612 June 19, 2014 No. 43

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

MICHAEL SPENCER WASHINGTON, JR.,

Defendant-Appellant.

(CC CR0701950; SC S058490)

En Banc

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

County Circuit Court.

Thomas Rastetter, Judge.

Argued and submitted June 4, 2013.

Bronson D. James, JDL Attorneys, LLP, Portland, argued 

the cause and filed the briefs for defendant-appellant.

Timothy A. Sylwester, Assistant Attorney General, 

Salem, argued the cause for plaintiff-respondent. With him 

on the brief were Ellen F. Rosenblum, Attorney General, 

Anna M. Joyce, Solicitor General, Christina M. Hutchines 

and Jeremy C. Rice, Assistant Attorneys General.

LANDAU, J.

The judgment of conviction and sentence of death are 

affirmed.

On automatic and direct review of the judgment of conviction and sentence 

of death, defendant raised 22 assignments of error, including challenges to the 

trial court’s order that he wear a stun device during trial, its empaneling of an 

anonymous jury, and its implementation of additional security measures during 

the penalty phase of his trial. Defendant also challenged the trial court’s denial 

of his motions for judgment of acquittal, its admission of certain testimony about 

the victim and his family, and its refusal to give his requested jury instruction 

regarding mercy. Finally, he challenged the lawfulness of Oregon’s death penalty 

sentencing scheme in various respects. Held: Evidence in the record supports the 

trial court’s order that defendant wear a stun device during his trial, its empaneling of an anonymous jury, and its implementation of additional security measures during the penalty phase of defendant’s trial. The trial court did not err 

in denying defendant’s motions for judgment of acquittal, because the testimony 
Cite as 355 Or 612 (2014) 613

of defendant’s accomplice was sufficiently corroborated by other evidence. The 

trial court also did not err in admitting testimony of the victim’s uncle about 

the victim and his family. It did not err in refusing to give defendant’s requested 

jury instruction on mercy because the instruction was not a correct statement of 

the law. Finally, the Supreme Court rejected each of defendant’s challenges to 

Oregon’s death penalty sentencing scheme.

The judgment of conviction and sentence of death are affirmed.
614 State v. Washington

LANDAU, J.

This case is before the court on automatic and 

direct review of defendant’s judgment of conviction and sentence of death for aggravated murder. ORS 138.012(1). On 

review, defendant challenges 22 rulings the trial court made 

during the guilt and penalty phases of his trial. He asks 

this court to reverse his convictions for aggravated murder 

and felon in possession of a firearm and remand for a new 

trial or, alternatively, to vacate his sentence of death and 

remand for resentencing. We affirm both the conviction and 

the sentence.

I. BACKGROUND

We begin with an overview of relevant facts and 

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. Bowen, 340 Or 487, 489, 

135 P3d 272 (2006), cert den, 549 US 1214 (2007).

In 1991, defendant began a relationship with Stafford.

They had two children together. At various times over the 

years, defendant and Stafford lived apart from each other, 

and, during those times, each dated other people. Defendant, 

however, did not approve of Stafford dating others.

In 2004, defendant and Stafford were living apart, 

and the children lived with Stafford. In the meantime, 

Stafford met Mohamed Jabbie, the victim in this case, and 

the two began seeing each other romantically.

In July of that year, defendant learned of Stafford’s 

relationship with Jabbie. Early in the morning of July 4, 

while Stafford and Jabbie were in Stafford’s home, defendant tried to call Stafford, but she refused to answer the 

telephone. Moments later, the bedroom window shattered. 

Stafford jumped out of the bedroom window and ran to a 

neighbor’s house. She returned to her house when the police 

arrived and found that two doors had been kicked off of 

their hinges. Jabbie was not there. Stafford found Jabbie at 

a hospital emergency room where he was being treated for 
Cite as 355 Or 612 (2014) 615

various injuries. Following the July 4 incident, Stafford continued to see Jabbie.

A few weeks later, Stafford and defendant spoke by 

phone. Stafford accused defendant of having broken into her 

home and told him that he needed to pay for the damage “or 

else he was going to jail.” Defendant admitted to Stafford 

that he had broken into her apartment and that he had 

assaulted Jabbie. But he replied that he was not going to 

jail, “[n]ot without a witness.” Stafford immediately called 

Jabbie to warn him that his life was in danger because he 

had been a witness to the July 4 incident. Defendant later 

met with Stafford and asked her to “help him take Jabbie 

out.” Stafford refused, and defendant told her that he would 

“do it himself.”

A grand jury convened to investigate the July 4 incident. The grand jury subpoenaed Stafford and Jabbie to testify about the incident. Defendant knew that Stafford had 

been subpoenaed to testify. He went to her house and tried 

to convince her to lie to the grand jury, threatening to kill 

her and to take her children if she did not. He also asked 

her to show him where Jabbie lived. Fearing what defendant 

might do if she refused, Stafford showed him where Jabbie 

lived, an apartment located near Clackamas Town Center 

in Portland.

On September 23, Stafford testified to the grand 

jury. Later that evening, she spoke with defendant by telephone. Defendant told Stafford that he wanted her to go to 

Jabbie’s apartment. He told her to meet him at Clackamas 

Town Center.

Stafford arrived at the shopping center and called 

defendant’s cell phone from a public phone booth, but received 

no answer. When defendant arrived a few minutes later, he 

gave Stafford one of his two cell phones. He told her to go to 

Jabbie’s apartment and then call him as she was leaving. He 

told her not to use the cell phone to call Jabbie, however.

Stafford went to Jabbie’s apartment, but he was 

not at home. She returned to Clackamas Town Center and 

called Jabbie from the same public telephone she had used 

to call defendant. Jabbie answered and agreed to meet with 
616 State v. Washington

her. Stafford told defendant that Jabbie was at home and 

that she was going to meet him.

Stafford drove to Jabbie’s apartment and met him 

in the parking lot. The two then went upstairs to the apartment. Stafford was nervous because she “knew what was 

coming.” While she was in the apartment talking to Jabbie, 

the cell phone that she had in her possession, which was on 

silent mode, showed several calls from defendant, which she 

did not answer.

After about 15 minutes, Stafford left Jabbie’s apartment and placed a call to defendant as defendant had

instructed her. When she opened the door to the apartment, however, defendant was already standing outside the 

door. He passed by her and went into the apartment. On 

her way down the stairs, Stafford greeted a woman. As she 

approached her car in the parking lot, Stafford “heard several gunshots back to back.”

In the meantime, at about 10:30 that night, two of 

Jabbie’s neighbors, Grooms and Alcantara, had stepped outside their apartment to smoke some cigarettes. They heard 

an argument in Jabbie’s apartment. They then observed a 

woman whom they later identified as Stafford come out of 

Jabbie’s apartment, go down the stairs, and walk away. A 

minute later, they heard several gunshots and saw flashes 

through the window of Jabbie’s apartment. Shortly after the 

shots, they saw a black male generally matching defendant’s 

age, height, and weight leave Jabbie’s apartment, go down 

a set of stairs at the back of the apartment building, and 

briskly walk away.

There ensued several phone calls between Stafford 

and defendant. The two met later that night, and Stafford 

returned defendant’s cell phone to him.

A few days later, Stafford asked defendant where he 

had shot Jabbie. Defendant replied that he had shot him in 

the chest. Defendant also told Stafford that his cousin had 

disassembled and disposed of the gun.

On September 28, police discovered Jabbie’s body, 

shot seven times in the chest. When the discovery was 
Cite as 355 Or 612 (2014) 617

reported on television, defendant called Stafford and told 

her to watch the news, where she saw a picture of Jabbie.

Police investigated Jabbie’s murder. Among other 

things, police obtained telephone records for defendant’s cell 

phone for the day of the murder. Those records showed that, 

on that day, several telephone calls were made to defendant’s cell phone, including two from a payphone located 

at Clackamas Town Center and several others between 

defendants’ two cell phones placed between 10:00 p.m. and 

10:30 p.m. using cell towers located within two blocks of 

Clackamas Town Center.

On September 30, 2004, police stopped Stafford in 

her car and asked about Jabbie’s death. She admitted that 

she had been at Jabbie’s apartment and at Clackamas Town 

Center on the night of September 24. She denied having seen 

defendant after July 4 and denied having any involvement 

in, or knowledge of, Jabbie’s murder. Meanwhile, defendant 

and Stafford continued their relationship for the next three 

years.

Police arrested defendant and Stafford for Jabbie’s 

murder in 2007. When detectives first interviewed Stafford, 

she lied about being involved with defendant and being 

involved in Jabbie’s murder. She later agreed to testify 

against defendant in exchange for dismissal of the aggravated murder charge against her.

Defendant was charged with two counts of aggravated murder, ORS 163.095, one count of murder, ORS 

163.115, and three counts of felon in possession of a firearm, ORS 166.270. He was tried to a jury on the aggravated 

murder and murder counts and to the court on the felon-inpossession counts. He was found guilty on all counts. In a 

further proceeding under ORS 163.150, the jury answered 

the applicable penalty-phase questions in the affirmative. 

ORS 163.150(1)(b)(A), (B), (D). The trial court merged the 

murder and aggravated murder convictions into one conviction for aggravated murder, merged the three convictions 

for felon in possession into one conviction for that crime, 

entered a judgment of conviction, and sentenced defendant 

to death. This automatic and direct review followed.
618 State v. Washington

II. ANALYSIS

As we have noted, on review, defendant advances 

a total of 22 assignments of error concerning rulings of 

the trial court during both the guilt and penalty phases 

of the trial. We address each of those assignments in turn, 

detailing additional facts relevant to those assignments as 

necessary.

A. Motions for Judgment of Acquittal (Assignments 1-5)

At trial, defendant moved for a judgment of acquittal as to all six counts. He argued that the state’s case failed 

for lack of sufficient evidence. Specifically, he argued that 

the state’s case relied almost entirely on the testimony 

of Stafford, and, because Stafford was an accomplice in 

Jabbie’s murder, that evidence was insufficient. According 

to defendant, ORS 136.440 provides that the testimony of 

an accomplice must be corroborated by other evidence. In 

this case, he argued, the state failed to introduce any such 

corroborating evidence other than cell phone records. In 

defendant’s view, that evidence was inadequate to provide 

the required corroboration, because the state failed to establish that defendant possessed either of the cell phones at the 

time that the calls were made on the date of the murder. The 

state responded that, while the statute does require corroborating evidence, there is in this case “evidence in droves” 

connecting defendant to Jabbie’s murder. The trial court 

denied defendant’s motions without elaboration.

On appeal, defendant now assigns error to the trial 

court’s denial of his motion for a judgment of acquittal as to 

the first five charges against him.1

 Specifically, defendant 

argues, as he did below, that the state’s case relied almost 

entirely on the testimony of his accomplice, Stafford, and 

that there was insufficient evidence to corroborate her testimony, as required under ORS 136.440. Defendant begins 

by asserting that the statute requires a reviewing court to 

eliminate any reference to the testimony of the accomplice 

1 As we have noted, the indictment included six counts. Defendant’s brief on 

appeal assigns error to the denial of his motion for judgment of acquittal as to 

only the first five. Given our disposition of the assignments of error that he does 

advance, however, the failure to assign error to the denial of a motion for a judgment of acquittal as to the final charge does not matter.
Cite as 355 Or 612 (2014) 619

and then determine whether the remaining evidence suffices to connect him to the offense. Moreover, he argues, the 

remaining evidence “cannot be equivocal”; rather, it must be 

certain and “inconsistent with innocence.” In that regard, 

defendant argues that evidence that establishes mere association with the accomplice or that establishes that defendant was only in the general vicinity of the offense is insufficient to corroborate the testimony of an accomplice. With 

that view of the law in mind, defendant then argues that 

the evidence other than Stafford’s testimony was “virtually 

non-existent,” consisting of cell phone data that established 

“mere association and location.”

The state responds that defendant is incorrect in 

asserting that the court must completely disregard Stafford’s

testimony and determine whether independent evidence 

establishes defendant’s guilt. What the statute requires, the 

state argues, is other evidence that “tends to connect” defendant with the commission of the offense. In that regard, 

the state argues that there is ample evidence that connects 

defendant with Jabbie’s murder, including evidence that 

defendant had previously broken into Jabbie’s apartment and 

assaulted Jabbie; that Jabbie was scheduled to be a witness 

in the case against him arising out of that incident; that witnesses saw Stafford leave Jabbie’s apartment shortly before 

the shooting, followed by a man generally matching defendant’s description after the shooting; and evidence showing 

the use of defendant’s cell phones at the time of the murder, 

which precisely corroborates Stafford’s testimony about her 

movements and defendant’s movements before, during, and 

after the shooting.

ORS 136.440 provides:

“(1) A conviction cannot be had upon the testimony of 

an accomplice unless it is corroborated by other evidence 

that tends to connect the defendant with the commission of 

the offense. The corroboration is not sufficient if it merely 

shows the commission of the offense or the circumstances 

of the commission.

