the disability manifested before adulthood. That 

persons from execution would apply equally to all individuals with intellectual 

deficits similar in severity to those required for a diagnosis of intellectual disability, the Court has not extended the categorical exemption from the death penalty 

to persons with “reduced mental capacity” who do not meet the criteria for a 

diagnosis of “intellectual disability.” We therefore decline to consider the issue in 

this case.

10 Both the defense and prosecution relied extensively on two manuals that 

provide diagnostic criteria for intellectual disability: the Fourth Edition (text 

revision) of the American Psychiatric Association’s Diagnostic and Statistical 

Manual of Mental Disorders (4th ed - Text Revision 2000) (in effect when defendant committed his crimes and at the time of his trial), as well as the American 

Association on Intellectual and Developmental Disabilities’ Intellectual Disability: 

Definition, Classification, and Systems of Supports (11th ed 2010).
342 State v. Agee

paradigm was reflected in the Fourth Edition (text revision) of the American Psychiatric Association’s Diagnostic 

and Statistical Manual of Mental Disorders (4th ed - Text 

Revision 2000) (DSM-IV-TR), which defined “mental retardation” as a condition that meets the following three criteria:

“A. Significantly subaverage intellectual functioning: an 

IQ of approximately 70 or below on an individually administered IQ test * * *.

“B. Concurrent deficits or impairments in present adaptive functioning * ** in at least two of the following areas: 

communication, self-care, home living, social/interpersonal 

skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.

“C. The onset is before age 18 years.”

DSM-IV-TR at 49.11 Under the DSM-IV-TR, the severity of 

a person’s mental retardation was measured by the person’s 

IQ score. A person with an IQ score between about 50-55 

and approximately 70 (two standard deviations below normal) was considered to be mildly mentally retarded and to 

have significantly subaverage intellectual functioning.12 Id.

The parties introduced evidence that defendant’s 

IQ score was measured at 82 or 84 (depending on the test), 

which is in the borderline range.13 They also adduced evidence that defendant suffered from some kind of psychosis 

11 As we will explain, in 2013, the DSM-IV-TR was replaced by the American 

Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders 

(5th ed 2013).

12 A person scoring 100 on an IQ test is considered to have an average level of 

cognitive functioning. Atkins, 536 US at 309 n 5. Under the DSM-IV-TR, a person 

with an IQ between 35-40 to 50-55 was characterized as moderately mentally 

retarded, 20-25 to 35-40 as severely mentally retarded, and under 20-25 as profoundly mentally retarded. DSM-IV-TR at 49.

13 Under the DSM-IV-TR, “[b]orderline intellectual functioning *** describes 

an IQ range that is higher than that for Mental Retardation (generally 71-84).” 

DSM-IV-TR at 48.

Experts administered two IQ tests to defendant: the Wechsler Adult 

Intelligence Scale - Fourth Edition (WAIS-IV), and the Stanford-Binet Intelligence 

Scales, Fifth Edition (SB5). Both tests have subtests. On the WAIS-IV, defendant’s full-scale IQ score was 82 and his subtest scores ranged from 74 (working 

memory) to 102 (perceptual reasoning). On the SB5, defendant’s full-scale IQ 

score was 84, and his subtest scores ranged from 78 (non-verbal) to 92 (verbal).
Cite as 358 Or 325 (2015) 343

disorder,14 as well as partial fetal alcohol syndrome,15 among 

other things. Defendant’s experts testified that defendant’s 

adaptive functioning was equivalent to that of a seven-and-ahalf-year-old and that he had significant functional impairment in each of the 11 areas identified in the DSM-IV-TR for 

measuring adaptive functioning. The state’s expert agreed 

that defendant’s adaptive functioning score was more than 

two standard deviations below the mean—in the range consistent with mild “mental retardation.”

Two state experts, Dr. Hulteng and Dr. Sebastian, 

testified at the Atkins hearing that the generally accepted 

practice in the field of psychology was that a person must 

have an IQ score of two standard deviations below the mean 

or lower (an IQ score of 70 or lower) to permit a diagnosis 

of intellectual disability, irrespective of the person’s adaptive behavior. Dr. Hulteng testified that, in his opinion, a 

person with an IQ score of over 75 could never qualify as 

intellectually disabled. Specifically with respect to this 

case, Dr. Hulteng and Dr. Sebastian (who had acted as a 

consultant but did not personally examine defendant) testified that defendant’s IQ scores were too high to establish the 

first prong in the diagnosis of mental retardation: “significantly subaverage intellectual functioning.”

Defendant’s experts testified that an IQ above two 

standard deviations below the mean did not exclude an intellectual disability diagnosis. They relied on the American 

Association on Intellectual and Developmental Disabilities 

(AAIDD) Intellectual Disability: Definition, Classification, 

and Systems of Supports (11th ed 2010), which they referred 

to as the “Green Book” because of the color of its cover. 

According to defendant’s experts, the AAIDD Green Book 

14 One of defendant’s experts diagnosed defendant with “Psychotic Disorder 

(NOS [Not Otherwise Specified]) and/or Amphetamine-Induced Psychotic 

Disorder, with Delusions and Hallucinations.” A state expert diagnosed “Psychotic 

Disorder (NOS).”

15 According to Dr. Adler, a defense expert and medical doctor who conducted 

a forensic psychiatric evaluation of defendant, individuals with partial fetal alcohol syndrome have a confirmed history of prenatal alcohol exposure and the same 

level of damage to the central nervous system and the same functional disabilities as are present with fetal alcohol syndrome, but they do not have all the same 

facial deformities that a person with fetal alcohol syndrome would have, and 

therefore do not have the same “look” as a person with fetal alcohol syndrome.
344 State v. Agee

places more emphasis on a person’s adaptive behavior in 

an intellectual disability diagnosis.16 One of defendant’s 

experts, Dr. Greenspan, testified that IQ tests offer an 

incomplete picture of intelligence, because a person with 

partial fetal alcohol syndrome, like defendant, cannot apply 

his or her IQ to day-to-day activities. Therefore, a broader 

definition that measures the way a person functions should 

be used to diagnose intellectual disability. Dr. Greenspan 

concluded, under both the AAIDD Green Book and DSMIV-TR, that defendant met the first prong in the diagnosis 

of mental retardation (significantly subaverage intellectual 

functioning), because he has significant intellectual deficits, 

and that defendant is intellectually disabled.

In addition, defense expert Dr. Connor, a neuropsychologist, testified that defendant’s IQ scores were invalid 

because of the significant differences among the IQ subscores, such as scores for verbal and nonverbal or perceptual 

reasoning. He pointed to an MRI showing that defendant 

has brain damage, evidenced by a visible defect in his corpus callosum,17 which likely caused that difference in IQ 

subscores. Further, Dr. Connor testified that partial fetal 

alcohol syndrome together with defendant’s corpus callosum 

damage and his low adaptive functioning supported a diagnosis of intellectual disability. For similar reasons, another 

defense expert, psychiatrist Dr. Adler, concluded that defendant’s IQ score was not alone determinative of his intellectual functioning. Dr. Adler also ultimately diagnosed defendant as intellectually disabled.

At the conclusion of the hearing, the trial court found 

that defendant suffered from partial fetal alcohol syndrome. 

The court observed that defendant’s experts had opined 

that, because of defendant’s partial fetal alcohol syndrome, 

16 For instance, the AAIDD Green Book provides the following definition of 

intellectual disability:

“Intellectual disability is characterized by significant limitations both in 

intellectual functioning and in adaptive behavior as expressed in conceptual, 

social, and practical adaptive skills. This disability originates before age 18.”

AAIDD Green Book at 5.

17 The corpus callosum is a mass of nerve fibers that connects the two sides 

of the brain. Dr. Connor testified that the damage to defendant’s corpus callosum 

was caused by his mother’s consumption of alcohol during pregnancy.
Cite as 358 Or 325 (2015) 345

defendant’s IQ scores were not as important as their own 

clinical judgment and the results of defendant’s neuropsychological tests to their analyses of defendant’s intellectual 

functioning. Nonetheless, however, the court concluded that 

the consensus in the psychological community, as evidenced 

by the DSM-IV-TR and the AAIDD Green Book, was that IQ 

is the appropriate measure for diagnosing intellectual disability. Therefore, because defendant’s IQ was about 84, the 

court found that defendant had failed to prove “significantly 

subaverage intellectual functioning” under the first prong. 

