State v. Tucker

845 P.2d 904, 315 Or. 321, 1993 Ore. LEXIS 7

• Court: Oregon Supreme Court
• Decided: February 11, 1993
• Docket: CC 87P-3440; SC S35724
• Status: Published

Opinions

GRABER, J.

A jury convicted defendant of ten counts of aggravated murder, ORS 163.095,¹ for the deaths of Barbara and Robert Farmer. The jury also convicted defendant of two counts of robbery in the first degree, ORS 164.415,² and one count of burglary in the first degree, ORS 164.225,³ arising out of the same criminal episode.

After the jury answered in the affirmative the penalty-phase questions submitted to it in accordance with ORS 163.150(l)(b) (1987),⁴ the trial court merged the five aggravated murder counts relating to the murder of Barbara Farmer into one count, did the same for the five aggravated murder counts relating to the murder of Robert Farmer,⁵ entered judgments of conviction, and sentenced defendant to death on those two counts, as provided in ORS 163.150(l)(e) (1987).⁶ The court sentenced defendant to separate terms of imprisonment on the two robbery counts and the burglary count and ordered that the sentences imposed for those counts run consecutively.

The case is before this court on automatic and direct review under ORS 163.150(l)(f) (1987).⁷ We affirm the convictions for aggravated murder, vacate the sentences for robbery in the first degree and burglary in the first degree, vacate the sentences of death, and remand the case to the circuit court for further proceedings.

SUMMARY OF FACTS

Because the jury found defendant guilty, we view the evidence in the light most favorable to the state. State v. Stevens, 311 Or 119, 121, 806 P2d 92 (1991). On the afternoon of October 23, 1987, defendant and his accomplice, Bryan Mikesell, drove defendant’s pick-up truck to an orchard near the Farmers’ home in Rickreall. Defendant and Mikesell waited in the orchard until dark and then approached the house. Defendant entered the house through the back door, armed with a handgun that he had brought with him.

Inside the house, defendant observed Robert Farmer in bed in one of the bedrooms, playing cards, and Barbara Farmer in another bedroom, watching television. Defendant entered the bedrooms in turn and shot each of the victims once in the head. Defendant and Mikesell then removed various items of the victims’ personal property from the house and placed those items in the victims’ car and in defendant’s pick-up. They drove both vehicles to defendant’s apartment and unloaded some of the items. At that time, defendant described the killings to his girlfriend, with whom he shared the apartment.

Later, defendant, his girlfriend, and Mikesell drove the victims’ car and defendant’s pick-up to another location, transferred most of the remaining items into defendant’s pickup, and abandoned the victims’ car. In the following weeks, defendant mentioned the murders to his girlfriend almost daily and asked her to buy newspapers containing coverage of them. Defendant also threatened to kill her if she told anyone about the murders.

On December 2, 1987, defendant’s girlfriend told police about defendant’s participation in the murders and allowed police to search the apartment where she and defendant lived. Later that day, defendant was arrested. While defendant was being held in the Polk County Jail, he had conversations about the murders with other inmates.

On appeal, defendant raises numerous assignments of error. Most of them relate to the penalty phase of the trial. We will combine our discussion of assignments of error that present similar questions.

GUILT-PHASE ASSIGNMENTS OF ERROR

Pre-Trial Motions

Defendant contends that it was error under ORS 135.405 and 135.415, Article I, section 20, of the Oregon Constitution,⁸ and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States⁹ for the trial court to deny his pre-trial motion to compel the state to offer him the same plea agreement opportunity as was afforded to his accomplice and codefendant, Mikesell. We address defendant’s statutory claim first. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (court decides questions of state law before reaching constitutional issues).

ORS 135.405(4) states that “[similarly situated defendants should be afforded equal plea agreement opportunities.” ORS 135.415 sets forth non-exclusive criteria that a district attorney may consider in deciding whether to engage in plea discussions with a defendant. See State v. McDonnell, 313 Or 478, 492, 837 P2d 941 (1992) (in deciding whether to extend to a defendant an opportunity to negotiate a plea agreement, the district attorney is not limited to consideration of factors enumerated in ORS 135.415). This court reviews whether a defendant was improperly denied a plea offer for an error of law. Id. at 484.

