S053466, Opinion — State v. Rogers

510
510
Argued and submitted January 12, sentence of death vacated, and case remanded
to circuit court for further proceedings October 11, 2012
STATE OF OREGON,
Plaintiff - Respondent,
v.
DAYTON LEROY ROGERS,
Defendant - Appellant.
(CC 88-355, 88-356, 88-357, 88-359, 88-360; SC S053466)
288 P3d 544
On remand after Supreme Court reversed sentence of death imposed upon
defendant’s convictions for aggravated murder, defendant was again sentenced
to death. Held: On automatic and direct review, the Supreme Court held that:
(1) The adoption of Article I, section 40, of the Oregon Constitution, which provides
that, in specified circumstances, death shall be the penalty for aggravated murder,
did not violate the “separate vote” requirement of Article XVII, section 1, of the
Oregon Constitution; (2) the question posed to a penalty-phase jury by ORS
163.150(1)(b)(C), i.e., whether defendant’s conduct in committing aggravated
murder was “unreasonable in response to the provocation, if any, by the deceased,”
is not unconstitutionally infirm; (3) the trial court did not err in refusing to
admit evidence relevant to question posed by ORS 163.150(1)(b)(C) or in failing
to pose the question to the jury; (4) the trial court erred in employing certain
juror unanimity procedures during voir dire and the error was not harmless; and
(5) the trial court erred in allowing the state’s expert to testify about defendant’s
consensual homosexual experience as a teenager.
The sentence of death is vacated, and the case is remanded to the circuit court
for further proceedings.
On automatic and direct review of the sentence of death
imposed by the Clackamas County Circuit Court.
Ronald D. Thom, Judge.
J. Kevin Hunt, Oregon City, and Richard L. Wolf, Portland,
argued the cause and filed the briefs for defendant-appellant.
Timothy A. Sylwester, Sr. Assistant Attorney General,
Salem, argued the cause and filed the brief for plaintiff-
respondent. With him on the brief were John R. Kroger,
Attorney General, Mary H. Williams, Solicitor General,
Erika L. Hadlock, Sr. Assistant Attorney General, and Leigh
A. Salmon, Assistant Attorney General.

Cite as 352 Or 510 (2012) 	511
Jeffrey E. Ellis, Oregon Capital Resource Center, Portland,
filed a brief for amici curiae Oregon Capital Resource
Center; Oregon Criminal Defense Lawyers Association; and
American Civil Liberties Union Foundation of Oregon. With
him on the brief were Robert S. Raschio, The Dalles, and
Kevin Diaz, Portland.
Before 	De 	Muniz, 	Durham, 	and 	Walters, 	Justices,
Haselton, Chief Judge, and Brewer, Judge.*
WALTERS, J.
The sentence of death is vacated, and the case is remanded
to the circuit court for further proceedings.
______________
* Balmer, C. J., and Kistler, Linder, and Landau, JJ., did not participate in the
consideration or decision of this case.

512 	State v. Rogers
WALTERS, J.
This is an automatic and direct review pursuant
to 	ORS 	138.012(1) 	of 	sentences 	of 	death 	imposed 	on
defendant after a “penalty phase” trial. 1 Defendant raises
33 assignments of error. Five of them merit discussion,
specifically, defendant’s claims that (1) the adoption of
Article I, section 40, of the Oregon Constitution, which,
provides that, in specified circumstances, death shall be
the penalty for aggravated murder, violated the “separate
vote” requirement of Article XVII, section 1, of the Oregon
Constitution; (2) the so-called “third question,” which asks
whether defendant’s conduct was “unreasonable in response
to the provocation, if any, by the deceased,” is constitutionally
infirm; (3) the trial court erred by refusing to admit evidence
relevant to the third question or failing to pose the question
to the jury; (4) the trial court erred in empanelling an
“anonymous” jury; and (5) the trial court erred in allowing
the state’s expert to testify about defendant’s consensual
homosexual experience as a teenager.
We discuss but reject defendant’s arguments as to
three of those assignments of error. We conclude that his
position as to the fourth and fifth are well-taken. We conclude
that the trial court erred in empanelling an “anonymous”
jury without finding, as required by this court’s decision in
State v. Sundberg, 349 Or 608, 247 P3d 1213 (2011), that
there were strong and particular grounds for believing that
the jurors’ identities needed to be protected. Because that
error was not harmless, we vacate the sentences of death
and remand to the circuit court for a new penalty-phase
trial. 2 We also conclude that the trial court erred in denying
1 This was the third such proceeding for defendant. This court vacated the
death sentences imposed in penalty-phase proceedings held in 1987 and 1994 and,
in both cases, remanded for retrial of the penalty issue. State v. Rogers, 313 Or 356,
836 P2d 1308 (1992), cert den, 507 US 974 (1993) (Rogers I); State v. Rogers, 330 Or
282, 4 P3d 1261 (2000) (Rogers II).
2 As to defendant’s other assignments of error, we either decline to consider
them because they are insufficiently developed, were not preserved in the trial
court, are essentially duplications of other assignments of error, or are unlikely to
recur in any new penalty-phase trial, or we reject them on their merits.
Included in the category of assignments of error that we decline to consider
are defendant’s assignments of error 3 and 5 (claims pertaining to the so-called
“third question”), 6 and 7 (claims that the petit jury was drawn from a jury venire
that was not representative of the community and that the trial court erred by

Cite as 352 Or 510 (2012) 	513
defendant’s 	motion 	to 	exclude 	evidence 	of 	defendant’s
homosexual experiences as a teenager.
1. 	Defendant’s challenge to Article I, section 40, of the
Oregon Constitution
The first claim that we discuss is defendant’s
“separate vote” challenge to the validity of Article I, section
40, of the Oregon Constitution, a provision that was adopted
by the people in 1984 as “Ballot Measure 6.” Article I, section
40, provides:
permitting that issue to be litigated outside of defendant’s presence), 8 (claim
that the trial court improperly excused certain prospective jurors), 10 (claim that
state improperly used peremptory challenges to exclude women from the jury),
11 and 12 (claims that trial court erred in denying defendant’s motions to excuse
two jurors for cause), 15 (claim that state engaged in prosecutorial misconduct by
introducing victim impact evidence in spite of agreement not to do so), 17 (claim
that defendant was entitled to mistrial when state stated in closing argument
that defendant had never expressed remorse, 18 and 19 (claims that prosecution
misstated the burden of proof on the so-called “second question” and that the trial
court erred in declining to give a curative instruction or grant a mistrial), 25 (claim
that trial court erred in allowing the state to make two arguments on the so-called
“fourth question,” and 26 (claim that court erred in denying post-verdict motion to
examine a certain juror).
Included in the category of assignments of error that we reject on the merits,
without further discussion, are assignments of error 13 and 14 (claims that
delays occasioned by multiple reversals and retrials are grounds for precluding
death penalty in defendant’s case), 16 (claim that trial court erred by admitting
photographs of the victims as they appeared when alive), 21 (claim that trial court
erred in refusing to give proffered jury instruction pertaining to the meaning
of “deliberately”), 22 (claim that issue of defendant’s future dangerousness for
purposes of ORS 163.150(1)(b)(B) had been decided in another capital case against
defendant and that the state was estopped from relitigating that issue), 23 (claim
that there was insufficient evidence to support jury’s determining in guilt phase of
trial that defendant had intentionally tortured his victims, 24 (claim that evidence
was insufficient to support jury’s determination regarding defendant’s future
dangerousness), 27 (claim that legislature’s enactment of the judicially created
“fourth question” results in ex post facto violation), 28 (various constitutional
challenges relating to “unconscionable delays inherent in any capital punishment
scheme”), 29 (claim that trial court erred in refusing to permit appellate counsel to
examine contents of box labeled “judge’s notes”), 30 (reasserting various challenges
rejected by this court in State v. Wagner, 305 Or 115, 752 P2d 1136 (1988) and other
cases, 31 (claim that cumulative effect of all of the foregoing errors had rendered
the proceeding fundamentally unfair), and defendant’s pro se claims that the trial
court abused its discretion in denying defendant’s motion to have the jury view
conditions on death row and erred in excluding defendant from discussions about
how to answer the jury’s questions.
Justice Durham concurs in the court’s rejection of assignment of error 30,
regarding defendant’s various challenges based on State v. Wagner, for the reasons
expressed in his concurring opinion in State v. Guzek, 336 Or 424, 465, 86 P2d 1106
(2004), and cases cited therein.