And, because defendant’s IQ scores precluded a finding of 

“significantly subaverage intellectual functioning” under 

prong one, the court declined to consider prongs two (deficits 

or impairments in adaptive functioning) and three (onset in 

childhood):

“Defendant has not proved by a preponderance of the evidence that he meets the Prong One, ‘significantly sub-average

intellectual functioning.’ For this reason, the court does not 

reach Prongs Two and Three. One of Dr. Sebastian’s slides 

was a picture of overlapping circles that illustrates the simple truth about this case: Atkins does not bar the execution of all persons with [fetal alcohol syndrome]. There are 

people with [intellectual disability]. There are people with 

[fetal alcohol syndrome]. There is a small group in the middle that has both. Unfortunately, defendant falls outside of 

that group.”

Notwithstanding that the trial court expressly 

declined to reach the second prong, the court found that, 

“[a]s to Prong Two, adaptive functioning, defendant scored 

more than two standard deviations below the mean on the 

[relevant] tests, averaging minus 2.5.”18 The court added, 

however, that, even though it had found that defendant suffered from partial fetal alcohol syndrome, which affected 

his adaptive functioning, there was no generally accepted 

scientific opinion in the field of psychology that a diagnosis of intellectual disability should be made based only on 

adaptive functioning. The court concluded that it could not 

depart from the three criteria mentioned in Atkins (that 

18 Additionally, although the trial court did not make a specific finding on the 

point, we observe that there appears to have been little dispute that defendant’s 

intellectual deficits manifested before age 18.
346 State v. Agee

is, essentially, the three prongs set out in the DSM-IV-TR) 

and the consensus of professional judgment to conclude that 

defendant is ineligible for the death penalty.

In this court, defendant first repeats the argument 

he made below that the trial court should have relied on his 

experts’ conclusions that, under the DSM-IV-TR and the 

AAIDD Green Book, defendant is intellectually disabled notwithstanding his relatively high IQ scores, because his partial fetal alcohol syndrome and the resulting deficits in his 

adaptive functioning significantly impaired his intellectual 

functioning. He contends that the trial court appeared to have 

concluded that it was legally bound to side with the state’s 

experts, because their interpretation of the DSM-IV-TR and 

the AAIDD Green Book—applying a bright-line rule requiring an IQ score of more than two standard deviations below 

the mean for a determination of intellectual disability—was 

more in line with that of a majority of psychologists and psychiatrists. However, he argues, experts’ opinions should not 

be discounted simply because they reflect minority views. In 

support of the latter proposition, defendant quotes from this 

court’s opinion in State v. Wagner, 305 Or 115, 153-54, 752 

P2d 1136 (1988), vac’d and remanded on other grounds by 

Wagner v. Oregon, 492 US 914 (1989) (Wagner I):

“In Bales v. SAIF, 294 Or 224, 656 P2d 300 (1982), we made 

it clear that a decision as to which of two conflicting schools 

of medical thought is correct is not a question of law; it is a 

question of fact to be decided by presenting in proper evidentiary form the various views to the finder of fact. *** 

We also observed that the opinion of an expert should not 

necessarily be given less weight by a finder of fact just 

because the witness espouses the view of a minority of his 

profession.”

Defendant argues that, in this case, the so-called “minority” 

view was held by one of his witnesses, Dr. Greenspan, whom 

the trial court acknowledged to be an expert in intellectual 

disability and the author of many studies relied on by the 

AAIDD in formulating its definition of intellectual disability, as well as by Drs. Adler and Connor. Therefore, he continues, the trial court had sufficient evidence on which to 

base a conclusion that defendant had deficits in intellectual 

functioning that rendered him intellectually disabled.
Cite as 358 Or 325 (2015) 347

As discussed, at the Atkins hearing, the trial court 

found that Atkins, the DSM-IV-TR, and the AAIDD Green 

Book all generally required proof of three elements for a 

finding of intellectual disability: significantly subaverage 

intellectual functioning, significant limitations in adaptive 

skills, and onset before the age of 18. The court concluded, 

based on Atkins, on its own interpretation of the clinical 

manuals, and on the testimony of the state’s experts, that 

all three elements, or “prongs,” must be met before the court 

could conclude that defendant is intellectually disabled.

The trial court stated that the dispute “is not about 

whether intellectual disability should be measured according to a rigid cutoff or fixed intelligence test score;” rather, 

it boiled down to “what weight the court should give to 

both the general IQ score and the sub scores in determining whether this defendant has ‘significantly sub average 

intellectual functioning.’” In deciding what weight to give 

to IQ scores, the court stated that it would rely on the DSMIV-TR and the AAIDD Green Book, which, the court found, 

both gave significant relevance and weight to IQ scores. 

Based on its interpretation of those clinical manuals and 

the testimony of the state’s experts, the court concluded 

that defendant’s IQ scores and subtest scores were too high 

to permit a finding, under the first prong, of “significantly 

subaverage intellectual functioning.” In addition, the court 

ruled that, even if IQ scores were irrelevant, defendant 

could not prove intellectual disability, because his neuropsychogical test scores were too high for a finding of significantly subaverage intellectual functioning. Finally, 

the court concluded that there was no generally accepted 

scientific opinion in the field of psychology that diagnosis 

of intellectual disability should be based solely on adaptive functioning. Principally for those reasons, the court 

rejected the opinions of defendant’s experts that defendant 

was intellectually disabled.

The trial court thus considered and weighed the 

evidence presented at the Atkins hearing and, based on 

that evidence, ruled that defendant had not met his burden of establishing ineligibility by a preponderance of the 

evidence. The trial court did not, as defendant suggests, 

use a bright-line rule requiring an IQ score of at least two 
348 State v. Agee

standard deviations below the mean for a determination of 

intellectual disability in determining whether defendant 

had made the necessary showing. The trial court determined that defendant had not met the first prong—the intellectual functioning prong—based on his IQ scores, but it did 

not end its analysis there. Rather, as described, the court 

considered defendant’s IQ subtest scores and the results of 

other neuropsychological tests administered by the examining psychologists and psychiatrists and found them all to 

be insufficient to establish intellectual disability. For those 

reasons, we conclude that the trial court’s Atkins ruling was 

not erroneous at the time it was made, and we reject defendant’s argument to the contrary.

Alternatively, defendant argues that the publication of the American Psychiatric Association’s Diagnostic 

and Statistical Manual of Mental Disorders (5th ed 2013) 

(DSM-5) in May 2013, after the verdict was rendered in this 

case, significantly altered the central premise of the trial 

court’s legal conclusion, and, therefore, viewed in the light of 

present circumstances, the trial court’s ruling was erroneous. He asserts that the new DSM-5 diagnostic criteria for 

intellectual disability depart from a rigid reliance on IQ test 

scores and are in line with the views of his experts, and that 

they therefore raise serious questions about the trial court’s 

conclusion. He also contends that the Supreme Court’s recent

decision in Hall v. Florida, 572 US __, 134 S Ct 1986, 188 

L Ed 2d 1007 (2014), issued during the pendency of this 

appeal, supports that view. Defendant therefore urges the 

court to remand the case for a new evidentiary hearing in 

light of current scientific knowledge, so that the trial court 

can make a determination of intellectual disability under 

a proper understanding of prevailing medical practice. See 

State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012) 

(reversing and remanding for a new evidentiary hearing 

based on current scientific research and literature in area of 

witness identification).

The state responds that neither the DSM-5 nor Hall 

changed either the definition of intellectual disability or the 

legal landscape in a way that materially affects the validity of the trial court’s determination. The state argues that, 

under both the DSM-5 and Hall, intellectual functioning 
Cite as 358 Or 325 (2015) 349

is an independent criterion to be met, and IQ is still a key 

diagnostic feature in that determination.

As we explained above, the DSM-IV-TR required 

three diagnostic criteria to be met for a diagnosis of intellectual disability: significantly subaverage intellectual functioning, as evidenced by an IQ of approximately 70 or below; 

concurrent deficits in adaptive functioning; and onset before 

age 18. DSM-IV-TR at 39-49. The DSM-5 continues to require 

three similar criteria, but it deemphasizes reliance on test 

scores and emphasizes that the defining quality of intellectual disability is the inability to function in day-to-day life:

“Intellectual disability (intellectual developmental disorder)

is a disorder with onset during the developmental period 

that includes both intellectual and adaptive functioning 

deficits in conceptual, social, and practical domains. The 

following three criteria must be met:

“A. Deficits in intellectual functions, such as reasoning, 

problem solving, planning, abstract thinking, judgment, 

academic learning, and learning from experience, confirmed by both clinical assessment and individualized, 

standardized intelligence testing.