At the hearing on defendant’s motion, the state gave three reasons for its position that defendant and Mikesell were not “similarly situated” within the meaning of ORS 135.405: the fact that defendant, who was accused of personally committing the murders, was charged with aggravated murder, whereas Mikesell was charged with felony murder; the fact that defendant had an extensive criminal record, whereas Mikesell did not; and the fact that the state had “a number of’ witnesses who would testify as to the “character and propensity” of defendant, whereas it had found none to give similar testimony regarding Mikesell. We conclude that the record is sufficient to support the trial court’s finding that the district attorney’s decision to treat defendant and his codefendant differently did not violate ORS 135.405.

Neither was the district attorney’s decision constitutionally impermissible under Article I, section 20. In deciding whether to afford a defendant an opportunity to reach a plea agreement, the district attorney “must exercise his discretion in a manner that adheres to sufficiently consistent standards to represent a coherent, systematic policy.” State v. McDonnell, supra, 313 Or at 491. On the record here, the trial court was entitled to conclude that the district attorney adhered to a coherent, systematic policy.

The trial court also was entitled to conclude, on this record, that the district attorney’s decision was not prompted by any impermissible discriminatory motive. See State v. Farrar, 309 Or 132, 140-41, 786 P2d 161 (1990) (decision not to engage in plea negotiations with a particular defendant based on, for example, class discrimination violates Article I, section 20, and Equal Protection Clause). The district attorney offered a neutral and rational justification for treating defendant differently than Mikesell.

The district attorney’s decision to treat defendant and Mikesell differently did not violate defendant’s rights under Article I, section 20, of the Oregon Constitution.

For the same reasons, we conclude that there was no violation of the Equal Protection Clause of the Fourteenth Amendment to the federal constitution. This court has held that compliance with Article I, section 20, with respect to a decision not to offer a plea agreement, demonstrates compliance with the Equal Protection Clause as well. State v. McDonnell, supra, 313 Or at 492-93. The trial court did not err in denying defendant’s motion to compel the state to offer a plea agreement.

Jury Selection

Defendant argues that the trial court erred in denying his motions to excuse for cause two jurors, Young and Campbell. Young’s wife was a nurse at the jail where defendant was held and had given him medication. Campbell was acquainted, through membership in the same church, with Polk County Detective Manning, who testified at trial.

Defendant does not claim that those jurors should have been excused for implied bias under ORS 136.220. Therefore, the issue is whether the jurors actually were biased. Whether a juror actually is biased is a question of fact to be determined by the trial court in the exercise of its discretion. ORCP 57D(l)(g); State v. Montez, 309 Or 564, 574-75, 789 P2d 1352 (1990). A trial court’s determination that the jurors in a case will be impartial is entitled to “great weight,” and the court’s decision will not be disturbed unless it was an abuse of discretion. State v. Rogers, 313 Or 356, 364-65, 836 P2d 1308 (1992).

There was ample evidence in this record to support the trial court’s conclusion that jurors Young and Campbell would be fair and impartial. It would serve no purpose to detail that evidence here. The trial court did not err in denying defendant’s motions to excuse jurors Young and Campbell for cause.

Trial

Defendant asserts that the trial court erred in permitting the prosecutor, during closing argument, to “argue about evidence which had been stricken from the record.” At trial, the state called as witnesses defendant’s cellmate at the Polk County Jail, Tsow, and another inmate at the jail, Hutchison. During the state’s direct examination of Tsow, the following exchange took place:

“[PROSECUTOR]: Okay. In his conversations with the group that you heard, did [defendant] ever indicate whether this was some sort of accident that they were shot?

“[WITNESS]: No.

“[PROSECUTOR]: What did he — what did he say to you in that regard?

“[WITNESS]: He told me he shot them both point blank. And he seemed real proud of the fact that he did that.

“[DEFENSE COUNSEL]: I’m going to object to the characterization of that, Your Honor.

“[THE COURT]: Sustained. That characterization will be stricken from the record. I instruct the jury to disregard that last remark.”¹⁰

During the state’s closing argument, the following colloquy occurred:

“[PROSECUTOR]: After his arrest, [defendant] was lodged in the Polk County Jail. While he was there, he told fellow inmates about the murders, not so much talking about them as bragging about them, according to [Hutchison and Tsow],

“[DEFENSE COUNSEL]: Excuse me, Your Honor. But I do have an objection. That testimony was specifically ordered stricken from the record, about the bragging.