514 	State v. Rogers
“Notwithstanding sections 15 and 16 of this Article, the
penalty for aggravated murder as defined by law shall
be death upon unanimous affirmative jury findings as
provided by law and otherwise shall be life imprisonment
with minimum sentence as provided by law.”
Defendant contends that Article I, section 40, was void
ab initio because it was adopted in a manner that violated
the “separate vote” requirement, set out at Article XVII,
section 1, of the Oregon Constitution, for constitutional
amendments submitted to the people. Defendant further
contends that, because Article I, section 40, was void when
adopted, 	the 	“entire 	statutory 	‘Oregon 	Death 	Penalty
Scheme’ 	(i.e., 	all 	substantive 	and 	procedural 	statutes
purporting to authorize and implement capital punishment
in Oregon * * *)”3 also is void because it is “dependent for
constitutionality” on Article I, section 40.
Article XVII, section 1, of the Oregon Constitution
provides, in part:
“When two or more amendments shall be submitted * * *
to the voters of this state at the same election, they shall
be so submitted that each amendment shall be voted on
separately.”
That “separate vote” requirement is “aimed at ensuring that
the voters are able to express their will in one vote as to
only one constitutional change.” Armatta v. Kitzhaber, 327
Or 250, 269, 959 P2d 49 (1998).
Armatta is the seminal case on the separate-vote
requirement. 	There, 	the 	court 	compared 	the 	wording,
historical development, and case law surrounding Article
XVII, section 1, with the “single-subject” requirement for
initiated measures, set out at Article IV, section 1(2)(d), 4
and concluded that the two constitutional provisions were
3 The group of statutes that defendant dubs “the Oregon Death Penalty
Scheme” were adopted contemporaneously with Ballot Measure 6 (1984) in another
voter initiative, Ballot Measure 7 (1984). The statutes have since been codified
at ORS 163.095, ORS 163.105, ORS 167.150, ORS 138.012, and ORS 137.463 to
137.482.
4 Article IV, section 1(2), reserves to the people the power to enact laws and
adopt amendments to the constitution by initiative petition. The single subject
requirement is expressed in paragraph (d): “* * * A proposed law or amendment to
the Constitution shall embrace one subject only and matters properly connected
therewith.”

Cite as 352 Or 510 (2012) 	515
different in a number of respects. Most significantly, the
court observed that, whereas the single-subject requirement
focuses on the content of a proposed statute or amendment,
the 	separate-vote 	requirement 	focuses 	on 	the 	form 	of
submission of an amendment and the potential changes to
the existing constitution that the amendment proposes. Id.
at 274. Based on that analysis, the court concluded that,
when faced with a claim that a proposed constitutional
amendment offends Article XVII, section 1, the proper
inquiry is “whether, if adopted, the proposal would make
two or more changes to the constitution that are substantive
and that are not closely related.” Id. at 277.
The analysis in Armatta, and in other separate-vote
cases that have followed, establishes two principles that
are important to determining whether a ballot measure
makes “two or more changes” to the Oregon Constitution
that require separate votes. First, if a measure proposes to
add new matter to the constitution, the measure proposes at
least one constitutional change. Lehman v. Bradbury, 333 Or
231, 242-43, 37 P3d 989 (2002); Armatta, 327 Or at 277-78.
Second, if a measure has the effect of modifying an existing
constitutional provision, it proposes at least one additional
change to the constitution, whether that effect is express or
implicit. Meyer v. Bradbury, 341 Or 288, 297, 142 P3d 1031
(2006); Lehman, 333 Or at 243; Armatta, 327 Or at 278-80.
Applying those principles, defendant asserts that
Measure 6 proposed to change the Oregon Constitution in
15 separate ways. The state acknowledges three of those
changes: (1) the addition of a new constitutional requirement
that a person convicted of aggravated murder be sentenced
to death or life imprisonment; (2) an amendment to former
Article I, section 15—specifically, an exemption from section
15’s 	then-existing5 	admonition 	that 	criminal 	penalties
must be based on principles of reformation rather than
5 At the time that Measure 6 was adopted, Article I, section 15, of the Oregon
Constitution provided:
“Laws for the punishment of crime shall be founded on the principles of
reformation, and not of vindictive justice.”
Article I, section 15, has been amended since Measure 6 was adopted and no longer
requires that criminal punishment be based solely on principles of reformation.

516 	State v. Rogers
vindictive justice; and (3) an amendment to Article I, section
16, specifically an exemption from section 16’s prohibition
on cruel and unusual punishment and requirement of
proportionate punishment. 6 We agree that Article I, section
40, proposed at least those three changes, but, before we
analyze whether Measure 6 was invalid because it did not
permit a separate vote on each of those changes, we turn to
the question whether, as defendant contends, that measure
also proposed additional changes to the constitution.
We begin with defendant’s assertion that Measure 6
proposed not one, but two, new additions to the constitution.
Defendant argues that that is so because the measure
declares 	that 	(1) 	the 	sentence 	for 	aggravated 	murder
in certain specified circumstances is death, and (2) the
sentence for aggravated murder in other circumstances is
life imprisonment. We disagree. The measure provides that,
“upon unanimous affirmative jury findings as provided
by law,” death is the penalty for aggravated murder. The
measure then specifies the penalty that must be imposed
when the jury does not make those findings. The latter
declaration merely completes the sentencing construct that
the former declaration describes; it does not propose to add
a separate constitutional provision.
Defendant also contends that Measure 6 proposed
a separate amendment to the constitution by “permitting”
the death penalty. Although defendant does not explain
that contention, we assume that it relates to defendant’s
claim in a different assignment of error that, at the time
that Measure 6 was considered, the constitution contained
an actual, albeit implied, prohibition on the death penalty.
Defendant’s theory, in a nutshell, is that the 1964 repeal
of two constitutional provisions that authorized the death
penalty revived, sub silentio, a preceding (1920) provision
6 Article I, section 16, of the Oregon Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed. Cruel
and unusual punishments shall not be inflicted, but all penalties shall be
proportioned to the offense. In all criminal cases whatever, the jury shall have
the right to determine the law, and the facts under the direction of the Court
as to the law, and the right of new trial, as in civil cases.”

Cite as 352 Or 510 (2012) 	517
that had abolished the death penalty.7 Defendant suggests
that 	Measure 	6 	separately 	proposed 	to 	amend 	that
prohibition by declaring that the penalty for aggravated
murder was, in certain circumstances, death.
Defendant’s theory depends on our agreement with
his idea that a constitutional provision that is repealed
by a later constitutional amendment is revived when the
amendment is itself repealed. That idea is contrary to this
court’s ordinary method of constitutional interpretation, as
described in ORS 174.090,8 and we reject it. It follows that,
although Measure 6 proposed the addition of a provision
to the constitution that “permitted” the death penalty
for aggravated murder, it did not, as defendant seems to
suggest, also propose the revival of an earlier prohibition on
the death penalty and separately amend it.
Next, 	defendant 	contends 	that 	by 	using 	the
introductory phrase “notwithstanding sections 15 and 16 of
this Article,” Measure 6 proposed 10 separate constitutional
changes. First, defendant argues, the measure effectively
proposed to amend the directive in Article I, section 16, that,
“[i]n all criminal cases whatever, the jury shall have the right
to determine the law, and the facts under the direction of the
Court as to the law, and the right of new trial, as in civil
7 Since statehood, the people of Oregon have at various times amended
the state constitution to provide for or repeal the death penalty. In 1914, the
people voted to amend the constitution to abolish the death penalty, but, after
only six years, i.e., in 1920, the people adopted a constitutional amendment that
(1) repealed the 1914 ban and (2) required the death penalty in first-degree
murder cases (except when the jury recommended life imprisonment). A 1964
ballot initiative, Ballot Measure 1, repealed the 1920 amendments. Defendant
contends that that 1964 amendment had the effect of affirmatively prohibiting the
death penalty and that it becomes effective again if Article I, section 40, is shown
to be invalid.
8 ORS 174.090 provides:
“Whenever a constitutional provision which repeals or suspends in whole or
in part a former constitutional provision, either expressly or by implication, is
repealed, the former constitutional provision so repealed or suspended thereby
shall not be revived unless it expressly is so provided.”
ORS 174.090 appears to codify this court’s rejection of the idea that the “rule of
implied revival” extends to the construction of constitutional amendments. See
Klamath Falls v. Oregon Liquor Comm., 146 Or 83, 29 P2d 564 (1934) (rejecting,
in constitutional context, common law rule of statutory construction that when
a repealing statute is itself repealed, the first statute is revived); City of Coos
Bay v. Eagles Lodge, 179 Or 83, 89, 170 P2d 389 (1946) (citing and applying rule
announced in Klamath Falls).

518 	State v. Rogers
case.” Based on a reference to that directive in a dissenting
opinion in State v. Boots, 315 Or 572, 592-93, 848 P2d 76,
cert den, 510 US 1013 (1993), defendant argues that section
16 gives juries the authority to acquit criminal defendants
regardless of the overwhelming nature of the evidence and
that, as extended to the death penalty, it allows juries to
“acquit” capital defendants of the death penalty, even as
against the evidence. This court has not determined that the
cited portion of Article I, section 16, operates in the manner
that defendant suggests, but even if it does, there is no logical
basis for concluding that the “notwithstanding” clause of
Measure 6 interferes with that aspect of Article I, section
16. To the contrary, Measure 6 expressly acknowledges the
role of the jury and prescribes the death penalty only “upon
unanimous jury findings.” Measure 6 does not limit a jury’s
authority to make the findings that it deems appropriate or
to decide that a defendant should not be sentenced to death.
Defendant calculates nine other proposed changes
to sections 15 and 16 as follows. Defendant first points out
that sections 15 and 16 express three “penal principles”
that he contends are entirely separate from one another—
the ban on “vindictive justice” expressed in Article I, section
15, the ban on “cruel and unusual punishment” expressed
in Article I, section 16, and the requirement that “penalties
[be] proportioned to the offense,” also expressed in Article
I, section 16. Second, defendant argues, sections 15 and
16 permit three different types of challenges to the death
penalty—challenges to the death penalty per se, challenges
to the “procedures for imposing a death sentence,” and
challenges to the method and manner of execution. In
defendant’s view, the measure precludes a defendant from
using all three “penal principles” as a basis for all three
types of legal challenges and, in doing so, makes a total of
nine changes to the constitution.
Defendant is correct that the text of sections 15
and 16 includes three textually separate provisions—a
ban on “vindictive justice,” a ban on “cruel and unusual
punishment” 	and 	a 	requirement 	that 	“penalties 	[be]
proportioned to the offense.” Defendant also is correct that
those separate provisions may serve as the basis for at least
three different types of constitutional challenges—facial

