2015 ORS 163.150¹
Sentencing for aggravated murder
  • proceedings
  • issues for jury

(1)(a) Upon a finding that the defendant is guilty of aggravated murder, the court, except as otherwise provided in subsection (3) of this section, shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to life imprisonment, as described in ORS 163.105 (Sentencing options for aggravated murder) (1)(c), life imprisonment without the possibility of release or parole, as described in ORS 163.105 (Sentencing options for aggravated murder) (1)(b), or death. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. If a juror for any reason is unable to perform the function of a juror, the juror shall be dismissed from the sentencing proceeding. The court shall cause to be drawn the name of one of the alternate jurors, who shall then become a member of the jury for the sentencing proceeding notwithstanding the fact that the alternate juror did not deliberate on the issue of guilt. The substitution of an alternate juror shall be allowed only if the jury has not begun to deliberate on the issue of the sentence. If the defendant has pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. 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. The court shall instruct the jury that all evidence previously offered and received may be considered for purposes of the sentencing hearing. This paragraph shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Oregon. The state and the defendant or the counsel of the defendant shall be permitted to present arguments for or against a sentence of death and for or against a sentence of life imprisonment with or without the possibility of release or parole.

(b) Upon the conclusion of the presentation of the evidence, 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;

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

(D) Whether the defendant should receive a death sentence.

(c)(A) The court shall instruct the jury to consider, in determining the issues in paragraph (b) of this subsection, any mitigating circumstances offered in evidence, including but not limited to the defendant’s age, the extent and severity of the defendant’s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed.

(B) The court shall instruct the jury to answer the question in paragraph (b)(D) of this subsection "no" if, after considering any aggravating evidence and any mitigating evidence concerning any aspect of the defendant’s character or background, or any circumstances of the offense and any victim impact evidence as described in paragraph (a) of this subsection, one or more of the jurors believe that the defendant should not receive a death sentence.

(d) The state must prove each issue submitted under paragraph (b)(A) to (C) of this subsection beyond a reasonable doubt, and the jury shall return a special verdict of "yes" or "no" on each issue considered.

(e) The court shall charge the jury that it may not answer any issue "yes," under paragraph (b) of this subsection unless it agrees unanimously.

(f) If the jury returns an affirmative finding on each issue considered under paragraph (b) of this subsection, the trial judge shall sentence the defendant to death.

(2)(a) Upon the conclusion of the presentation of the evidence, the court shall also instruct the jury that if it reaches a negative finding on any issue under subsection (1)(b) of this section, the trial court shall sentence the defendant to life imprisonment without the possibility of release or parole, as described in ORS 163.105 (Sentencing options for aggravated murder) (1)(b), unless 10 or more members of the jury further find that there are sufficient mitigating circumstances to warrant life imprisonment, in which case the trial court shall sentence the defendant to life imprisonment as described in ORS 163.105 (Sentencing options for aggravated murder) (1)(c).

(b) If the jury returns a negative finding on any issue under subsection (1)(b) of this section and further finds that there are sufficient mitigating circumstances to warrant life imprisonment, the trial court shall sentence the defendant to life imprisonment in the custody of the Department of Corrections as provided in ORS 163.105 (Sentencing options for aggravated murder) (1)(c).

(3)(a) When the defendant is found guilty of aggravated murder, and ORS 137.707 (Adult prosecution of 15-, 16- or 17-year-old offenders) (2) applies or the state advises the court on the record that the state declines to present evidence for purposes of sentencing the defendant to death, the court:

(A) Shall not conduct a sentencing proceeding as described in subsection (1) of this section, and a sentence of death shall not be ordered.

(B) Shall conduct a sentencing proceeding to determine whether the defendant shall be sentenced to life imprisonment without the possibility of release or parole as described in ORS 163.105 (Sentencing options for aggravated murder) (1)(b) or life imprisonment as described in ORS 163.105 (Sentencing options for aggravated murder) (1)(c). If the defendant waives all rights to a jury sentencing proceeding, the court shall conduct the sentencing proceeding as the trier of fact. The procedure for the sentencing proceeding, whether before a court or a jury, shall follow the procedure of subsection (1)(a) of this section, as modified by this subsection. 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.