“(2) As used in this section, an ‘accomplice’ means a 

witness in a criminal action who, according to the evidence 

adduced in the action, is criminally liable for the conduct of 

the defendant under ORS 161.155 and 161.165 ** *.”
620 State v. Washington

In this case, the parties do not dispute that Stafford was 

an “accomplice” within the meaning of subsection (2). Her 

testimony, therefore, is insufficient to support a conviction 

unless it was “corroborated by other evidence that tends to 

connect the defendant with the commission of the offense,” 

as required in subsection (1).

At the outset, we reject defendant’s contention that 

ORS 136.440 requires “unequivocal” evidence that is “inconsistent with innocence” and establishes, independently of the 

testimony of the accomplice, defendant’s guilt. This court

has long held that

“[t]he corroboration need not be of itself adequate to support a conviction ** * ‘Any corroborative evidence legitimately tending to connect a defendant with the commission of the crime may be sufficient to warrant a conviction, 

although standing by itself it would be only slight proof of 

defendant’s guilt and entitled to but little consideration, 

and even though it is not wholly inconsistent with the innocence of the defendant.[’]”

State v. Reynolds, 160 Or 445, 459, 86 P2d 413 (1939). 

Consistently with those principles, the court more recently 

summarized the requirements of ORS 136.440 as follows:

“By its terms, ORS 136.440(1) requires only that the 

corroborating evidence tend to connect the defendant with 

the commission of the offense, here, aggravated murder. 

That statute does not require corroboration of a particular 

theory of the commission of the offense.

“It is not necessary that the corroborating evidence be 

direct and positive; it may be circumstantial. Nor is it necessary that there be independent corroborating evidence 

with respect to every material fact necessary to be established to sustain a conviction for the commission of a crime. 

Where there is any evidence apart from that of the accomplice tending to connect the defendant with the commission 

of the crime, the question of whether the accomplice’s testimony is corroborated is one for the trier of fact.”

State v. Walton, 311 Or 223, 242-43, 809 P2d 81 (1991) (citations omitted; emphasis in original). To be sure, evidence of 

a defendant’s association with an accomplice at a particular 

location, by itself, is insufficient to satisfy the corroboration 
Cite as 355 Or 612 (2014) 621

requirement of ORS 136.440. State v. Carroll, 251 Or 197, 

200, 444 P2d 1006 (1968). But such evidence still may be 

considered in conjunction with other evidence that, taken as 

a whole, tends to connect the defendant with the commission 

of the offense. See id.

With those principles in mind, we conclude that the 

record contains sufficient evidence to corroborate Stafford’s 

accomplice testimony relating to the commission of Jabbie’s 

murder. There is evidence that defendant broke into Jabbie’s 

apartment on July 4, 2004, and assaulted Jabbie. There is 

further evidence that Jabbie testified before a grand jury 

about the incident and that, the day before the murder, the 

grand jury issued an indictment charging defendant with 

first-degree burglary and fourth-degree assault. The evidence at trial thus established that defendant had assaulted 

Jabbie once and had motive to assault him—a key witness 

against defendant—the day after the indictment was issued. 

See State v. Klein, 243 Or App 1, 12, 258 P3d 528 (2011), aff’d, 

352 Or 302, 283 P3d 350 (2012) (accomplice’s “rendering of 

the motive for the crimes” was confirmed by other evidence 

relating to the events giving rise to the alleged motive).

In addition, the evidence at trial included the testimony of Grooms and Alcantara, who saw Stafford leave 

Jabbie’s apartment at about 10:30 p.m., heard gunshots 

fired moments later, and witnessed flashes through the 

window of Jabbie’s apartment. They also saw a man generally matching defendant’s description leave the apartment 

immediately after that.

The evidence at trial also included cell phone data 

corroborating precisely Stafford’s testimony about her and 

defendant’s movements the night of the murder. Specifically, 

the cell phone records show that a number of calls were 

placed to defendant’s cell phone, including two from a pay 

phone located at Clackamas Town Center and several others 

between defendant’s two cell phones placed between 10:00 p.m.

and 10:30 p.m. using cell towers located within two blocks of 

Clackamas Town Center. Taken in isolation, the cell phone 

data constitute mere association and location evidence, as 

defendant suggests. But in the context of the other evidence, 

it “tends to connect” defendant with the murder.
622 State v. Washington

In evaluating the sufficiency of the foregoing evidence, we stress that ORS 136.440(1) does not require complete corroboration of all of the elements of the offense. Nor 

does it require that corroborating evidence be direct and 

unequivocal. As this court emphasized in Walton, where 

there is “any evidence * ** tending to connect” the defendant 

with the commission of the offense, the question whether 

evidence corroborates the accomplice’s testimony is one for 

the trier of fact. 311 Or at 243. The evidence produced in this 

case meets that standard. The trial court therefore did not 

err in denying defendant’s motions for judgment of acquittal 

on the first five charges against him.

B. Use of Stun Device (Assignment 6)

In his sixth assignment, defendant asserts that 

the trial court erred in ordering that he wear a stun device 

during trial. The facts relevant to that assignment are as follows. In a pretrial hearing, the Clackamas County Sheriff’s 

Office required defendant to appear in court wearing a stun 

device. Defendant also learned that he would be required to 

wear a similar device during the trial. He objected, arguing that requiring him to wear a stun device during trial 

would violate his right to communicate with counsel and 

assist in his defense as guaranteed by Article I, section 11, 

of the Oregon Constitution and the Sixth and Fourteenth 

Amendments to the United States Constitution.

The trial court held a hearing on defendant’s objection. At that hearing, the state offered the testimony of 

Sergeant Phillips of the sheriff’s office in support of requiring defendant to appear in court wearing a stun device. 

Phillips explained that the sheriff’s office was responsible 

for security at the courthouse. He testified that defendant 

was a member of a gang, that he had “about 40 to 50” associates, and that the sheriff’s office was concerned that—either 

working alone or in concert with defendant—those persons 

might aid him in escaping from the courthouse; when asked, 

he agreed that gangs like the one with which defendant was 

associated “use power, influence, and violence to intimidate others.” Phillips also agreed that, based on defendant’s 

“athletic ability and strength,” he was capable of overpowering a deputy in the courtroom. The deputy was aware of 
Cite as 355 Or 612 (2014) 623

the charges in the case and that defendant had a “criminal 

history of violence” and agreed that defendant’s reported 

threats against Stafford were a “concern.” Phillips stated 

that defendant was classified as a “dangerous inmate” and 

that he was aware that defendant had told a deputy at the 

jail that the deputy was “not his boss.” He said that, without 

the use of the stun device, he could not “assure” the security of the courtroom. He noted that, in the courtroom, there 

would be numerous persons within 30 feet of defendant and 

that defendant could cover that distance in the time it would 

take a deputy to react.

Phillips also described the stun device that the 

sheriff’s office planned to use. The device was manufactured 

by the Stinger Company and was called a “React Band-it.” 

It was rectangular in shape and approximately four inches 

wide, six inches high, and one and one-half inches deep; it 

weighed approximately one pound. The device was meant to 

be worn on a limb or on the lower back underneath the subject’s clothing. It was classified as a “neuromuscular incapacitation” device that used “high levels of voltage with very 

low amperage” to deliver an electric shock to the wearer. 

Typical effects caused by activation of the device included 

pain, loss of mental focus, and uncontrollable muscle contractions in the area of the body where the device was located; 

Phillips testified that “people tend to fall down when they’re 

shocked” and “make loud noises” and that “[s]ome people 

freeze up in place.” He also explained that, more rarely, persons urinate or defecate when shocked. Phillips noted that 

defendant would be able to walk with the device in place and 

that, depending on the cut of his clothing, the device would 

not be visible to the jury. He said that the device could only 

be activated by the deputy holding the triggering device.

Phillips further testified that the “next most restrictive device” that was available was shackles and that those 

would be “observable,” and that a leg brace which could be 

worn under clothing was not “reliable” in preventing a defendant from escaping custody. He stated that other available 

security devices included handcuffs, fabric hobbles, Tasers, 

pepper spray, “impact weapons,” and firearms. Phillips 

described the “general nature” of security in the court 
624 State v. Washington

building, including the fact that it had multiple unlocked 

exits.

On cross-examination, Phillips testified regarding 

a notification form that persons signed when the device was 

used. The form explained the results of activation of the 

device, including falling to the ground and the “possibility” 

of “self-urination” and “self-defecation.” The form also indicated that certain medical conditions were relevant to the 

decision whether to use the device, including heart disease, 

multiple sclerosis, and pregnancy. The form listed the types 

of actions by a wearer of the device that might result in its 

activation, including “any outburst or quick movement,” “any 

hostile movement,” “tapping of the belt,” failure to comply 

with verbal commands, any attempt to escape custody, the 

custodial deputy’s “loss of vision[]” of the wearer’s hands, 

and “any overt act against any person or deputy.”

When asked whether defendant would be “conscious 

of the fact that you have this on,” Phillips responded, “Yes.” 

He confirmed that, as he had testified on direct examination, the plan to require defendant to wear the stun device 

was based in part on the “possibility,” not the “probability,” 

of “gang activity.” Phillips was not aware of any history 

of escape attempts, violence in the jail, or “acting out in a 

courtroom” by defendant. He testified that it “could be” that 

someone in the courtroom could see the deputy holding the 

triggering device.

Defendant argued to the trial court that there was 

nothing to suggest that he was an escape risk or that he 

was dangerous in the current proceeding. He asserted that, 

“[w]hen you talk about gang activity it’s speculative.” He 

argued that the device “would be likely to inhibit his ability 

to assist in his own defense” and that it would be an “imposition” on his ability to testify. He argued that there was no 

factual basis for the use of the device and that the court was 

required to consider “lesser” alternatives.

The trial court found and ruled as follows:

“* ** that [defendant] is a convicted felon and also has a 

history of convictions of person crimes involving violence; 

that in this case [defendant] faces a—if he is convicted 
Cite as 355 Or 612 (2014) 625

faces a substantial sentence and the risk of the death penalty; that [defendant] has a history of gang contacts and 

affiliations; that [he was] alleged to have intimidated witnesses in this case, and to have murdered a witness regarding charges in [another county]; that we have a lack of a 

secure courtroom; that there are exits from courtrooms 

into public areas, and many exits from the courthouse to 

the street; that the defendant if he were not encumbered in 

some way he would have a means of escape if there were no 

security device; that he will be in civilian clothing which 

would aid in his escape; that the Sheriff’s Department cannot guarantee security in this case without some sort of 

device; [g]iven the defendant’s size and physical capacities 

[defendant] poses the risk of overpowering a deputy or a 

witness if he’s not restrained; that given the facts of this 

case it would be difficult for law enforcement or personnel [sic] to identify any of [defendant’s] confederates that 

might be present in the courtroom; that the stun device 

will be operated only by trained personnel; that the device 

*** will not be visible under clothing; that the defendant 

will be seated at counsel table furthest away from the jury 

so as to minimize any possibility that something might 

be visible; that unless the device was activated it would 

not impede the defendant’s movements or ability to consult with his attorney; that this device is the least visible, 

least intrusive means of providing the security necessary 

for this trial; that because of these factors the defendant 

poses an immediate and serious risk of escape during the 

trial and [an] immediate and serious risk of disrupting 

the proceedings, and that because of all those [factors], 

the Stinger React Band-it, [is] an appropriate device for 

security in this case.”

After the trial court made those findings, Phillips 

further explained that the deputy holding the triggering 

device would be in uniform and that, in his experience, members of the public would not recognize the triggering device 

as part of a stun device system. The trial court ordered that 

the deputy holding the triggering device be in uniform. The 

next day, before jury selection began, the trial court found 

that the device, which was on defendant’s leg, was not visible and that the hands of the deputy holding the triggering 

device “would probably not be visible to the jurors.” The trial 

court made a similar finding at the beginning of each day of 

trial.
626 State v. Washington

On review, defendant again contends that use of the 

stun device failed to comport with Article I, sections 11 and 

13, the Sixth Amendment, and the Due Process Clause of 

the Fourteenth Amendment. Specifically, defendant argues 

that, if seen by a jury, such a device might prejudice the 

jury against a defendant, thereby impairing his right to a 

fair trial; and that, even if the device is not seen, it might 

impede a defendant’s ability to communicate with counsel 

and participate in his or her defense. Defendant notes that 

the latter concern is exacerbated in the case of a stun device 

as opposed to other forms of physical restraint, due to the 

possibility of its deliberate or accidental activation.

Defendant argues that the use of stun devices poses 

an issue of first impression for this court. He proposes that 

we adopt a detailed set of criteria that a trial court should 

be required to meet before it approves the use of a stun 

device, including holding a pretrial hearing if requested by 

the defendant and making findings on the record showing 

a “manifest need” for physical restraint of the defendant. 