Cite as 352 Or 510 (2012) 	519
challenges to legislatively imposed sanctions, challenges to
the procedures prescribed or followed in the imposition of
sanctions, and challenges to the application of sanctions in
particular circumstances. However, defendant is incorrect
that the measure prohibits each of the nine challenges that he
posits. As the state correctly explains, “the ‘notwithstanding
clause’ can relate only to what * * * follows it in the text,” i.e.,
a declaration that, in certain specified circumstances, death
is the sentence for aggravated murder. Matters that are not
included within the text that follows the “notwithstanding”
clause—for example, issues pertaining to the procedure
followed in imposing that sanction, or to the manner and
method of execution—are not affected by that clause. Thus,
the measure changes sections 15 and 16 by eliminating
any constitutional barriers that those sections potentially
posed to death as a sanction for aggravated murder; it
does not render sections 15 or 16 otherwise inoperable. In
other words, the text of the measure appears to preclude
challenges to the death penalty as a sanction for aggravated
murder; it does not preclude other challenges under Article
I, section 15 and 16.
As a result, it is not surprising that defendant does
not rely on the text of the measure for his argument that
the “notwithstanding” clause has a more expansive effect.
Rather, he argues that application of ordinary interpretive
principles, including, particularly, the idea that this court’s
interpretations of a constitutional text provide context for
interpretation of its terms, lead inevitably to the conclusion
that 	Measure 	6 	precludes 	any 	and 	all 	constitutional
challenges based on the relevant provisions of Article I,
sections 15 and 16. 9 Defendant particularly relies on Clark
v. Paulus, 295 Or 673, 677, 669 P2d 794 (1983), in which this
court broadly described Measure 6 as exempting the death
penalty 	from 	the 	constitutional 	guarantees “embodied”
9 Defendant also argues that the historical milieu in which Measure 6 was
adopted supports that interpretation of the measure. That suggestion is unavailing.
The historical events that defendant mentions—the fact that an earlier and nearly
identical measure adopted by the people had been invalidated by this court in State
v. Quinn, 290 Or 383, 623 P2d 630 (1981), and the fact that Measure 6 followed, by
some few years, the United States Supreme Court’s decision in Furman v. Georgia,
408 US 238, 92 S Ct 2726, 33 L Ed 2d 346 (1972)—simply are not relevant to the
interpretation that defendant seeks to prove.

520 	State v. Rogers
in Article I, sections 15 and 16, and State v. Wagner, 305
Or 115, 139, 752 P2d 1136 (1988), vac’d and rem’d, 492
US 914 (1989), in which the court, after examining the
“notwithstanding” clause, stated in very expansive terms,
that, in light of the “notwithstanding” clause of Measure 6,
in capital cases the court would not
“consider further any argument * * * that depends on
contentions grounded in Article I, section 15 and 16, or the
Oregon Constitution.”
Defendant’s theory fails. Although it is true that,
in some cases, the court has described the clause’s effect in
broad terms, a careful examination of those cases, and all
other cases in which challenges to a death sentence under
Article I, sections 15 or 16, were at play, reveals that the
court has never applied Measure 6 to bar all challenges
that rely on those sections. 10 In short, the interpretation of
10 Defendant submits a lengthy list of cases that, in his view, show that the
court has interpreted the Measure 6’s “notwithstanding” clause as barring any
challenges to imposition of the death penalty under Article I, sections 15 and 16.
In the first case he cites, Clark, the court merely decided the proper ballot title
for Measure 6. In the next cited case, Wagner, the only challenges under Article I,
sections 15 and 16 that were before the court were vague challenges to the death
penalty per se and to the failure of the statutory death penalty scheme to sufficiently
narrow the application of the death penalty. However broad the court’s statement
about the “notwithstanding” clause’s effect may have been, the holding decided
only the claims that defendant actually asserted. The same is true of the third case
that defendant cites—State v. Montez, 309 Or 564, 789 P2d 1352 (1990): the court
held only that the “notwithstanding” clause precluded section 16 challenges to the
death penalty itself and to the death penalty statutes that implement it; the court
was not confronted with the full panoply of potential challenges under Article I,
section 16.
In fact, in several of the cases that defendant cites—State v. Rogers, 313 Or
356, 836 P2d 1308 (1992); State v. Isom, 313 Or 391, 837 P3d 496 (1992); State
v. McDonnell, 313 Or 478, 837 P2d 941 (1992); and State v. Langley, 314 Or 247,
839 P2d 692 (1992)—and at least one that defendant does not cite—State v. Moen,
309 Or 45, 786 P2d 111 (1990)—the court actually considered, and rejected on the
merits, certain challenges based on the “cruel and unusual” and “proportionate
penalty” provisions of Article I, section 16. Those cases are inconsistent with
defendant’s argument that Article I, section 40 bars all such challenges.
Finally, in the other cases that defendant cites—State v. McDonnell, 310 Or
98, 794 P2d 780 (1990), State v. Guzek, 322 Or 245, 906 P2d 272 (1995), and State
v. Guzek, 336 Or 424, 86 P3d 1106 (2004), cert den, 544 US 979 (2005)—the court
did not consider the defendants’ challenges to their death sentences under Article
I, section 16, because it resolved the cases in the defendants’ favor on different
grounds.
In short, defendant does not cite a single case in which the court considered,
much less decided, whether Measure 6 bars challenges to the “procedures for

Cite as 352 Or 510 (2012) 	521
Measure 6 upon which defendant’s theory is premised has
no textual or contextual support.
Finally, 	defendant 	contends 	that 	other 	short
phrases in the body of Measure 6 proposed two changes to
Article I, section 11, of the Oregon Constitution.11 Defendant
first notes that Article I, section 11, permits criminal
defendants to be found guilty by nonunanimous verdicts,
with an exception requiring unanimous verdicts in cases of
first degree murder. Defendant suggests that, by requiring
“unanimous 	jury 	findings,” 	Measure 	6 	adds 	a 	second
exception to Article I, section 11, requiring unanimous
verdicts in death penalty cases. However, Article I, section
11, prescribes only the number of jurors who must agree on
“verdicts” of “guilty or not guilty,” whereas the “unanimous
affirmative jury findings” requirement of Measure 6 applies
to the findings necessary to support the imposition of the
death penalty after a jury has reached a guilty verdict.
Moreover, to the extent that Measure 6 may be interpreted as
requiring unanimous jury findings to support a guilty or not
guilty verdict, it is consistent with, and does not change, the
requirement in Article I, section 11, that “verdicts of guilty
of first degree murder [(the historical analog of aggravated
murder)] [be] found only by a unanimous verdict.”
Defendant also appears to suggest that the right of
criminal defendants to jury trial, also guaranteed by Article
I, section 11, is separately affected by Measure 6’s reference
to jury findings “as provided by law.” But defendant does
not show, and this court has no reason to believe, that that
reference in any way alters the jury trial guarantee afforded
by Article I, section 11. The measure does not explicitly or
implicitly amend Article I, section 11.
We conclude that sections 15 and 16 of Article I
include three textually separate provisions—a ban on “vin-
dictive punishment,” a ban on “cruel and unusual punish-
ment” and a requirement that “penalties [be] proportioned
imposing a death sentence” or the method or manner of carrying out the death
penalty—the two types of challenges that, in defendant’s view, are foreclosed.
11 Article I, section 11, provides a right to trial by jury in criminal prosecutions,
and further provides that “in the circuit court ten members of the jury may render
a verdict of guilty or not guilty, save and except a verdict of guilty of first degree
murder, which shall be found only by a unanimous verdict and not otherwise.”

522 	State v. Rogers
to the offense”—that are implicated by Measure 6. We
further conclude that, insofar as Measure 6 eliminated the
barriers to the imposition of the death penalty posed by each
of those provisions, it made three, not two, separate changes
to the Oregon Constitution. As the parties acknowledge, the
measure also made a fourth constitutional change, namely,
creating the new constitutional requirement that persons
convicted of aggravated murder be sentenced to death or life
imprisonment. Those four changes are all substantive, and
the parties do not argue otherwise.
That leaves us to determine whether the four
identified 	changes 	are 	“closely-related.” 	In 	Lehman 	v.
Bradbury, 333 Or 231, 246, 37 P3d 989 (2002), the court
described the “closely-related” inquiry in the following terms:
“First, 	we 	examine 	the 	relationship 	among 	the
constitutional provisions that the measure affects, both
explicitly and implicitly. If the affected provisions of the
existing constitution themselves are not related, then it
is likely that changes to those provisions will offend the
separate vote requirement * * *. [T]he fact that a proposed
amendment asks the people, in one vote, substantively
to change multiple provisions of the Oregon Constitution
that are not themselves related is one indication that the
proposed 	amendment 	might 	violate 	the 	separate-vote
requirement.
“Next, we must consider the constitutional changes
themselves. * * * If they are closely related, the measure
under consideration survives scrutiny under Article XVII,
section 1. If they are not, it does not.”
In Swett v. Bradbury, 333 Or 597, 43 P2d 1094 (2002), the
court observed that that statement was “descriptive not
prescriptive,” and that it was “equally valid analytically to
start the inquiry by focusing on the changes themselves.” Id.
at 607. For reasons that will become clear, we choose that
option.
One thing that should be immediately obvious about
Measure 6 is that it contains only one provision and proposes
to do only one thing—prescribe the penalty for aggravated
murder. All of the other changes that Measure 6 effects
are directed at eliminating the potential constitutional
barriers to the imposition of that penalty posed by Article I,