“[THE COURT]: The jury will have to rely on their own recollection. I don’t know that it was stricken. I just can’t remember. You may proceed.”

On appeal, defendant argues that the prosecutor’s remark that defendant was “bragging” about the murders referred to the stricken testimony quoted above. That is not necessarily so, because there was substantial additional evidence to which the prosecutor’s remark could have referred and because the prosecutor’s remark did not use any of the words of the stricken testimony.

• Tsow also testified, without objection, that defendant “said that he had, he himself had [killed Mr. and Mrs. Farmer]. * * * He said he did that by himself.” Hutchison testified that defendant talked about the killings on “[m]ore than one occasion” and that defendant said that he killed the Farmers “on purpose” and “that he meant to kill them.” Finally, Hutchison testified that defendant told him that the murders were “kind of like a mercy killing, that [the victims] had heart bypasses and cancer, ’ ’ that the victims were “in bad shape, they were bedridden and that they were almost dead anyways.”

The Random House Dictionary of the English Language 252 (2d ed 1987) defines the word “brag” as “to use boastful language; boast.” The word “boast” is defined, in turn, as “to speak with exaggeration and excessive pride.” Id. at 231. The testimony of Tsow and Hutchison to which defendant did not object fairly may be described as “bragging,” because a jury fairly could agree with the prosecutor’s characterization that defendant boasted and spoke with exaggeration and excessive pride about what he had done. The trial court did not err in permitting the argument.¹¹

Sentencing

Defendant argues, and the state concedes, that the trial court erred in imposing separate sentences for the robbery and burglary convictions. We accept the concession.

A defendant may be punished separately for conduct or a criminal episode that violates two or more statutory provisions only if the following conditions are met: (1) the defendant engaged in acts that were the same conduct or criminal episode; (2) the defendant’s acts violated two or more statutory provisions; and (3) each statutory provision requires proof of an element that the others do not. ORS 161.062(1). This court has explained that those conditions are not met where one offense charged truly is a lesser included offense of another offense charged, that is, when the former has no elements not also present in the latter, even though the latter has additional elements not present in the former. State v. Crotsley, 308 Or 272, 279-80, 779 P2d 600 (1989).

Under the language of counts 2, 3, 7, and 8 of the indictment,¹² robbery and burglary were lesser included offenses of aggravated felony murder. The trial court therefore erred in sentencing defendant separately on those convictions. The sentences for robbery in the first degree and burglary in the first degree are vacated.

PENALTY-PHASE ASSIGNMENTS OF ERROR

Mitigating Evidence

Defendant argues that the trial court gave instructions to the jury in the penalty phase that unconstitutionally limited the way in which the jury could consider mitigating evidence about him. The state concedes, and we agree, that defendant is correct in the light of State v. Wagner, 309 Or 5, 786 P2d 93 (1990) (Wagner II), and the decision of the Supreme Court of the United States in Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989), which were decided after the trial in this case. We therefore vacate defendant’s sentence of death and remand the case to the circuit court for a new penalty-phase proceeding or, at the election of the district attorney, for entry of a sentence of life imprisonment. Wagner II, supra, 309 Or at 20; State v. Williams, 313 Or 19, 42, 828 P2d 1006, cert den_US_, 113 S Ct 171, 121 L Ed 2d 118 (1992); State v. Stevens, supra, 311 Or at 148.

Although we remand the case to the circuit court for a new penalty-phase proceeding on the basis of the court’s failure to instruct the jury to answer the constitutionally required “fourth question,” we discuss some of defendant’s other penalty-phase assignments of error that were preserved and that are likely to arise on remand.

Jury Instructions

In two assignments of error, defendant argues that the trial court erred in refusing to instruct the jury that, by answering the dispositional sentencing questions, ORS 163.150(l)(b) (1987), the jury made “the ultimate decision” whether defendant would live or die. We are not persuaded.