“B. Deficits in adaptive functioning that result in failure 

to meet developmental and socio-cultural standards for 

personal independence and social responsibility. ** *

“C. Onset of intellectual and adaptive deficits during the 

developmental period.”

DSM-5 at 33. Where the DSM-IV-TR referred to “significantly subaverage intellectual functioning,” the DSM-5 uses 

the term “deficits in intellectual functions.” Where the DSMIV-TR specifically pointed to “an IQ of approximately 70 or 

below on an individually administered IQ test” as establishing “significantly subaverage intellectual functioning,” the 

DSM-5 deletes reference to particular IQ scores, emphasizing instead that clinical assessment and standardized test 

results confirm a person’s deficits in intellectual functions. 

Similarly, the DSM-IV-TR categorized “mental retardation” 

by degree of severity—mild, moderate, or severe—based 

solely on IQ scores. DSM-IV-TR at 42. The DSM-5, by contrast, provides that severity level is defined by adaptive 

functioning, not by IQ score:
350 State v. Agee

“The various levels of severity are defined on the basis 

of adaptive functioning, and not IQ scores, because it is 

adaptive functioning that determines the level of supports 

required.”

DSM-5 at 33.

Although the DSM-5 recognizes that “[i]ntellectual 

functioning is typically measured with individually administered and psychometrically valid, comprehensive, culturally 

appropriate, psychometrically sound tests of intelligence” 

(i.e., IQ tests) and that “[i]ndividuals with intellectual disability have scores of approximately two standard deviations or more below the population mean,” it nonetheless 

states that “[c]linical training and judgment are required to 

interpret test results and assess intellectual performance.” 

Id. at 37. It notes, further, that

“IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life 

situations and mastery of practical tasks. For example, a 

person with an IQ score above 70 may have such severe 

adaptive behavior problems in social judgment, social 

understanding, and other areas of adaptive functioning 

that the person’s actual functioning is comparable to that of 

individuals with a lower IQ score. Thus, clinical judgment 

is needed in interpreting the results of IQ tests.”

Id.

Those differences reflect a significant change in the 

way that intellectual disability is diagnosed, and appear 

to permit a finding of “deficits in intellectual functions,” 

DSM-5 at 33 paragraph (A), and a diagnosis of intellectual 

disability, based in part on significant deficits in adaptive 

functioning, as defendant’s experts suggested at the Atkins

hearing. The Supreme Court recognized as much in Hall. As 

the Court stated, under the DSM-5, “an individual’s ability 

or lack of ability to adapt or adjust to the requirements of 

daily life, and the success or lack of success in doing so, is 

central to the framework followed by psychiatrists and other 

professionals in diagnosing intellectual disability.” 134 S Ct

at 1991; see also 134 S Ct at 2006 (Alito, J., dissenting) 

(DSM-5 “fundamentally alters the first prong of the longstanding, two-pronged definition of intellectual disability 
Cite as 358 Or 325 (2015) 351

that was embraced by Atkins and has been adopted by most 

States. In this new publication, the [American Psychiatric 

Association] discards ‘significantly subaverage intellectual 

functioning’ as an element of the intellectual-disability 

test.”).

In Hall, the court considered the constitutionality 

of a Florida statute that defined intellectual disability to 

require an IQ test score of 70 or less. The defendant in that 

case, Hall, had an IQ of 71, which was within the margin of 

error for the test, but the Florida Supreme Court held that, 

under the state statute, Hall was not entitled to a hearing 

to try to establish his intellectual disability and resulting 

ineligibility for the death penalty. The Supreme Court held 

that, when a defendant has an IQ score between 70 and 

75, the defendant’s lawyers must be allowed to offer additional clinical evidence of intellectual deficit, including the 

inability to learn basic skills and adapt to changing circumstances. 134 S Ct at 2001. In reaching that conclusion, the 

Court observed that the existence of concurrent deficits in 

intellectual and adaptive functioning are the defining characteristics of intellectual disability. Id. at 1994. The Court 

noted that, on its face, the Florida statute could have been 

construed consistently with the way intellectual disability 

was discussed in Atkins, which relied on the DSM-IV-TR in 

articulating the views of the medical community about how 

intellectual disability should be measured and assessed. 

Id. However, the Court stated, the Florida Supreme Court’s 

interpretation of its statute to bar a person with an IQ score 

over 70 from presenting other evidence showing that his or 

her faculties were limited created an unacceptable risk that 

persons with intellectual disability will be executed, and 

was therefore unconstitutional, because it did not permit 

the court to consider evidence of deficits in the defendant’s 

adaptive functioning. The Court explained:

“Pursuant to this mandatory cutoff, sentencing courts 

cannot consider even substantial and weighty evidence of 

intellectual disability as measured and made manifest by 

the defendant’s failure or inability to adapt to his social 

and cultural environment, including medical histories, 

behavioral records, school tests and reports, and testimony 

regarding past behavior and family circumstances. This is 
352 State v. Agee

so even though the medical community accepts that all this 

evidence can be probative of intellectual disability, including for individuals who have an IQ test score above 70. ***

“Florida’s rule disregards established medical practice 

in two interrelated ways. It takes an IQ score as final and 

conclusive evidence of a defendant’s intellectual capacity, 

when experts in the field would consider other evidence. 

It also relies on a purportedly scientific measurement of 

defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise.”

Id. at 1994-95.

It is true that defendant’s IQ in this case is higher 

than that of the defendant in Hall, and, in fact, higher than 

the range of scores that the Court was specifically concerned 

with in Hall. We also recognize that, unlike the Florida 

Supreme Court, the trial court in this case did not use a 

strict numerical cutoff when deciding that defendant had 

not met his burden of proof. However, the Court’s statements 

in Hall about the need to consider a defendant’s serious 

deficits in adaptive functioning in determining intellectual 

disability for purposes of ineligibility for the death penalty 

apply with equal force in the present circumstances. In this 

case, the trial court concluded that it would be inappropriate to consider defendant’s deficits in adaptive functioning 

in determining whether defendant demonstrated significantly subaverage intellectual functioning under the DSMIV-TR’s first prong, and it rejected the opinions of defendant’s experts because they considered defendant’s deficits 

in adaptive functioning due to partial fetal alcohol syndrome 

to diagnose him as intellectually disabled. The trial court 

ruled that, because of defendant’s relatively high scores on 

IQ and other neuropsychological tests, it would not consider 

evidence of defendant’s adaptive functioning deficits. As we 

have stated, that ruling was correct when it was made, as 

viewed under then-existing published medical standards.

Those standards, however, were undergoing change, 

as the testimony of defendant’s medical experts suggested, 

and the changes are reflected in the DSM-5. Relying on 

the new standards, the Court in Hall reversed a Florida 

decision because it precluded the trial courts in that state 

from considering “even substantial and weighty evidence 
Cite as 358 Or 325 (2015) 353

of intellectual disability as measured and made manifest 

by the defendant’s failure or inability to adapt to his social 

and cultural environment, including medical histories, 

behavioral records, school tests and reports, and testimony 

regarding past behavior and family circumstances.” Hall, 

134 S Ct at 1994. In this case, the trial court also did not 

consider that kind of evidence.

In Atkins and in Hall, the Court observed that individuals who meet the “clinical definitions” of intellectual 

disability bear diminished personal culpability, because, by 

definition, they have diminished capacity to understand and 

process information, to communicate, to learn from their 

mistakes and experiences, to engage in logical reasoning, 

to control impulses, and to understand the reactions of others. Hall, 134 S Ct at 1993; Atkins, 536 US at 318. As we 

have explained, under the DSM-5, the clinical definition of 

intellectual disability permits consideration of evidence to 

support a finding of a deficit in intellectual functioning that 

the trial court in this case believed should be disregarded. 