(b) Following the presentation of evidence and argument under paragraph (a) of this subsection, the court shall instruct the jury that the trial court shall sentence the defendant to life imprisonment without the possibility of release or parole as described in ORS 163.105 (Sentencing options for aggravated murder) (1)(b), unless after considering all of the evidence submitted, 10 or more members of the jury find there are sufficient mitigating circumstances to warrant life imprisonment with the possibility of parole as described in ORS 163.105 (Sentencing options for aggravated murder) (1)(c). If 10 or more members of the jury find there are sufficient mitigating circumstances to warrant life imprisonment with the possibility of parole, the trial court shall sentence the defendant to life imprisonment as described in ORS 163.105 (Sentencing options for aggravated murder) (1)(c).

(c) Nothing in this subsection shall preclude the court from sentencing the defendant to life imprisonment, as described in ORS 163.105 (Sentencing options for aggravated murder) (1)(c), or life imprisonment without the possibility of release or parole, as described in ORS 163.105 (Sentencing options for aggravated murder) (1)(b), pursuant to a stipulation of sentence or stipulation of sentencing facts agreed to and offered by both parties if the defendant waives all rights to a jury sentencing proceeding.

(4) If any part of subsection (2) of this section is held invalid and as a result thereof a defendant who has been sentenced to life imprisonment without possibility of release or parole will instead be sentenced to life imprisonment in the custody of the Department of Corrections as provided in ORS 163.105 (Sentencing options for aggravated murder) (2), the defendant shall be confined for a minimum of 30 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp. Subsection (2) of this section shall apply only to trials commencing on or after July 19, 1989.

(5) Notwithstanding subsection (1)(a) of this section, if the trial court grants a mistrial during the sentencing proceeding, the trial court, at the election of the state, shall either:

(a) Sentence the defendant to imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105 (Sentencing options for aggravated murder) (1)(c); or

(b) Impanel a new sentencing jury for the purpose of conducting a new sentencing proceeding to determine if the defendant should be sentenced to:

(A) Death;

(B) Imprisonment for life without the possibility of release or parole as provided in ORS 163.105 (Sentencing options for aggravated murder) (1)(b); or

(C) Imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105 (Sentencing options for aggravated murder) (1)(c). [1985 c.3 §3; 1987 c.320 §86; 1987 c.557 §1; 1989 c.720 §2; 1989 c.790 §135b; 1991 c.725 §2; 1991 c.885 §2; 1995 c.531 §2; 1995 c.657 §23; 1997 c.784 §1; 1999 c.1055 §1; 2001 c.306 §1; 2005 c.480 §1]

Notes of Decisions

Where trial record contained no "judg­ment of con­vic­­tion," Supreme Court granted trial court leave to enter judg­ment of con­vic­­tion, because judg­ment is necessary prerequisite to review. State v. McDonnell, 306 Or 579, 761 P2d 921 (1988)

Fourth general mitiga­tion ques­tion to be submitted to sen­ten­cing jury must allow jury to consider all aspects of defendant's character and background whether or not causally related to of­fense. State v. Wagner, 309 Or 5, 786 P2d 93 (1990); State v. Farrar, 309 Or 132, 786 P2d 161 (1990); State v. Smith, 310 Or 1, 791 P2d 836 (1990); State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsidera­tion 318 Or 28, 861 P2d 1012 (1993); State v. Tucker, 315 Or 321, 845 P2d 904 (1993)

This sec­tion does not compel resen­ten­cing before original trial jury. State v. Wagner, 309 Or 5, 786 P2d 93 (1990); State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

Where trial court failed to give jury instruc­tion on fourth ques­tion on subject of mitiga­tion, case remanded to trial court for retrial of penalty phase. State v. Wagner, 309 Or 5, 786 P2d 93 (1990); State v. Moen, 309 Or 45, 786 P2d 111 (1990); State v. Miranda, 309 Or 121, 786 P2d 155 (1990); State v. Guzek, 310 Or 299, 797 P2d 1031 (1990); State v. Simonsen, 310 Or 412, 798 P2d 241 (1990); State v. Williams, 313 Or 19, 828 P2d 1006 (1992); State v. Rogers, 313 Or 356, 836 P2d 1308 (1992)

Where defendant was convicted of ag­gra­vat­ed mur­der and sen­tenced to death, evidence that defendant had threatened one or both victims with shotgun during argu­ment on prior occasion, evidence of prior con­vic­­tions for neg­li­gent hom­i­cide and forgery and testimony re­gard­ing unadjudicated incident in 1959 and evidence of prior con­vic­­tions for neg­li­gent hom­i­cide and forgery were properly presented to jury during penalty stage. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

