S054853, Opinion — State v. Haugen

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# Argued and submitted June 30, judgment of conviction and sentence of death affirmed November 4, 2010

STATE OF OREGON,
Respondent,
U.
GARY HAUGEN,
Appellant.
(CC 04C46224; SC S054853)
243 P3d 31

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## En Banc

On automatic and direct review of the judgment of convic-
tion and sentence of death imposed by the Marion County
Circuit Court.

Joseph Guimond, Judge.

Daniel J. Casey, Portland, argued the cause and filed the
briefs for appellant.

David B. Thompson, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent. With him
on the brief were John R. Kroger, Attorney General, Jerome
Lidz, Solicitor General, Timothy A. Sylwester, Assistant
Attorney General, Erika L. Hadlock, Deputy Solicitor
General, and Gregory Rios, Assistant Attorney General.

BALMER, J.

The judgment of conviction and sentence of death are
affirmed.

De Muniz, C. J., filed a concurring opinion in which
Gillette and Durham, JJ., joined.

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BALMER, J.

This case is before the court on automatic and direct
review of defendant's conviction and sentence of death for
aggravated murder. See ORS 138.012 (providing for direct
review in Supreme Court when jury imposes death sen-
tence). Defendant has been an inmate in the Oregon State
Penitentiary since 1981, when he was convicted of killing his
girlfriend's mother. In 2004, the state indicted defendant and
another inmate, Jason Brumwell, for the killing of a third
inmate. A jury convicted defendant of one count of aggra-
vated murder for committing murder after previously having
been convicted of murder, ORS 163.095(1)(c), and one count
of aggravated murder for committing murder while confined
in prison, ORS 163.095(2)(b).1 In a separate penalty-phase
proceeding, the jury affirmatively answered the four ques-
tions set out in ORS 163.150(1)(b), and the trial court entered
a sentence of death. For the reasons that follow, we affirm the
judgment of conviction and the sentence of death.

## I. FACTS AND PROCEDURAL HISTORY

In reviewing a judgment of conviction, we state the
facts in the light most favorable to the state. See, e.g., State v.
Gibson, 338 Or 560, 562, 113 P3d 423, cert den, 546 US 1044
(2005) (so stating). Shortly after 9:00 a.m. on September 2,
2003, the body of inmate David "Sleepy" Polin (the victim)
was found in the band room of the activities section of the
Oregon State Penitentiary. He was scheduled to be working
in that section of the prison that morning. The victim had
sustained 84 stab wounds and a blunt-force trauma to the
head resulting in skull fracture. The victim's hands reflected
wounds that appeared to have been suffered in defending
himself against an attack. The attack had occurred in an
alcove outside the band room, which was smeared with blood.
Subsequently, the body had been dragged into the band
room. The victim's blood also was found in a trash can just

1 Defendant and Brumwell were tried together in the guilt phase of the trial,
and the jury also convicted Brumwell of aggravated murder. The penalty-phase
proceedings for the two defendants were conducted separately. Brumwell also was
sentenced to death. The direct review proceeding of Brumwell's conviction and sen-
tence is pending before this court. We sometimes refer to defendant and Brumwell
together as "defendants."

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outside the alcove. Inside the trash can was a t-shirt soaked
with the victim's blood, one of his shoes, his inmate identifi-
cation, bloody rags, and a large threaded metal rod with vic-
tim's blood on it. The rod was part of a stool from the band
room. Two "shanks" or homemade knives also were found in
the vicinity (although not in the band room), one of which was
hidden in a bathroom drain. Strands of Brumwell's hair were
found on the victim's clothing.

Security cameras captured images of defendant and
Brumwell shortly before and after 8:00 a.m. Images from sev-
eral cameras at different locations in the activities section
showed defendants and the victim in the general area near
the band room in the minutes before the attack. The images
showed defendants repeatedly visiting a bathroom, in which
one of the shanks later was found, and then showed defen-
dant shortly before the attack with an oddly shaped item con-
cealed under his t-shirt, possibly the metal rod from the stool.
Another camera was located in the band room. That camera
showed defendants dragging the body into that room. Images
from the camera also showed movement through a window in
the door to the alcove, just before defendants dragged the
body into the band room. Images taken shortly after the
attack showed defendants leaving the area and wearing at
least some different clothing than they had been wearing
15 minutes earlier.

The day of the murder was "shower" day, when
inmates take showers and exchange their clothing. On the
morning of the murder, an inmate observed defendant in the
shower clipping his fingernails with fingernail clippers and
scrubbing his fingernails with a toothbrush. His hands were
soiled by some dark substance. The inmate saw Brumwell,
whose hands also were soiled, do the same after defendant
handed him the fingernail clippers and toothbrush. The dark
substance turned red as Brumwell washed. When defendant
entered his cell at 9:00 a.m., the pants he was wearing were
several sizes too large, and he did not have a belt. Later, in a
clothing bin in the shower area, police recovered pants and
t-shirts, stained with victim's blood, matching the sizes worn
by defendants. One pair of pants had DNA material in the
thigh area matching defendant's DNA, suggesting that he

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had worn them. Those pants also had a splatter pattern of
liquid that matched the victim's blood.

Inmate Robert Cameron testified at the trial. He and
defendants were members of a band. Cameron did not go to
the activities section the morning of the murder, because
Brumwell told him that another band had taken their time
slot, which was not true. Instead, Cameron was at his station
working as a clerk. Sometime that morning, prior to the dis-
covery of the victim, defendant and Brumwell came to
Cameron's work station. Cameron noticed that defendant
had a "fat lip." Defendant asked Cameron to get a jacket out
of the laundry cart. Brumwell asked Cameron to locate
Brumwell's jacket in the laundry cart and rip out the state
identification number. Brumwell said that his jacket had a
"t-shirt lining," rather than the usual flannel lining.
Cameron found such a jacket that had a dark stain on it that
appeared to be blood. Cameron did not remove the state iden-
tification number as Brumwell had asked; instead, he hid the
jacket under a yellow raincoat hanging at the work station.
Later, police recovered the jacket and identified the blood on
the jacket as the victim's. Cameron also saw defendant and
Brumwell take off their shower sandals and put them in a
bag. When he asked them about that, Brumwell said some-
thing about blood.

Later, in defendant's cell, defendant stated to
Cameron that he had killed Polin because he was a "rat."
Defendant stated that he and Brumwell had attacked the vic-
tim in the alcove outside the band room. Defendant stated
that he had stabbed Polin 30 times and related that, despite
the wounds he had inflicted, Polin "wouldn't die." He said
that he had hit the victim with a "drum chair" from the band
room and had "caved his fucking head in." Defendant
referred to wounds on his hands and asked Cameron if they
were noticeable.2 Brumwell also admitted to Cameron that
he had killed the victim.

Defendants had suspected that someone was inform-
ing prison officials about their drug use. Prisoners had

" A physician examined defendant's hands a few days later and observed soft-
tissue injuries.

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noticed that prison officials usually administered drug tests
during the week. Accordingly, prisoners timed their drug use
for weekends so that they could produce a clean urinalysis
during the week. Contrary to the ordinary timing, prison offi-
cials gave a Saturday drug test on August 23, 2003, to a
friend of defendants, a member of their band, which identi-
fied him as having used drugs. The following Sunday, prison
officials gave another test, this time to defendants. Defen-
dants were upset about the tests and suspected the presence
of an informant. They believed that Polin was the informant.3
According to Cameron, defendant indicated that he wanted
to do "something really bad to that Mexican downstairs,"
referring to Polin. The day before the murder, another
inmate overheard defendants say, referring to the victim,
"we've got to get him." The inmate saw Brumwell walk
toward the victim clenching his fist until defendant stopped
him and said, "Stop, not here."4 The homicide occurred on
Tuesday, September 2. Defendant and Brumwell both tested
positive for the presence of marijuana based on the sample
from the Sunday test. The test results came back September 5,
three days after the murder.