The DSM-5 no longer requires proof of “significantly subaverage intellectual functioning.” Instead, it simply requires 

“deficits” in intellectual functioning, which may be shown in 

a variety of ways and confirmed by clinical assessment and 

standardized tests. Thus, the consensus of the psychological 

community, as reflected in the DSM-5, now recognizes that 

intellectual functioning should be interpreted in conjunction 

with adaptive functioning in diagnosing intellectual disability. DSM-5 at 37 (“The diagnosis of intellectual disability is 

based on both clinical assessment and standardized testing 

of intellectual and adaptive functioning.”).

As we have described, that was essentially the position that defendant’s experts took at the Atkins hearing. The 

current consensus in the psychological community on this 

point is, however, inconsistent with the trial court’s rejection of defendant’s experts’ diagnosis of intellectual disability on the basis that there is no generally accepted scientific 

opinion in the field of psychology that adaptive functioning 

plays a role in the determination of a deficit in intellectual 

function. For that reason, even though the trial court’s ruling comported with the published standards existing at the 

time that the court ruled, we now conclude that the trial 
354 State v. Agee

court did not apply now-current medical standards in determining that defendant had not met his burden of proof to 

show that he has an intellectual disability.

This court has recognized that a high level of scrutiny is required in death penalty cases:

“Capital cases require our most vigilant and deliberative 

review. We agree with the United States Supreme Court 

statement that ‘[d]eath is a punishment different from all 

other sanctions in kind rather than degree’ so that ‘there is 

a [corresponding] difference in the need for reliability in the 

determination that death is the appropriate punishment in 

a specific case.’ Woodson v. North Carolina, 428 US 280, 

303-05, 96 S Ct 2978, 2991, 49 L Ed 2d 944, 961 (1976).”

State v. Guzek, 322 Or 245, 264, 906 P2d 272 (1995). Allowing 

the trial court’s ruling to stand would “create[] an unacceptable risk that [a] person[] with intellectual disability will be 

executed.” Hall, 134 S Ct at 1990. We therefore remand for 

a new Atkins hearing, in which the trial court shall consider 

the evidence presented in light of the standards set out in 

the DSM-5 and discussed in Hall.

C. Defendant’s Penalty-Phase Assignments of Error

If, after a new Atkins hearing, the trial court again 

determines that defendant is eligible for the death penalty 

under Atkins, a second penalty-phase proceeding would not 

be required unless this court were to find reversible error 

in the penalty-phase proceeding below. Accordingly, we 

consider defendant’s penalty-phase assignments of error to 

determine whether any is well taken.

1. Trial court’s refusal to permit defendant’s experts to 

testify about their diagnoses

Defendant contends that the trial court erred 

during the penalty phase in refusing to allow his experts 

to testify that they had diagnosed defendant as intellectually disabled. Following the trial court’s ruling at the 

Atkins hearing that defendant was eligible for the death 

penalty, defendant requested the trial court’s permission 

to call Drs. Greenspan and Adler to testify that they had 

diagnosed defendant as intellectually disabled at a future 

penalty-phase hearing, in the event the jury convicted him 
Cite as 358 Or 325 (2015) 355

of aggravated murder at the conclusion of the guilt phase. 

Defendant explained that the prosecutor and the trial court 

had agreed that he could present evidence of intellectual 

disability during the penalty phase. Defendant argued that 

the jury should consider evidence of intellectual disability 

just like other mitigating evidence—something that could, 

but need not, merit a life sentence.

The trial court stated that it already had determined that defendant was not intellectually disabled. Therefore, the court reasoned, the jury must be permitted to consider and give effect to any mitigating evidence, but that 

requirement would be met if defendant were able to present evidence of his “diminished capacity.” Near the close of 

the state’s evidence during the penalty phase, defendant 

renewed his request that Drs. Greenspan and Adler be 

permitted to testify about their intellectual disability diagnoses. The court then ruled that “no party could introduce 

evidence that defendant was intellectually disabled, including evidence from defense experts that they had diagnosed 

defendant as intellectually disabled.”

In this court, defendant argues that evidence that 

two experts diagnosed him as intellectually disabled was relevant to defendant’s character and background and to the circumstances of the charged offense under ORS 163.150 and the 

Eighth Amendment. He argues that all relevant mitigating 

evidence is admissible in the penalty phase, and that, under 

the Eighth Amendment, evidence that experts diagnosed 

him as intellectually disabled is admissible even though the 

court had concluded that he was eligible for the death penalty 

under Atkins at a pretrial hearing on that issue. Defendant 

asserts that legal scholars have recognized that

“the Atkins decision overruled the aspect of Penry [v. 

Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 

(1989)] that had allowed the execution of mentally retarded 

persons. However, the Court’s ruling in Penry that a defendant must be allowed to present all information to a jury 

that might be considered mitigating evidence, including 

evidence regarding mental capacity and childhood abuse, 

was not altered by the Atkins decision.”

Ronald D. Rotunda and John E. Nowak, 3 Treatise on 

Constitutional Law: Substance and Procedure § 17.3(d), 46-47
356 State v. Agee

(5th ed 2012). Indeed, defendant points out, the Supreme 

Court has held that

“a State cannot preclude the sentencer from considering 

any relevant mitigating evidence that the defendant proffers in support of a sentence less than death. *** [V]irtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his 

own circumstances[.]”

Payne v. Tennessee, 501 US 808, 822, 111 S Ct 2597, 115 L Ed

2d 720 (1991) (internal quotation marks and citations omitted). Defendant argues that the trial court violated the 

Eighth Amendment when it failed to permit the jury to give 

effect to mitigating evidence that he had been diagnosed as 

intellectually disabled. Finally, defendant argues that the 

error requires reversal because it is likely that the error 

affected the verdict and therefore was not harmless.

The state responds that the trial court did not 

preclude defendant from presenting any substantive evidence of his mental and intellectual deficits, including any 

diagnoses of those deficits and the factual bases for them; 

it merely ruled that defendant could not elicit testimony 

from his experts about their opinion on the ultimate legal 

issue—whether defendant was intellectually disabled as 

that phrase is used in Atkins for purposes of defining the 

scope of the exemption from execution. The state argued 

that that ruling was correct, because a witness is not entitled to offer an opinion on a legal issue that is at variance 

with the trial court’s ruling. In its briefing before this court, 

the state acknowledges, as it must, that “a witness is entitled to offer an opinion within the proper scope of his or 

her professional expertise.” Additionally, in oral argument 

in this court, the state conceded that, had defendant asked 

his experts, during the penalty phase of the trial, to state 

their diagnoses of defendant, their testimony to the effect 

that they had diagnosed defendant as intellectually disabled 

would have been admissible. However, the state argues, that 

is not what happened here or what the trial court’s ruling 

addressed.

Additionally, the state argues that the trial court 

did allow defendant to present extensive relevant and 
Cite as 358 Or 325 (2015) 357

substantive evidence about his substantial mental and 

intellectual deficits, and his experts were permitted to testify about all their diagnoses, other than their diagnoses 

that defendant was intellectually disabled. The state contends that the specific opinion by defendant’s experts that 

he is intellectually disabled would not have been relevant to 

any issue that was before the jury, because the trial court 

had already ruled that he is not intellectually disabled. That 

is, the state goes on, it was proper for the jury to hear and 

consider evidence regarding the nature, extent, and cause 

of defendant’s intellectual deficits, and evidence on those 

points was admitted without restriction. But having the 

defendant’s experts go one step further to opine that defendant is “intellectually disabled” would not have provided 

any additional meaningful information to the jury.

As a preliminary matter, after reviewing the record, 

we conclude that the state takes an overly narrow view of 

the trial court’s ruling. In an Agreed Narrative Statement, 

signed by counsel for the state and defendant, the parties memorialized a discussion that they had had with the 

trial court in chambers during the penalty phase regarding “limitations on defendant’s evidence.” According to that 

statement,

“defendant informed [the judge] of his intent to offer mitigating evidence that two of his experts, Drs. Adler and 

Greenspan, had diagnosed him as intellectually disabled. 

The evidence would have been identical to the evidence 

defendant offered during the pretrial hearing. [The judge] 

ruled that no party could introduce evidence that defendant 

was intellectually disabled, including evidence from defense 

experts that they had diagnosed defendant as intellectually 

disabled. [The judge] so ruled because she had ruled pretrial that defendant had failed to meet his burden to establish that he was ineligible for the death penalty because 

of intellectual disability and she concluded that no party 

could offer evidence inconsistent with that ruling.”