Trial court's instruc­tions to jury that they could not have sympathy for defendant in delibera­tions on penalty phase were proper because role of jury is to reach reasoned decision based solely on evidence before jury. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

Where defendant failed to give any basis for trial court to take judicial notice that violence lessens with age, that violence is situa­tional, or to make specific com­ment on evidence about defendant's family or drug abuse, it would have been error for trial court to specifically instruct jury on these mitigating factors. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

Temporal gap between guilt and penalty phases in death penalty case created by this sec­tion is not unconstitu­tional. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

Evidence that defendant had committed prior abduc­tion and rape in 1980, offered to show defendant's intent to commit crime of at­tempted rape, was not properly admitted because similarities of two crimes did not outweigh differences. State v. Pratt, 309 Or 205, 785 P2d 350 (1990)

Evidentiary pro­vi­sions against character evidence and against uncorroborated confessions are not applicable because evidence is allowable as relevant to issue of future dangerousness. State v. Montez, 309 Or 564, 789 P2d 1352 (1990)

Issues considered during penalty phase do not determine guilt or impose new or different sanc­tion and therefore are not double jeopardy. State v. Montez, 309 Or 564, 789 P2d 1352 (1990)

Absent evidence making it relevant, trial court should not instruct jury on possible release of per­sons sen­tenced to life in prison. State v. Simonsen, 310 Or 412, 798 P2d 241 (1990); State v. Douglas, 310 Or 438, 800 P2d 288 (1990)

It was error in ag­gra­vat­ed mur­der case, albeit harmless error, for court to allow prosecutor to ask potential jurors during voir dire re­gard­ing their willingness to consider in penalty phase of pro­ceed­ings whether defendant had past crim­i­nal history for purpose of assessing probability of defendant's future dangerousness. State v. Pinnell, 311 Or 98, 806 P2d 110 (1991)

Where defendant was convicted of ag­gra­vat­ed mur­der and sen­tenced to death, evidence of pre­vi­ous mur­der, admitted under modus operandi excep­tion to general rule against introduc­tion of evidence of "other crimes," was erroneously admitted and prejudicial to defendant. State v. Johnson, 313 Or 189, 832 P2d 443 (1992)

Sentencing jury's verdict in earlier mur­der trial involving same defendant did not preclude state from relitigating issue of defendant's future dangerousness and seeking death penalty in later case. State v. Rogers, 313 Or 356, 836 P2d 1308 (1992)

Trial court did not err in refusing to instruct jury that "crim­i­nal acts of violence" referred to relatively narrow range of con­duct likely to result in physical injury to per­sons, including hom­i­cide, forcible rape, ag­gra­vat­ed assault and arson. State v. Tucker, 315 Or 321, 845 P2d 904 (1993)

Because this sec­tion es­tab­lishes clear, ra­tional and definite criteria for determining whether defendant should receive life sen­tence or death penalty, this sec­tion is not unconstitu­tional under Article I, sec­tion 20. State v. Tucker, 315 Or 321, 845 P2d 904 (1993)

Admission of victim impact evidence was improper because victim impact is not relevant to presence or absence of mitigating circumstances. State v. Metz, 131 Or App 706, 887 P2d 795 (1994), Sup Ct review denied; State v. Guzek, 322 Or 245, 906 P2d 272 (1995). But see State v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

Circumstantial evidence that defendant's execu­tion might have some harmful effect on defendant's daughter is relevant during penalty phase to defendant's character or background under fourth general mitiga­tion ques­tion. State v. Stevens, 319 Or 573, 879 P2d 162 (1994)

Where defendant is interrogated about crim­i­nal con­duct unrelated to charged mur­der, evidence of unrelated crim­i­nal con­duct derived during interroga­tion may not be used to enhance sen­tence for mur­der unless de­fense counsel was afforded opportunity to be present at interroga­tion. State v. Hill, 142 Or App 189, 921 P2d 969 (1996), Sup Ct review denied

Unadjudicated bad acts of defendant while incarcerated are admissible because relevant to issue of future dangerousness. State v. Williams, 322 Or 620, 912 P2d 364 (1996)

During penalty phase of trial, lay opinion of witness whether defendant should receive death penalty was irrelevant. State v. Wright, 323 Or 8, 913 P2d 321 (1996)