According to defendant, factors relevant to the latter inquiry 

include the charges in the case; the defendant’s criminal and 

escape history, if any; any “special risks” posed by the proceeding; the physical characteristics of the courtroom and 

courthouse; and the availability of other security devices 

or measures. Other criteria advocated by defendant include 

that the device not pose an unacceptable medical risk to the 

defendant; that it not be capable of inflicting pain or suffering that would constitute “unnecessary rigor” in contravention of Article I, section 13; that it not be visible to the jury; 

and that it not prevent the defendant from communicating 

with counsel.

Defendant argues that, in his case, the trial court 

erred as a procedural matter in failing to consider on the 

record any less restrictive alternatives to the stun device, 

failing to consider any possible medical risk to defendant of 

using it, and failing to consider whether the pain that the 

device was capable of causing would constitute unnecessary 

rigor. Defendant also asserts that, as a substantive matter, 

use of the device was not justified in his case because he had 

no history of escape attempts, because he planned to remain 
Cite as 355 Or 612 (2014) 627

seated at counsel table throughout the proceeding, and 

because there were other courthouse security mechanisms 

available. Finally, he asserts that the trial court’s error was 

not harmless.

The state acknowledges that defendant had no history of escape attempts or misconduct while in custody, but 

contends that the nature of the current charges, defendant’s 

“history of violence,” his affiliation with a “dangerous street 

gang,” his previous intimidation of witnesses, his custody 

classification as a “dangerous inmate,” and his physical ability to overcome a deputy in the courtroom justified the use 

of restraints and that the stun device was the only available 

form of restraint that would not be visible to the jury. The 

state further contends that the risk of accidental discharge 

of the device was low and that defendant was fully informed 

of the actions that might prompt a discharge. It also contends that the trial court did, in fact, consider less restrictive alternatives and that, in any event, defendant declined 

to wear any device that would be visible, which included various less restrictive devices.

The state further asserts that any error was harmless because the stun device was not visible to jurors and 

because nothing in the record suggests that use of the device 

adversely affected defendant’s defense. As to the latter 

point, the state notes that defendant did not testify at trial, 

that nothing in the record demonstrates that he would have 

testified in the absence of the device, and that nothing in 

the record demonstrates that use of the device interfered 

with his ability to interact with counsel. The state urges 

this court not to presume prejudice from the mere possibility of mental and psychological effects arising from the use 

of such a device, but to find error only when adverse effects 

are affirmatively and concretely demonstrated.

The use of restraints during a criminal trial is not 

an issue of first impression. As this court stated in Bowen, 

340 Or at 495, “[t]his court long has recognized the right of 

a criminal defendant to appear free of physical restraints 

during a jury trial.” See also State v. Smith, 11 Or 205, 207, 

8 P 343 (1883) (citing with approval principles enunciated 

in State v. Kring, 1 Mo App 438 (1876), pertaining to the 
628 State v. Washington

common-law privilege to appear in court unfettered). That 

right is grounded in Article I, section 11, of the Oregon 

Constitution, which guarantees a defendant the right to a 

public trial by an impartial jury and the right to be heard 

“by himself [sic] and counsel,” and in the Sixth Amendment 

to the United States Constitution, which provides in part 

that, “[i]n all criminal prosecutions, the accused shall 

enjoy the right * ** to have the Assistance of Counsel for 

his defence [sic].” See also ORS 136.415 (“A defendant in a 

criminal action is presumed to be innocent until the contrary is proved.”); State v. Wall, 252 Or App 435, 437-38, 

287 P3d 1250 (2012), rev den, 353 Or 280 (2013) (physically 

restraining a defendant implicates Article I, section 11, and 

the Due Process Clause); State v. Bates, 203 Or App 245, 

250, 125 P3d 42 (2005), rev den, 340 Or 483 (2006) (same). 

Specifically, the use of physical restraints can impinge on 

the presumption of innocence to which a defendant is entitled and may also impair a defendant’s ability to participate 

in his or her defense, such as by consulting with counsel or 

by taking the stand as a witness. See Bates, 203 Or App at 

251.

Nevertheless, a trial court has discretion to order 

physical restraint of a defendant if there is sufficient evidence of a substantial risk of dangerous or disruptive behavior, including the risk of assaultive conduct toward other 

persons and the risk of an attempted escape from custody. 

See State v. Long, 195 Or 81, 90-93, 244 P2d 1033 (1952) 

(citing with approval cases from other jurisdictions holding 

that trial courts had discretion to order that a defendant be 

restrained when evidence showed that the defendant might 

attempt to escape, that he might attack other persons, or 

that he was of dangerous character, as evidenced by his previously having killed a guard).

Such evidence should be placed on the record in a 

hearing for that purpose. After hearing relevant evidence 

from the state and the defendant, the trial court must make 

a record of its factual findings and reasoning in support of 

its order. See generally McCarthy v. Oregon Freeze Dry, Inc., 

327 Or 185, 188, 957 P2d 1200 (1998) (“the practical needs of 

meaningful appellate review underlie the court’s obligation 
Cite as 355 Or 612 (2014) 629

to make explanatory findings” to support the exercise of 

discretion). We review a trial court’s order requiring that 

a defendant be physically restrained for purposes of courtroom security, including restraint by means of the electronic 

stun device at issue here, for abuse of discretion. See State 

v. Farrar, 309 Or 132, 156-58, 786 P2d 161, cert den, Oregon 

v. Wagner, 498 US 879 (1990) (trial court did not abuse discretion in ordering that defendant be restrained at trial by 

leg cuffs joined by a chain, because affidavits and a signed 

statement attested that defendant had threatened witnesses 

and had engaged in violent conduct toward other persons 

before his arrest).

Also pertinent to the inquiry is the extent to which 

a defendant establishes that the use of restraints interfered 

with his or her ability to participate with counsel in the 

defense of his case. See Bowen, 340 Or at 496 (declining to 

consider unpreserved claim of error relating to requirement 

that the defendant wear a stun belt during his trial, because 

“defendant failed to provide evidence or point to anything in 

the record indicating that the stun belt affected his ability 

to assist in his defense”).

In this case, evidence concerning defendant’s dangerousness and the risk of possible escape was placed on the 

record. And, based on that evidence, the trial court found 

that defendant had a history of violent person crimes; that 

the current charges involved a substantial sentence including the risk of a death penalty; that defendant had a history 

of gang affiliations; that he was alleged to have intimidated 

witnesses in this case; that his “size and physical capacities” 

might allow him to overpower other persons in the courtroom; and that the victim in this case had been a witness in 

another case. The court also referred to the features of the 

courtroom and the courthouse that pertained to the security 

of the proceedings. The trial court found that the stun device 

would be operated by trained personnel, that it would not 

be visible, that it would not impede defendant’s movements 

or his ability to consult with counsel, and that it was the 

“least visible, least intrusive” means of providing the necessary security. The court concluded that defendant posed an 

immediate and serious risk of escape and of disrupting the 
630 State v. Washington

proceedings and that use of the stun device therefore was 

appropriate. In addition to those findings, the trial court 

also made findings on each day of defendant’s trial that the 

device was in fact not visible to the jury; defendant does not 

contend otherwise.

Evidence in the record supports each of those findings. Moreover, defendant failed to offer any evidence or 

point to anything in the record that suggests that, because 

of the stun device, he was impeded in his effort to assist 

in his defense. On this record, we cannot say that the trial 

court abused its discretion in requiring that defendant be 

restrained by use of a stun device.

C. Anonymous Jury (Assignment 7)

In his seventh assignment of error, defendant 

argues that the trial court erred in empanelling an anonymous jury. The facts that are relevant to that assertion are 

as follows. Before the commencement of voir dire in defendant’s trial, the trial court and counsel for defendant and 

the state discussed, by e-mail and in chambers, the question whether and to what extent juror names would be disclosed. In an e-mail to counsel for the parties, sent two days 

before trial began, the court stated, “Given the nature of 

this case[,] I do not want jurors’ names to be used during 

voir dire, and do not want those names to be visible to the 

defendant or anyone else in the courtroom.”

On the morning that jury selection began, the prosecutor and defense counsel further discussed the subject 

with the court in chambers. Following that discussion, 

defense counsel noted for the record that the parties had 

discussed in chambers and by e-mail “whether or not the 

attorneys would be allowed to use or refer to the jurors by 

the last name.” Defense counsel explained that “[w]e would 

expect that the attorneys be allowed to.” Counsel urged the 

court on the record to permit the use of prospective jurors’ 

names in open court. Counsel noted that he was “aware that 

a number of these jurors have been on jury service,” that 

they “have been referred to by name previously in jury selection,” and that to deviate from what counsel characterized 

as standard practice would create “a sense of a need for anonymity” that would be prejudicial to defendant.
Cite as 355 Or 612 (2014) 631

The prosecutor replied that “we are neutral on this 

subject,” but wanted to note for the record “that the court 

has allowed the parties to have the names of the individual 

jurors, and I appreciate that very much,” because, as defense 

counsel explained, having those names aids in “identification of the jurors and understanding who they are and the 

relationships, too, and we think that’s very important.”

The trial court ordered that jurors be referred to 

in court “by number only” and that the names not be made 

available to the public. The court further stated that it 

would explain to jurors that “this is done in every case.” The 

trial court then provided such an explanation to each and 

every group of jurors questioned during voir dire. In a typical example of the explanation, the trial court explained 

to the first prospective juror that “[i]t’s how we do it on all 

cases. It may seem kind of impersonal, but it’s how we do it 

in all trials * **.”

On review, defendant argues that the trial court 

erred in empanelling an anonymous jury without finding, on 

the record, a sufficient basis for doing so. Defendant argues 

that the trial court’s ruling violated the impartial jury guarantee of Article I, section 11, of the Oregon Constitution. He 

further argues that, for the same reasons that empanelling 

an anonymous jury violated his rights under the Oregon 

Constitution, it likewise violated his rights under the Sixth, 

Eighth, and Fourteenth Amendments to the United States 

Constitution.

The state advances three arguments in response. 

First, the state argues that the jury empanelled in this case 

was not an “anonymous” jury. The state acknowledges that, 

in a pretrial ruling by e-mail, the trial court ordered that 

defendant not be allowed access to the prospective jurors’ 

names and that only counsel be given that information. 

Nevertheless, the state contends that, on the first day of jury 

voir dire, the prosecutor stated that the court had allowed 

“the parties” access to juror identities and nothing in the 

record suggests that defendant was not included. Second, the 

state argues that, in any event, defendant failed to preserve 

“[m]ost of the arguments” asserted in this assignment of 

error. In particular, the state contends that defendant failed 
632 State v. Washington

to ask the trial court to make findings supporting the use of 

juror numbers rather than names and failed to argue that 

use of an anonymous jury would violate his state or federal 

constitutional rights to an impartial jury or a public trial. 

Third, the state contends that the trial court’s directive did 

not prejudice defendant, because the court explained to the 

jurors that referring to them by number in open court was 

the practice used in all cases and because the jurors understood that the parties had been provided with their names 

and other personal information.

This court has addressed the circumstances under 

which it may be permissible to empanel anonymous juries 

in two recent cases, State v. Sundberg, 349 Or 608, 247 P3d 

1213 (2011), and State v. Rogers, 352 Or 510, 288 P3d 544 

(2012). Because those decisions are dispositive, we consider 

each of them in some detail before addressing the arguments 

that the parties dispute in this case.

In Sundberg, the defendant had been charged with 

several sex crimes. Prospective jurors in the case were 

directed by the trial court not to disclose their names, their 

addresses, or the names of their employers during voir dire, 

and neither the defendant nor defense counsel was permitted 

access to the restricted information. The defendant objected 

to the court’s procedure, arguing that failing to disclose juror 

identities compromised his ability to evaluate the prospective jurors. The trial court overruled the defendant’s objections, explaining that it, and a number of other judges in 

that circuit, had adopted the practice in all cases in response 

to concerns about juror privacy. 349 Or at 610-12.

After the jury returned a guilty verdict, the defendant renewed his objections by means of a motion for a new 

trial. Id. at 612. The defendant noted that some of the jurors 

had participated in or watched voir dire in other courtrooms 

in which juror anonymity was not required. Those jurors, 

he argued, might have concluded that the anonymity in 

his case was required because the court thought him to be 

dangerous, thus violating his right to an impartial jury and 

the presumption of innocence. Id. at 612-13. The trial court 

denied that motion, and the Court of Appeals affirmed on 

other grounds.
Cite as 355 Or 612 (2014) 633

On review before this court, the defendant argued 

that the trial court had erred in empanelling an anonymous 

jury without making findings justifying the procedure. The 

state’s initial response was that the defendant had failed to 

preserve that contention, by neglecting to ask the trial court 

to make findings before voir dire. Id. at 614. On the merits, 

the state argued that legitimate concerns for juror privacy 

justify anonymity and, in any event, it was highly unlikely 

that jurors would draw an inference from the practice that 

the defendant was dangerous or guilty. Id. at 618.