(Emphasis added.) Thus, the agreed narrative confirms that 

defendant informed the court of his intention to offer his 

experts’ diagnoses of intellectual disability as mitigating 

evidence and that the court precluded introduction of those 

diagnoses for any and all purposes, and not only to establish 
358 State v. Agee

that defendant was ineligible for the death penalty under 

Atkins.

19 It is true that the judge cited her earlier Atkins ruling as the reason for excluding the experts’ diagnoses, but 

nothing in the Agreed Narrative Statement suggests that 

defendant would have been permitted to present evidence of 

his experts’ intellectual disability diagnoses as mitigation 

evidence.

We also disagree with the state that evidence that 

two experts diagnosed defendant as intellectually disabled 

was irrelevant. The relevance standard set out in OEC 40120

applies in the penalty phase of a capital trial, State v. Stevens, 

319 Or 573, 580, 879 P2d 162 (1994), and that standard provides a “very low threshold for the admission of evidence.” 

State v. Gibson, 338 Or 560, 569, 113 P3d 423 (2005). As we 

have already discussed, in the fields of psychology and psychiatry, intellectual disability is a valid clinical diagnosis, 

and evidence that defendant’s experts made that diagnosis 

more than meets that low threshold for admissibility.

As defendant points out, the death penalty statutes 

plainly provide that a trial court must admit any evidence 

relevant to a sentencing jury’s consideration of the sentence 

for aggravated murder. ORS 163.150(1)(a) provides that, in 

a penalty-phase proceeding,

“evidence may be presented as to any matter that the court 

deems relevant to sentence including, but not limited to, 

19 Attached to the Agreed Narrative Statement is an excerpt from the transcript in which the court summarized, on the record, the discussion of the court’s 

rulings: 

“[THE COURT:] Next, I think we discussed in chambers the parameters 

of the expert testimony here, and we’ve agreed that there would not be testimony from an expert that went outside the parameters of my findings of fact 

in the Atkins hearing, nor would they—nor would there be cross-examination 

that went beyond those parameters. And I think we agreed that the ‘as if’ 

portion of my opinion is basically what these experts will be talking about, if 

that makes sense, and then you’re free to cross-examine about that. Okay?”

The Agreed Narrative Statement acknowledges that that summary is “cryptic” 

and it recites that the “agreed narrative statement accurately describes the discussion and rulings to which the parties referred in the attached pages of the 

transcript.” 

20 OEC 401 provides: 

“‘Relevant evidence’ means evidence having any tendency to make the 

existence of any fact that is of consequence to the determination of the action 

more probable or less probable than it would be without the evidence.”
Cite as 358 Or 325 (2015) 359

victim impact evidence relating to the personal characteristics of the victim or the impact of the crime on the victim’s 

family and any aggravating or mitigating evidence relevant 

to the issue in paragraph (b)(D) of this subsection[.]”

ORS 163.150(1)(b)(D), referred to in that passage, requires 

the court to ask the penalty-phase jury to consider “[w]hether

the defendant should receive a death sentence,” the so-called 

“fourth question.”21 As this court stated in Stevens,

“the legislature intended the scope of the statutory fourth 

question to be co-extensive with the scope of the fourth 

question held in Penry and [State v. Wagner, 309 Or 5, 786 

P2d 93 (1990) (]Wagner II [)] to satisfy the requirements of 

the Eighth Amendment to the Constitution of the United 

States.”

319 Or at 582. As pertinent here, the Supreme Court held 

in Penry that a defendant must be allowed to present all 

information to a jury that might be considered mitigating 

evidence, including evidence regarding mental capacity and 

childhood abuse. 492 US at 328. And, in Wagner II, this 

court held that all aspects of a defendant’s character and 

background are relevant to the jury’s “exercise of a reasoned 

moral response to the question ‘should defendant receive a 

death sentence?’” 309 Or at 19.

Dr. Greenspan, a recognized expert in intellectual disability, and Dr. Adler, a forensic psychiatrist, had 

diagnosed defendant as intellectually disabled, yet they 

were required to omit from their testimony their professional opinions about that diagnosis—a matter squarely 

within their expertise. Their diagnoses were relevant to 

21 The first three statutory questions, which, like the fourth question, the 

jury must unanimously answer affirmatively to impose the death penalty, are:

“(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; 

[and]

“(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[.]” 

 ORS 163.150(1)(b)(A), (B), and (C). 
360 State v. Agee

defendant’s character and background and to the circumstances of the offense under ORS 163.150 and under the 

Eighth Amendment, as explained in Penry. 492 US at 328 

(intellectual disability is a mitigating fact that a trial court 

must permit a jury to consider under Eighth Amendment). 

The fact that the state’s experts disagreed with the diagnosis does not render it any less relevant. Wagner I, 305 Or 

at 153-54 (expert’s opinion should not necessarily be given 

less weight just because it reflects minority view). Nor does 

the fact that the trial court determined that defendant 

had not established his intellectual disability for purposes 

of the exemption from the death penalty under Atkins. As 

the Supreme Court has stated, “mental retardation for purposes of Atkins, and mental retardation as one mitigator to 

be weighed against aggravators, are discrete issues.” Bobby 

v. Bies, 556 US 825, 829, 129 S Ct 2145, 173 L Ed 2d 1173 

(2009). Evidence that defendant’s experts had diagnosed 

him as intellectually disabled was relevant to the fourth 

question—whether the defendant should receive a sentence 

of death—and defendant was entitled under ORS 163.150 

and the Eighth Amendment to present that testimony to the 

jury during the penalty phase of his death penalty trial as 

mitigating evidence. The trial court erred in excluding it.

As we have stated, under state law, this court must 

affirm notwithstanding error if there was “little likelihood” 

that the error affected the jury’s verdict. Rogers II, 352 Or at 

543. And when, as here, the error violates a defendant’s federal constitutional right, the court may affirm “only when a 

‘reviewing court may confidently say, on the whole record, 

that the constitutional error was harmless beyond a reasonable doubt.’” State v. Bray, 342 Or 711, 725, 160 P3d 983 

(2007) (quoting Delaware v. Van Arsdall, 475 US 673, 681, 

106 S Ct 1431, 89 L Ed 2d 674 (1986)). Under either standard, the trial court’s error in refusing to permit defendant’s 

experts to testify about their intellectual disability diagnoses was not harmless.

We have explained that the fourth question is a 

“mechanism for the sentencing jury to give meaningful 

effect to its consideration of the entire range of possible mitigating evidence and to provide a ‘reasoned moral response’ 
Cite as 358 Or 325 (2015) 361

to the ultimate question of whether the defendant should 

live or die.” Wagner II, 309 Or at 13. For that reason, “it 

is the rare case in which this court can determine, when 

evidence relevant to that question is excluded, that the evidence could not have affected” the jury’s decision whether to 

impose the death penalty. Stevens, 319 Or at 585. This is not 

that rare case. There is no burden of proof with respect to 

the fourth question; a juror may vote not to impose a death 

sentence for any reason. ORS 163.150(1)(c)(B).22 Moreover, a 

sentence of death must be unanimous. ORS 163.150(1)(e).23

Therefore, even if the fact that two experts had diagnosed 

defendant as intellectually disabled would not necessarily 

have convinced the jury that the state’s experts were incorrect, we cannot say, beyond a reasonable doubt, that it would 

not have been sufficient to convince one juror to impose a 

sentence less than death.24

Because we hold that the trial court erred in refusing to allow defendant’s experts to testify that they had 

diagnosed defendant as intellectually disabled and that that 

error was not harmless, we vacate defendant’s sentence of 

death.

2. The trial court’s refusal to instruct the jury that it 

must determine whether defendant is intellectually 

disabled

We address two additional issues that are likely 

to arise on remand if there is a further penalty phase proceeding. The first issue, which is related to the one that we 

just decided, is whether the trial court erred in refusing to 

22 ORS 163.150(1)(c)(B) provides:

“The court shall instruct the jury to answer the [fourth question] ‘no’ 

if, after considering any aggravating evidence and any mitigating evidence 

concerning any aspect of the defendant’s character or background, or any 

circumstances of the offense and any victim impact evidence as described 

in paragraph (a) of this subsection, one or more of the jurors believe that the 

defendant should not receive a death sentence.” 