Evidence presented during sec­ond penalty-phase hearing that duplicates evidence at trial is not "repetitive evidence" where jury is not same as trial jury. State v. Montez, 324 Or 343, 927 P2d 64 (1996)

Evidence of defendant's prior parole viola­tions is admissible because relevant to future dangerousness. State v. Montez, 324 Or 343, 927 P2d 64 (1996)

Appellate court may review jury's decision under fourth ques­tion to determine whether ra­tional juror could have concluded that death sen­tence is justified. State v. Moore, 324 Or 396, 927 P2d 1073 (1996)

New penalty-phase pro­ceed­ing on remand is treated as separate trial for purposes of holding omnibus hearing and allowing state ap­peals therefrom prior to trial. State ex rel Carlile v. Frost, 326 Or 607, 956 P2d 202 (1998)

Retroactive applica­tion of 1995 amend­ments allowing considera­tion of victim impact evidence at sen­ten­cing violated ex post facto pro­hi­bi­­tion of Oregon Constitu­tion. State v. Metz, 162 Or App 448, 986 P2d 714 (1999), Sup Ct review denied. But seeState v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

Under 1993 version of statute, availability of new sen­ten­cing op­tion upon remand was governed by ap­pli­ca­bil­i­ty date in pro­vi­sion governing remand pro­ceed­ings, not ap­pli­ca­bil­i­ty date of sen­ten­cing op­tion pro­vi­sion. State v. Rogers, 330 Or 282, 4 P3d 1261 (2000)

Prosecu­tion has right to present rebuttal argu­ment re­gard­ing any penalty-phase matter raised by defendant's argu­ment, including whether death penalty should be imposed. State v. McNeely, 330 Or 457, 8 P3d 212 (2000)

1997 version of statute permitting jury considera­tion of aggravating evidence did not allow cruel and unusual punish­ment since jury could consider only evidence presented at trial. State v. Fanus, 336 Or 63, 79 P3d 847 (2003)

Where defendant has engaged in past dangerous con­duct based on defendant's beliefs, evidence relating to beliefs is relevant to issue of future dangerousness. State v. Fanus, 336 Or 63, 79 P3d 847 (2003)

Presenta­tion of evidence pertaining to per­sonal characteristics of victim or impact of crime on victim's family is not limited to testimony by victim or family. State v. Sparks, 336 Or 298, 83 P3d 304 (2004)

Use of victim impact evidence re­gard­ing crime committed before 1995 and 1997 amend­ments making evidence admissible does not violate federal ex post facto protec­tion and supersedes state ex post facto protec­tion. State v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

During penalty-phase pro­ceed­ing, guilt-phase transcripts are admissible regardless of substance. State v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

Where defendant waives ex post facto challenges, court must instruct jury during penalty phase of trial re­gard­ing sen­ten­cing op­tion not available at time defendant committed crime. State v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

Where transcripts of witness testimony from guilt phase of trial were used to prove ele­ments of state's case during penalty phase of trial, defendant had right to introduce prior inconsistent state­ments for impeach­ment purposes. State v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

1997 amend­ments requiring that jury be instructed to consider aggravating evidence did not alter evidence re­quired to be considered so as to trigger state or federal constitu­tional pro­hi­bi­­tion against ex post facto laws. State v. Acremant, 338 Or 302, 108 P3d 1139 (2005)

Ques­tions re­gard­ing probability of defendant's future dangerousness and whether defendant should receive death sen­tence do not unconstitu­tionally reduce standard of proof. State v. Longo, 341 Or 580, 148 P3d 892 (2006)

Where death penalty is not under considera­tion, evidence of potential for future violence is relevant to considera­tion of whether sufficient mitigating circumstances warrant life sen­tence with possibility of parole. State v. Ramsey, 215 Or App 434, 173 P3d 142 (2007), Sup Ct review denied

Submission of four issues to jury for sen­ten­cing determina­tion applies only where all three sen­ten­cing op­­tions are under considera­tion. State v. Ramsey, 215 Or App 434, 173 P3d 142 (2007), Sup Ct review denied

Law Review Cita­tions

22 WLR 285 (1986); 25 WLR 653 (1989); 70 OLR 943 (1991); 29 WLR 113, 343 (1993); 36 WLR 313 (2000); 39 WLR 1 (2003)

Chapter 163

Law Review Cita­tions

51 OLR 427-637 (1972)


1 Legislative Counsel Committee, CHAPTER 163—Offenses Against Persons, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors163.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 163, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano163.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.