Cite as 352 Or 510 (2012) 	523
sections 15 and 16. Said another way, the three changes
that the measure makes to Article I, sections 15 and 16, are
necessary corollaries to the new provision that permits the
imposition of the death penalty.
In that way, Measure 6 is very different from the
measures that the court considered in Armatta and in the
“separate vote” cases it decided after Armatta. Each of those
measures contained more than one provision, and it would
have been possible for voters to separately decide (1) which
of many procedural rights they wished to grant to victims
(Armatta);12 (2) whether to impose term limits for state and/
or federal offices (Lehman); (3) whether to require disclosure
of campaign contributions and/or impose a requirement that
signature gatherers for initiative petitions be registered
Oregon voters (Swett); (4) whether to require payment of
just compensation for the financial impact of all regulations
on private real property and/or except certain kinds of uses
from that compensation requirement (League of Oregon
Cities v. State of Oregon, 334 Or 645, 56 P3d 892 (2002));
(5) which of a number of different substantive and procedural
protections to provide to persons whose property is subject
to forfeiture, and how to use forfeiture proceeds (Lincoln
Interagency Narcotics Team v. Kitzhaber, 341 Or 496, 145
P3d 151 (2006));13 and (6) whether to permit the legislature
to prohibit or limit campaign contributions and expenditures
12 The measure that was at issue in Armatta, Ballot Measure 40 (1996), was
expansive and multi-faceted. It added a new section to Article I of the Oregon
Constitution, and the new section was composed of nine separate paragraphs, which
prescribed various procedural rights to which crime victims would be entitled in
the pre- and post-trial phases of a criminal prosecution or juvenile proceedings,
declared how those rights were to be construed in light of other Oregon and federal
constitutional provisions, and defined certain relevant terms. Measure 40 did not
expressly repeal or modify any existing constitutional provisions; however, it had
the effect of modifying six separately enumerated, individual rights (pertaining to
search and seizure, unanimous jury verdicts, waiver of jury trial, former jeopardy,
self-incrimination, and bail) and the legislature’s constitutional authority to
establish juror qualifications in criminal cases. This court held that the ballot
measure proposed “two or more changes that [were] substantive and not closely
related” and, therefore, that it violated the separate vote requirement. Armatta,
327 Or at 283-84.
13 In Lincoln Interagency, the court held that a constitutional change that
provided “administrative detail” to another constitutional change in the same
measure was “closely related” to the latter change, as was a constitutional change
that placed a limitation on what another constitutional change otherwise would
have allowed. 341 Or at 510-12.

524 	State v. Rogers
and, if so, whether to require more than majority approval
for such legislation (Meyer v. Bradbury, 341 Or 288, 142 P3d
1031 (2006)).14
Defendant argues that the same is true of Measure
6—that a voter conceivably could favor one or more of the
changes that Measure 6 effects and oppose others. For
example, defendant suggests, a voter could support the
measure’s directive that the penalty for aggravated murder
is death, but oppose excepting that directive from the
relevant provisions of Article I, sections 15 or 16. But, in
so contending, defendant fails to recognize the limits of the
measure’s effect on those sections. As we have explained,
Measure 6 ensures that Article I, sections 15 and 16, will
not stand as barriers to imposition of the death penalty. It
does not otherwise permit that penalty to be imposed in
violation of those sections—for example, by methods that
are cruel and unusual. Because the measure did not propose
to eliminate all or any of the protections afforded by sections
15 and 16, it was not possible for voters to separately decide
whether they wished to do so. A voter who favored death
as a penalty for aggravated murder could not achieve that
objective without also favoring removal of potential barriers
to imposition of that penalty, specifically those found in
Article I, sections 15 and 16.
So understood, the four separate and substantive
changes that Measure 6 made to the Oregon Constitution
are “closely related.” It is not simply that those separate
constitutional changes are bound by a shared goal or
subject matter—a relationship that this court concluded, in
Swett, was insufficiently close to pass muster under Article
XVII, section 1. 333 Or at 609. Rather, those changes were
necessary to imposition of death as a penalty for aggravated
murder in this state.
14 In Meyer, the court rejected an argument that, in Initiative Petition 8
(2006), the creation of legislative authority to enact laws regulating campaign
finance, which constituted one constitutional change, was not closely related to the
other constitutional change contained in the same measure—the imposition of a
three-quarter supermajority requirement on the enactment of such laws. The court
reasoned that, insofar as the latter constitutional change was simply a “procedural
condition” of the former, the constitutional changes were closely related and did
not offend the separate vote requirement. 341 Or at 300-01.

Cite as 352 Or 510 (2012) 	525
As articulated in the passage from Lehman, 333
Or at 246, quoted above, the next step in the separate
vote analysis would require that we consider whether the
constitutional provisions that Measure 6 affects are closely
related. However, it should be clear from the foregoing
discussion that that step is not relevant here. Because the
changes that Measure 6 proposed to make to the existing
constitution were necessary to give effect to the death
penalty scheme that is at the measure’s heart, a separate
vote on whether those effects should logically follow was
not possible. Therefore, whether the existing constitutional
provisions that were affected by the new constitutional
provision were themselves closely related is an unnecessary
inquiry. Where, as here, a measure contains only one new
provision and the changes that the measure makes to
existing provisions are only those necessary to effectuate
that provision, the only conclusion that we can reach is that
those necessary changes are closely related.
We conclude that, although Measure 6 made more
than one substantive change to the Oregon Constitution,
those changes were closely related. It follows that Measure
6 did not violate the “separate vote” requirement of Article
XVII, section 1, and that Article I, section 40, is not, as
defendant asserts, “void ab initio.” It also follows that
defendant’s challenge to the validity of Oregon death penalty
scheme, which depends on that assertion, is without merit.
That statutory scheme remains in effect.
2. 	The “third question,” ORS 163.150(1)(b)(C)
The next assignments of error that we consider
are 	those 	that 	concern 	the 	so-called 	“third 	question,”
ORS 163.150(1)(b)(C). The “third question” is one of four
questions that are submitted to the jury at the close of a
penalty-phase trial, the jury’s answers to which determine
whether a death sentence will be imposed. The question and
the relevant statutory context are as follows:
“Upon the conclusion of the presentation of the evidence,
the court shall submit the following issues to the jury:
“* * * * *

526 	State v. Rogers
“(C) 	If raised by the evidence, whether the conduct of
the defendant in killing the deceased was unreasonable in
response to the provocation, if any, by the deceased * * *.”
ORS 163.150(1)(b)(C).
In 	one 	of 	his 	assignments 	of 	error, defendant
contends that the inclusion of the “third question” in Oregon’s
statutory death penalty scheme renders it unconstitutional.
In another, defendant contends that the trial court erred in
failing to pose the “third question” to the jury. Defendant’s
positions on those issues are interwoven and somewhat
inconsistent. We discuss the latter issue first to give context
to the former.
In his challenge to the rulings of the trial court,
defendant claims that the trial court erred by (1) failing to
instruct the jury on the third question, and (2) excluding
evidence related to the third question. The state contends
that neither of those claims were preserved.
We 	agree 	with 	the 	state. At 	no 	point 	in 	the
proceedings did defendant ask that the court instruct the
jury on the third question or attempt to offer evidence
relating to provocation. Defendant argues, however, that
those kinds of direct actions were not required, and that
he adequately preserved his present claims by (1) resisting
the state’s repeated requests that he acknowledge having
waived his right to request an instruction on the third
question or offer provocation evidence; and (2) attempting to
explain to the trial court his various reasons, most of which
had to do with the meaning and constitutional implications
of ORS 163.150(b)(C), for not seeking an instruction on the
third question. Neither of those actions was sufficient to
preserve this assignment of error.
As far as we are able to tell, the trial court never
questioned defendant’s right to offer evidence or request that
the court instruct the jury on the “third question.” Although
defendant insists that, early in the proceedings, the trial
court ruled that no evidence going to the issue of provocation
“could” be offered by either party, the record suggests that
the trial court was responding to what it perceived to be the
parties’ positions on the matter, and would have considered

Cite as 352 Or 510 (2012) 	527
admitting evidence on provocation if defendant at any
point had stated that that was his wish. Instead, defendant
repeatedly told the court that he did not intend to offer
provocation evidence and, although defendant explained
that he had well-considered reasons for declining to seek
a third question instruction, the fact is that he repeatedly
told the court that he was not seeking such an instruction.
In light of those statements, defendant’s present claims that
the court erred in failing to admit evidence or instruct the
jury on the third question are not preserved.
Defendant did, however, preserve his arguments
that the “third question” renders the death penalty statutes
facially invalid, and we turn to that assignment of error. We
begin with defendant’s contention that the “third question”
is 	facially 	vague, 	and 	thereby 	violates 	the 	fair 	notice
requirement of the federal Due Process Clause, the equal
privileges and immunities provision of Article I, section 20,
of the Oregon Constitution, and the ban on ex post facto
laws found in Article I, section 21. Defendant mentions in
passing the statutory terms “reasonable” and “provocation”
as contributing to that vagueness, but concentrates his
arguments on the phrase “if raised by the evidence.” He
contends that that phrase is problematic because it offers no
guidance on a myriad of questions: whether, before the trial
court poses the third question, evidence must be offered, and,
if so, how much, or whether the trial court must pose the
third question in any event; when the trial court must make
the determination of whether to pose the third question;
whether a court’s determination that it will not pose the third
question precludes the parties from presenting evidence that
is directed at the question; and whether the court is even
permitted to decide whether to pose the third question or
must leave it to the jury to decide whether the reasonableness
of defendant’s conduct has been “raised by the evidence.”
Defendant 	misapprehends 	what 	it 	means 	for
a statute to be unconstitutionally vague. A statute is
unconstitutionally vague if it gives the police, the prosecutor,
or the court, uncontrolled or unbridled discretion to punish
defendants or to decide what is prohibited, or fails to inform
persons subject to it of what conduct on their part will render
them liable. State v. Illig-Renn, 341 Or 228, 238-42, 142 P3d