The trial court instructed the jury that, if it answered the questions in the affirmative, '‘the law requires that the penalty shall be death” (emphasis added) and that, if it answered either or both of the questions in the negative, “the law requires that the penalty shall be life imprisonment.” Those instructions accurately conveyed to the jury its role in determining defendant’s sentence. That was enough. It is not error for a trial court to refuse to give a requested instruction if the instruction given by the court, although not in the form requested, adequately covers the subject of the requested instruction. State v. Leppanen, 253 Or 51, 53, 452 P2d 172 (1969). See also Laubach v. Industrial Indemnity Co., 286 Or 217, 225, 593 P2d 1146 (1979) (not error for trial court to refuse to give requested instructions that are given in substance or that are merely enlargements on instructions given). The trial court did not err in refusing to give defendant’s requested jury instructions concerning the jury’s role in determining defendant’s sentence.¹³

Defendant next assigns as error the trial court’s refusal to instruct the jury regarding several specific factors that it should consider in mitigation of his sentence. In particular, defendant asked the court to instruct the jury that it should consider defendant’s good conduct in jail following his arrest, evidence that he was an abused child, evidence that he was a “loving father,” evidence of his mechanical abilities and work habits, evidence that his criminal acts were a result of his use of alcohol and drugs, and evidence that, in committing the murders, defendant was under the “domination” of his accomplice, who had received a life sentence for the murders. If given by the trial court to the jury, those instructions would have constituted impermissible comments by the court on evidence received at trial. ORCP 59E;¹⁴ see also State v. Farrar, supra, 309 Or at 178-79 (court did not err in refusing to instruct jury to consider evidence about the defendant’s family environment and his substance abuse). The trial court did not err in refusing to give those requested instructions.

Next, defendant argues that the trial court erred in refusing to instruct the jury that it should consider as a mitigating factor the fact that defendant’s prior conviction for manslaughter in the second degree in the state of Washington did not prove that defendant intentionally killed the victim in that case. The trial court instructed the jury that it should consider the “extent and severity” of defendant’s prior criminal conduct. That was sufficient. See State v. Leppanen, supra (instruction given adequately conveyed substance of requested instruction); Laubach v. Industrial Indemnity Co., supra (similar). The trial court did not err in refusing to give defendant’s requested jury instruction concerning his conviction for manslaughter.

Relying on the legal presumption that a person is innocent until proven guilty,¹⁵ defendant next contends that the trial court erred in refusing to instruct the jury that there is a “presumption” that the answer to the dispositional sentencing questions, ORS 163.150(l)(b) (1987), is “no.” Specifically, defendant argues that the trial court should have instructed the jury that “[t]he law presumes that [defendant] did not engage in conduct causing the death of the deceased deliberately and with the reasonable expectation that death of the deceased or another would result,” that “[t]he law presumes that [defendant] will not commit criminal acts of violence in the future,” and that “there is a presumption in this case that death is not the appropriate sentence for [defendant].”

This court has rejected the claim that jurors should be told to presume that a defendant will be nonviolent in the future. In State v. Montez, supra, the court stated:

“The trial court instructed the jury that the state must prove beyond a reasonable doubt that there was a probability defendant would commit criminal acts of violence that would constitute a continuing threat to society, thus informing the jury that the state had the burden of proof and of the standard of proof required. No more was required.” 309 Or at 613 (citations omitted).

See also State v. Douglas, 310 Or 438, 451, 800 P2d 288 (1990) (same); State v. Farrar, supra, 309 Or at 178 (same).

Moreover, the trial court instructed the jury that the state had the burden of proof on all the statutory questions and that a juror could not vote “yes” on any statutory question unless the juror was convinced that the state had carried that burden of proof ‘ beyond a reasonable doubt. ’ ’ N o more was required. The trial court did not err in refusing to give the requested additional instruction on the presumption of innocence.

In another assignment of error, defendant, expressly-relying on the presumption of innocence stated in ORS 10.095(6)¹⁶ and on his right under the Fourteenth Amendment to the Constitution of the United States¹⁷ to due process of law, argues that the trial court erred in not instructing the jury that defendant was “presumed to be innocent of all unadjudicated criminal conduct” and that the jury could consider evidence of unadjudicated criminal conduct in its penalty-phase deliberations only if it first found beyond a reasonable doubt that defendant had engaged in such conduct.