The state indicted defendant and Brumwell for
Polin's murder. As noted, after the joint guilt-phase trial, a
jury convicted defendants of one count of aggravated murder
for committing murder after previously having been con-
victed of murder, ORS 163.095(1)(c), and one count of aggra-
vated murder for committing murder while confined in
prison, ORS 163.095(2)(b). Defendant and Brumwell had
separate proceedings for the penalty phase of the trial. At
defendant's penalty-phase proceeding, the jury answered the
four questions set out in ORS 163.150(1)(b)" in the affirma-
tive. The trial court then entered a judgment of conviction

3 There was an informant, but it was not Polin.

4 In addition, a few days before the murder, defendant told two other inmates
that "he was getting ready to do something kind of-kind of foolish and that he was
probably getting more time and that we wouldn't be seeing him."

5 ORS 163.150(1)(b) provides:

"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;

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merging the two counts into a single conviction for aggra-
vated murder and imposing the death penalty.

## II. ANALYSIS

Defendant asserts 29 assignments of error. After
reviewing the arguments of counsel, the record, and the court
file, we have determined that four of the assignments of error
merit discussion. We summarily reject the remaining assign-
ments of error without discussion, concluding that they
either are unpreserved, are controlled by this court's prior
decisions, or are otherwise without merit.

### A. Voir Dire and Guilt Phase

#### 1. Interpreters for Jurors (Assignment of Error Number 1)

Defendant argues that the trial court erred in excus-
ing sua sponte two prospective jurors who lacked proficiency
in the English language and who needed an interpreter. Dur-
ing voir dire, the trial court invited prospective jurors to indi-
cate any reasons for which they should be excused. One pro-
spective juror, Lamloc, stated that his English was "not good
enough" and that he had memory problems. Lamloc indi-
cated that it would be difficult for him to concentrate through
a lengthy trial and to understand and "process" the evidence
adduced at trial. Defense counsel inquired whether an inter-
preter could be provided, to which the trial court responded
that it was not allowed to provide one for jurors. Over defen-
dant's objections, the trial court released Lamloc, explaining
that it was doing so both because of "the language issue" and
because of Lamloc's admittedly limited "cognitive abilities."
The trial court also clarified its position with respect to trans-
lators by noting that the Judicial Department would not pro-
vide funds for the use of translators for jurors.

Several days later, defense counsel raised concerns
that another prospective juror, Montesinos, lacked sufficient

"(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 kill-
ing the deceased was unreasonable in response to the provocation, if any, by
the deceased; and

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

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proficiency in English to serve as a juror. In response, the
trial court indicated that it would obtain an interpreter to
assist with voir dire. During voir dire, defense counsel tried
questioning Montesinos without using an interpreter. Lis-
tening to the responses, the trial court was concerned that
Montesinos did not understand the questions. Montesinos
then indicated that he would need an interpreter to under-
stand the testimony at trial. The trial court explained that
the Judicial Department would provide an interpreter for
voir dire, but not for trial. As a result, the trial court excused
Montesinos over defense objections.

Defendant challenges the trial court's ruling on the
grounds that it violated his rights under the Sixth Amendment
to the United States Constitution, the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution, and Oregon statutory law. In accordance with
our ordinary practice of considering state law issues before
federal law issues, see State v. Langley, 314 Or 247, 252, 839
P2d 692 (1992), adh'd to on recons, 318 Or 28, 861 P2d 1012
(1993) (describing practice), we turn first to defendant's argu-
ment that the trial court violated Oregon statutes by refusing
to provide interpreters that would enable prospective jurors
who were not proficient in English to serve on the jury.

### a. Oregon Statutes

The parties agree that the trial court excused at least
one prospective juror, Montesinos, because his proficiency in
English was insufficient for him serve as a juror without an
interpreter, and the court had declined to appoint an inter-
preter for him.6 Defendant argues that Oregon law-specifi-
cally, ORS 45.275 and ORS 45.273-requires the state to pro-
vide interpreters for prospective jurors who could serve but
for their lack of proficiency in English. For the reasons that
follow, we disagree with defendant's interpretation of those
provisions.

6 Defendant also asserts that Lamloc was excused solely because he could not
participate without an interpreter. The state, however, correctly points out that
Lamloc was dismissed both because of his limited English skills and because of his
cognitive limitations. For that reason, the statutory and constitutional issues that
defendant raises regarding the trial court's failure to provide an interpreter do not
apply to Lamloc.

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ORS 45.275 provides, in part:

"The court shall appoint a qualified interpreter in a civil
or criminal proceeding, and a hearing officer or the desig-
nee of a hearing officer shall appoint a qualified interpreter
in an adjudicatory proceeding, whenever it is necessary:

"(a) To interpret the proceedings to a non-English-
speaking party;

"(b) To interpret the testimony of a non-English-
speaking party or witness; or

"(c) To assist the court, agency or hearing officer in
performing the duties and responsibilities of the court,
agency or hearing officer."

Defendant also relies on ORS 45.273, which sets out the leg-
islature's policy for creating procedures for the qualification
and use of court interpreters. ORS 45.273(1) provides:

"It is declared to be the policy of this state to secure the
constitutional rights and other rights of persons who are
unable to readily understand or communicate in the
English language because of a non-English-speaking cul-
tural background or a disability, and who as a result cannot
be fully protected in administrative and court proceedings
unless qualified interpreters are available to provide
assistance."

Nothing in the text of ORS 45.273 either authorizes
or requires the provision of interpreters for non-English
speakers. Rather, that statute is a general statement of a pol-
icy to "protect" the "constitutional rights and other rights" of
persons who are not proficient in English "in administrative
and court proceedings." That general statement is imple-
mented by the specific provisions in ORS 45.275 and
ORS 45.285 for the appointment of an interpreter for a non-
English-speaking party in a civil or criminal case, a non-
English-speaking witness, or a witness who cannot commu-
nicate because of a physical hearing or speaking impairment.
See ORS 45.275(1)(a), (b); ORS 45.285(1)(c), (2) (so pro-
viding).

Apparently recognizing the absence of any specific
statute regarding non-English-speaking jurors or prospective
jurors, defendant argues that ORS 45.275(1)(c) requires the

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appointment of an interpreter for such a person. Paragraph
(c), however, provides for the appointment of an interpreter
"to assist the court, agency or hearing officer" in performing
their official duties. It does not mention the appointment of
an interpreter to assist prospective jurors. Even assuming,
without deciding, that ORS 45.275(1)(c) would authorize a
trial court to appoint an interpreter for a non-English-speaking
juror because that appointment would "assist the court," the
statute nevertheless does not require the trial court to make
such an appointment. Nothing in the statutes cited by defen-
dant suggests that the trial court may not respond to the
potential difficulties of seating a non-English-speaking juror
by excusing that juror. Indeed, ORS 10.050(2) specifically
provides that the trial court may "excuse a juror whose pres-
ence on the jury would substantially impair the progress of
the action on trial * * *. "

We conclude that the trial court's decision not to pro-
vide an interpreter for a non-English-speaking prospective
juror, and its subsequent decision to exclude the prospective
juror because he was unable to participate at trial without an
interpreter, did not violate Oregon statutes.

### b. Federal Law

Defendant next argues that the exclusion of a non-
English-speaking person from the jury pool violated his Sixth
Amendment right to have his jury drawn from a fair cross-
section of the community.7 Under the Sixth Amendment, a
person who has been charged with a serious offense has a
fundamental right to a trial by jury, Duncan v. Louisiana,
391 US 145, 157-58, 88 S Ct 1444, 20 L Ed 2d 491 (1968),
which includes the right to trial by a jury that is drawn from
a "fair cross section of the community." Taylor v. Louisiana,
419 US 522, 530, 95 S Ct 692, 42 L Ed 2d 690 (1975).