528 	State v. Rogers
62 (2006). Vagueness concerns typically arise when a statute
contains terms that are so indeterminate or standardless
that they leave questions about its application to the ad hoc
judgments of judge, jury, or police. Id. The uncertainties that
defendant identifies in this court do not raise those kinds
of concerns. Although defendant raises legitimate questions
about the circumstances in which a court must pose the third
question, those questions are no different from questions
that frequently arise about the meaning of many statutes.
The fact that a court may be required to interpret a statute
does not necessarily make it unconstitutionally vague. As
discussed above, defendant had the opportunity, at trial, to
press his interpretation of the death penalty statutes and to
ask the court to conduct his penalty-phase trial in accord.15 If
defendant had done so, and if the trial court had disagreed,
the appellate process would have provided defendant with a
means of assuring that his penalty-phase trial was lawfully
conducted. Although questions may remain as to the correct
interpretation of the statutory provisions pertaining to the
“third question,” those questions do not raise the specter of
unbridled discretion that renders a statute constitutionally
invalid.
Defendant also contends that, if ORS 163.150(1)(b)(C)
permits or requires the trial court to withhold the third
question from the jury on the court’s finding that the issue of
provocation is not raised by the evidence, it violates the clear
import of Article I, section 11, of the Oregon Constitution 16
—
the provision that the accused in a capital case may not be
tried by the court alone. As we will explain, that argument
is too abstract and hypothetical to be a proper subject for
this court’s jurisdiction.
15 For example, if defendant had concluded that the statute required the trial
court to ask the jury to determine whether the “response to provocation” issue was
raised by the evidence, defendant could have asked the court to so instruct the jury;
if the trial court had refused because it interpreted the statute differently than did
defendant, defendant could have raised the court’s refusal, and the underlying
dispute about the statute’s meaning, on appeal.
16 The relevant provision of Article I, section 11, states: “[P]rovided, * * * that
any accused person in other than capital cases, and with the consent of the trial
judge, may elect to waive trial by jury and consent to be tried by the judge of the
court alone, such election to be in writing.”

Cite as 352 Or 510 (2012) 	529
Defendant’s argument is based on the contention
that 	a 	proper 	interpretation 	of 	ORS 	163.150(1)(b)(C)
requires the court to submit the “third question” to the jury
in every case. Under that interpretation, the jury, not the
court, must decide whether the issue of provocation is raised
by the evidence and, if so, whether defendant’s response
was unreasonable. However, as explained above, although
defendant informed the trial court that he did not intend to
offer evidence of provocation, he never took the position that
the court was, nevertheless, required to submit the “third
question” to the jury. In fact, defendant told the court that
he was not seeking such an instruction. Consequently, the
trial court was not called on to interpret the statute and
did not give it the interpretation that defendant claims
would make it unconstitutional. As the case comes before
us, we understand defendant to ask us to decide whether,
if the trial court had interpreted the statute to permit the
court to withhold the third question from the jury, that
interpretation would have been unconstitutional. That is
an undertaking in which we will not engage. This court
simply does not decide hypothetical or abstract questions.
See Strunk v. PERB, 338 Or 145, 154, 108 P3d 1058 (2005)
(to be justiciable, controversy must involve present facts as
opposed to a dispute which is based on future events or a
hypothetical issue”).
Defendant’s 	contention 	that 	the 	third 	question
violates Article I, section 16, of the Oregon Constitution, and
the Eighth and Fourteenth Amendments to the United States
Constitution, because it makes the death penalty statutes
irrational 	or 	“vertically 	disproportionate,” 	is 	similarly
problematic. Defendant asserts that if a jury were to answer
the “third question” in the negative—that the conduct of a
defendant in killing the deceased was not unreasonable in
response to the provocation, if any, by the deceased—then it
would be irrational and disproportionate for the defendant
to be convicted of, and suffer the penalties associated with,
aggravated murder. In other words, defendant contends that
a negative answer to the third question would constitute
a jury finding that the defendant had acted reasonably
in response to provocation by the deceased, and would
preclude a guilty verdict on the aggravated murder charge.

530 	State v. Rogers
To impose the punishment for aggravated murder in that
circumstance would, in defendant’s view, be arbitrary and
“vertically disproportionate.”
As is obvious, however, that circumstance did not
occur here. Defendant told the court that he did not intend
to offer provocation evidence and that he was not seeking
an instruction on the “third question.” As a result, the trial
court did not submit that question to the jury. Whether a
negative answer to that question could, when relevant and
submitted, result in disproportionate punishment is an
abstract question that we will not answer.
In summary, we reject, in their current posture,
each of defendant’s arguments that the statutory provision
that sets out the third question is constitutionally invalid.
3. 	Defendant’s 	challenge 	to 	use 	of 	“anonymous 	jury”
procedures
We next address defendant’s claim that the trial
court violated various constitutional provisions, including
Article I, sections 10 and 11, of the Oregon Constitution, and
the Sixth Amendment to the United States Constitution,17
by empanelling an “anonymous jury” to hear and decide
whether 	defendant 	should 	be 	subjected 	to 	the 	death
penalty. We first consider defendant’s contention that the
empanelling of an “anonymous jury” denied him a fair trial
and an impartial jury, in violation of Article I, section 11, of
the Oregon Constitution, under this court’s recent opinion
in State v. Sundberg, 349 Or 608, 247 P3d 1213 (2011).18
17 Article I, section 10, provides, in part:
“No court shall be secret, but justice shall be administered, openly and without
purchase, completely and without delay, and every man shall have remedy by
due course of law for injury done him in his person, property or reputation.”
Article I, section 11, provides, in part:
“In all criminal prosecutions, the accused shall have the right to public trial by
an impartial jury * * *.”
The Sixth Amendment to the United States Constitution provides, in part:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury[.]”
18 This court’s decision in Sundberg significantly post-dates the trial court
decisions that are at issue in this case, and even slightly post-dates defendant’s
opening brief to this court. From the beginning, however, defendant has argued,
in terms that echo the arguments that this court considered in Sundberg, that
the “anonymization” procedures employed in voir dire of the jury panel in his case

Cite as 352 Or 510 (2012) 	531
In Sundberg, the trial court denied a criminal
defendant’s motion for a new trial, which the defendant
sought on the ground that an “anonymous jury selection
procedure” that the trial court had employed over the
defendant’s objection was an “irregularity” that denied him
a fair trial and an impartial jury, in violation of Article I,
section 11. In Sundberg, the issue arose out of the trial
court’s decision that the parties would not be provided with,
and would not be permitted to learn through the voir dire
process, the names, addresses or employers of the potential
jurors. When the defendant objected to the court’s insistence
on an “anonymous jury,” the court overruled the objection,
explaining that its decision reflected a circuit-wide response
to concerns expressed over the years by jurors about having
their names known to the litigants. 349 Or at 610-11. As it
turned out, however, a significant number of the jurors who
underwent voir dire under the “anonymous jury” procedure
in the defendant’s case had also undergone voir dire in a
different case on the same day, before a judge that did not
employ the “anonymous jury” procedure. After the defendant
was found guilty, he moved for a new trial, arguing that,
particularly when some of the jurors had been exposed
to a nonanonymous voir dire procedure, the use of the
anonymous procedure would have suggested to the jurors
that defendant might pose some sort of danger to them and,
thus, might have affected the jurors’ ability to be impartial.
The trial court denied the motion. Id. at 612-13.
On review, the defendant asked this court to apply the
rule that many federal and state courts have applied—that
anonymous juries are permitted only when there are strong
grounds for believing that the jury needs the protection of
anonymity and the trial court takes reasonable precautions
to minimize the prejudicial effects on the defendant and to
ensure the protection of the defendant’s constitutional rights.
The defendant argued that, under that rule, the decision to
employ an anonymous jury in his case was error, because
there had been no finding of any need to protect jurors and
no attempt to minimize possible prejudice to him.
violate the impartial jury requirement of Article I, section 11. After our decision
in Sundberg issued, defendant adapted his arguments more specifically to the
analysis and holding of that case.