This court began by rejecting the state’s argument 

that the defendant had failed to preserve the issue. The 

court stated that the defendant plainly had preserved the 

“core claim” that empanelling an anonymous jury violated 

his rights to an impartial jury and the presumption of innocence. Id. at 614. The court acknowledged that the defendant 

had failed to request findings, but it concluded that, under 

the circumstances, that did not matter. The court noted, in 

particular, the fact that the trial court had stated categorically that it had decided, as a matter of general policy, to 

employ its procedure of empanelling anonymous juries and, 

implicitly, that findings were not needed to justify the procedure in any particular case. Id.

Turning to the merits, this court concluded that, 

although trial courts possess inherent authority to empanel 

anonymous juries in criminal cases, that authority is limited by a defendant’s right to an impartial jury, guaranteed 

by Article I, section 11, of the state constitution. 349 Or at 

617. The court further concluded that the use of anonymous 

juries can impair that constitutional right in either of two 

ways:

“Empanelling an anonymous jury can affect a defendant’s 

right to such an impartial jury, first, by hindering his ability to conduct voir dire and select jurors who are impartial, and second, because it is an external factor—not the 

facts or the law—that may compromise the jury’s ability to 

remain impartial by implying that a defendant is dangerous, thus undermining the presumption of innocence. To 

be sure, anonymity may also imply a legitimate concern for 

juror privacy unrelated to the dangerousness of a defendant. But in a criminal case, there is a significant risk that 
634 State v. Washington

members of the jury might infer that their names were 

being withheld to protect them from defendant or others 

acting on his behalf.”

Id. at 620 (citations omitted).

Because of that potential to impair a defendant’s 

constitutional rights, the court concluded that anonymous 

juries are permissible on only two conditions. First, the 

trial court must make findings “that the circumstances of 

the particular trial provide sufficient grounds to believe 

that jurors need the protection provided by anonymity.” 

Id. at 621. While it endorsed no particular factors that a 

trial court may consider, the court stated that courts have 

authority “to protect jurors from the risk of physical harm, 

intimidation, or harassment—whether by parties, the press, 

or the public—by withholding juror names and other identifying information.” Id. at 622. The court emphasized, however, that the need for an anonymous jury “must be made on 

the facts of each case—and not on the basis of a generalized 

desire to protect the anonymity of jurors in all cases in the 

interest of juror privacy.” Id.

Second, if the trial court makes appropriate findings that grounds exist to empanel an anonymous jury, then 

the court “must take reasonable precautions to ensure that 

the defendant’s right to an impartial jury is protected.” Id. 

Those precautions may include permitting extensive voir 

dire and providing a neutral explanation to the jury regarding the need for anonymity. Id. at 622-23.

The court in Sundberg concluded that the trial court 

had erred in failing to make any findings about the need for 

an anonymous jury. Id. at 624. The court further concluded 

that the error was not harmless. The court noted that “the 

use of an anonymous jury can cause prejudice to a defendant 

by suggesting to jurors that the defendant may be dangerous 

and, by extension, guilty.” Id. at 624-25. That possibility, the 

court said, was heightened because some of the jurors had 

participated in other cases in which anonymous juries had 

not been used. Id. Particularly in a case in which the state’s 

case largely turned on the credibility of the witnesses, the 

court concluded that “the unexplained use of an anonymous 

jury created too great a risk that the jury may have believed 
Cite as 355 Or 612 (2014) 635

that defendant was dangerous—and, therefore, that he was 

more likely to be guilty, denying defendant the right to a 

trial by an impartial jury.” Id.

In Rogers, the defendant had been convicted of multiple counts of aggravated murder and sentenced to death; the 

convictions had been affirmed on appeal, but the sentence 

had been vacated and remanded for resentencing. State v. 

Rogers, 313 Or 356, 836 P2d 1308 (1992), cert den, 507 US 

974 (1993). On remand, a jury was empanelled solely for 

the purpose of sentencing. The trial court gave prospective 

jurors the option of withholding certain identifying information requested on juror questionnaires. It also prohibited the 

use of juror names in open court and prohibited the defendant from having access to juror names and other identifying information. The court did provide the defendant’s 

attorneys with prospective jurors’ names and addresses and 

permitted them to question individual jurors about withheld 

information and informed at least some members of the jury 

of that fact. It also informed the jury that the described procedure was for the sole purpose of protecting their privacy 

from the public, consistent with an informal policy adopted 

by some of the judges in that particular circuit. 352 Or at 

534-37.

On review, the defendant argued—relying on 

Sundberg—that the trial court had erred in overruling his 

objections to empanelling an anonymous jury. The state 

responded that the jury was not, in fact, “anonymous” within 

the meaning of Sundberg, because, although the defendant 

was not permitted to know the names of the jurors, his lawyers were. Id. at 537.

This court rejected the state’s argument, explaining that

“[j]urors may be ‘anonymous’ in different ways—from the 

defendant’s perspective, because the defendant does not 

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

information, and from their own perspective, because they 

understand that identifying information that they ordinarily would be required to provide may be withheld, and, 

in any event, will not be provided to the defendant.”
636 State v. Washington

Id. at 540. The court explained that, when a jury is anonymous from the perspective of the defendant, it may prevent 

the defendant from assisting in identifying jurors who may 

be biased against him or her. The court further explained 

that, when a jury is anonymous from the perspective of the 

jury itself—particularly when a jury is aware that anonymity is not the norm—that circumstance may suggest that 

their identities are being protected because the defendant is 

dangerous. Id. at 540-41. The court reasoned that the procedure that the trial court used “gave rise to the same risks 

that the court identified in Sundberg.” Id. at 541. The court 

concluded that the principles relating to anonymous juries 

therefore were applicable. Id.

On the merits, this court concluded that the trial 

court erred in failing to make the required findings and had 

instead relied on a generalized policy that it apparently had 

applied to all cases. Id. at 542. The court further concluded 

that the error was not harmless, particularly in light of the 

fact that concerns about the inference of dangerousness that 

jurors may draw from their anonymity are “amplified” in 

the context of a capital penalty-phase proceeding, in which 

a defendant’s future dangerousness is “specifically at issue.” 

Id. at 544.

With this court’s decisions in Sundberg and Rogers

in mind, we turn to this case. We begin with the state’s 

contention that the jury was not actually “anonymous.” As 

we have noted, the state advances two arguments in support of that contention: First, because the record does not 

demonstrate that juror identities were not made available 

to both defendant and his lawyers, and second, because, 

in any event, the information was made available to his 

lawyers.

The first of the state’s arguments is defeated by the 

pretrial ruling that, “Given the nature of this case[,] I do 

not want jurors’ names to be used during voir dire, and do 

not want those names to be visible to the defendant.” The 

state acknowledges that ruling, but it insists that the court 

might have changed its mind after further in-chambers discussions, as reflected by the prosecutor’s later summary of 
Cite as 355 Or 612 (2014) 637

the court’s decision to allow “the parties” to have the names 

of the individual jurors. As we have noted, however, defendant’s lawyer summarized the same decision as allowing 

“the attorneys” to have access to juror identities. Moreover, 

nothing that the court said during the proceedings suggests 

that it had changed its mind about providing defendant 

access to the information.

As for the contention that jurors are not “anonymous” if their names are revealed to counsel, Rogers is dispositive. The state made precisely the same argument in 

that case, and this court rejected it. We do so likewise in 

this case.

We turn to the state’s argument that defendant 

failed to preserve the contention that the trial court was 

required to make findings before empanelling an anonymous jury. Defendant concedes that he did not ask the 

court to make any particular findings before empanelling 

the jury. He argues, however, that neither did the defendant 

in Sundberg. According to defendant, just as the court in 

Sundberg found that the defendant in that case nevertheless 

adequately preserved the issue, so also should we conclude 

in this case, based on the fact that, in light of the court’s 

statement that anonymous juries were required in all cases, 

a request for findings would have been superfluous.

We need not address that argument because, even 

assuming that defendant is correct that his failure to ask 

for findings may be excused, the trial court did not commit 

reversible error in empanelling an anonymous jury. As we 

have noted, both Sundberg and Rogers stated that, before 

empanelling an anonymous jury, a trial court must make 

findings that the particular circumstances of the case provide strong grounds for the practice. The requirement, however, does not exist for the mere sake of making findings. It 

exists for the purpose of ensuring that the trial court carefully considers the justifications for empanelling an anonymous jury in the context of the particular case. In this 

case, the record reflects that the trial court carefully took 

into consideration the particular circumstances of this case 

before deciding to empanel an anonymous jury.
638 State v. Washington

The trial court explained that it believed that “the 

nature of this case” justified the practice. To be sure, the 

trial court did not spell out precisely what it meant by “the 

nature of the case.” But it is not difficult to determine what 

the trial court meant.

In that regard, it is useful to note that the trial 

court’s consideration of the parties’ arguments about the 

use of an anonymous jury followed immediately on the heels 

of its consideration of their contentions concerning the use 

of a stun device. Indeed, the arguments are separated by a 

few lines on the same page of the transcript of pretrial proceedings. The trial court had just found, in some detail, that 

defendant was a convicted felon with a history of convictions for person crimes involving violence; that he had a history of connections with gangs; that he faced a substantial 

sentence that included a risk of the death penalty; that he 

already had been alleged to have intimidated witnesses in 

the case; that the courtroom was not secure; that there were 

many exits directly from the courtroom to the street; that 

defendant posed a significant risk of attempting to escape 

from the courtroom; and that, given his size and weight, 

defendant could readily overpower court security personnel 

or others in the courtroom.

In Sundberg, this court enumerated a “nonexclusive 

list” of factors that trial courts may consider in determining 

when it is appropriate to empanel an anonymous jury. Those 

factors include the defendant’s involvement with organized 

crime, the defendant’s participation in a group with potential to harm jurors, the defendant’s past attempts to interfere with the judicial process or witnesses, and the risk of 

lengthy incarceration if the defendant is convicted. 349 Or at 

621-22. In this case, the trial court’s findings concerning the 

need to require defendant to wear a stun device addressed 

each of those factors.

Defendant did not object at trial that the trial 

court’s findings were inadequate. Nor does he suggest on 

appeal that the findings do not meet the requirements of 

Sundberg and Rogers. Instead, as we understand it, defendant’s argument is that the trial court erred in failing to 

repeat the same findings that it had just made with respect 
Cite as 355 Or 612 (2014) 639

to one aspect of courtroom security when addressing another. 

Although repeating the findings—or at least adopting them 

by reference—certainly may be preferable, we cannot say 

that it amounts to reversible legal error to fail to do so. Here, 

the trial court made the record that Sundberg and Rogers

require a trial court to make.

There remains the question whether the trial court, 

having made the necessary findings to support withholding 

juror names from defendant, took reasonable precautions 

to ensure that defendant’s right to an impartial jury was 

protected. In Sundberg, the court explained that the precise 

nature of those precautions “may differ depending on the 

circumstances at trial.” 349 Or at 622. One precaution that 

the court mentioned, however, was a trial court’s provision 

of “a neutral explanation[] for withholding juror identities.” 

Id. at 623.

In this case, the trial court did just that. As we have 

noted, the trial court advised every group of jurors during 

voir dire to the effect that referring to jurors by number, 

and not by name, “is how we do it in all cases” and “it’s 

how we do it in all trials.” Such an explanation provided 

the jury with a plausible and nonprejudicial reason for not 

using their names and minimized the extent to which jurors 

might draw a negative inference from the practice. Under 

the circumstances, we conclude that the trial court did not 

err in empanelling an anonymous jury.

D. Penalty Phase Security Measures (Assignments 8-10)

In his eighth, ninth, and tenth assignments of error, 

defendant challenges the trial court’s implementation of various additional security measures during the penalty phase 

of the trial without first informing the parties. Specifically, 

in his eighth assignment, defendant argues that the trial 

court erred in failing to inform him earlier that some jurors 

had expressed concerns to the judge’s clerk about courtroom security. In his ninth assignment, defendant argues 

that the trial court erred in adopting additional security 

measures without informing the parties. And, in his tenth 

assignment, he argues that the trial court erred in denying 

his request to interview the jury regarding the effect, if any, 

of the security measures on its penalty-phase deliberations. 
640 State v. Washington

The trial court’s errors, defendant argues, deprived him of 

the right to a fair trial and an impartial jury guaranteed 

by Article I, section 11, of the Oregon Constitution and the 

Sixth and Fourteenth Amendments to the United States 

Constitution.