This court identified the elements of a "fair cross-
section" claim in State v. Rogers, 334 Or 633, 642, 55 P3d 488
(2002):

7 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 pub-
lic trial, by an impartial jury * * *. "

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"[T]he elements of a prima facie case, with regard to the
Sixth Amendment fair cross-section requirement, require a
criminal defendant to show: (1) that the group alleged to be
excluded is a 'distinctive' group in the community; (2) that
the representation of that group in venires from which
juries are selected is not fair and reasonable in relation to
the number of such persons in the community; and (3) that
the underrepresentation is due to systematic exclusion of
the group in the jury-selection process."

Id. at 642 (quoting Duren v. Missouri, 439 US 357, 364, 99
S Ct 664, 58 L Ed 2d 579 (1979) (internal quotation marks
omitted)).8

Defendant advances a similar argument under the
Equal Protection Clause of the Fourteenth Amendment.9 See
Rogers, 334 Or at 642 n 8 (summarizing requirements)
(quoting Castaneda v. Partida, 430 US 482, 494, 97 S Ct
1272, 51 L Ed 2d 498 (1977)). There are four requirements for
proving that the selection of the jury panel violates the Equal
Protection Clause. Rogers, 334 Or at 642 n 8. First, the defen-
dant must establish that the group is one that is a "recogniz-
able, distinct class," singled out for different treatment under
the law, as written or as applied. Second, the defendant must
show the degree of underrepresentation by comparing the
proportion of the group in the total population to the propor-
tion called to serve as grand jurors, over a significant period
of time. Third, the defendant must demonstrate that the
state's selection procedure is susceptible of abuse or is not

8 Although the United States Supreme Court has not defined "distinctiveness"
for purposes of the fair-cross-section requirement, it has outlined three considera-
tions consistent with that requirement's broader purpose:

"[W]e think it obvious that the concept of 'distinctiveness' must be linked to the
purposes of the fair-cross-section requirement[,] * * * [which are] (1) 'guarding
against the exercise of arbitrary power' and ensuring that the 'commonsense
judgment of the community' will act as 'a hedge against the overzealous or mis-
taken prosecutor,' (2) preserving 'public confidence in the fairness of the crim-
inal justice system,' and (3) implementing our belief that 'sharing in the admin-
istration of justice is a phase of civic responsibility.'"

Lockhart v. McCree, 476 US 162, 174-75, 106 S Ct 1758, 90 L Ed 2d 137 (1986)
(quoting Taylor, 419 US at 530-31).

9 The Fourteenth Amendment to the United States Constitution provides, in
part: "No State shall * * * deny to any person within its jurisdiction the equal pro-
tection of the laws."

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racially neutral in order to support the presumption of dis-
crimination raised by the statistical showing. Finally, to
make out an equal protection challenge, the defendant must
show that the exclusion of a cognizable group is "purposeful,"
which requires the party to establish a clear pattern that
emerges from the effect of the state's action, inexplicable on
grounds other than race, even when the governing legislation
appears neutral on its face. Id.

Defendant argues that prospective jurors who lack
fluency in English are a "distinctive group," as that term is
used in the fair cross-section cases and a "recognizable, dis-
tinct class," as that term is used in the equal protection cases.
For example, he points out that the legislature has declared
that individuals whose communication skills in the English
language are deficient-because of a non-English-speaking
cultural background-are such a distinctive and sufficiently
cognizable class that they need to be protected in administra-
tive and court proceedings.1º That declaration, defendant
asserts, shows that the legislature has recognized non-
English-speaking persons as a distinctive and recognizable
group. Defendant argues that "it is the very lack of this
group's English-language proficiency that 'defines' and
'limits' it," consistent with the concerns expressed in the leg-
islative policy statement. Defendant continues:

"[E]xcluding those lacking English-language proficiency
from jury pools in indigent criminal cases would not serve
those purposes [of the fair-cross-section requirement out-
lined in Lockhart], but instead would erode the confidence
of such citizens in the criminal justice system, as well as
their belief that they have a civic responsibility to share in
the administration of justice."

In addition to characterizing the issue as one of civic
participation and legislative concern, defendant suggests,
more significantly, that language is a measure of race and
ethnicity. In analyzing some ethnic groups or communities

10 Defendant cites the legislature's policy statement regarding interpreters,
which is set out in ORS 45.273, quoted above. See 349 Or at 181-82. As we have dis-
cussed, no Oregon statute requires the appointment of an interpreter for a juror or
treats non-English-speaking jurors as a distinctive class.

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for purposes of an equal protection claim, proficiency in a par-
ticular language may be treated as a surrogate for race or
ethnicity. See Hernandez v. New York, 500 US 352, 371, 111
S Ct 1859, 114 L Ed 2d 395 (1991) (plurality opinion) (so stat-
ing). In Hernandez, the plurality observed that eliminating
persons who speak a particular language from a jury pool,
"without regard to the particular circumstances of the trial or
the individual responses of the jurors, may be found by the
trial judge to be a pretext for racial discrimination." Id. at
371-72. Accordingly, defendant argues that the state's failure
to provide funding for jurors who lack proficiency in English
effectively excludes potential jurors from the jury pool on the
grounds of language, which, in effect, excludes them on the
impermissible basis of race or ethnicity.

Defendant faces a difficult hurdle in claiming that
the exclusion of non-English-speaking jurors violates the
United States Constitution. A federal statute provides that
the ability to speak and understand English is a requirement
for service on a federal jury, 28 USC § 1865(b)(2), (3), and
every court that has considered the issue has upheld that
requirement against constitutional challenge. E.g., United
States v. Angulo-Hernandez, 565 F3d 2, 12 (1st Cir 2009),
cert den, \_US\_, 130 S Ct 776 (2009) (28 USC § 1865
does not violate fair cross-section requirement of Sixth
Amendment); United States v. Aponte-Suarez, 905 F2d 483,
492 (1st Cir 1990) (English proficiency requirement for jury
service is constitutional and serves "overwhelming national
interest."). Moreover, every state court that has considered
whether a requirement that jurors be proficient in English
violates the Sixth Amendment, the Due Process Clause, or
the Equal Protection Clause has concluded that it does not.
See, e.g., State v. Gibbs, 254 Conn 578, 597-98, 758 A2d 327,
340-41 (2000) (citing cases). Defendant does not assert that
those cases were wrongly decided, nor does he explain why, if
statutes that exclude those without English proficiency from
juries are constitutional, then a state's administrative deci-
sion not to provide interpreters for jurors without English
proficiency would be unconstitutional. Simply put, no case
supports defendant's position.

Turning to the first element that is required to make
out a violation of the Sixth Amendment's fair-cross sec-
tion requirement-the existence of a "distinctive group"-

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defendant again encounters the problem that, although
numerous courts have considered the issue, no court has
concluded that non-English-speaking persons constitute a
distinctive group for Sixth Amendment purposes. See
Commonwealth v. Acen, 396 Mass 472, 479, 487 NE2d 189,
194 (1986), appeal dismissed, 476 US 1155 (1986) (so stat-
ing). Although defendant cites Hernandez for the proposition
that a trial judge could find that excluding jurors because
they spoke a particular language was a pretext for racial dis-
crimination, that case involved proficiency in Spanish, rather
than lack of proficiency in English, and here, of course, the
trial court made no finding of racial discrimination, pretex-
tual or otherwise.