532 	State v. Rogers
In considering the question the defendant raised,
the 	court 	first 	observed 	that, while 	trial 	courts 	have
inherent authority to empanel an anonymous jury, that
authority must be exercised in a way that does not violate
defendant’s constitutional rights, including his or her right
under Article I, section 11, of the Oregon Constitution to
“trial by an impartial jury.” The court next determined that
anonymity procedures could affect a defendant’s right to an
impartial jury in two ways:
“first, by hindering his ability to conduct voir dire and
select jurors who are impartial, and second, because it * * *
may compromise the jury’s ability to remain impartial by
implying that a defendant is dangerous, thus undermining
the presumption of innocence.”
Sundberg, 349 Or at 620. With respect to the first effect, the
court noted that, although knowledge of names, addresses,
and employers is not always necessary to achieve an
impartial jury, such knowledge is helpful and in some cases,
may be crucial (“If a McCoy is on trial, she will want to
know if any of the prospective jurors are Hatfields”). Id. at
621. With respect to the second effect, the court observed
that anonymous juries have not been the norm in Oregon
and elsewhere and, as such, might suggest dangerousness
(and, thus, guilt) to prospective jurors. Id. In light of those
potential effects, the court concluded that the approach the
defendant had proposed was essentially the correct one, and
the court adopted the rule as expressed in one of the federal
cases that the defendant had cited:
“[A]nonymous juries are permissible only if the trial court
‘concludes that there is a strong reason to believe that
the jury needs protection’ and the court takes ‘reasonable
precautions to minimize any prejudicial effects on the
defendant and to ensure that his fundamental rights are
protected.’ ”
Id. (quoting U.S v. Paccione, 949 F2d 1183, 1192 (2d Cir
1991), cert den, 505 US 1220 1992)).
The 	court 	explained 	that, 	to 	satisfy 	the 	first
part of that test, the trial court must determine that the
circumstances of the particular trial provide sufficient
grounds to believe that the jurors need the protection of

Cite as 352 Or 510 (2012) 	533
anonymity. The court noted that some courts had identified
a specific group of factors to be considered in making that
determination, but it declined to endorse any particular list
of factors. The court added, however, that the determination
“must be made on the facts of each case—and not on the
basis of a generalized desire to protect the anonymity of all
jurors in all cases in the interest of juror privacy.” Sundberg,
349 Or at 622. The court went on to explain that, “[i]f
grounds exist to empanel an anonymous jury, then the trial
court may do so, but it must take reasonable precautions
to ensure that defendant’s right to an impartial jury is
protected.” Id. Depending on the particular circumstances,
such precautions might include permitting extensive voir
dire of each juror regarding potentially relevant matters
and providing a “plausible and nonprejudicial” explanation
to jurors for not disclosing their identities. Id. at 623.
Applying the foregoing analysis to the circumstances
that were at issue, the court concluded that, because the
trial court had not made any finding that the circumstances
of the particular case would support a need to protect the
jurors’ identities, the use of an anonymous jury was error.
The court further concluded that the error was not harmless,
because, in the circumstances, “the unexplained use of an
anonymous jury created too great a risk that the jury may
have believed that defendant was dangerous, and, therefore,
that he was more likely to be guilty.” Id. at 625.
Defendant argues that Sundberg controls the present
case. He contends that, as in Sundberg, the trial court erred in
deciding to use an anonymous jury when it had not determined,
and had no grounds for determining that there were “strong
reasons” for believing that the jury needed the protection
of anonymity that were particular to defendant’s case. In
response, the state argues that the rule from Sundberg is
inapplicable for a number of reasons—including that the jury
in this case was not an “anonymous jury” within the meaning
of Sundberg. The state notes, in that regard, that, although
the trial judge in the present case did not permit prospective
juror’s names to be used in open court and gave the jurors the
option of withholding certain other identifying information
requested on juror questionnaires, the court provided the
attorneys with a list of the jurors’ names and addresses and

534 	State v. Rogers
told them that, assuming the information became relevant,
they could question individual jurors about other information
that the jurors may have withheld in responding to their
juror questionnaires. Furthermore, the state notes, the trial
court told the jurors that they had been given the option of
withholding identifying information “for no other reason than
to help protect your anonymity from the public and the press.”
The state contends that those circumstances stand in stark
contrast to the circumstances in Sundberg, where the court
prevented even the parties’ attorneys from discovering the
jurors’ names, addresses, and employers, and where the trial
court gave the jury no explanation of its reason for requiring
anonymity. The state adds that, to the extent that defendant
wishes to argue that the jury in this case was “anonymous,”
as that term is used in the Sundberg analysis, because he,
as opposed to his attorney, was precluded from learning the
jurors’ identities, he is precluded from doing so by his failure
to argue that particular nuance before the trial court.
The facts material to those arguments are as follows.
Defendant’s penalty-phase proceeding was scheduled to
begin early in 2006, and two orientation meetings for
prospective jurors were scheduled for January 17, 2006.
During the months that preceded the scheduled meetings,
counsel for the parties met a number of times in the
chambers of the judge who would be presiding in the trial to
discuss what should be included in the juror questionnaire.
All eventually agreed to a final questionnaire that included,
among other things, questions about the juror’s name,
address, and employer, the name and employer of the juror’s
spouse, the names, ages, and occupations of juror’s children,
the names, ages, and occupations of the juror’s siblings, and
whether the juror, or any of the juror’s friends or family
members were or had been involved in certain organizations
or activities.
On January 13, 2006, at an off-the-record meeting
with the parties’ counsel on a different matter, the judge
announced that, in filling out the juror questionnaire,
prospective jurors would not be required to reveal identifying
information about themselves or any other person. It was
decided (it is not clear by whom and by what process) that

Cite as 352 Or 510 (2012) 	535
prospective jurors would be given a list of the questions on
the juror questionnaire that would be considered optional.
As a result of that decision, when juror questionnaires were
distributed to the jury venire at the January 17 orientation
meetings, they were accompanied by a separate instruction
sheet that advised the prospective jurors that they were not
required to reveal, in certain designated questions, their
names or addresses, the names of their spouses or children
or anyone else, or the names of their employers. The trial
court also orally advised the prospective jurors that they
did not have to answer the designated questions and that
the option was being provided to protect jurors’ identities.
Although the trial court disputed that it had done so,
defense counsel understood that the court had informed the
jurors that the questionnaires would be provided only to the
lawyers and not to anyone else.
Defendant objected to the court’s decision to thus
“anonymize” the jury panel and moved for dismissal of
the jury venire and an evidentiary hearing. In the motion,
defendant argued that the trial court’s instructions regarding
the jury questionnaires might result in a biased jury
because it might lead jurors to infer that their anonymity
was required because defendant was dangerous. Defendant
also argued that permitting jurors to withhold complete
information would affect defendant’s ability to conduct
voir dire and to intelligently utilize peremptory challenges,
implicating his right to an impartial jury. Defendant argued
that the only remedy that could cure the resulting prejudice
was dismissal and replacement of the jury venire.
The 	requested 	evidentiary 	hearing 	was 	held
on January 19, 2006. Through testimony from the jury
coordinator and presiding judge for the county, defendant
established that, some months before, the county’s judges
had informally, and not necessarily unanimously, adopted
a policy that, in every case, juror names would not be used
in open court. The purpose of the policy was to ensure the
privacy of jurors.
After defendant elicited that evidence, he reiterated
his position that the potential jurors should not have been
told that they could omit identifying information from

536 	State v. Rogers
their 	questionnaires, concentrating 	his 	oral 	arguments
on a concern that the anonymous jury procedure could
send a message to the jurors that there was reason to
fear defendant. The trial court attempted to respond to
that concern by instructing the state to submit a draft of
a curative instruction to the defense. The court said that
defendant would “sign off on it, and then we’ll proceed.”
However, defense counsel informed the court that defendant
would not sign off on a curative instruction because “our
position is that no curative instruction is going to fix the
taint.”
In an apparent response to defendant’s contention
that the provision of the anonymity option would affect
his ability to conduct voir dire effectively, the trial court
observed that many of the jurors had chosen to answer all
of the questions. The court also advised the parties that, “if,
for some reason, any of this information, what is left blank
on the questionnaires, becomes somehow relevant during
the voir dire process, we’ll deal with that on a case-by-case
basis.” Finally, the court pointed out that the names of jurors
would be supplied to the attorneys “with the instructions
that those were not to be released to any third parties.” The
court explained that, by “third parties,” it meant “people who
are not employees or agents of the attorneys,” and added that
“we should probably have a protective order regarding that.”
Later in the same hearing, the prosecutor presented
a draft protective order and the court inquired whether
defense counsel was comfortable with it. Counsel responded
that “as a substitute measure for getting what I actually
want, I don’t have any objection to the form of the order.”
The order, which the judge ultimately signed, provided
that the jurors’ names and addresses, which would be
provided to counsel, “may not be viewed or otherwise used
except in connection with representation of a party.” It also
specifically provided that the names and addresses “may
[not] be provided or viewed in any way by the defendant.”
Some days later, as voir dire was prepared to
commence, the parties were provided with the judge’s
“opening remarks” to the jury, which included the anticipated
curative instruction. It read:

Cite as 352 Or 510 (2012) 	537
“When you filled out the questionnaire, you were given the
option to withhold certain personal identifying information.
This option was provided to you for no other reason than to
help protect your anonymity from the public and the press,
as some of the questions you will be asked may involve
personal answers, and this is a public setting. For that
reason alone, the parties have been provided with your
name but will refer to you only by your juror number. You
may be asked to reveal other information that you have
omitted as it becomes relevant.”19
However, in 	giving 	its 	opening 	remarks 	to 	individual
prospective jurors, the court did not always repeat that
instruction as drafted. The court separately addressed
each juror and, more often than not, told the juror that “the
attorneys,” rather than “the parties,” had been provided
with the juror’s name. In fact, of the 12 jurors who were
selected to hear defendant’s case, only four were told that
“the parties” had been provided with their names. The rest
heard that “the attorneys” had been provided with that
information.
A few days into voir dire, counsel for defendant filed
a “renewed objection to the ‘anonymization’ of juror data
and identities and demand for dismissal of tainted jurors”—
specifically arguing both that the selection procedure implied
to the jury that defendant was presently dangerous and that
the procedure prevented counsel from eliciting information
about potential jurors that was essential to the intelligent
and meaningful exercise of peremptory challenges. The
court denied the “renewed objections” motion.
As noted, defendant contends that, in taking the
described actions, the trial court empanelled an anonymous
jury in violation of this court’s decision in Sundberg. The
state responds that the anonymity with which Sundberg is
concerned is confined to circumstances that exactly mirror
the facts of that case—a trial court’s prohibition on the parties
and their attorneys learning jurors’ names or identifying
information, and that here the court disclosed the names
of jurors to defense counsel. Moreover, the state contends,
we may not consider the fact that defendant was prohibited
19 When presented with the curative instruction, defense counsel reiterated
her position that the curative instruction was inadequate.