The relevant facts are as follows. On the day that 

the jury notified the court that it had reached a verdict in 

the guilt phase of defendant’s trial, “at least half of” the 

jurors expressed concern to the trial judge’s judicial clerk, 

Hauck, about security in the courtroom as the verdict was 

read. Jurors expressed concern that spectators would be 

“audible” or “upset,” that jurors would have to pass near 

“family members or people from the courtroom” while leaving the courtroom, and that they would be followed outside the courthouse; they asked for an escort to their vehicles. Hauck later described jurors’ concerns as relating to

“[r]eactions from people in the courtroom.” One juror told 

Hauck that, during an earlier part of the trial, as she was 

leaving the courthouse, “she thought that someone from the 

gallery had said something to her in the hallway.” Hauck 

testified that, when conveying their concerns, many of the 

jurors were “crying,” “upset,” “concerned,” and “scared”; she 

also described them as “excited, emotional.” Hauck immediately informed the trial judge of the jurors’ concerns.

The jury then went to the courtroom to deliver its 

guilt-phase verdict. The trial judge cautioned persons in the 

courtroom to turn off all electronic devices and not to react 

in any way to the verdict. The subsequent pronouncement 

of the verdict was outwardly uneventful, and the trial court 

instructed the jury to report the following week for commencement of the penalty phase.

After jurors returned to the jury room, they expressed

to Hauck further concerns about the court having instructed 

them in open court about the time and place they were to 

return the following week for the penalty phase. The jurors 

decided to meet at a parking area and walk to the courthouse together. Hauck informed the trial judge of those concerns as well. At the end of the day, the jurors left the courthouse by way of fire stairs and a van took them to their cars; 

neither of those methods had previously been used. At her 
Cite as 355 Or 612 (2014) 641

request, one juror was escorted across the street to meet a 

family member.

On Monday of the following week, the trial judge and 

courthouse security staff decided that jurors should meet on 

Tuesday at a public parking area, where a county van would 

pick them up and bring them to the courthouse. A member of 

the judge’s staff telephoned the jurors and informed them of 

the arrangement, which continued throughout the penalty

phase.

The next day, in its opening statement in the penalty 

phase, the state discussed defendant’s gang affiliation and 

his history of violent conduct and informed the jury that its 

penalty-phase evidence would focus on the second applicable question: whether there was a probability that defendant 

“would commit criminal acts of violence that would constitute a continuing threat to society.” ORS 163.150(1)(b)(B).

According to Hauck, when the jurors returned to the jury 

room, they were “pretty upset,” “shocked,” had “the deer in 

the headlights look,” and “seemed scared.” That same day, 

they asked if their lunch would be provided and, when told it 

would not, “they started to coordinate amongst themselves 

to go to one location to eat and eat together.” When advised 

later that day that lunch would be provided, they “seemed 

happy” that they would not have to leave the courthouse.

In the evidentiary portion of the penalty phase, the 

state offered the testimony of a number of witnesses, including law enforcement officials, a juvenile custody service 

worker, a parole and probation officer, corrections officials, 

and Stafford. Those witnesses testified about defendant ‘s 

long affiliation with the Six Deuce Crips gang, the nature of 

gang culture generally and the propensity of gang members 

to pose prison security problems, and defendant’s record of 

gang-related criminal activity in particular, including his 

involvement with illegal drugs and weapons, violent crime, 

sex abuse, and “aggressive and hostile” behavior while in a 

correctional institution. 

Defendant also called a number of witnesses, including family members and personal acquaintances, who testified that defendant is a caring son, a compassionate father to 
642 State v. Washington

his children, and a protective brother to his siblings. Defendant also called a forensic psychologist, who testified that, 

although defendant had a history of violence in the community, he had no record of reported incidents of violence, possessing a weapon, or acting on behalf of a gang during five 

years in various adult correctional institutions. The psychologist acknowledged, however, the possibility that defendant 

could influence other gang members to engage in violent 

acts outside the prison. Finally, defendant called a prison 

consultant, who testified that, although defendant had been 

sanctioned for being disobedient to institutional staff members, he believed that the Department of Corrections could 

“manage” defendant’s conduct in an institution.

After the presentation of evidence in the penalty 

phase, and outside the presence of the jury, the trial court 

informed the parties that, from the beginning of the penaltyphase proceeding, it had implemented certain additional 

security measures. The following day, the court placed on 

the record the following summary of its disclosure:

“Last evening after trial, I disclosed to the attorneys that 

certain security measures had been implemented around 

the courthouse for the security of the jury. I did not disclose 

this earlier, because of the need to preserve the integrity of 

that security. I did disclose it last night in order to give the 

defense an opportunity to make a record about any effects 

those security measures could possibly have on the jury’s 

decision-making.

“I want to make a record about the jury’s request for 

security and what the Court did in response to the jury’s 

request. I also want to make a record about what security 

threats were perceived by law enforcement personnel and 

what they did to address those threats.”

The trial court then took evidence specifically relating to the implementation of the additional security measures, including testimony by the court’s judicial clerk 

about the concerns expressed to her by the jury at the conclusion of the guilt phase, as described above. In addition, 

Sergeant Phillips—who, as previously noted, was responsible throughout the guilt and penalty phases for courtroom 

and courthouse security—testified that three persons identified as having past gang associations had attended parts 
Cite as 355 Or 612 (2014) 643

of defendant’s trial and that, when that occurred, deputies 

made special efforts to keep track of those persons; he stated 

that deputies were particularly concerned about defendant’s 

brother, who was scheduled to testify for the defense and 

whom Phillips described as a “very dangerous, violent” person. On one occasion, Phillips was informed by another deputy that one of the identified gang associates had made a 

comment to the victim’s uncle. Another witness told Phillips 

that he was “scared to death.” Phillips generally described 

the security surrounding defendant’s trial as being raised 

“to a new height” due to concerns about defendant’s own 

capabilities and also about “what his extended network of 

associates would be willing to do for him and with him.” 

He testified that defendant’s codefendant, Stafford, was 

afforded “special transportation” to and from the courthouse 

on the days that she testified.

Phillips testified that, after the jury rendered its 

guilt-phase verdict, he was notified by the judge’s staff 

about the jury’s safety concerns; he believed that the measures that were implemented at the beginning of the penalty phase were, “at the very minimum, appropriate.” He 

also stated that, if further resources had been available, he 

would have provided a higher level of security. He testified 

that the capacity of the gallery was approximately 50 persons and that he was unable to distinguish which persons 

were associated with defendant and which with the victim; 

that, if special transport methods had not been instituted, 

there would have been an increased risk of contact between 

jurors and spectators; and that keeping the security measures secret was itself a component of the security plan. 

Phillips testified that he did not discuss the jurors’ concerns 

with them and that officers involved in transporting jurors 

were instructed not to have any conversations with them; 

for example, when a juror asked another deputy about defendant’s whereabouts, the deputy declined to respond.

The prosecutor also testified in regard to the perceived need for the penalty-phase security measures. He 

testified that, as he and the victim’s uncle were leaving the 

courtroom after the jury gave its guilty verdict, he observed 

an associate of defendant make a threatening comment to 
644 State v. Washington

the victim’s uncle; that two other witnesses expressed fears 

about their safety; and that telephone threats were made 

to another witness to the effect of, “You testify, and you’re 

dead.” The prosecutor testified that he informed the sheriff’s 

department of those incidents and asked them to take them 

into account in formulating security measures for the penalty phase. The prosecutor believed that the security risks 

associated with defendant’s trial were “the gravest that I 

have ever encountered.”

Following presentation of the described testimony 

regarding the jury’s penalty-phase security concerns, defendant moved for a mistrial or, in the alternative, for a directed 

verdict in the penalty phase of life in prison. Specifically, 

counsel argued that individual jurors’ expressions of their 

fears tainted other jurors’ views of the trial and that, the 

court, in responding to those concerns, effectively “validated” them. He argued that, although the court could have 

come to the conclusion that the additional security measures 

were appropriate, the defense should have been informed. 

Counsel argued that, “at least the parties would have had 

an opportunity to tailor a case differently, maybe address 

certain fears that even the jurors would have, through questioning.” Counsel did not otherwise elaborate, however, on 

what he would have done differently had the court informed 

the parties of the jurors’ concerns earlier—what additional 

witnesses might have been called, what different questions 

might have been asked, what different testimony might 

have been elicited, or what different arguments might have 

been advanced. 

The state acknowledged that “it would have been 

better” if “both parties” had been aware of the security measures, but argued that the case had presented “unique” 

security concerns and that keeping the security plans secret 

was an appropriate part of the court’s response to those concerns. The state argued that the trial court had inherent 

authority to impose the measures and that there was no evidence of any jury “taint.”

The trial court denied defendant’s mistrial motions. 

Defendant then moved to be allowed to question the jurors 
Cite as 355 Or 612 (2014) 645

with respect to the security measures. The trial court denied 

that motion as well.

The parties then proceeded to closing arguments. 

The state focused primarily on the second penalty-phase 

question: whether there was a probability that defendant 

would commit criminal acts of violence that would constitute a continuing threat to society. The state pointed in part 

to evidence that, even when he was incarcerated, defendant 

had a motive to carry out acts of violence against persons 

outside the prison, including “snitches,” and that he had 

the means to do so through gang members who were “dedicated” to him as a “leader” and were willing to commit acts 

of violence at his direction. The state also noted defendant’s 

record of recidivism, including convictions for violent crimes 

after serving sentences on previous convictions. Finally, it 

pointed to the nature of the particular murder in this case, 

murder of a witness.

Defense counsel’s closing argument (both of defendant’s attorneys gave closing arguments) addressed the subject of the jurors’ fears of defendant. Counsel emphasized 

that the law required the jurors to act on the evidence and 

the law, not on their fears: “Are you afraid of [defendant]? 

Are you in fear of [defendant]? If you answer these questions based on emotion, he dies. That’s not the law.” Counsel 

told the jury that the state “tried to scare you. They tried to 

scare you by using the word ‘gang’ with virtually every witness.” But the evidence, counsel explained, did not support 

the state’s contentions. According to defendant’s counsel, the 

evidence showed that defendant was a caring family man 

who, at age 37, posed no future risk of danger while serving 

a life sentence in prison.

Following the parties’ closing arguments, the trial 

court offered to instruct the jury as follows:

“Security Measures Not to Be Considered By the Jury. Various security measures are implemented in all court proceedings. Such measures should in no way be construed by 

you as any indication that the Court has formed an opinion 

about the matters you are to consider in your deliberations, 

and should have no weight or bearing whatsoever in your 

deliberations.”
646 State v. Washington

Defendant declined that instruction, and the state deferred 

to defendant’s choice in that regard. As previously noted, 

the jury answered the three applicable penalty-phase questions in the affirmative, and the trial court sentenced him 

to death.

Again, in his eighth and ninth assignments of error, 

defendant asserts that the trial court erred in failing to 

disclose to him communications between the jury and the 

court and in failing to notify him of the additional security 

measures. At the outset, the precise nature of defendant’s 

assignments is not clear to us. Ordinarily, an assignment 

of error is required to target a particular ruling of the trial 

court. See ORAP 5.45(3) (“Each assignment of error shall 

identify precisely the * * * ruling that is being challenged.”). 

In this case, defendant’s eighth and ninth assignments do 

not address any particular rulings. As we understand it, 

however, the trial court’s failure to disclose the jury’s communications with the court and the implementation of additional security measures without notice provided the bases 

for defendant’s motion for a mistrial. Consistently with that 

understanding, we note that defendant states in his brief 

that he preserved the eighth and ninth assignments of error 

by moving for a mistrial. Accordingly, we take defendant’s 

eighth and ninth assignments of error to be directed at the 

trial court’s denial of his mistrial motion.

We review the denial of a motion for a mistrial for 

abuse of discretion. State v. Davis, 345 Or 551, 582-83, 201 

P3d 185 (2008). To the extent that the trial court’s ruling 

was predicated on a conclusion of law, however, we review 

that aspect of the decision for errors of law. See State v. 

Rogers, 330 Or 282, 310, 4 P3d 1261 (2000) (when discretionary ruling is based on legal ruling, that component of 

the decision is reviewed for legal error).

In his eighth assignment, defendant argues that 

the trial court erred as a matter of law in failing to disclose 

to counsel and the parties its communications with the jury. 

According to defendant, Uniform Trial Court Rule (UTCR) 

3.120 requires courts to disclose their communications with 

juries, and the trial court’s failure to do so here was both 

improper and presumptively prejudicial.
Cite as 355 Or 612 (2014) 647

The state responds that UTCR 3.120 is inapplicable here because it prohibits court employees from initiating 

contact with jurors whereas, in this case, jurors initiated the 

contact with court personnel regarding their security concerns, and neither court staff nor the trial judge responded 

to or communicated with the jurors directly regarding their 

expressed concerns. The state argues that, accordingly, no 

improper ex parte contacts occurred. Rather, the contacts 

were in the nature of “housekeeping” or “incidental” contacts, unrelated to the substance of the case; in those circumstances, reversal is not warranted absent harm to a 

defendant’s substantive rights.