23 ORS 163.150(1)(e) provides: 

“The court shall charge the jury that it may not answer any issue ‘yes,’ 

under paragraph (b) [setting out the four questions] of this subsection unless 

it agrees unanimously.” 

24 We do not mean to suggest that the exclusion of relevant evidence could 

never be harmless or that the grounds for exclusion of otherwise relevant evidence set out in OEC 403 do not apply. 
362 State v. Agee

instruct the jury that it must determine whether defendant 

is intellectually disabled. Following the trial court’s ruling 

at the Atkins hearing that defendant was eligible for the 

death penalty, defendant requested the trial court, in any 

subsequent penalty-phase proceeding, to ask the jury separately to decide whether it finds that defendant is intellectually disabled and to instruct the jury that an affirmative answer to that question would preclude the possibility 

of the death penalty. Defendant argued that, under the 

Eighth Amendment, he had a constitutional right to present evidence of his intellectual disability, and jurors must be 

instructed in a manner that permits them to consider and 

give full effect to that evidence. And, defendant contended, 

under Atkins, the full effect of evidence of his intellectual 

disability is that he is categorically ineligible for the death 

penalty. Defendant argued that, if the court did not separately instruct the jury about the effect of its finding that 

he is intellectually disabled, then jurors could conclude that 

he is intellectually disabled but that he still deserved death. 

Defendant argued that that result was incompatible with 

the law and should not be allowed.

The trial court declined to instruct the jury about 

intellectual disability, ruling that there is no constitutional or other requirement of a separate jury question on 

that issue. In addition to ruling on that question under the 

Eighth Amendment, the trial court also concluded that a 

separate jury question or instruction on the issue of defendant’s intellectual disability was not required under the 

Sixth Amendment.25

In this court, defendant argues that both the Sixth 

and Eighth Amendments to the United States Constitution 

require a separate jury instruction about intellectual disability. We take the two arguments in turn.

25 The Sixth Amendment to the United States Constitution provides: 

“In all criminal prosecutions, the accused shall enjoy the right to a speedy 

and public trial, by an impartial jury of the State and district wherein the 

crime shall have been committed, which district shall have been previously 

ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory 

process for obtaining witnesses in his favor, and to have the Assistance of 

Counsel for his defense.” 
Cite as 358 Or 325 (2015) 363

Defendant asserts that the Supreme Court has 

held that the Sixth Amendment requires that any fact 

that increases the punishment for an offense beyond the 

statutory maximum, other than the fact of a prior conviction, must be submitted to the jury and proved beyond a 

reasonable doubt. Apprendi v. New Jersey, 530 US 466, 490, 

120 S Ct 2348, 147 L Ed 2d 435 (2000). In addition, under 

the Sixth Amendment, a defendant has the right to have 

a jury, rather than a judge, decide on the existence of an 

aggravating factor that makes the defendant eligible for the 

death penalty. Ring v. Arizona, 536 US 584, 609, 122 S Ct 

2428, 153 L Ed 2d 556 (2002). Defendant argues that, if a 

defendant is ineligible for the death penalty for any reason, 

including age, insanity, or intellectual disability, then he or 

she may not be sentenced to death.26 In the particular case 

of intellectual disability, defendant argues, under Atkins, a 

court may not impose the death penalty on a capital defendant who asserts intellectual disability unless the trier of 

fact finds the absence of intellectual disability. If the trier of 

fact finds that the defendant is intellectually disabled, then 

the statutory maximum is a sentence of life in prison without the possibility of parole. It follows, defendant contends, 

that a finding of eligibility for the death penalty is necessary to impose a death sentence, and, therefore, when a 

defendant asserts his ineligibility for the death penalty, the 

question must be submitted to the jury and proved beyond a 

reasonable doubt.

The state responds that defendant’s argument takes

the narrow exemption from execution that Atkins announced, 

which was based on a mitigating fact (intellectual disability), and attempts to convert it into an element that the 

state must prove in the negative. That is, the state contends, 

defendant has turned the analysis on its head, suggesting, 

essentially, that the absence of a mitigating factor is actually 

an aggravating factor that the state must prove to the jury 

26 ORS 137.707(2) (persons under the age of 18 when the crime is committed 

are not eligible for the death penalty); Roper v. Simmons, 543 US 551, 574-75, 

125 S Ct 1183, 161 L Ed 2d 1 (2005) (Eighth Amendment prohibits executing 

minors); Ford v. Wainwright, 477 US 399, 409-10, 106 S Ct 2595, 91 L Ed 2d 335 

(1986) (Eighth Amendment prohibits executing the insane); Atkins, 536 US at 

321 (Eighth Amendment prohibits executing the intellectually disabled).
364 State v. Agee

beyond a reasonable doubt. The state argues that nothing in 

the Court’s case law suggests that, when the law defines a 

mitigating fact that creates an exemption or departure from 

the maximum sentence, the state must prove to the jury 

that that fact does not exist.

We agree with the state that, because intellectual 

disability is a fact that operates to reduce rather than to 

increase the maximum punishment permitted by a verdict 

of guilt, the Sixth Amendment does not require the fact of 

intellectual disability to be decided by a jury beyond a reasonable doubt. We likewise conclude that the absence of intellectual disability is not an element of a capital offense for 

purposes of the analysis under Ring. Defendant has pointed 

to nothing in the opinions in either Apprendi or Ring (or any 

other case) to suggest that their holdings apply to a situation 

in which a factual finding operates to lower the maximum 

allowable punishment rather than to raise the punishment 

above the statutory maximum.27 In fact, in Apprendi, the 

Court carefully distinguished between “facts in aggravation 

of punishment and facts in mitigation,” suggesting just the 

opposite:

“If facts found by a jury support a guilty verdict of murder, the judge is authorized by that jury verdict to sentence 

the defendant to the maximum sentence provided by the 

murder statute. If the defendant can escape the statutory 

maximum by showing, for example, that he is a war veteran, then a judge that finds the fact of veteran status is 

neither exposing the defendant to a deprivation of liberty 

greater than that authorized by the verdict according to 

statute, nor is the judge imposing upon the defendant a 

greater stigma than that accompanying the jury verdict 

alone. Core concerns animating the jury and burden-ofproof requirements are thus absent from such a scheme.”

Apprendi, 530 US at 491 n 16 (citation omitted). Like the 

finding of veteran status that the Court used in its example, 

a finding of intellectual disability permits the defendant to 

“escape the statutory maximum.” That is, a defendant’s intellectual disability reduces the maximum possible sentence 

27 Moreover, as defendant concedes, no court that has considered the issue 

has concluded that the Sixth Amendment requires a claim of intellectual disability under Atkins to be resolved by the jury.
Cite as 358 Or 325 (2015) 365

from capital punishment to life in prison. Therefore, the 

absence of intellectual disability is not an element that the 

state must prove beyond a reasonable doubt.

Defendant also argues that, under the Eighth Amendment, the fact of intellectual disability is conclusively mitigating. That is, he asserts, if a trier of fact finds that a capital defendant is intellectually disabled, then the Eighth 

Amendment prohibits execution. At the same time, however, 

as the Court observed in Atkins and in Penry, evidence of a 

defendant’s intellectual disability “can be a two-edged sword 

that may enhance the likelihood that the aggravating factor 

of future dangerousness will be found by the jury.” Atkins, 

536 US at 321; Penry, 492 US at 324. For that reason, defendant asserts, the Court in Penry suggested that the jury 

must be instructed in a way that ensures that the jury will be 

permitted to fully consider the mitigating effect of evidence 

of a capital defendant’s intellectual disability. In defendant’s 

view, that means that the jury must be instructed that it 

must decide whether a defendant is intellectually disabled 

and that, if it so finds, defendant is ineligible for the death 

penalty.