538 	State v. Rogers
from obtaining that information, because defendant did not
specifically object to that prohibition below.
In Sundberg, the defendant articulated, as the basis
for his objection at trial to the anonymous juror procedure, that
the procedure would preclude him from conducting “adequate
voir dire.” The defendant did not argue until after the jury
returned a guilty verdict (in a post-trial motion), that that
procedure was improper because it may have affected the way
that the jurors perceived him and, therefore, their impartiality.
However, the defendant’s failure to timely state that second
concern did not prevent this court from considering, in its
analysis, the effect that the trial court’s procedure may have
had on jurors’ perception of the defendant.
In this case, defendant voiced the same two concerns
about the “anonymous” jury procedure that the defendant in
Sundberg voiced and that the court considered in that case.
Although defendant focused in oral argument primarily on
the effect that the trial court’s selection procedure could
have on the jurors’ ability to be impartial and stated his
objection that that procedure interfered with his ability to
conduct voir dire only in writing and in general terms, we
do not think that defendant’s choices confine this court’s
analysis. As in Sundberg, we will consider the full effect
of the procedure that the trial court imposed in deciding
whether it met constitutional requirements.
Important to our willingness to do so is the fact that
defendant did alert the trial court in written memoranda
that he objected to its jury selection procedure on the basis
that that procedure would affect his ability to conduct voir
dire. Before the off-the-record meeting on January 13, the
parties had agreed on a juror questionnaire that asked jurors
to disclose identifying information about themselves, their
families and employers. The parties apparently understood,
at that point, that juror numbers, instead of names, would be
used in open court, but that defense counsel and defendant
would have access to the juror questionnaires and all of
the information that jurors provided in response, including
their names and addresses. Defendant did not object to
that procedure. At the January 13 off-the-record meeting,
however, the court announced that prospective jurors would
be permitted the option of refusing to provide certain of the

Cite as 352 Or 510 (2012) 	539
information requested in the questionnaire. Defense counsel
understood the judge as also instructing the jurors at that
meeting that their questionnaires would be provided to the
attorneys “and not to anyone else,” which defense counsel
took to mean “and not to defendant.” Thus, when defense
counsel filed the motion for an evidentiary hearing on the
court’s decision to “anonymize” the jury, it was counsel’s
belief that the procedure that the court was imposing would
permit counsel but not defendant to learn the information on
the juror questionnaires. In the memorandum that counsel
filed in support of that motion, counsel objected that the
court’s withholding of complete information would “affect
defendant’s ability to conduct voir dire” and to intelligently
utilize peremptory challenges. Counsel thereby objected
generally to the procedure that she understood the trial
court to have imposed and did not limit her objection to any
particular aspect of that procedure.
Although the trial court disputed that it had told
the jurors that the juror questionnaires would be provided to
the attorneys and “not to anyone else,” the trial court knew
when it considered that memorandum that the procedure
that it was imposing would in fact permit defense counsel
to learn the names and addresses of the jurors, but preclude
defendant from doing so. At the hearing on the motion, the
court explained that defense counsel would be provided with
juror names but that those names were not to be released
to “third parties.” The court explained that, by third parties,
it meant “people who are not employees or agents of the
attorneys.” When the trial court entered its protective order,
it specifically prohibited counsel from releasing juror names
and addresses to defendant. Thus, the trial court adopted
a 	procedure 	that 	expressly 	precluded 	defendant 	from
learning the names and addresses of jurors, and defendant
had objected generally and in writing to that procedure on
the basis that it would affect his ability to conduct voir dire.
It is true, as the state observes, that defendant
focused much of his oral argument on his contention that,
by permitting jurors the option of withholding certain
information in responding to the juror questionnaires,
the court had tainted their view of defendant and his
dangerousness. It also is true that the court and the parties

540 	State v. Rogers
extensively discussed the extent of that taint and the
“curative instruction” that the state proposed to address
it. But at no time during that discussion did defendant
abandon his position, conveyed in his written motion, that
the procedure that the court had announced also had the
effect of preventing him from obtaining the information
that he needed in voir dire. Defendant did not waive that
argument when counsel stated that she did not have any
objection to the form of the protective order that prohibited
counsel from sharing juror names with defendant. Instead,
defendant specifically renewed that argument in his written,
renewed objection to “anonymization” of juror data. The fact
that defendant concentrated, in oral argument, on the effect
of the court’s procedures on the jurors’ impartiality does not
preclude this court from considering the fact that the trial
court entered an order precluding defendant from learning
the identity of the jurors who were charged with meting
out his penalty. We will therefore include that fact in our
analysis of whether the selection procedure that the trial
court imposed was sufficiently different from that used in
Sundberg that its holding is inapplicable here. We turn to
that question now.
As 	noted, 	the 	state 	argues 	that, 	under 	the
procedure the trial court used in this case, the jury was
not “anonymous” in the Sundberg sense—first, because
the trial court disclosed juror identifying information to
counsel, and, second, because the court informed jurors
that the procedure was for the sole purpose of protecting
their privacy from the public. We disagree. Jurors 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. In Sundberg, the court
discussed the concerns that arise when a jury is anonymous
from two of those perspectives—the defendant’s perspective
and the jurors’ own perspective. The court described the
problem that arises when jurors are anonymous from the

Cite as 352 Or 510 (2012) 	541
defendant’s perspective by observing that “[i]f McCoy is on
trial, she will want to know if any of the prospective jurors
are Hatfields.” Providing jurors’ names and addresses to
counsel may mitigate the potential harm that flows from thus
anonymizing the jury, but it cannot completely eliminate it:
That is so because, in colloquial terms, the defendant may
be the only person who is aware of the dispute between the
Hatfields and the McCoys.
In Sundberg, the problem that the court identified
when considering anonymity from the jurors’ perspective
was that anonymous juries have not been the norm in
Oregon, and a deviation from the norm of full disclosure
might suggest the defendant’s dangerousness. The court
explained that, when jurors learned that they would remain
anonymous and were aware that such anonymity deviated
from Oregon’s norm of full disclosure, they could conclude
that their privacy was being protected because the defendant
was dangerous. In this case, the jurors also would have
been aware that their ability to remain anonymous was a
deviation from the norm. We can infer that awareness from
the fact that the jurors received preprinted questionnaires
that requested their names and other personal information,
but were then told, both orally and in writing, that they had
the option of withholding that information.
It is, of course, true that the trial court made an
effort to explain that there was a nonprejudicial reason for
the deviation—that they were being permitted to withhold
information “for no other reason than to protect their
anonymity from the public and the press.” However, the court
also made a statement that the jurors could understand
as an indication that their identities were being protected
from defendant. The court told eight of the 12 jurors that
it would furnish their names, not to “the parties,” but to
“the attorneys.” Under the circumstances, we do not think
that the trial court’s explanation for permitting anonymity
negated the risk to juror impartiality that the unusual
anonymity procedure posed.
We conclude that, in spite of the differences that the
state has noted, the procedure that the trial court followed in
this case gave rise to the same risks that the court identified
in Sundberg. And, because those risks are the same, the rule

542 	State v. Rogers
of Sundberg is applicable. According to that rule, a court
may empanel an anonymous jury “only when the trial court
finds that the circumstances of a particular case justify
that practice and takes steps to mitigate any prejudice to
defendant.” Sundberg, 349 Or at 624. It may not empanel
an anonymous jury based on “a generalized desire to protect
the anonymity of all jurors in all cases in the interest of
juror privacy.” Id. at 622.
In the present case, the trial court did not make the
required findings. Instead, the court explained that it was
merely carrying out a county-wide policy of protecting the
identities of jurors—seemingly relying on the very kind of
“generalized desire to protect the anonymity of all jurors in all
cases” that this court suggested was inadequate in Sundberg.
Id. At no point did the trial court state that the circumstances
of the particular case provided grounds for believing that the
jurors needed the protection of anonymity—even when the
scope and bona fides of the “policy” were questioned. In fact,
when counsel for the state suggested that the procedures
could be explained to the jury in terms of concerns about
publicity, the trial court responded emphatically that “[t]he
publicity surrounding this case has nothing to do with * * *
what I’m doing by way of anonymity.”
The 	state 	points 	out 	that, 	by 	instructing 	the
prospective jurors that the procedures had been used to protect
their anonymity “from the public and the press,” the trial court
took the very kind of “reasonable precautions to ensure that
the defendant’s right to an impartial jury is protected” that the
Sundberg rule demands. Id. at 622. But, under Sundberg, the
requirement that the trial court take “reasonable precautions”
is necessary but secondary: It does not absolve the court
from the rule’s primary requirement—that it determine that
particular circumstances of the case provide grounds for
believing that the jurors need the protection of anonymity.20
The trial court did not make the required determination.
20 In Sundberg, this court first discussed the required determination
regarding grounds for believing that jurors need anonymity, 349 Or at 621-22,
and then proceeded to state that “if grounds exist to empanel an anonymous jury,
the trial court may do so, but it must take reasonable precautions to ensure that
defendant’s right to an impartial jury is protected.” Id. at 622. It is clear from that
construction that the determination that “grounds exist” is a necessary condition
for a decision to use an anonymous jury procedure.