UTCR 3.120 provides that, subject to certain exceptions, “parties, witnesses or court employees must not initiate contact with any juror concerning any case which that 

juror was sworn to try.” In this case, it is undisputed that 

no party, witness, nor court employee initiated any contact 

with any juror. In light of the fact that there was no violation 

of UTCR 3.120, we need not address defendant’s contention 

that the violation was presumptively prejudicial.

In his ninth assignment, defendant contends that 

the trial court abused its discretion in implementing various additional security measures without first informing 

the parties. Defendant acknowledges that he is unaware of 

any case law holding that a trial court abuses its discretion 

in failing to inform the parties of additional security measures. Nevertheless, he argues that, because the adoption of 

additional security measures has the potential to influence 

the jury’s assessment of a defendant’s dangerousness, that 

potential, in turn, could cause the jury improperly to infer a 

greater likelihood of guilt. Accordingly, defendant argues, the 

trial court’s decision—although concededly discretionary—

should be subject to “close scrutiny.”

The state contends that the trial court did not abuse 

its discretion in adopting the additional security measures 

or in failing to tell the parties, in advance, of its decision to 

do so. According to the state, the measures themselves were 

not “extraordinary” or of a type that is “inherently prejudicial,” such as the use of shackles visible to a jury. Moreover, 

the state argues, the record supports the implementation of 
648 State v. Washington

the additional security measures. In that regard, the state 

observes that there is little likelihood that the jury drew 

any adverse inferences from the additional security as to 

defendant, given that what prompted the additional security 

was the jury’s concern about others in the courtroom, not 

defendant. Finally, the state notes that defendant declined 

the trial court’s offer to instruct the jury not to consider the 

measures.

Defendant’s arguments concerning the trial court’s 

decision to implement additional security measures without first informing the parties implicates two distinct trial 

court decisions. First, there is the court’s decision to implement the additional security measures. Second, there is 

the court’s failure to advise the parties of that decision in 

advance. Those two decisions implicate distinct concerns, 

and so we address them separately.

We begin with the court’s decision to implement 

additional security measures. As we have noted, defendant 

argues that the additional security measures threatened 

his right to an impartial jury because such additional measures suggested that defendant was especially dangerous. 

Defendant acknowledges that the trial court’s decision in 

that regard was a matter of discretion. Nevertheless, he 

argues that, under the circumstances of this case, the trial 

court abused that discretion.

Assuming for the sake of argument that the adoption of additional security measures suggests to the jury that 

it was defendant—as opposed to others in the courtroom—

who was dangerous, defendant’s argument appears to 

assume that all security measures are equally prejudicial. 

We are not persuaded that the assumption is justified.

Instructive in that regard is the United States 

Supreme Court’s decision in Holbrook v. Flynn, 475 US 560, 

106 S Ct 1340, 89 L Ed 2d 525 (1986). At issue in that case 

was whether a criminal defendant was denied his constitutional right to a fair trial when, at the defendant’s trial 

with five codefendants, the trial court decided to supplement 

the ordinary courtroom security detail with four additional 

uniformed state troopers sitting in the first row of the spectators’ section. The Court began its analysis by noting that 
Cite as 355 Or 612 (2014) 649

central to the right of a fair trial guaranteed by the Sixth 

and Fourteenth Amendments is the principle that a person accused of a crime “is entitled to have his [or her] guilt 

determined solely on the basis of the evidence introduced at 

trial, and not on grounds of official suspicion, indictment, 

continued custody, or other circumstances not adduced as 

proof at trial.” Id. at 567 (citation omitted). “This does not 

mean,” the court then qualified, “that every practice tending 

to single out the accused from everyone else in the courtroom 

must be struck down.” Id. Only when a security measure is 

“inherently prejudicial” is “close scrutiny” required. Id. at 

568. Even then, the court observed, such inherently prejudicial measures may be justified by the circumstances of the 

particular case. Id. But, in the absence of such inherently 

prejudicial security measures as visible shackles and gags, 

it is the defendant who bears the burden of proving that the 

security measures caused actual prejudice. Id. at 572.

In State v. Cavan, 337 Or 433, 98 P3d 381 (2004), 

this court addressed the right to an impartial jury under 

Article I, section 11, of the state constitution in similar fashion. At issue in that case was the constitutionality of conducting the defendant’s criminal trial in the Snake River 

Correctional Institute. Specifically, the defendant argued 

that conducting his trial in prison violated his rights to an 

impartial jury under Article I, section 11, and his rights to 

due process under the Fourteenth Amendment.

The Court of Appeals held that the defendant did 

not state a cognizable claim under Article I, section 11. State 

v. Cavan, 185 Or App 367, 372-73, 59 P3d 553 (2002). As for 

the due process claim, the court, citing Holbrook, concluded 

that the defendant’s federal constitutional rights were implicated, because conducting a trial in a prison was “inherently 

prejudicial.” Id. at 373-75. Nevertheless, the court concluded 

that the trial court’s security concerns justified the practice 

as a proper exercise of trial court discretion. Id. at 377.

This court reversed, concluding that conducting the 

defendant’s trial in prison violated his rights under Article I, 

section 11. Cavan, 337 Or at 449. Although the court based 

its decision solely on the state constitution, it quoted extensively from the Court of Appeals’ due process analysis under 
650 State v. Washington

Holbrook and expressly concluded that conducting a criminal trial in a prison is “inherently prejudicial.” Id. at 447. 

That inherent prejudice is so great, the court ultimately concluded, that the Court of Appeals erred in concluding that 

the trial court’s decision did not amount to an abuse of discretion. See id. at 449.

Following Holbrook and Cavan, then, the first issue 

is whether the security measures in question were “inherently prejudicial,” a question of law. Defendant in this case 

does not argue that the additional security measures qualified as inherently prejudicial, and we are aware of nothing in the record to suggest that they did. Accordingly, the 

“close scrutiny” for which defendant contends does not apply. 

Rather, defendant bears the burden of establishing that the 

trial court abused its discretion in adopting the security 

measures that it did. In that regard, we note that the court 

did conduct an evidentiary hearing concerning the need for 

those additional security measures and gave defendant the 

opportunity to contest the adequacy of the record to support the trial court’s decision. Cf. United States v. Theriault, 

531 F2d 281, 285 (5th Cir), cert den, 429 US 898 (1976) 

(“Counsel, or the defendant himself in appropriate cases, 

should be given an opportunity both to respond to the reasons presented and to persuade the judge that such measures are unnecessary.”). Moreover, the trial court offered 

to instruct the jury not to draw any adverse inferences from 

the additional security measures. But defendant declined 

the court’s offer. And, on appeal, defendant does not contest 

the adequacy of the record to support the court’s decision to 

implement the additional security measures. Under the circumstances, we find no abuse of discretion in the trial court’s 

decision to implement those additional security measures.

We turn to the court’s failure to inform the parties of its decision to implement those measures in advance. 

Defendant argues that he should have been given notice of 

the court’s decision before it implemented additional security measures. In support, defendant cites federal circuit 

court decisions in which the courts held that courts should 

give criminal defendants the opportunity to contest the reasons for additional security. See, e.g., United States v. Brazel, 
Cite as 355 Or 612 (2014) 651

102 F3d 1120, 1158 (11th Cir), cert den, 522 US 822 (1997) 

(“[When a] district court implements unusual visible security measures, it is required to state reasons for doing so 

on the record and give counsel an opportunity to respond.” 

(Citing Theriault, 531 F2d 281)).

We need not address whether defendant is correct 

that the trial court erred in failing to give such advance 

notice, however. Even assuming that the trial court erred, 

defendant has failed to explain how he was harmed by that 

error. As we have noted, defendant argued to the trial court 

that, had the court provided advance notice, “at least the 

parties would have had an opportunity to tailor a case differently, maybe address certain fears that even the jurors 

would have, through questioning.” Counsel, however, did not 

otherwise elaborate on what he would have done differently 

had the court informed the parties of the jurors’ concerns 

earlier—what additional witnesses might have been called, 

what different questions might have been asked, what different testimony might have been elicited, or what different 

arguments might have been advanced. Indeed, as we have 

noted, on appeal, defendant has not contended that the trial 

court’s decision to implement the additional security measures lacks support in the record. Under the circumstances, 

we cannot say that any error that the trial court committed 

in failing to provide notice of the additional security measures requires reversal.

That leaves defendant’s tenth assignment, in which 

he contends that the trial court erred in denying him the 

opportunity to question the jurors about the possible effects 

of the security measures. The state argues that defendant’s 

request to question jurors runs counter to the state’s strong 

policy of protecting jury verdicts from attack. Moreover, the 

state contends, examining the jurors about their “thought 

processes” is an impermissible subject of inquiry. Defendant 

relies on a dissenting opinion in the Court of Appeals case, 

Koennecke v. State of Oregon, 122 Or App 100, 857 P2d 148, 

rev den, 318 Or 26 (1993), in arguing that he should have 

been given the opportunity to question jurors.

Once again, the trial court’s decision is reviewed 

for an abuse of discretion. See State v. Moore, 324 Or 396, 
652 State v. Washington

425-26, 927 P2d 1073 (1996) (denial of motion for evidentiary

hearing to determine whether there was juror misconduct 

reviewed for abuse of discretion). The state is correct that 

the courts of this state “strongly favor protecting jury verdicts from attack on the basis of statements made during 

jury deliberations.” Ertsgaard v. Beard, 310 Or 486, 497, 800 

P2d 759 (1990). Strictly speaking, this case does not involve 

a request to inquire into a jury verdict; defendant made his 

request to question jurors immediately before the jury began 

deliberations. Still, the general policy in favor of protecting 

the jury deliberation process counsels against questioning 

jurors, at least in the absence of some sort of showing that 

there is reason to believe that the process has been compromised. Even the dissent in Koennecke argued for permitting 

questioning of a jury in response to evidence of actual juror 

misconduct. 122 Or App at 106 (DeMuniz, J., dissenting). In 

this case, defendant asked for permission to question jurors 

about the mere possibility that one or more of them might 

have been in some way influenced by the presence of additional security in the court room. Under the circumstances, 

we find no abuse of discretion in the trial court’s denial of 

that request.

E. Jury Instruction on Mercy (Assignment 11)

In his eleventh assignment of error, defendant argues

that the trial court erred in declining to instruct the jury in 

the penalty phase of his trial that each juror

“has the individual authority to extend [to defendant] 

mercy for any reason whatsoever.

“The law recognizes and authorizes that any individual 

juror may base a decision to impose a sentence less than 

death on mercy alone.”

Defendant argues that the trial court’s instructions to the jury 

effectively informed them that their decision whether to sentence defendant to death must be based only on evidence presented, whereas, according to defendant, the law—including

decisions of the United States Supreme Court and various 

state appellate courts, Oregon’s own “open-ended” capital 

sentencing scheme, and, in light of the purported role of 

mercy in human culture, the Sixth, Eighth, and Fourteenth 
Cite as 355 Or 612 (2014) 653

Amendments to the United States Constitution—permits 

the application of mercy without reference to such evidence. 

Defendant further argues that mercy is a form of moral reasoning and thus is distinct from sympathy or forgiveness, 

which he acknowledges to be improper bases for a verdict. 

Defendant argues that, because no other instruction given 

by the trial court incorporated the identified principles, the 

trial court erred in failing to so instruct the jury.

The state first responds that defendant failed to 

raise below most of his arguments in support of the giving of an instruction on mercy, including his constitutional 

arguments, and that those arguments therefore are not 

preserved. The state also argues that defendant’s proposed 

instruction was not a correct statement of the law. According 

to the state, mercy—like sympathy—is a form of emotion 

and thus has no place in jury deliberations in either a guiltphase or a penalty-phase proceeding. The state also argues 

that, to the extent that defendant’s requested instruction 

correctly stated the law, it was redundant to other instructions given by the trial court, which, the state asserts, correctly and fully advised the jury of its role in determining 

defendant’s sentence.

A party is generally entitled to a jury instruction 

based on its theory of the case if the instruction is warranted by the particular facts and correctly states the law. 

State v. McBride, 287 Or 315, 319, 599 P2d 449 (1979). The 

trial court does not err, however, in declining to deliver an 

instruction that is not legally correct. Williams v. Philip 

Morris Inc., 344 Or 45, 56, 176 P3d 1255 (2008), cert dismissed as improvidently allowed, 556 US 178 (2009).

Our analysis of the parties’ arguments in this case 

is controlled by two prior cases. First, in State v. Moen, 309 

Or 45, 786 P2d 111 (1990), the trial court instructed the jury 

not to consider sympathy in determining whether to impose 

the death penalty. On appeal, the defendant argued that 

the trial court erred, arguing that the court should have 

instructed the jury that it was entitled to take sympathy 

into account in rendering its judgment. This court rejected 

the argument, explaining that “general sympathy, or any 

emotionalism, has no place in a capital sentencing decision, 
654 State v. Washington

just as it has no place in the jury’s deliberations during 

the guilt phase.” Id. at 92. The role of the jury, the court 

explained, is “to reach a reasoned decision based solely on 

the evidence before them.” Id. at 93 (emphasis in original).