Defendant’s statutory argument is unpersuasive. This court consistently has held that “ORS 163.150(1), which sets forth the evidence that may be considered in the penalty phase, is to be interpreted broadly, to include even unadjudi-cated bad acts.” State v. Smith, supra, 310 Or at 29. See also State v. Montez, supra, 309 Or at 610-11 (penalty-phase jury does not decide a defendant’s guilt or innocence of prior crimes; evidence of those crimes is admissible, because it is relevant to consideration of issue whether a defendant should receive the death penalty); State v. Farrar, supra, 309 Or at 174-75 (testimony about unadjudicated crimes and bad acts is admissible in penalty phase to help resolve issue of a defendant’s future dangerousness); State v. Moen, supra, 309 Or at 73 (in answering penalty-phase questions, jury should have before it all relevant information about the defendant; evidence of a defendant’s prior conduct, bad and good, is relevant to question of a defendant’s future dangerousness). The presumption of innocence guaranteed to a criminal defendant by ORS 10.095(6) applies to the defendant’s right to be presumed innocent of the crime with which the defendant is charged in that proceeding. ORS 10.095(6) did not entitle defendant to an instruction in his sentencing proceeding that the jury could consider his unadjudicated criminal conduct only if it found beyond a reasonable doubt that defendant had engaged in that conduct.

Neither did consideration by the jury of defendant’s unadjudicated criminal conduct violate defendant’s rights under the Fourteenth Amendment to the Constitution of the United States. The test for whether á particular criminal procedure violates the Due Process Clause of the Fourteenth Amendment is whether the procedure is fundamentally fair, or whether a different procedure is necessary to prevent miscarriages of justice. Duncan v. Louisiana, 391 US 145, 88 S Ct 1444, 20 L Ed 2d 491 (1968); see also Bartz v. State of Oregon, 314 Or 353, 367-69, 839 P2d 217 (1992) (applying that test).

Here, the trial court instructed the jury that it could consider any mitigating circumstances received in evidence, including the “extent and severity of defendant’s prior criminal conduct.” ORS 163.150(l)(b) (1987). As previously noted, the trial court also instructed the jury that the state had the burden to prove “beyond a reasonable doubt” that the answer to each of the statutory sentencing questions was “yes.” Defendant had the opportunity to explain or rebut the evidence of his conduct. ORS 163.150(l)(a). The consideration of defendant’s unadjudicated criminal conduct by the jury without an instruction by the trial court that defendant was presumed innocent of engaging in that conduct was fundamentally fair and did not violate defendant’s rights under the Fourteenth Amendment.

Because defendant’s requested instruction on the presumption of his innocence in regard to unadjudicated criminal conduct was not required by either ORS 10.095(6) or the Due Process Clause of the Fourteenth Amendment, the trial court did not err in refusing to give that instruction.

Finally, defendant argues that the trial court erred in refusing to instruct the jury that the term “criminal acts of violence,” as used in ORS 163.150(l)(b)(B) (1987),¹⁸ referred to a “relatively narrow” range of conduct likely to result in physical injury to persons, including homicide, forcible rape, aggravated assault, and arson. We disagree.

ORS 163.150(l)(b)(B), which required the jury to consider the likelihood that defendant will commit such acts in the future, did not so limit the jury’s inquiry. This court has held that ORS 163.150(l)(b)(B) reflected an intent that the information provided to a jury on the question of defendant’s prior criminal conduct be “broad in scope.” State v. Moen, supra, 309 Or at 72. Similarly, ORS 163.150(l)(b)(B) (1987) permitted a jury to consider as broad a range of possible future acts of criminal violence, as those words are commonly understood,¹⁹ as it deems relevant in addressing the inquiry required of it by the statute. See State v. Wagner, 305 Or 115, 152, 752 P2d 1136 (1988) (Wagner I) (statutory term is not indefinite, because it restricts jury to consideration of acts of criminal violence). The trial court did not err in refusing to give defendant’s requested jury instruction on specific criminal acts of violence.

Constitutional Challenge to ORS 163.150

Defendant makes numerous constitutional challenges to the Oregon death penalty statutes. This court has answered most of those arguments in State v. Guzek, 310 Or 299, 797 P2d 1031 (1990); Wagner II, supra; State v. Montez, supra; State v. Farrar, supra; State v. Miranda, 309 Or 121, 786 P2d 155 (1990); State v. Moen, supra; and Wagner I, supra. We briefly address one other.