Defendant’s argument is based on a faulty premise: 

that, if the jury were to find, as a factual matter, that he is 

intellectually disabled, then the Eighth Amendment prohibits his execution. Whether the Eighth Amendment prohibits a defendant’s execution is a legal determination, and not 

a factual one. As the Supreme Court stated in Hall, “[t]he 

legal determination of intellectual disability is distinct from 

a medical diagnosis,” even if it is informed by the medical 

community’s diagnostic framework. 134 S Ct at 2000. And 

while Atkins and Hall require that that legal determination 

be made before an arguably intellectually disabled defendant 

may be executed, the Court in Atkins specifically left it to the 

states to “develop[] appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” 536 

US at 317. Nothing in Atkins, or in Hall or Penry, suggests 

that the Eighth Amendment or any other constitutional provision dictates a particular process, or specifically requires 

the jury, or even the trial court for that matter, to determine, 

as a matter of law, a defendant’s eligibility for the death penalty. In this case, using a process that defendant acceded 
366 State v. Agee

to—the pretrial Atkins hearing—the trial court made that 

legal determination. And, having made that determination, 

the trial court did not err in refusing to require the jury to 

decide the matter a second time.28

That is not to say that jurors may not make their 

own determinations as a factual, medical matter, based on 

the evidence presented, whether defendant is intellectually 

disabled. As we have previously noted, the Supreme Court 

pointed out in Bies that “[intellectual disability] for purposes of Atkins, and [intellectual disability] as one mitigator to be weighed against aggravators, are discrete issues.” 

556 US at 829. We have already held that defendant was 

entitled, under ORS 163.150 and the Eighth Amendment, 

to present evidence of his experts’ intellectual disability 

diagnoses to the jury during the penalty phase of his death 

penalty trial as mitigating evidence, because that evidence 

was relevant to the fourth question, whether the defendant 

should receive a sentence of death. However, because the 

Eighth Amendment does not require the jury to decide the 

legal question whether defendant is ineligible for the death 

penalty because of his intellectual disability,29 it follows 

that the trial court did not err in refusing to instruct the 

jury that it must find whether defendant is intellectually 

disabled.

28 We do not mean to suggest that it would be error for a trial court to permit 

the jury to decide the legal question of intellectual disability. That issue is not 

before us. Rather, we hold here that neither the Sixth nor Eighth Amendment to 

the United States Constitution requires the jury to make such a determination.

29 To the extent that defendant’s reference to Penry, and its statement to the 

effect that intellectual disability evidence can be a two-edged sword, reflects a 

further argument that the jury should have been instructed in such a way as 

to ensure that that the jury will treat evidence of intellectual disability as mitigating rather than aggravating, that argument is not preserved. Defendant presented the trial court with two proposed jury instructions concerning mitigation 

during the penalty phase of his trial: Defendant’s Special Jury Instruction No. 1—

Definition of Mitigating Evidence, and Defendant’s Special Jury Instruction 

No. 2—Consideration of Evidence in Mitigation. Neither instruction would have 

informed the jury that it should consider evidence of intellectual disability as 

mitigating only. Defendant requested that the trial court pose a question to the 

jury about intellectual disability, but his arguments in court and in his memorandum on that point were confined to ensuring that the jury be instructed that 

a finding of intellectual disability has a “conclusive mitigating effect,” by which 

defendant specifically meant that, “[i]f the jury finds that a defendant is intellectually disabled, notwithstanding a trial court’s previous determination, then the 

defendant is not eligible for the death penalty.”
Cite as 358 Or 325 (2015) 367

3. The trial court’s exclusion of evidence that Davenport 

received a life sentence

The last issue that we address is whether the trial 

court erred in granting the state’s motion in limine to exclude 

evidence during the penalty phase that Davenport received 

a life sentence for his role in the victim’s murder.

In its motion, the state argued that neither Davenport’s 

sentence nor evidence related to his intellectual disability was 

relevant to any fact at issue in the case. Defendant responded 

that evidence that an equally or more culpable codefendant 

received a life sentence was a circumstance of the offense and, 

therefore, proper mitigation evidence under ORS 163.150 and 

the Eighth Amendment. The trial court granted the state’s 

motion to exclude evidence, testimony, or argument about 

Davenport’s sentence, deciding that it would not admit the 

evidence under ORS 163.150 and concluding that the Eighth 

Amendment did not require its admission.

In this court, defendant reprises the arguments 

he made below, arguing that both ORS 163.150 and the 

Eighth Amendment require admission of Davenport’s sentence during the penalty phase. We begin our analysis by 

first considering the matter under the state statute. State v. 

Sarich, 352 Or 601, 617, 291 P3d 647 (2012) (court considers 

questions of state law before questions of federal law and 

issues of statutory interpretation before issues of constitutional interpretation). If the statutory source of law provides 

a complete answer to the legal question presented, we ordinarily decide the case on that basis, rather than turning to 

constitutional provisions. Rico-Villalobos v. Guisto, 339 Or 

197, 205, 118 P3d 246 (2005).

As we have stated, during the penalty phase, “evidence may be presented as to any matter that the court 

deems relevant to sentence including * * * any ** * mitigating

evidence relevant to” the fourth question, whether the defendant should receive a sentence of death. ORS 163.150(1)(a).

Although that paragraph permits introduction of any mitigating evidence relevant to the fourth question, ORS 

163.150(1)(c)(B) provides that the trial court must instruct 

the jury to answer “no” to the fourth question “if, after 

considering any aggravating evidence and any mitigating 
368 State v. Agee

evidence concerning any aspect of the defendant’s character 

or background, or any circumstances of the offense * **, one 

or more of the jurors believe that the defendant should not 

receive a death sentence.” Thus, the universe of “any mitigating evidence” relevant to the fourth question under ORS 

163.150(1)(a) is circumscribed by ORS 163.150(1)(c)(B). To 

be relevant to the fourth question, “evidence must relate 

to some aspect of the defendant’s character or background 

or to any circumstance of the crime.” State v. Barone, 328 

Or 68, 97, 969 P2d 1013 (1998) (neither victim’s personal 

opposition to death penalty nor expert’s opinion that death 

penalty does not deter violent crime was admissible during 

defendant’s penalty phase hearing because neither was relevant to defendant’s character or background or to any circumstance of crime); State v. Longo, 341 Or 580, 606-09, 148 

P3d 892 (2006) (trial court did not err in excluding evidence 

relating to defendant’s capture and return from Mexico, 

because it was not relevant to defendant’s character and did 

not make it less likely that he planned the murders).

Evidence is “relevant” under ORS 163.150 if it is 

relevant under OEC 401. Stevens, 319 Or at 580 (“The standard of relevance set forth in OEC 401 applies in penaltyphase proceedings.”); see also McKoy v. North Carolina, 494 

US 433, 440, 110 S Ct 1227, 108 L Ed 2d 369 (1990) (meaning of relevance no different in context of mitigating evidence introduced in capital sentencing proceeding than in 

any other context). As the Supreme Court stated in McKoy, 

in the context of capital sentencing proceedings, “[r]elevant 

mitigating evidence is evidence which tends logically to 

prove or disprove some fact or circumstance which a factfinder could reasonably deem to have mitigating value.” 494 

US at 440. As in noncapital cases, the threshold for relevance in death penalty cases is very low. Stevens, 319 Or 

at 584; State v. Davis, 351 Or 35, 48, 261 P3d 1197 (2011) 

(relevance standard for admissibility is a low bar).

Moreover, in the death penalty context, whether 

evidence is “mitigating” also is a low standard. Notably, evidence need not necessarily relate to the defendant’s guilt for 

the crime to be mitigating. Stevens, 319 Or at 583; Tennard 

v. Dretke, 542 US 274, 285-86, 124 S Ct 2562, 159 L Ed 2d 
Cite as 358 Or 325 (2015) 369

384 (2004). Rather, as the Supreme Court stated in Tennard, 

the question is whether the evidence “would be ‘mitigating’ 

in the sense that it might serve as a basis for a sentence less 

than death.” 542 US at 285 (citations and internal quotation 

marks omitted). That is, evidence is mitigating “if the sentencer could reasonably find that it warrants a sentence less 

than death.” McKoy, 494 US at 441.

Stevens illustrates the low threshold for both relevance and mitigation. In that case, the defendant asserted 

that the trial court had erred in sustaining the state’s objection to a question that his lawyer had asked a state’s witness on cross-examination, arguing that that evidence was 

relevant to the fourth question. The witness (the defendant’s 

estranged wife) had been asked to give her opinion about the 

potential negative effect of the defendant’s execution on their 

daughter. 319 Or at 584. This court acknowledged that that 

testimony would not offer any direct evidence about defendant’s character or background, but concluded that, circumstantially, it could permit a rational juror to infer that there 

were positive aspects to the defendant’s character that could 

justify a sentence less than death. Id. For that reason, the 

court held that the testimony was sufficiently related to the 

defendant’s character as to be relevant in mitigation.