Second, in State v. Moore, 324 Or 396, 927 P2d 1073 

(1996), this court addressed the propriety of delivering two 

different jury instructions that pertained to the subjects of 

sympathy and mercy. The first instruction informed the jury 

that “a decision that death is not appropriate may be made 

on the basis of sympathy for the [d]efendant if that sympathy is based on mitigating evidence.” Id. at 427 (emphasis in 

original). The court held that the instruction was proper, 

because it informed the jury that its decision was required 

to be based on mitigating evidence. Id.

The second instruction was one that the trial court 

declined to deliver. That instruction would have informed 

the jury that it “may be influenced by feelings of sympathy or mercy toward defendant, even if those feelings were 

not based upon any mitigating evidence.” Id. (emphasis in 

original). The court held that the trial court did not err in 

failing to deliver that instruction. Citing Moen, the court 

reiterated that considerations of sympathy have no place in 

jury’s penalty determination in a capital case. 324 Or at 428. 

Rather, the court explained, “any instruction that appeals 

to the jurors’ sympathies also must instruct the jurors that 

such sympathy must be based upon the mitigating evidence 

before them.” Id.

Defendant argues that Moen and Moore are distinguishable because they involve instructions regarding sympathy, not mercy, which defendant insists is different. We 

need not address whether, in the abstract, there is a meaningful distinction between an instruction involving “sympathy” and one involving “mercy.” That is because, in asserting a distinction between the two, defendant has missed the 

significance of this court’s prior decisions. Both Moen and 

Moore turned not on the fact that the requested instructions 

involved appeals to sympathy, but on the fact that those 

requested instructions failed to inform the jury that their 

decisions must be based on the evidence before them. Moore, 

324 Or at 428; Moen, 309 Or at 93.
Cite as 355 Or 612 (2014) 655

In this case, defendant’s requested instruction would

have instructed the jury that it could base its decision on 

mercy “alone” and “for any reason whatsoever,” without 

respect to the evidence. That instruction cannot be reconciled with Moore and Moen.

The result is the same under the federal constitution. Controlling in that regard is California v. Brown, 479 

US 538, 107 S Ct 837, 93 L Ed 2d 934 (1987). In that case, 

the Court addressed whether an instruction that jurors 

must not be swayed by “mere * * * sympathy” in the penalty phase of a capital case violated the defendant’s rights 

under the Eighth and Fourteenth Amendments. Holding 

that it did not, the Court emphasized that the key was not 

the meaning of the word “sympathy,” but the fact that the 

instruction properly cautioned the jury to base its decision 

only on the evidence before it. Id. at 541. In the Court’s view, 

the instruction properly “limit[ed] the jury’s sentencing considerations to record evidence” and, in so doing, “ensure[d] 

the availability of meaningful judicial review” of the jury’s 

decision. Id. at 543.

We conclude that the trial court did not err in failing to deliver defendant’s requested instruction.

F. Victim Impact Evidence (Assignments 13-14)

In his thirteenth assignment of error, defendant 

argues that the trial court erred by admitting, during the 

guilt phase of his trial, victim impact evidence in the form 

of testimony by a witness—the victim’s uncle. In his fourteenth assignment of error, defendant argues that the trial 

court erred in denying his motion for a mistrial based on 

the admission of that evidence. Defendant acknowledges 

that ORS 163.150(1)(a) provides for admission of such evidence during the penalty phase following a defendant’s conviction of aggravated murder and that, moreover, the United 

States Supreme Court has held that the introduction of such 

evidence during the penalty phase of a capital murder trial 

does not infringe on a defendant’s constitutional rights. He 

argues, however, that, in the guilt phase of a trial, such evidence is irrelevant under Oregon Evidence Code (OEC) 401 

and is unduly prejudicial under OEC 403. He further argues 
656 State v. Washington

that the trial court’s error in admitting the evidence in the 

guilt phase of his trial was not harmless; he notes that, at 

the conclusion of the challenged testimony, at least one juror 

was crying and other jurors were “visibly shaken,” and the 

state may have rekindled those emotions by referring to the 

testimony in its guilt-phase closing argument.

The state first responds that, at trial, defendant 

insufficiently identified the specific portions of the victim’s 

uncle’s testimony that he asserted to be inadmissible victim 

impact evidence and that he therefore cannot now challenge 

the admission of those portions. We disagree. The record 

shows that, in addition to requesting and obtaining a continuing objection, defendant objected to particular portions 

of the witness’s testimony.

The state also asserts that the challenged evidence 

was not victim impact evidence but was mere “victim background” or “family background” evidence that provided context to the jury and that in effect “humanized” the proceeding, and that the evidence therefore both met the “very low” 

standard for relevance under OEC 401 and was not unduly 

prejudicial under OEC 403. The state further asserts that, 

to the extent that defendant is challenging the uncle’s testimony as a whole by challenging the trial court’s denial of 

his motion for a mistrial, the trial court did not abuse its 

discretion in denying that motion. Finally, the state argues 

that, in any event, admission of the evidence was harmless 

because the state provided similar information in its opening statement, because other witnesses also testified without objection about the victim, and because the trial court 

instructed the jury not to base its guilt-phase verdict on 

sympathy for any of the parties involved.

The testimony of the witness—again, the victim’s 

uncle—included information about the witness’s relationship to the victim; about the victim’s home country, Sierra 

Leone, and his extended family there; and about the circumstances of the victim’s immigration to the United States, his 

residency status in this country, and his residential, educational, and employment history in Oregon. The witness 

also testified about the frequency and nature of interactions 
Cite as 355 Or 612 (2014) 657

between himself and the victim in the time leading up to the 

murder, such as the witness’s brief statement that the victim came to his house and helped him with chores. The witness testified that, to his knowledge, the victim did not own 

any firearms. He testified that he had met two of the victim’s 

women friends but had not met Stafford. He also testified 

that, after July 4, 2004—the date on which someone broke 

into Stafford’s apartment—the victim was “scared, really 

scared.”

The witness also described the circumstances surrounding his learning of the victim’s death. At various points 

during his testimony, the witness also testified about himself, including his age, when he came to the United States, 

and his educational and employment background. At several points during his testimony, he was prevented by the 

prosecutor or by the trial court’s rulings on defense counsel’s 

objections from giving details about the political situation 

in Sierra Leone, from making more than a single passing 

reference to the victim’s personality and his liking for music 

and soccer, and from describing the content of any conversation the witness had with the victim around July 2004 

regarding “any concerns or fears” the victim may have had.

ORS 163.150(1)(a) sets out requirements for the 

conduct of a “separate sentencing proceeding” following a 

defendant’s conviction for aggravated murder and provides 

in part that, in the proceeding,

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

deems relevant to sentence including, but not limited to, 

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

family and any aggravating or mitigating evidence relevant 

to the issue in paragraph (b)(D) of this subsection; however, neither the state nor the defendant shall be allowed 

to introduce repetitive evidence that has previously been 

offered and received during the trial on the issue of guilt.”

(Emphasis added.) The emphasized portion of ORS 

163.150(1)(a) was added to the statute by the 1995 legislature. Or Laws 1995, ch 531, § 2; Or Laws 1995, ch 657,

§ 23. This court has not previously considered precisely what 

types of evidence constitute victim impact evidence, that is, 
658 State v. Washington

evidence regarding “personal characteristics of the victim or 

impact of the crime on the victim’s family.”

We need not do so here, however, because, even 

assuming that any portion of the witness’s testimony falls 

within that category of evidence; even assuming that admission of the evidence in the guilt phase of defendant’s trial 

therefore was erroneous; and even assuming that the trial 

court abused its discretion in denying defendant’s motion for 

mistrial, any error was harmless. See State v. Davis, 336 

Or 19, 32, 77 P3d 1111 (2003) (reviewing court will affirm 

verdict despite error if there is little likelihood that the 

error affected the verdict). Of approximately 2000 pages of 

guilt-phase trial transcript, the witness’s actual testimony 

occupied approximately 23 pages. And, in that testimony, 

references to anything that arguably may have met the definition of victim impact evidence were minimal, including 

the witness’s single brief statement that the victim was “a 

nice person, he’s gentle, he loves music, he loves soccer” and 

the fact that, after the witness learned of the victim’s death, 

“[i]t’s never been the same.” Cf. State v. Johns, 301 Or 535, 

559, 725 P2d 312 (1986) (in trial encompassing testimony of 

60 witnesses and 1700 pages of transcript, Supreme Court 

deferred to trial court’s exercise of discretion under OEC 403 

as to whether particular item of evidence was unduly prejudicial). Moreover, similar testimony by other witnesses was 

admitted without objection, including testimony by the victim’s friend, Carter, that, when the victim’s family learned 

of the victim’s death, they “emotionally fell apart.” In short, 

it is unlikely that admission of the challenged testimony, 

even if erroneous, affected the jury’s guilt-phase verdict. 

Defendant’s thirteenth and fourteenth assignments of error 

do not afford him the requested relief.

G. Prosecutor’s Penalty-Phase Opening Statement (Assignment 15)

In his fifteenth assignment of error, defendant 

argues that the trial court erred in denying his motion for 

a mistrial based on the prosecutor’s statement to the jury 

that, when Stafford had “other boyfriends over time, [defendant] was so extremely possessive * ** to the point that he 

would kill them. This is the mind we’re dealing with.” The 
Cite as 355 Or 612 (2014) 659

prosecutor made that statement at the opening of the penalty 

phase of defendant’s trial. Defendant immediately moved for 

a mistrial, noting that the prosecutor had referred to “boyfriends” in the plural and had stated that defendant “would 

kill them,” and arguing that there was “no evidence of that.” 

The trial court denied the motion.

On review, defendant argues that the prosecutor’s 

comments were improper and sufficiently prejudicial so 

as to create a bias against him in the minds of the jury 

and therefore to deny him a fair trial, in violation of his 

rights under the Due Process Clause of the Fourteenth 

Amendment. Specifically, he argues that the comments 

gave rise to an implication of ongoing dangerousness that 

was relevant to the jury’s consideration of whether to sentence him to death—specifically, its consideration, under 

ORS 163.150(1)(b)(B), of “[w]hether there is a probability 

that the defendant would commit criminal acts of violence 

that would constitute a continuing threat to society[.]” Nor, 

he argues, were the comments mitigated by any curative 

instruction. He asks this court to vacate his death sentence 

and remand for a new penalty phase.

The state responds that, for several reasons, the 

trial court did not abuse its discretion in denying defendant’s motion for a mistrial. The state argues that it was 

“obvious” that the prosecutor was using the pronoun “them” 

colloquially to refer to a single person, the victim, and that, 

to the extent that the reference was ambiguous, none of the 

prosecutor’s other statements suggested that defendant had 

killed anyone other than the victim. The state also notes 

that defendant did not ask for a curative instruction and 

that, conversely, the jury was instructed to base its penaltyphase verdict “only on the evidence” and that “[t]he lawyer’s 

statements and arguments are not evidence.”

We review a trial court’s denial of a motion for a 

mistrial for abuse of discretion. State v. Davis, 345 Or 551, 

582-83, 201 P3d 185 (2008), cert den, 558 US 873 (2009). A 

trial court is in the best position to assess the prejudicial 

effect, if any, of a prosecutor’s statements to the jury. State v. 

Barone, 328 Or 68, 83, 969 P2d 1013 (1998), cert den, 528 US 

1135 (2000). We will not find an abuse of discretion in the 
660 State v. Washington

trial court’s denial of a defendant’s motion for mistrial on 

that basis unless the effect of the prosecutor’s comment was 

to deny defendant a fair trial or penalty-phase proceeding. 

State v. Smith, 310 Or 1, 24, 791 P2d 836 (1990). Generally, 

a proper jury instruction is adequate to cure any presumed 

prejudice from a prosecutor’s improper statement. Davis, 

345 Or at 583. “Ultimately, we must decide whether, under 

the circumstances as a whole, [the] defendant was denied 

the right to a fair trial, as a matter of law, by the events that 

transpired at trial.” Id. (citing State v. Compton, 333 Or 274, 

293, 39 P3d 833 (2002), cert den, 537 US 841, reh’g den, 537 

US 1068 (2002)).