Even assuming, without deciding, that non-English-
speaking prospective jurors constitute a "distinctive group"-
and also assuming that the group is underrepresented in jury
pools due to systematic exclusion-the United States
Supreme Court has consistently held that states may exclude
individuals who are members of such groups from juries if
the exclusion is required to advance significant state inter-
ests and is no broader than necessary to serve those interests.
E.g., Duren, 439 US at 367-68 (so holding for purposes of
Sixth Amendment right to jury trial). The state argues that
its interests in excluding prospective jurors who are not pro-
ficient in English-including ensuring that jurors under-
stand the proceedings at trial and are able to participate in
deliberations, avoiding the disruption of having interpreters
in the jury room, and not incurring the costs of providing
interpreters-are compelling.

We agree that the interests articulated by the state
are sufficient to justify excluding non-English-speaking per-
sons from the jury pool. It is critical for jurors to be able to fol-
low the proceedings in the courtroom and to be able to partic-
ipate meaningfully in deliberations. The state also may
reasonably conclude that the cost of providing interpreters
for one or more non-English-speaking jurors is an expense
that the state should not incur. Those justifications are simi-
lar to the reasons that have led every state and federal court
that has considered the issue to conclude that a state permis-
sibly may decline to provide interpreters for non-English-
speaking jurors. See Gibbs, 254 Conn at 598-99, 758 A2d at

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341; Acen, 396 Mass at 480, 487 NE2d at 194; Aponte-Suarez,
905 F2d at 492 (all so holding).

For similar reasons, defendant's equal protection
argument also is unavailing. Even assuming, without decid-
ing, that persons lacking proficiency in English constitute a
"distinct, recognizable class" for purposes of the Equal
Protection Clause, the state's strong interest in the integrity
and efficiency of jury trials justifies its decision not to provide
interpreters for those persons. Again, every court that has
considered the issue has concluded that the exclusion of such
prospective jurors does not violate the Equal Protection
Clause, just as it does not violate the Sixth Amendment. See,
e.g., Gibbs, 254 Conn at 598-99, 758 A2d at 341 (assuming
non-English speakers are cognizable group for equal protec-
tion purposes, no constitutional violation because state's
interests in having jurors understand proceedings and avoid-
ing jury disruption and costs associated with interpreters are
"compelling"); State v. Garza, 241 Neb 934, 958, 492 NW2d
32, 49 (2007) (rejecting Sixth Amendment and equal protec-
tion challenges because excluding non-English speakers from
juries "promotes the interests of the state's judicial process by
assuring that jurors can understand the proceedings"); State
v. Paz, 118 Idaho 542, 552, 798 P2d 1, 11 (1990), cert den, 501
US 1259 (1991) (rejecting Sixth Amendment and equal pro-
tection challenges because state "has a significant interest in
the integrity of the jury system * * * [which] is manifestly
and primarily advanced by limiting jurors to those who are
capable of understanding the proceedings").

Defendant, recognizing the absence of case law sup-
porting his position, argues that Oregon statutes should lead
to a different resolution of the federal constitutional issues.
He notes that, in contrast to the federal statute and statutes
in some other states requiring English proficiency to serve on
a jury, Oregon does not explicitly bar non-English-speaking
jurors from serving. On the contrary, defendant points to
ORS 45.273(1), quoted above, as establishing a state policy
"to secure the constitutional rights and other rights" of those
who cannot understand English and whose rights cannot be
protected "unless qualified interpreters are available to pro-
vide assistance." Defendant argues that, even if it is permis-
sible to exclude non-English-speaking jurors by statute,

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Oregon has declined to enact such a law and instead has
adopted a policy in favor of interpreters that is intended to
secure the rights of its non-English-speaking citizens. There-
fore, the state violates a defendant's fair trial and equal pro-
tection rights by failing to provide interpreters for potential
jurors who lack proficiency in English.

We disagree. As discussed above, see 349 Or at 181-
82, no Oregon statute articulates a policy in favor of, much
less requires, interpreters for non-English-speaking jurors,
as opposed to parties to a legal proceeding or witnesses in
such a proceeding. Moreover, we fail to see how an adminis-
trative or judicial decision not to fund interpreters-as long
as it is applied in a nondiscriminatory manner-would vio-
late a defendant's constitutional rights, when a statute
excluding non-English-speaking jurors does not.

We conclude that the state's decision not to pro-
vide funding for interpreters for jurors who are not profi-
cient in English does not violate the Sixth or Fourteenth
Amendments to the United States Constitution.

#### 2. Exclusion of Evidence of Witness Bias (Assignment of Error Number 6)

Defendant argues that the trial court erred in
excluding evidence of bias on the part of Robert Cameron, one
of the state's primary witnesses, after Cameron made a com-
ment to defendant while Cameron was leaving the court-
room. Cameron testified during the state's case-in-chief and
was extensively cross-examined with respect to the sub-
stance of his testimony and his credibility, as we discuss in
greater detail below. During the defendants' case-in-chief,
they presented a witness, Brown, who asserted that
Cameron had told him that he had lied to prison officials
about defendants' involvement in Polin's death.11 In the
state's rebuttal, it again called Cameron, and he testified
briefly that he had never talked to Brown about the case. As
Cameron left the stand, he allegedly made a remark to defen-
dants, which defense counsel described to the court, outside
the jury's presence:

11 In turn, the state adduced testimony suggesting that Brown was lying.

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"As Mr. Cameron was leaving the courtroom, he looked
at our clients and maybe defense counsel as well and said:
How do you like me now? And it was audible, certainly to
our clients and people at counsel table. We believe the jury
may or may not have heard it. We would like to make sure
that the jury is informed that he made that statement."

After a colloquy, the trial court stated:

"Mr. Cameron, when he got up, I saw him look towards
both Mr. Haugen and Mr. Brumwell and I don't doubt
he said something. I find that to be inappropriate on
Mr. Cameron's behalf. I do not find it to be any evidence of
anything that the jury should hear about.

"So, you've made a record of what Mr. Cameron said. It
was inappropriate. If he was here, I would tell him that, but
I'm not going to allow the jury to hear it."

Defendant's attorney then said, "[T]he jury doesn't have to
hear it, but it may indicate his bias." (Emphasis added.) Two
days later, before instructions and closing argument, defen-
dant made a pro se objection, arguing that certain "evidence"
should have been admitted, including "Robert Cameron leav-
ing the stand stating: How do you like me now?"

### a. Preservation

The state first contends that defendant failed to pre-
serve his argument that the trial court erred in excluding
Cameron's remark from evidence. Requiring preservation of
issues at trial is important to judicial efficiency because it
allows the trial court to consider legal arguments and correct
the error. State ex rel Juv. Dept. v. S. P., 346 Or 592, 604, 215
P3d 847 (2009). In addition, "the preservation requirement
promotes fairness to the adversary parties." Id. There are
various levels of specificity by which an issue may be pre-
served for review, consistent with those purposes. See State v.
Stevens, 328 Or 116, 122, 970 P2d 215 (1998) (In analyzing
preservation of error, "an appellate court must view the facts
in light of the purposes of fairness and efficiency that under-
lie the requirement."). A party ordinarily may preserve an
issue for review merely by raising an issue at trial; alterna-
tively (and preferably), a party may preserve an issue by rais-
ing the issue, identifying a source for the party's position, and
advancing a particular argument. See State v. Hitz, 307 Or

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183, 188, 766 P2d 373 (1988) (discussing alternative methods
of preserving issues for review).