The question in this case is whether evidence of 

Davenport’s life sentence is similarly relevant in mitigation 

to the jury’s consideration of the fourth question. The state 

argues that a sentence imposed on a codefendant does not 

have a tendency to show any aspect of a defendant’s character or background, nor does it tend to show any relevant 

circumstance of the offense. The state contends that a defendant facing the death penalty is entitled to an individualized consideration of whether death is appropriate, which 

should be based on the defendant’s own personal circumstances, his entire personal and criminal history, and his 

personal culpability for the crime. According to the state, 

disclosing to the jury that a codefendant received a sentence other than death would be confusing and irrelevant, 

because the codefendant’s sentence would have been based 

on factual and legal circumstances that were unique to that 

person. As such, they would have no logical relevance to the 

appropriate punishment for the defendant.
370 State v. Agee

The state characterizes defendant’s argument as 

positing that, if the jurors in this case found that Davenport 

was the person primarily responsible for the murder and 

that defendant himself was only an accomplice, then the 

jury could conclude, based on the fact that Davenport was 

sentenced to life in prison, that the death penalty was not 

an appropriate sentence for him. But, the state responds, the 

law in Oregon is well established that one who intentionally 

aids another in the commission of a crime is just as guilty 

as the person who committed the crime. ORS 161.155(2) (so 

providing). The state asserts that the personal culpability 

of the accomplice does not depend at all on whether, or the 

degree to which, the principal offender also was convicted 

and punished, and nothing in Oregon law suggests that a 

person convicted of a crime as an accomplice is entitled to a 

more lenient sentence than, or even the same sentence as, 

that imposed on the principal.

Although it is a close question, we conclude that 

evidence that Davenport received a life sentence is relevant 

mitigating evidence under ORS 163.150. First, we conclude 

that Davenport’s sentence is relevant to “[an] aspect of the 

defendant’s character or background, or [a] circumstance of 

the offense” under ORS 163.150(1)(c)(B). The circumstances 

of the offense include the facts, established during the guilt 

phase of the trial, that defendant and Davenport jointly 

participated in the victim’s murder and that Davenport 

was primarily responsible for the victim’s death. Davenport 

volunteered to kill the victim for his gang, he planned the 

crime, he talked defendant into helping him, and he wielded 

the instrument that physically caused the victim’s death. 

Davenport’s sentence for his participation in the murder, 

including the reason that he received that sentence—that 

he was found to be intellectually disabled—are related to 

those circumstances, because, to the extent that the jury 

believed that defendant acted under Davenport’s influence, 

they reflect, at least circumstantially, on defendant’s own 

intellectual capacities.

Second, evidence of Davenport’s life sentence is 

mitigating, in the sense that a juror could reasonably find 

that it warrants a sentence less than death. As we have 

stated, the question for the jury during the penalty phase, 
Cite as 358 Or 325 (2015) 371

ultimately, is “whether the defendant should live or die,” and 

the fourth question is a mechanism for the jury “to provide a 

‘reasoned moral response’” to that question. Wagner II, 309 

Or at 13. As we have just noted, Davenport was primarily 

responsible for the victim’s death and, defendant argued, 

talked defendant into participating in the killing. The fact 

that Davenport did not receive a death sentence because the 

court determined that he was intellectually disabled reflects 

indirectly on defendant’s own potential intellectual disability and, for the reasons the Court stated in Penry, on his 

moral culpability. That possibly mitigating circumstance 

is appropriately part of the jury’s consideration of whether 

defendant deserves death.

Because the fact that Davenport received a life sentence for his role in the victim’s murder was relevant mitigating evidence under ORS 163.150, the trial court erred in 

excluding it.30 On remand, if a new penalty-phase proceeding 

30 State v. Casey, 108 Or 386, 213 P 771, motion to recall mandate den, 108 

Or 418, 217 P 632 (1923), cited by the state, is not to the contrary. In Casey, the 

defendant and a codefendant were jointly charged with murder but were tried 

separately. The defendant was tried first, convicted, and sentenced to death; 

subsequently, the codefendant was acquitted. The defendant raised various challenges based on the fact of the codefendant’s acquittal, but, ultimately, this court 

held that the codefendant’s acquittal was not relevant and did not “in any way 

affect or mitigate the penalty in the case at bar.” Id. at 423. Casey is not helpful 

to the state. It did not involve a sentence received by an equally or more culpable 

codefendant. Rather, the codefendant there expressly was found not to be guilty 

of the crime at all. It therefore sheds no light on the admissibility in a defendant’s 

penalty phase proceeding of evidence that an equally or more culpable codefendant received a sentence less than death.

Additionally, we reject the state’s argument that permitting the jury to 

consider, as mitigation, evidence that an equally or more culpable codefendant 

received a sentence less than death would be inherently confusing to the jury. 

Such evidence routinely has been admitted and argued in mitigation in capital 

cases around the country for decades. In fact, a federal statute and at least one 

state statute require factfinders in capital murder cases to consider, as a mitigating factor, whether “[a]nother defendant or defendants, equally culpable in 

the crime, will not be punished by death.” 18 USC § 3592(a)(4); New Hampshire 

Criminal Code § 630:5 (VI)(g) (requiring jurors to consider, in determining 

whether to impose death penalty, whether “another defendant or defendants, 

equally culpable in the crime, will not be punished by death”). And, although 

many states do not permit or require evidence of a codefendant’s sentence less 

than death to be considered by the jury, courts in several states either permit 

consideration of a codefendant’s sentence in mitigation or have at least suggested 

that such evidence is relevant and admissible. E.g., Brookings v. State, 495 So 2d 

135, 142-43 (Fla 1986) (jurors in capital case may be permitted to consider codefendants’ sentences as mitigating factor); State v. Marlow, 163 Ariz 65, 72, 786 
372 State v. Agee

is required, evidence of Davenport’s sentence, including the 

reason for it, should be admitted as mitigating evidence if 

introduced.31

III. CONCLUSION

To summarize, defendant raises 29 assignments of 

error. We discuss five of those assignments of error in this 

opinion, and we hold that three are well taken. Specifically, 

we hold, first, that, although the trial court erred in permitting the prosecutor effectively to depose defendant’s codefendant, Davenport, at a pretrial hearing, that error was harmless. Second, we hold that, at defendant’s Atkins hearing, 

the trial court used an inappropriate standard in determining that defendant had not met his burden of proving his 

intellectual disability, and we therefore remand for a new 

Atkins hearing, in which the trial court shall consider the 

evidence presented in light of the standards set out in the 

DSM-5 and discussed in Hall. Third, we hold that, during 

the penalty-phase proceeding below, the trial court erred in 

refusing to permit defendant’s experts to testify that they 

had diagnosed defendant as having an intellectual disability and that that error was not harmless. Therefore, if the 

trial court again rules at the conclusion of the Atkins hearing that defendant does not have an intellectual disability, 

a new penalty-phase proceeding will be required. Fourth, 

we hold that neither the Sixth nor the Eighth Amendment 

to the United States Constitution requires the trial court to 

instruct the jury that it must determine whether a defendant 

has an intellectual disability. Fifth and finally, we hold that 

the trial court erred during the penalty-phase proceeding in 

excluding evidence that Davenport received a life sentence 

for his role in the victim’s murder, and that, if introduced at 

a penalty-phase proceeding on remand, that evidence must 

be admitted.

P2d 395, 402 (1989) (fact that codefendant received lesser sentence, no matter the 

reason, must be considered by jury and may be found as mitigating circumstance 

and weighed against any aggravating circumstances, in determining whether to 

impose the death penalty on defendant); Howell v. State, 860 So 2d 704, 762 (Miss 

2003) (trial court properly instructed jurors to consider sentence of codefendant 

as mitigating evidence); Garden v. State, 844 A2d 311, 317 (Del 2004) (recognizing codefendant’s life sentence as a mitigating factor).

31 Because we resolve the issue on statutory grounds, we do not reach defendant’s constitutional arguments. 
Cite as 358 Or 325 (2015) 373

The judgment of conviction is affirmed. The sentence of death is vacated, and the case is remanded to the 

circuit court for further proceedings.