Defendant argues that ORS 163.150 (1987) violated Article I, section 20, of the Oregon Constitution,²⁰ and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States,²¹ because persons sentenced to life imprisonment eventually may have their sentences commuted, whereas persons sentenced to death and executed are denied that privilege. An attack under Article I, section 20, to the terms of a statute on its face has “generally been rejected whenever the law leaves it open to anyone to bring himself or herself within the favored class on equal terms.” State v. Clark, 291 Or 231, 240-41, 630 P2d 810 (1981). Defendant had the opportunity under ORS 163.150 (1987) to bring himself within the favored class on equal terms with other citizens similarly situated. With respect to a claim of unequal administration of the statute, defendant’s state constitutional claim fails unless the privilege of being eligible for a commuted life sentence — that is, the privilege of receiving a life sentence that is capable of being commuted — is offered or denied “to individual defendants, or to social, geographic, or other classes of defendants (apart from the ‘classification’ formed by the choice itself) purely haphazardly or otherwise on terms that have no satisfactory explanation.” State v. Edmonson, 291 Or 251, 253-54, 630 P2d 822 (1981). Because ORS 163.150 (1987) itself established clear, rational, and definite criteria for determining whether a defendant should receive a life sentence or the death penalty, the statute was not unconstitutional under Article I, section 20, in the manner argued by defendant.

“This court often has stated that for most purposes analysis under Article I, section 20 and under the federal equal protection clause will coincide[.] ” State v. Clark, supra, 291 Or at 243. In this case, we conclude that the same reasons why the challenged statute does not offend Article I, section 20, also suffice for it to survive scrutiny under the Fourteenth Amendment. Defendant has cited no decision of the Supreme Court of the United States that would suggest a contrary conclusion. ORS 163.150 (1987) did not violate the Equal Protection Clause of the Fourteenth Amendment in the way that defendant asserts.

CONCLUSION

We have considered all remaining assignments of error and every argument made in support thereof. Any assignment or argument not discussed in this opinion either previously has been considered and rejected by this court, is not well taken, or is unlikely to recur on remand. We find no reversible error based on those assignments of error.

Because the jury was not asked the so-called “fourth question,” however, defendant is entitled to a new penalty-phase proceeding.

The judgments of conviction are affirmed. The sentences for robbery and burglary are vacated. The sentences of death are vacated, and the case is remanded to the circuit court for further proceedings.

1 ORS 163.095 provides in part:

“As used in * * * this section, ‘aggravated murder’ means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:

“(1) * * *

“(d) There was more than one murder victim in the same criminal episode

«(2) * *• *

“(d) Notwithstanding ORS 163.115(l)(b), the defendant personally and intentionally committed the homicide under the circumstances set forth in ORS 163.115(l)(b).

“(e) The murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime.”

ORS 163.115(l)(b) provides:

“[Clriminal homicide constitutes murder:

u* * * * *

“(b) When it is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit any of the following crimes and in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom, the person, or another participant if there be any, causes the death of a person other than one of the participants:

* * * *

“(C) Burglary in the first degree * * *;

U* ‡ ‡ *

“(G) Robbery in the first degree * * *[.]”

Counts 1 through 5 related to the murder of Barbara Farmer, as follows: count 1 was for aggravated murder (multiple victims); count 2 was aggravated felony murder (underlying felony of burglary); count 3 was aggravated felony murder (underlying felony of robbery); count 4 was aggravated murder to conceal the identity of the perpetrator of a crime (burglary); and count 5 was aggravated murder to conceal the identity of the perpetrator of a crime (robbery). Counts 6 through 10 stated the same theories with respect to the murder of Robert Farmer.

2 ORS 164.415 provides:

“(1) A person commits the crime of robbery in the first degree if the person violates ORS 164.395 [definingthe crime of robbery in the third degree] and the person:

“(a) Is armed with a deadly weapon; or

“(b) Uses or attempts to use a dangerous weapon; or

“(c) Causes or attempts to cause serious physical injury to any person.

“(2) Robbery in the first degree is a Class A felony.”

3 ORS 164.225 provides:

“(1) Aperson commits the crime of burglary in the first degree if the person violates ORS 164.215 [defining the crime of burglary in the second degree] and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:

“(a) Is armed with a burglar’s tool * * * or a deadly weapon; or

“(b) Causes or attempts to cause physical injury to any person; or

“(c) Uses or threatens to use a dangerous weapon.

“(2) Burglary in the first degree is a Class A felony.”