Making an offer of proof ordinarily is part of preserv-
ing an argument that the trial court erred in excluding evi-
dence. See State v. Bowen, 340 Or 487, 500, 135 P3d 272
(2006), cert den, 549 US 1214 (2007) (so stating). "The pur-
pose of this rule [requiring an offer of proof] is to assure that
appellate courts are able to determine whether it was error to
exclude the evidence and whether any error was likely to
have affected the result of the case." State v. Affeld, 307 Or
125, 128, 764 P2d 220 (1988). The state argues that an offer
of proof requires a party to identify the evidence that the
party believes should have been admitted. See State v. Busby,
315 Or 292, 298, 844 P2d 897 (1993) (An offer of proof must
identify what the evidence would have shown.). The state
asserts that defendant did not make clear to the trial court
what evidence defendant wanted to put on regarding
Cameron's bias; defendant did not suggest that Cameron be
recalled to the stand to be examined about his statement or
that either of the defendants or one of the four defense coun-
sel take the stand to testify as to the statement. Instead,
defendant asked only that "the jury be informed that he
made that statement." The state argues that, because defen-
dant failed to offer any "evidentiary vehicle" for presenting
evidence of Cameron's possible bias to the jury, his argument
was not preserved.

We conclude that the issue was sufficiently pre-
served for us to consider it. After Cameron left the stand, and
before the jury was excused, the trial court asked whether
defendants had any further evidence. Defense counsel
replied that he might have "one more witness" and wanted "a
few minutes to discuss it." The jury was then excused, and
defense counsel described the remark that Cameron had
made when he stepped down, as quoted above. Defendant
now responds to the state's argument that he did not indicate
how Cameron's remark might be introduced as evidence by
asserting that the reference to "one more witness" was a ref-
erence to recalling Cameron to testify about the remark if the
court would permit it. Although defense counsel could have
been clearer in stating to the trial court, after the jury had
been excused, that he wished to recall Cameron as a witness

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to testify about the remark, we believe the purposes of pres-
ervation were served by what defense counsel did say. Hav-
ing previously informed the court that he might "have one
more witness," defense counsel later stated that Cameron
had made a comment while passing the defense table and
repeated the substance of that comment.12 He told the court
that he wanted the jury to be informed of the remark. With
knowledge that a comment had been made and what the
comment was, the trial court then ruled that it was "not going
to allow the jury to hear it."

The state also argues that defense counsel's state-
ment, after the court had ruled, that "the jury doesn't have to
hear it, but it may indicate his bias," indicates that defendant
did not disagree with the court and accepted its ruling. How-
ever, defendant's equally plausible reading of that remark
was that defense counsel was acknowledging (by repeating)
the court's unfavorable ruling ("the jury doesn't have to hear
it"), but continuing to object that the witness's statement
reflected bias and that the jury should know about it. In addi-
tion, defendant himself later stated to the trial court that the
jury should have been told of Cameron's remark. Moreover,
the trial court, immediately after ruling against defendant's
request that the jury be informed of Cameron's remark,
told defense counsel, "So, you've made a record of what
Mr. Cameron said."

As noted, it would have been preferable for defense
counsel to have requested that Cameron immediately be
recalled to the stand or to have made an offer of proof by iden-
tifying the witness he would have called and what that wit-
ness's testimony would have been, but we think, in these cir-
cumstances, that defendant sufficiently apprised the trial
court of his objection and the reasons for it. See State v.
Milbradt, 305 Or 621, 630, 756 P2d 620 (1988) (citing State v.
Foster, 296 Or 174, 183, 674 P2d 587 (1983)) ("[A] defense
attorney does not have to walk over any more legal coals to
protect the record after first stating the grounds for the
objection.").

12 Neither the trial judge nor the prosecutors heard the substance of any com-
ment by Cameron.

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### b. Exclusion of Statement

Having concluded that defendant preserved his objec-
tion, we turn to the question whether the trial court erred in
excluding evidence of Cameron's comment to defendants as
he left the witness stand. Evidence of a witness's bias is gen-
erally admissible. OEC 609-1 ("The credibility of a witness
may be attacked by evidence that the witness engaged in con-
duct or made statements showing bias or interest."); State v.
Hubbard, 297 Or 789, 796, 688 P2d 1311 (1984) ("A principle
of evidence law in Oregon is that: It is always permissible to
show the interest or bias of an adverse witness." (Internal
quotation marks omitted.)).

However, our cases also make clear that, while evi-
dence of bias is relevant and may be admitted, it is not nec-
essarily error to exclude such evidence:

"Evidence relevant to the bias or interest of a witness need
not always be admitted. * * * Where bias or interest is
shown, but further questioning is objected to, the decision is
within the discretion of the trial judge."

Hubbard, 297 Or at 799-800. As the 1981 Conference
Committee Commentary on OEC 609-1 states, although the
rule permits the credibility of a witness to be attacked by evi-
dence of conduct or statements showing bias or interest,
"[t]he trial judge retains discretion to control the extent to
which proof of bias or interest may go." As with other evi-
dence, where the evidence of conduct or statements showing
bias is merely cumulative of other evidence of bias, the trial
court has discretion to exclude it. See State v. Cox, 337 Or
477, 487, 98 P3d 1103 (2004), cert den, 546 US 830 (2005)
(trial court did not err in excluding evidence of victim's vio-
lent acts towards others to show defendant's reasons for fear-
ing victim, because evidence, although relevant, "would not
have added greatly to the evidence already before the jury").

Defendant now argues in great detail that Cameron's
statement was evidence of his "animosity" towards defen-
dants and was therefore probative of his bias against them.
Accordingly, defendant asserts, the statement should have
been admitted as evidence of bias under OEC 609-1.
Although the state responds that Cameron's statement did

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not necessarily demonstrate any particular hostility towards
defendants, it also concedes that the comment might be sus-
ceptible of such a reading. If so, the statement was at least
marginally relevant to the issues at trial because it tended to
show Cameron's bias. Thus, it would have been permissible
for the trial court to admit evidence that Cameron had made
the statement. That does not mean, however, that the trial
court erred in excluding evidence of the comment. As noted,
our cases hold that a trial court has discretion to limit evi-
dence of bias or interest under OEC 609-1 if it is simply
cumulative of other, similar evidence of bias.

The state argues that Cameron's remark itself "was
no more probative of [his general hostility towards defen-
dants] than other evidence received at trial." Further, accord-
ing to the state, because there was "ample and specific evi-
dence" of Cameron's hostility, the admission of his comment
would not have substantially assisted the jury in making a
decision about his credibility.13 We agree.

Defendant cross-examined Cameron extensively
during the state's case-in-chief and sought to develop evi-
dence that he was hostile towards defendants and biased
against them.14 The record reflects that, while testifying
before the jury, Cameron was mocking, hostile, and uncoop-
erative toward defense counsel, calling one of defendant's
attorneys a "jerk off" and asserting that the attorney was try-
ing to "peg [him] in a corner." Cameron testified that, after he
had decided to testify against defendants, he received a
"death contract" in the mail, threatening him and his
brother. Cameron was upset with defendants for making him
(as well as themselves) look guilty by committing the murder

13 The state combines its argument that the trial court did not err in excluding
Cameron's remark with its argument that any error was harmless. Because we
conclude that it was not error for the trial court to exclude the remark, we do not
address the state's harmless error argument.

14 Defendant also sought to impeach Cameron by demonstrating, through
cross-examination of Cameron and the testimony of other witnesses, that he had
testified against defendants in exchange for favorable treatment in prison. Like
evidence of bias, such evidence of a personal "interest" is admissible under OEC
609-1 to attack the credibility of an adverse witness. Although both "bias" and
"interest" evidence relate to a witness' credibility, those kinds of evidence do so in
different ways and thus evidence of bias is not cumulative of different evidence of
interest.

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near the band room during the time when the band in which
he and they were members was scheduled to practice. More-
over, they involved him in the attempted cover-up by trying
to get him to hide their bloody clothes. He thought that mur-
dering Polin because he was a "rat" made little sense, when
there were "baby killers," "child molesters," "all kinds of rats
in this prison bigger than him. Why not them?" And Cameron
was hostile to defendants because they had killed a friend: "I
liked [Polin]. * * * And had I known that somebody was going
to kill him, I would have gliven] him a head's up, you know. I
wouldn't let somebody just, you know, sneak attack. I mean,
there's-I mean, for what? For nothing." In short, Cameron's
direct testimony and his answers on cross-examination pro-
vided evidence of bias against defendants.