Cite as 352 Or 510 (2012) 	543
Under Sundberg, the use of an anonymous jury in the absence
of such a determination was error.
Still, the error is not a ground for a new penalty-
phase trial if it is found to be harmless, i.e., if we determine
that there is little likelihood that it affected the verdict.
State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). The state
contends that there is little likelihood that the anonymity
procedures used in this case affected the jurors’ decision-
making, because the trial court instructed the jurors that
they were being used solely to protect the juror’s privacy
from the press and public. The state also argues that, even
if the anonymity procedures may have conveyed some
slight implication of dangerousness, it would have been
insignificant in the context of the overwhelming evidence
that the jury had heard about defendant’s horrific crimes,
and for that reason would have been unlikely to influence
the 	jury’s 	ultimate 	decision 	on 	the 	fourth 	question—
whether “there is a probability that [ ] defendant would
commit criminal acts of violence that would constitute a
continuing threat to society.” ORS 163.150(1)(b)(B). Finally,
the state argues that, because defendant’s lawyers had all of
the jurors’ names and were permitted to inquire about the
information that the jurors withheld if it became relevant,
the 	anonymity 	procedures 	could 	not 	have 	hampered
defendant’s ability to conduct effective voir dire.
For the reasons we have already stated, we are not
persuaded. The trial court did not decide that this case was
different from others nor explain to the jurors why this case
was different from others—leaving the jurors to speculate
that, perhaps, in this particular case, their disclosure of
personal information might expose them to risks that
would not be present in other cases. We also cannot ignore
the fact that eight of the jurors were instructed that “the
attorneys,” as opposed to “the parties,” had been provided
with their names. Jurors who heard that the trial court had
given their names to “the attorneys” would have assumed,
correctly, that only the attorneys—and not defendant—
had been provided with their names. That detail could
have undermined the trial court’s general explanation of
the procedure as protecting jurors’ anonymity from the
“press and public,” and focused the jurors on whether this

544 	State v. Rogers
defendant was, perhaps, more dangerous than defendants
in other cases. And the concerns about juror impartiality
that arise in connection with that kind of speculation by
jurors would only be amplified in this context—a penalty-
phase proceeding where defendant’s “future dangerousness”
was specifically at issue. ORS 163.150(1)(b)(B).
We also are unpersuaded by the state’s suggestion
that, in the context of the evidence that the jurors would
see and hear about the gruesome murders that defendant
had 	committed, 	the 	“small” 	implication 	of 	defendant’s
dangerousness that might be associated with the trial
court’s anonymity procedures could have little force or
effect on the jurors’ ultimate assessment of defendant’s
future 	dangerousness. Evidence 	of 	defendant’s 	obvious
past dangerousness to his past victims certainly speaks
to defendant’s future dangerousness at some level, but a
suggestion that defendant constitutes a present or future
danger to jurors and their families cannot be dismissed
as 	comparatively 	negligible 	when 	the 	question 	under
consideration is “probability that the defendant would
commit criminal acts of violence that would constitute a
continuing threat to society.”
Finally, we are not convinced that the anonymous
jury procedures were harmless with respect to defendant’s
ability to use voir dire effectively. As explained, without
being able to share juror’s names with a defendant, counsel
may not have the information necessary to make effective
use of that information. Here, defendant may have been
the only person who could connect a name with a potential
bias. Moreover, even leaving aside the question of whether
defendant’s 	lawyers’ 	knowledge 	of 	those 	names 	is 	an
adequate substitute for defendant’s knowledge, the fact
remains that the anonymity procedures that the trial court
imposed prevented even the lawyers from knowing other
potentially relevant information (i.e., names of spouses,
children, employers) about the jurors who eventually were
seated. Here, three of the jurors who sat on defendant’s case
declined to answer at least one of the other questions that
the trial court presented as “optional.”21
21 Two jurors omitted the names of their spouses. One juror omitted all
identifying information about her children and the name of her employer.

Cite as 352 Or 510 (2012) 	545
The state points out that the trial court instructed
the lawyers that, in their oral examinations of jurors, they
were free to inquire into any matters that a juror had
omitted from his or her questionnaire, “should those issues
become relevant.” The state contends that, if the lawyers
declined to pursue that option, it was their decision, and not
the court’s procedure, that prevented them from obtaining
the omitted information.
The state’s argument misapprehends the utility
of the requested information. The information that the
jurors were permitted to withhold—about spouses, children,
workplaces, 	etc.—were 	included 	in 	the 	questionnaires
because the parties and the court had agreed that they should
be—with the implication that answers to those questions
would be relevant or could suggest important avenues for
further relevant inquiry. In other words, the jurors’ answers
to the questions were, by agreement, either inherently
relevant or were triggers for further relevant questioning.
When a juror withheld information that may have alerted
a party that further questioning might be fruitful, that
questioning could not occur: To return to the example that
the court used in Sundberg, without knowing that a juror
is named Hatfield, a defendant may not think to ask the
juror if she was involved in the dispute with the McCoys
and certainly could not demonstrate to the court that the
name of the juror had become relevant. Thus, the argument
that the state interposes is circular and, ultimately, empty.
Without the background information that the answers
would have provided, defendant could not meet the trial
court’s standard for further inquiry, because he could not
know and could not show that any particular line of inquiry
was relevant.
In summary, the trial court and the parties designed
a voir dire process that was intended to provide the parties
with the information that all agreed was necessary to
effective voir dire. The trial court then changed that process
and precluded defendant from learning the jurors’ names
and precluded counsel and defendant from learning other
potentially relevant information about potential jurors,
including several jurors who were seated on the jury and
who heard defendant’s case. The fact that defendant’s

546 	State v. Rogers
lawyers had access to the jurors’ names and addresses and
were permitted to inquire into other withheld information
“should those issues become relevant,” did not cure the
problem that the change in process created.
Under these circumstances, we cannot say that
there was little likelihood that the error in employing
anonymous jury procedures, without finding strong and
particular grounds to do so, affected the verdict. Because
the error was not harmless, defendant’s sentence of death
must be vacated.
4. 	Defendant’s past homosexual experience
The last assignment of error that we discuss is
defendant’s claim that the trial court erred in permitting a
psychiatrist to testify about a homosexual relationship that
defendant had had in his youth. In defendant’s previous
penalty-phase trials, a psychiatrist testified about that
relationship. At the outset of this penalty-phase trial, the
defendant asked the court to exclude that same material
on grounds of irrelevance and unfair prejudice,22 citing
Beam v. Paskett, 3 F3d 1301 (9th Cir 1993), cert den, 511
US 1060 (1994). In Beam, the court held that evidence of
a defendant’s nonviolent, consensual homosexual conduct
was not admissible to prove that defendant would be a
“continuing threat” to society, when the state had not
presented “evidence demonstrating a close link between
that history and the defendant’s future dangerousness.” Id.
at 1309.
We agree with the court’s statement in Beam that
“when the state seeks to rely on a defendant’s non-violent,
consensual or involuntary sexual conduct as a basis for
its decision to impose capital punishment . . . there is a
substantial danger that the sentencer will be swayed by his
own moral disapproval of the conduct and will not rationally
and impartially consider the relevance of the conduct to
22 Under OEC 401, evidence is relevant if it “has any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Under OEC 403,
even relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay or needless presentation of cumulative
evidence.”

Cite as 352 Or 510 (2012) 	547
the defendant’s future dangerousness. To ensure that the
conduct is properly considered, the state must introduce
more than the mere facts of the defendant’s sexual history;
specifically, the state must, at the least, introduce evidence
demonstrating a close link between that history and the
defendant’s future dangerousness.”
Id.
In this case, the state failed to introduce evidence
demonstrating 	a 	link 	between 	defendant’s 	homosexual
experience as a teenager and his future dangerousness. The
state theorizes that such a link exists because defendant
tortured and murdered his female victims to satisfy sexual
urges, and that defendant’s youthful homosexual experience
shows that those violent sexual urges, and the danger that
defendant would act on them, would continue to exist
even in a prison setting where defendant only would be
interacting with males. But the state’s theory is just that—a
theory. The state did not present evidence that sexually
obsessive and violent persons in general easily transfer
their deviant urges and behaviors from one sex to another—
or that defendant, himself, was susceptible to that kind of
adjustment. Neither did the state present evidence that,
regardless of defendant’s apparent heterosexuality as an
adult, his homosexual experience in his youth indicates an
underlying flexibility in sexual preferences. In the absence
of factual evidence establishing such links, or some more
direct link between homosexual activity in his youth and
sexual violence toward males as an adult, the relevance
under OEC 401 of defendant’s teenage experience to the
issue of his future dangerousness is questionable and, under
OEC 403, the danger of its unfair prejudice certainly would
outweigh any slight relevance that it may have.
We agree with defendant that the trial court erred
in allowing the state to present this evidence. We need not,
however, decide if this error, alone, requires reversal. Because
we already have identified one error in the proceedings
below that was sufficient to require reversal and remand,
we need not proceed with a harmless error analysis.
The sentence of death is vacated, and the case is
remanded to the circuit court for further proceedings.