4 ORS 163.150(l)(b) (1987) provided:

“Upon the conclusion of the presentation of the evidence [in the sentencing proceeding], the court shall submit the following issues to the jury:

“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;

“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. In determining this issue, the court shall instruct the jury to consider any mitigating circumstances offered in evidence, including but not limited to, the defendant’s age, the extent and severity of the defendant’s prior criminal conduct and the extent of the mental and emotional pressure under which defendant was acting at the time the offense was committed; and

“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”

Because defendant made no claim of provocation by his victims, the court did not submit the third question to the jury.

The statute was amended in 1989 to add a fourth question in accordance with the decision of the Supreme Court of the United States in Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989). Or Laws 1989, ch 790, § 135b.

5 On appeal, the state argues that the aggravated murder counts should not have been merged. That argument was not made at trial, and we do not consider it further.

6 ORS 163.150(l)(e) (1987) provided in part:

“If the jury returns an affirmative finding on each issue considered under this section, the trial judge shall sentence the defendant to death.”

(Amended and renumbered as ORS I63.150(l)(f) in substantially same language as quoted above.)

7 ORS 163.150(l)(f) (1987) has been renumbered as ORS 163.150(l)(g) and provides in part:

“The judgment of conviction and sentence of death shall be subject to automatic and direct review by the Supreme Court.”

8 Article I, section 20, of the Oregon Constitution provides:

“No law shallbepassed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”

9 The Fourteenth Amendment to the Constitution of the United States provides in part:

“No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.”

10 We express no view as to the correctness of the trial court’s ruling.

11 Even if the prosecutor’s use of the word “bragging” did refer to the stricken mny, the trial court gave adequate cautionary instructions. When defense >1 objected to the prosecutor’s argument, the trial court said:

“[THE COURT]: Thejury will have to rely on their own recollection. I don’t low that it was stricken. I just can’t remember. You may proceed.”

A dosing arguments, the court instructed the jury in part:

“[THE COURT]: Ladies and gentlemen, it is your sole responsibility to ake all the decisions about the facts in this case.

<r# * * * *

“When the Court has sustained objections to evidence or ordered that dence be stricken or excluded from your consideration, you must follow the urt’s rulings. You must not consider such matters during your deliberations, ur verdict should be based only upon the evidence and these instructions. The torneys’ statements and arguments are not evidence. If your recollection of the ridence is different from the attorneys’ recollection, you must rely upon your wn memory.”

Def idant did not request any additional cautionary instructions.

12 See note 1, ante, for a description of the indictment. Defendant was convicted on all 10 counts of aggravated murder.

13 The dissenting opinion of Justice Fadeley contends that comments of the prosecutor and of the trial court, which preceded the giving of the correct instruction quoted above in the text, were error. 315 Or at 344-45. Defendant did not preserve that claimed error in the trial court. Neither are we persuaded that similar comments are likely to be made on remand.

14 ORCP 59E provides:

“The judge shall not instruct with respect to matters of fact, nor comment thereon.”

ORCP 59E applies to the trial of criminal actions. ORS 136.330(1).

15 Although defendant does not cite the statutes in these five assignments of error, this presumption is codified in ORS 10.096(6) and 136.415. ORS 10.095(6) provides in part:

“The jury, subject to the control of the court, in the cases specified by statute, are the judges of the effect or value of evidence addressed to them, except when it is thereby declared to be conclusive. They are, however, to be instructed by the court on all proper occasions:

* ** * *

“(6) Thatincriminalcasesapersonisinnocentofacrimeorwronguntilthe prosecution proves otherwise, and guilt shall be established beyond reasonable doubt!.]”

ORS 136.415 provides:

“A defendant in a criminal action is presumed to be innocent until the contrary is proved. In case of a reasonable doubt whether the guilt of the defendant is satisfactorily shown, the defendant is entitled to be acquitted.”

16 ORS 10.095(6) is set out at note 15, ante.

17 The Fourteenth Amendment to the Constitution of the United States provides in part:

“No State shall make or'enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law[.]”

18 The statute is set out at note 4, ante.

19 See Jurek v. Texas, 428 US 262, 278-79, 96 S Ct 2950, 49 L Ed 2d 929 (1976) (issues posed in sentencing proceeding similar to Oregon’s have “common-sense core of meaning” that juries are capable of understanding) (White, J., concurring).

20 Article I, section 20, of the Oregon Constitution, is set out in note 8, ante.

21 The pertinent portion of the Fourteenth Amendment is set out in note 9, ante.