Cameron also testified that his life in prison had
changed for the worse, not for the better, after coming for-
ward to testify against defendants-testimony from which
the jury could have inferred that he now bore some level of
hostility towards defendants. He said that telling the author-
ities about defendants had "turned my life upside down" and
that he now was being "treated like shit." Cameron stated
that the defendants were "doing better time than I'm doing"
and that he was "clearly upset" about being placed in a seg-
regation unit after coming forward as a witness. He con-
cluded that,

"Since I came forward on this, I have got nothing but
dicked. So, you [defense counsel] are sitting over there mak-
ing all of these innuendos like I am getting something or I
did this [coming forward to testify] for something. I was
doing fine on my own. I didn't ask them to come to me with
this shit."

Given the detailed cross-examination of Cameron
and the other evidence that defendant adduced at trial to
show Cameron's dislike of defendants and the multiple rea-
sons that the jury should view Cameron's testimony with sus-
picion, we conclude that the trial court's decision to exclude
what defendant now asserts is additional evidence of bias-
Cameron's remark to defendants as he left the witness
stand-was within the trial court's discretion. It was not
error.

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### B. Penalty Phase

#### 1. Admission of Testimony of Psychologists (Assignment of Error Number 22)

Defendant argues that the trial court erred in admit-
ting testimony from the psychologists who evaluated defen-
dant for the parole board and in connection with the presen-
tence investigation in the trial for his earlier murder, because
that testimony did not satisfy the requirements for admitting
scientific evidence. We conclude that the objection was not
preserved.

A court may hold a pretrial hearing under OEC 104
to consider whether proposed evidence meets the standards
for admission of scientific evidence set out in State v. Brown,
297 Or 404, 687 P2d 751 (1984), and subsequent cases. See
State v. Lyons, 324 Or 256, 260, 924 P2d 802 (1996) (conduct-
ing pretrial hearing on admissibility of scientific evidence in
light of Brown); State v. O'Key, 321 Or 285, 288, 899 P2d 663
(1995) (same). Here, defendant filed a motion for an OEC 104
hearing to challenge the admissibility of the state's antici-
pated scientific evidence and the qualifications of certain of
the state's expert witnesses. Defendant's motion requested a
hearing that would cover a wide range of anticipated scien-
tific testimony, from DNA test results to the operations of the
security cameras to medical testimony concerning the vic-
tim's death. Defendant also asked that the trial court, at that
hearing, consider the anticipated testimony of psychologists
that would relate to the jury's determination of defendant's
"future dangerousness" under ORS 163.150(1)(b)(B).

In response to defendant's motion, the trial court
issued a letter opinion in which it denied the motion for a pre-
trial hearing and made several rulings regarding the scien-
tific evidence that the state intended to introduce. Two of
those rulings are relevant to the testimony regarding future
dangerousness. As to defendant's general request for a pre-
trial determination as to whether the state's proposed expert
witnesses were "properly qualified to present the scientific
evidence and whether they followed the scientifically valid
process," the court stated that those issues did not need to be
decided in advance of trial. The court noted that defendant

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would be able to examine all the state's proffered expert wit-
nesses on their qualifications and the scientific basis for their
testimony-and to seek to exclude or limit their testimony-
at trial.

As to defendant's specific request for a hearing "into
the science behind the evidence that will be presented as to
defendant's future dangerousness," the court concluded that
a pretrial hearing was not required because such a hearing
was premature. The trial court agreed with defendant that, if
one of the state's psychologists were to offer an expert opinion
as to future dangerousness, then that testimony would "be
subject to the standards for scientific admissibility set forth
in Brown." It noted, however, that the psychologists' testi-
mony was expected to relate only to defendant's prior acts
and the psychologists' evaluation of those acts; there was "no
indication" that the witnesses would give an expert opinion
as to "future dangerousness or the probability that [defen-
dant] will commit future acts of violence." The trial court spe-
cifically stated, "If there is any indication that one or more of
the witnesses will [give such an expert opinion], this court
will hold a hearing, outside the presence of the jury, to deter-
mine the admissibility of the proposed evidence." (Emphasis
added.)

During the penalty phase of the trial, five psycholo-
gists discussed evaluations of defendant that they had con-
ducted for the parole board between 1994 and 2004. One of
those five also testified regarding his participation in the pre-
sentence investigation following defendant's 1981 murder
conviction. Defendant made no objection at trial to the testi-
mony of any of the psychologists on the grounds that it failed
to meet the standards for scientific evidence set out in Brown
and O'Key. Defendant did not object to the witnesses' quali-
fications, the scientific basis for their testimony, or any of
their statements about defendant's psychological condition.
Nor did defendant-before or during trial-disagree with the
trial court's initial ruling that, if it appeared at trial that one
of the experts would give an opinion as to future dangerous-
ness or the probability that defendant would commit future
acts of violence, a hearing on the admissibility of that evi-
dence could be held at that time. On appeal, defendant now

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argues that the psychologists' testimony was inadmissible
because it constituted scientific evidence, but did not meet
the Brown / O'Key standards.

We agree with the state that defendant's argument
is not preserved, because he did not raise his scientific evi-
dence objection when each of the state's witnesses testified.
The trial court's pretrial ruling was clear: The psychologists
who had evaluated defendant for the parole board could tes-
tify at the penalty phase; however, if those witnesses were to
offer a scientific opinion as to the probability of future dan-
gerousness, that testimony would be subject to a possible
Brown / O'Key objection, and the court would hold a hearing
on the objection at that time. Accordingly, it was incumbent
on defendant to make an appropriate objection at trial.

A similar issue arose in State v. Perry, 347 Or 110,
218 P3d 95 (2009). The defendant had filed a pretrial motion
seeking to exclude the testimony of an expert that the state
intended to call on the phenomenon of "delayed reporting" in
child sex abuse cases. At an OEC 104 hearing held before
trial, the trial court indicated that it would allow the expert
to testify, but it expressed the view that its ruling was condi-
tioned upon the expert providing "more detail" about what
was meant by "delayed reporting." Id. at 115-16. Moreover,
the trial court's ruling, as this court noted, left the expert's
testimony "subject to any specific objections that [the] defen-
dant might make at trial." Id. at 116. Discussing more gen-
erally the limits of using a motion for a pretrial hearing to
challenge the validity of scientific testimony, this court
stated that a "general" pretrial ruling "that a certain type of
evidence (even scientific evidence) is minimally relevant
\* \* \* does not relieve a party of the obligation to make specific
objections to discrete pieces of that evidence at trial, if the
dynamics of the trial process reveal other grounds for objec-
tion." Id. at 116-17.

Perry describes the situation here. The trial court
made a general pretrial ruling that the psychologists would
be permitted to testify, and it specifically reserved for trial
the possibility of objections to "discrete pieces of that evi-
dence," such as scientifically based opinion testimony on the
probability of further dangerousness. Defendant therefore

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had the obligation to make specific objections at trial to tes-
timony by the psychologists that he believed should not have
been admitted. Defendant failed to do so.