In this case, the prosecutor’s statement to the jury 

at the beginning of the penalty phase amounts to 26 pages 

of the penalty-phase trial transcript, which also includes 

approximately one thousand pages of witness testimony. In 

addition to the challenged remark, the prosecutor informed 

the jury that defendant was a “leader” of the Portland “set” of 

the Crips gang; that he “engaged in daily illicit gang activities”; that he derived his income from the illegal distribution 

of crack cocaine; that he possessed and used crack cocaine 

and marijuana, and possessed and used illegal weapons; 

that he exposed his children to criminal activity; that, at 

age 15, he assaulted a store clerk; that, at age 16, he participated in the gang rape of a 13-year-old girl; that, while 

awaiting trial on that rape charge, he assaulted two guards 

in a Portland detention facility; that he twice escaped from 

a youth correctional facility; that he engaged in domestic 

violence against women, including beating and strangling 

them, in some instances in violation of restraining orders; 

that some of his domestic violence conduct took place in the 

presence of children; that he pistol-whipped his daughter’s 

boyfriend; that he violated his adult probation; and that he 

previously had been charged with assaulting the victim in 

the present case. Thus, the prosecutor’s opening summary 

to the jury included multiple references to violent or otherwise unlawful conduct by defendant, thereby vitiating the 

effect of the challenged statement.

Again, at the conclusion of the penalty phase, the 

trial court instructed the jury that it was to base its answers 

to the penalty-phase questions “only on the evidence and 
Cite as 355 Or 612 (2014) 661

these instructions” and that “[t]he lawyer’s statements and

arguments are not evidence.” See Smith, 310 Or at 26 

(absent an overwhelming probability that they would have 

been unable to do so, jurors are presumed to have followed 

their instructions).

In light of the prosecutor’s entire opening presentation to the jury in the penalty phase, as well as the witness 

testimony and the trial court’s instructions to the jury in 

that phase, we cannot say that the trial court abused its 

discretion in denying defendant’s motion for a penalty-phase 

mistrial based on the challenged statement. We reject defendant’s fifteenth assignment of error.

H. Lethal Injection Protocol (Assignment 16)

In his sixteenth assignment of error, defendant contends that the trial court erred in imposing the death penalty over his objection, under the Eighth Amendment to the 

United States Constitution, to Oregon’s method of execution. 

According to defendant, the statutes and rules governing 

Oregon’s three-drug lethal injection protocol do not adequately ensure that persons administering the drugs have 

sufficient qualifications and training to properly do so and 

do not adequately provide for “backup” drugs and equipment 

if the initial administration of drugs is unsuccessful, either 

by failing to cause death or by causing the person to experience such effects as severe pain or suffocation, in violation of the constitutional prohibition on cruel and unusual 

punishment.

The state responds that defendant’s challenge to 

the method of his execution is premature because, in capital 

cases, exhaustion of a defendant’s appeals and other state 

and federal post-conviction remedies typically takes many 

years and, by the time defendant has completed or waived 

his right to those procedures, Oregon’s execution protocol 

may have been revised; moreover, whether or not that is the 

case, defendant will have the opportunity at that time to 

challenge it. On the merits, the state notes that Oregon’s 

three-drug lethal injection protocol is similar to the one 

approved by the United States Supreme Court in Baze v. 

Rees, 553 US 35, 128 S Ct 1520, 170 L Ed 2d 420 (2008). 

In that case, the Court held that any risks of improper 
662 State v. Washington

preparation or administration of the first of the three drugs, 

the anesthetic sodium thiopental—including calculation 

and preparation of an adequate dose of the solution, proper 

insertion of intravenous lines for its injection, and adequate 

monitoring of the drug’s effects—were not “so substantial or 

imminent as to amount to an Eighth Amendment violation.” 

Id. at 54-62.

We agree with the state that the specific method 

of defendant’s execution—as opposed to the death sentence 

itself—is not ripe for consideration by this court, nor will it 

be until all direct and collateral review proceedings have 

concluded and a death warrant has issued under ORS 

137.463. See ORS 138.686 (providing for stay of execution 

of death sentence during pursuit of state and federal direct 

and collateral review of the defendant’s conviction and sentence). We therefore reject defendant’s sixteenth assignment 

of error without further discussion.

I. Facial Unconstitutionality of ORS 163.150(1)(b)(D) (Assignment 18)

In his eighteenth assignment of error, defendant 

argues that the trial court erred in denying his demurrer 

to Counts 1 and 2 of the indictment, the aggravated murder counts. The demurrer sought to challenge the facial 

constitutionality of Oregon’s capital-sentencing scheme—

specifically, ORS 163.150(1)(b)(D) (the so-called “fourth question”), as modified by ORS 163.150(1)(a) and by the jury 

instruction required under ORS 163.150(1)(c)(B). According 

to defendant, as so modified, ORS 163.150(1)(b)(D) is unconstitutional on its face under the Eighth and Fourteenth 

Amendments because it permits the admission of “any” 

aggravating evidence, including evidence that is outside 

the kinds of victim impact evidence approved by the United 

States Supreme Court in Payne v. Tennessee, 501 US 808, 111 

S Ct 2597, 115 L Ed 2d 720 (1991), and that is not relevant to 

any corresponding factual issue on which the state has the 

burden of proof; and because it permits the penalty-phase 

jury to disregard or fail to give full effect to mitigating evidence. Defendant also argues that ORS 163.150(1)(b)(D) is 

facially unconstitutional because it permits the imposition of 

a death penalty without the jury having found the relevant 
Cite as 355 Or 612 (2014) 663

facts beyond a reasonable doubt or unanimously. Finally, he 

argues that it is facially unconstitutional because its openended nature precludes meaningful appellate review.

The state responds that, in the first instance, it did 

not present any victim-impact evidence in this case that 

was not otherwise admissible and that defendant fails to 

identify any aggravating evidence that did not relate to the 

penalty-phase questions. The state also asserts that, in any 

event, this court previously has rejected facial challenges 

to ORS 163.150 on those grounds. As to defendant’s other 

challenges to ORS 163.150(1)(b)(D), the state notes that 

the penalty-phase jury must find unanimously and beyond 

a reasonable doubt the facts supporting an affirmative 

response to each of the first three penalty-phase questions, 

ORS 163.150(1)(b)(A)-(C), and that additional facts, if any, 

that the jury relies on in answering the question stated in 

ORS 163.150(1)(b)(D) are, by comparison, “mere evidence” 

that the jury is not required to find at all, and therefore need 

not find unanimously or beyond a reasonable doubt. The 

state also argues that, in any event, ORS 163.150(1)(b)(D)

is not facially unconstitutional because it is capable of constitutional application. Finally, the state notes that this 

court repeatedly has rejected demurrers to Oregon’s capital 

sentencing scheme based on the purported unavailability of 

meaningful appellate review.

ORS 163.150(1)(b)(D) provides that the trial court 

submit to the penalty-phase jury the question “[w]hether the 

defendant should receive a death sentence.” ORS 163.150(1)(a)

provides in part for the admission, in the sentencing proceeding, of evidence

“as to any matter that the court deems relevant to sentence including, but not limited to, victim impact evidence 

relating to the personal characteristics of the victim or the 

impact of the crime on the victim’s family and any aggravating and mitigating evidence relevant to the issue in [ORS 

163.150(1)(b)(D)][.]”

(Emphasis added.) ORS 163.150(1)(c)(B) provides:

“The court shall instruct the jury to answer the question in [ORS 163.150(1)(b)(D)] ‘no’ if, after considering any 

aggravating and any mitigating evidence concerning any 
664 State v. Washington

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.”

(Emphasis added.) The emphasized portion of ORS

163.150(1)(a) was added to the statute by the 1995 legislature. Or Laws 1995, ch 531, § 2; Or Laws 1995, ch 657, 

§ 23. The emphasized portions of ORS 163.150(1)(c)(B) were 

enacted by the 1997 legislature. Or Laws 1997, ch 784, § 1.

We previously have determined that ORS 163.150 is 

not facially unconstitutional by reason of the fact that ORS 

163.150(1)(b)(D) does not expressly require jury unanimity 

or proof beyond a reasonable doubt. See State v. Brumwell, 

350 Or 93, 111-12, 249 P3d 965 (2011), cert den, 132 S Ct 

1028 (2012) (even assuming that the Sixth Amendment 

requires jury unanimity on penalty-phase aggravating evidence under ORS 163.150(1)(b)(D) as qualified by ORS 

163.150(1)(c)(B), the latter is capable of constitutional application because it does not preclude the trial court from also 

instructing the jury in that regard to the extent that such 

an instruction is constitutionally required; accordingly, the 

statute is not facially unconstitutional); State v. Fanus, 336 

Or 63, 70-74, 79 P3d 847 (2003), cert den, 541 US 1075 (2004) 

(ORS 163.150(1)(b)(D) frames a discretionary inquiry for 

the jury and is not subject to any burden of proof). As to 

whether ORS 163.150(1)(b)(D) precludes meaningful appellate review, we rejected that argument in Moore. 324 Or at 

429-34 (where ORS 163.150(1)(b)(D) frames a discretionary 

determination for the jury that is not subject to a burden 

of proof but that nevertheless must be based on evidence 

presented at trial, the reviewing court has the function of 

reviewing the jury’s decision to determine whether, in view 

of the evidence, a rational juror could have concluded that 

the defendant should be sentenced to death).

We turn to defendant’s assertions that ORS

163.150(1)(b)(D) renders Oregon’s death penalty scheme 

facially unconstitutional by reason of permitting the admission of overly broad classes of aggravating and victim impact 
Cite as 355 Or 612 (2014) 665

evidence. This court has not expressly considered those arguments since the enactments of the above-quoted 1995 and 1997 

amendments to ORS 163.150(1)(a) and ORS 163.150(1)(c).

Again, defendant contends that ORS 163.150(1)(b)(D) and 

its related statutes are facially unconstitutional because 

they permit the admission of “any” aggravating evidence, 

including evidence that is outside the kinds of victim impact 

evidence approved by the United States Supreme Court in 

Payne and that is not relevant to any corresponding factual issue on which the state has the burden of proof; and 

because they permit the penalty-phase jury to disregard or 

fail to give full effect to mitigating evidence in violation of 

the Eighth and Fourteenth Amendments.

We disagree. As to aggravating evidence, again, ORS

163.150(1)(a) provides in part that, in the penalty-phase proceeding,

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

deems relevant to sentencing, including, but not limited to, 

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

family and any aggravating or mitigating evidence relevant 

to the issue in [ORS 163.150(1(b)(D)].”

(Emphasis added.) Consistently with the emphasized portions of that provision, and notwithstanding the legislature’s 

use of the adjective “any,” aggravating evidence presented 

to the penalty-phase jury must be “relevant to sentencing.” 

And, notwithstanding the fact that admissible evidence is

“not limited to” the expressly stated types of evidence, 

the provision nevertheless is capable of being applied in a 

manner that is consistent with the strictures of the United 

States Supreme Court as set out in Payne. See, 501 US at 825 

(although the Eighth Amendment does not prohibit admission of victim impact evidence, the Due Process Clause protects against admission of victim impact evidence that is “so 

unduly prejudicial that it renders the trial fundamentally 

unfair”). Defendant’s facial constitutional challenge to ORS 

163.150(1)(b)(D) based on the admission of aggravating evidence is not well taken.

Similarly, we reject defendant’s argument that ORS 

163.150(1)(b)(D) is facially unconstitutional in regard to the 
666 State v. Washington

admission, and the jury’s consideration, of mitigating evidence, by permitting the jury to disregard such evidence 

altogether or, at a minimum, by failing to guide its discretion or to provide it with a “vehicle” for giving such evidence 

its “full effect.” Again, ORS 163.150(1)(c)(A) provides:

“The court shall instruct the jury to consider, in determining the issues in [ORS 163.150(1)(b)], any mitigating 

circumstances offered in evidence, including but not limited 

to the defendant’s age, the extent and severity of the defendant’s prior criminal conduct and the extent of the mental 

and emotional pressure under which the defendant was acting at the time the offense was committed.”

(Emphases added.) Also, as previously described, ORS 

163.150(1)(c)(B) in part directs the trial court to instruct 

the jury that, in answering the question set out in ORS 

163.150(1)(b)(D), it

“consider[] any aggravating evidence and any mitigating 

evidence concerning any aspect of the defendant’s character 

or background ** *.”

(Emphases added.) Thus, both of the quoted provisions 

expressly require the trial court to instruct the jury to “consider” mitigating evidence, and the required instructions 

provide at least some guidance to the jury regarding the 

nature of the mitigating evidence that it is to consider—in 

the former case, by listing various specific types of mitigating evidence that the jury may consider and the latter 

by generally characterizing such evidence as relating to a 

defendant’s “character or background.” Presuming, as we 

must, that a jury follows a trial court’s instructions, those 

features have the effect of both directing the jury to consider 

mitigating evidence and guiding it in doing so. Accordingly, 

ORS 163.150 is not facially unconstitutional by reason of 

permitting a jury to ignore or improperly consider mitigating evidence.

For all of the above reasons, we reject defendant’s 

eighteenth assignment of error.

J. Remaining Assignments of Error

Defendant’s remaining assignments of error we reject

without discussion.
Cite as 355 Or 612 (2014) 667

CONCLUSION

The judgment of conviction and sentence of death 

are affirmed.