We also agree with the state that defendant was
required to raise at trial the specific grounds for his objec-
tions to the scientific foundation for any testimony by the
state's psychologists that he believed was improper. One pur-
pose of the preservation requirement is to allow the trial
court a fair opportunity to correct any potential mistakes.
Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008)
("Preservation gives a trial court the chance to consider and
rule on a contention, thereby possibly avoiding an error alto-
gether or correcting one already made, which in turn may
obviate the need for an appeal."). The trial court did not bear
the responsibility for remembering defendant's general
objection to the psychologists' testimony, detecting such tes-
timony when it occurred, and ruling that all, some, or none of
it was appropriate, without any objection or argument hav-
ing been offered by defendant. The responsibility for watch-
ing for such testimony and raising defendant's earlier objec-
tion again or making some other, more specific, objection
rested with defendant's counsel. See Perry, 347 Or at 116
(stating rule). Moreover, as noted, before trial the trial court
had not rejected all of defendant's arguments-rather, it had
stated that, if the experts gave scientifically based opinion
testimony, defendant could raise the issue of whether that
testimony met the Brown / O'Key standards when the testi-
mony was offered. If the trial court had been apprised of the
objectionable testimony, the trial court, as it had agreed to do
before trial, could have held a hearing-outside the presence
of the jury, if necessary-to determine the admissibility of
the proposed evidence. The trial court then either could have
excluded the testimony, explained why it was appropriate
that the jury hear it, or allowed the state to make a further
record. Defendant never gave the trial court that opportu-
nity. We conclude that the issue was not preserved for
review.

#### 2. Consecutive Sentences (Assignment of Error Number 24)

Defendant argues that the trial court erred in
refusing to impose his death sentence consecutively to the life

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sentence that he was already serving. The basis for defen-
dant's argument is ORS 137.123(3), which provides:

"When a defendant is sentenced for a crime committed
while the defendant was incarcerated after sentencing for
the commission of a previous crime, the court shall provide
that the sentence for the new crime be consecutive to the
sentence for the previous crime."

### (Emphasis added.)

This court determines legislative intent, in the first
instance, from the text and context of the statute, and we
must apply the text as the legislature has written it, partic-
ularly when the text is not ambiguous. See State v. Gaines,
346 Or 160, 171-73, 206 P3d 1042 (2009) (explaining para-
digm); PGE v. Bureau of Labor and Industries, 317 Or 606,
610-12, 859 P2d 1143 (1993) (same). Defendant urges that, as
applicable to this case, the meaning of ORS 137.123(3) is
clear from the text. Defendant's sentence of death was
imposed for the crime of aggravated murder, which he com-
mitted while incarcerated on a sentence of life imprison-
ment.15 Under those circumstances, according to defendant,
"the plain language of ORS 137.123(3) directs that the trial
court 'shall provide that the sentence for the new crime'-i.e.,
the death sentence-'be consecutive to the sentence for the
previous crime'-i.e., the life sentence." (Emphasis supplied
by defendant.) Defendant argues that the trial court erred
because it did not provide that defendant's death sentence
"be consecutive" to his life sentence.16 In defendant's view,

15 Defendant was serving a life sentence, but he also was eligible for parole and
had had several parole hearings.

16 The state initially asserts that defendant's argument is not ripe for review.
The state maintains that the issue that defendant raises is better characterized as
when defendant's death sentence will be executed. That issue, the state claims, will
not be ripe until defendant has exhausted all post-conviction and federal habeas
remedies, and the state seeks to carry out his death sentence. The state further
contends that, even if the trial court erred in failing to impose the death sentence
consecutively to the life sentence, neither ORS 137.123(3) nor any other statute
dictates the order in which the sentences must be executed. Defendant responds
that this assignment of error does not concern the execution of his sentence, but the
imposition of the sentence of death as part of the judgment of conviction, which this
court is obligated to review. See ORS 138.012(1) (providing for direct review in this
court when jury imposes a death sentence). We agree with defendant that our auto-
matic review of the judgment convicting defendant of aggravated murder and
imposing the death penalty permits us to review defendant's claim that the judg-
ment is inconsistent with ORS 137.123(3).

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then, his death sentence cannot be carried out until he has
completed his prior sentence of life imprisonment. Defen-
dant, of course, recognizes that if his existing sentence of life
imprisonment is completed only when he dies in prison, then
his death sentence never can be carried out. Defendant
argues that ORS 137.123(3) must be followed, despite that
counterintuitive result.

The state responds that defendant's interpretation
of ORS 137.123(3) is incorrect because it would require that
the execution of the death sentence be delayed until the life
sentence has been fully served-and therefore not be carried
out at all. That result, the state argues, would conflict with
the death penalty statutes. The state points out that the
death penalty statutes provide that the execution of a death
sentence is automatically delayed to allow for direct review
by this court, the filing and disposition of a petition for certi-
orari with the United States Supreme Court, and exhaustion
of collateral remedies. ORS 137.463(1); ORS 138.686. After
the defendant has exhausted or waived those remedies, the
trial court must hold a death warrant hearing. ORS
137.463(3), (4). Following that hearing, if the trial court
determines that the defendant has exhausted or waived all
remedies and is mentally competent, the court issues a death
warrant that "shall specify a date [on which the death sen-
tence is to be executed] not less than 90 days nor more than
120 days following the effective date of the appellate judg-
ment." ORS 137.463(5). If the death sentence "for any reason
\* \* \* is not executed on the date appointed in the death war-
rant" and is not "stayed under ORS 138.686 or otherwise by a
court of competent jurisdiction," the court must then issue a
new death warrant "on motion of the state and without fur-
ther hearing." ORS 137.463(7). The new warrant must spec-
ify an execution date, not more than 20 days after the date of
the state's motion. Id. In other words, the state argues, the
statutory scheme "prescribes a closed set of automatic stays
and procedures that act to move the case * * * along," but
does not permit delay of execution while the defendant com-
pletes service of another sentence.

In the state's view, ORS 137.123(3) can be harmo-
nized with the death penalty statutes by either (1) interpret-
ing "consecutive to" to mean only that the sentences must be

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served one after another without overlap, but not in any
particular order, or (2) interpreting "sentence" in ORS
137.123(3) to mean "sentence of incarceration," so that death
sentences would be excluded from the statute's reach. Defen-
dant responds that either interpretation would conflict with
the text of the statute. In particular, he argues that even the
state concedes that to be "consecutive to" means "following"
or "right after." Thus, he argues, the new sentence must
"follow" the old sentence. Additionally, defendant asserts, the
legislature used the term "sentence" without qualification in
ORS 137.123(3) and thus likely intended that term to include
a death sentence. Further, the legislature used the phrase
"term of imprisonment" in other provisions, e.g., ORS
137.123(5), which demonstrates that the legislature knew
how to use such a term but did not do so in ORS 137.123(3).

To the extent that the statutes conflict and cannot be
reconciled, each party claims that one statute is more partic-
ular than the other. "When a general and [a] particular pro-
vision are inconsistent, the latter is paramount to the former
so that a particular intent controls a general intent that is
inconsistent with the particular intent." ORS 174.020(2).
Defendant argues that ORS 137.123(3) applies only to sen-
tences for aggravated murder committed while the defendant
is incarcerated after the commission of a previous crime,
whereas the death penalty statutes apply to all aggravated
murder sentences. It follows, defendant claims, that ORS
137.123(3) is the more particular statute and that it trumps
the applicable death penalty statutes. The state argues that
the death penalty statutes apply only to death sentences,
whereas ORS 137.123(3) applies to sentences imposed for
any crime, if the defendant is incarcerated at the time of the
crime, and, accordingly, the more specific death penalty stat-
utes should be applied. The state further argues that one of
the two counts of aggravated murder of which defendant was
convicted was for committing a crime while confined in a cor-
rectional facility, ORS 163.095(2)(b). To give effect to the leg-
islature's specific decision to authorize such a murder to be
prosecuted as aggravated murder-with the attendant pos-
sibility that a jury will decide to impose the death penalty-
ORS 137.123(3) must be interpreted to permit the imposition

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of the death penalty even if a defendant is still serving a term
of imprisonment.

Following the rules of statutory construction men-
tioned previously, we cannot give effect to ORS 137.123(3)
with its requirement of consecutive sentences and, at the
same time, give effect to the statutes that provide for the
death penalty for an aggravated murder that is committed
when the defendant is already serving a life sentence for
another murder. The statutes are in conflict. In such an
instance, under ORS 174.010 and ORS 174.020(2), we must
give effect to all provisions or particulars of the statutes, if
possible, and let the specific legislative intent control the
general.

To state the obvious, the penalty of death is different
in kind from incarceration. Incarceration involves the denial
of freedoms and privileges through imprisonment in a state
or county facility for a period of years, sometimes for the life
of the inmate. By contrast, an execution is a single event at
the end of a lengthy process of ensuring that the sentence of
death is consistent with applicable constitutional and statu-
tory standards. Incarceration of inmates subject solely to the
death penalty is necessary only until the execution, assuming
that the execution is not foreclosed by some intervening
event. The two forms of punishment, particularly in a tem-
poral sense, are not only unlike but are mutually inconsis-
tent. To treat them as interchangeable or capable of treat-
ment as consecutive to one another makes little sense.

The foregoing observation assists in distinguishing
between general and particular legislative intent. A "partic-
ular" legislative intent is "paramount" and must "control" the
general legislative intent. ORS 174.020(2). In terms of crimi-
nal law sanctions, the death penalty is the seldom-used
exception to the more often-used punishment of incarcera-
tion. Moreover, it is the most severe, singular sanction that
the state can impose for any crime-and it can be imposed
only for one crime, aggravated murder. The statutes provid-
ing for the imposition of a sentence of death are a more spe-
cific expression of legislative intent when compared with a
sentence of incarceration, because a sentence of death is

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exceptional. For that reason, as previously explained, the leg-
islature has enacted a number of specific statutes to regulate
the manner in which a death sentence moves toward the
issuance of a death warrant and the date of execution.

The general intent of the legislature, expressed in
ORS 137.123(3), is that sentences for crimes committed in
prison must be consecutive to previously imposed sentences.
While consecutively adding like forms of punishment is
appropriate when multiple sentences of imprisonment are
involved, the penalty of death that the legislature provided
for this particular crime would rarely be carried out if it is
consecutive to an existing sentence of life imprisonment. The
legislature has provided a timetable for carrying out the
sequence of events following the imposition of a death sen-
tence, and it is that schedule which the legislature intended
trial courts and prison officials to observe. Put differently, the
legislature did not intend that the schedule for imposition of
a sentence of death depend on another, existing, sentence;
instead, the schedule depends on the exhaustion of legal pro-
ceedings related to the aggravated murder conviction that
lead to the imposition of the death penalty and the issuance
of the death warrant.

We conclude that the particular legislative intent is
that the sentence of death be carried out, when its imposition
is consistent with proper legal standards, for aggravated
murder committed in prison. See ORS 163.095(2)(b) (penalty
for aggravated murder applies when "[t]he defendant was
confined in a state, county or municipal penal or correctional
facility or was otherwise in custody when the murder
occurred"). If we accepted defendant's argument, the sen-
tence of death would be contingent, rather than certain,
because the state would have to wait for the completion of
defendant's life sentence before executing the death sen-
tence. That result would be inconsistent with the legisla-
ture's more specific intent that the death penalty may be
imposed for aggravated murders committed in prison. Defen-
dant must continue to serve a period of life imprisonment
while he is confined awaiting the execution of the sentence of
death. Pursuant to the legislature's intent, the period of
imprisonment for defendant's earlier crime runs until such

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time as the sentence of death for aggravated murder is car-
ried out according to the schedule determined by statute. We
reject defendant's argument that the execution of the death
sentence must be imposed only after he has served his life
sentence.

## III. CONCLUSION

As previously noted, we have considered defendant's
other assignments of error, and we conclude that they are
unpreserved, are disposed of by prior rulings of this court, or,
as argued, are without merit. In our view, discussion of those
assignments would not benefit the bench, bar, or public.

The judgment of conviction and the sentence of
death are affirmed.

## DE MUNIZ, C. J., concurring.

With one exception, I concur in both the reasoning
and the result of the majority's opinion in this case. The
exception involves the sixth assignment of error, which dealt
with the alleged statement "How do you like me now?" by wit-
ness Robert Cameron as he was stepping away from the wit-
ness stand. The majority concludes that the alleged error was
preserved, but concludes that, even assuming Cameron's
statement was evidence of bias, the trial court did not err in
refusing to admit the evidence. 349 Or at 189-95. In my view,
defendant failed to preserve any error regarding Cameron's
alleged statement. I, therefore, would not reach the merits of
the assigned error.1

The pertinent facts are correctly set out in the major-
ity opinion. After Cameron had left the witness stand-and
after the court had taken a recess-defense counsel informed
the court that, as Cameron was leaving the witness stand, he

" Because I would not reach the merits of the assigned error, I am not required
to express an opinion about the correctness of the majority's conclusion regarding
the trial court's ruling. I note in passing, however, that the witness's expressed
defiance of defendant (if it actually occurred), while it might have a benign or insig-
nificant impact on a jury, also could be seen as an outburst of animosity that had
finally found an outlet. If the latter, I think that a reasonable juror could have con-
sidered it the pivotal piece of evidence concerning the witness's credibility, and a
valid reason to question that credibility.

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had stated "How do you like me now?" loud enough for coun-
sel and co-counsel to hear the statement. The judge and the
prosecutor both indicated that they had not heard it. Defense
counsel stated that he "would like to make sure that the jury
is informed that he [Cameron] made that statement."
Defense counsel did not request that Cameron be retained as
a witness and counsel did not attempt to recall Cameron to
the witness stand. Neither did defense counsel offer to call
any other witness to the statement. The substance of defense
counsel's offer of proof was the assertion that the statement
had been made and a request that the jury be "informed"
about it.

It has long been the preferred practice in this state
that offers of proof ordinarily be made by questioning a wit-
ness outside the presence of the jury, not by counsel summa-
rizing the expected testimony. "Unless the calling of wit-
nesses is waived by the court or by the adverse party, we
think the better practice is to call the witnesses relied on and
ask appropriate questions." Columbia R. I. Co. v. Alameda L.
Co., 87 Or 277, 291, 168 P 64 (1917), on reh'g, 168 P 440
(1918); see Ashmun v. Nichols, 92 Or 223, 178 P 234, on reh'g,
180 P 510 (1919) (quoting Columbia with approval). Offers of
proof involving the mere "avowals of counsel" often are prob-
lematic. See Null v. Siegrist, 262 Or 264, 267, 497 P2d 664
(1972) (evidentiary hearing conducted outside presence of
jury "was in the nature of an offer of proof and, assuming that
plaintiff did change doctors for the reason his counsel indi-
cated, he should have so testified" (footnote omitted)); First
Nat. Bank v. Oregon Paper Co., 42 Or 398, 402, 71 P 971
(1903) ("If the appellants were not allowed to prove their
claims, they should have called witnesses, and stated to the
court the testimony which it was expected would be elicited
from them, and upon a refusal to receive such testimony take
an exception." (Citation omitted.)).

Here, defendant made no effort to recall Cameron,
and defendant offered no additional witness to testify to what
was said. Defendant merely asked that the jury be
"informed" about the statement. Simply put, there was no

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offer of proof, because defendant did not offer to prove any-
thing. Requesting that the court inform the jury of a state-
ment that the court did not even hear is not sufficient to pre-
serve the evidentiary error, and this court errs in concluding
otherwise.

Although I concur in the majority's decision to reject
defendant's sixth assignment of error, I do so only because
the error was not preserved.

Gillette and Durham, JJ., join in this concurring
opinion.