State v. Guzek

358 Or. 251

363 P.3d 480

STATE of Oregon, Respondent on Review,

v.Randy Lee GUZEK, Appellant on Review.

CC 87CR–0373–TM

SC S058677.

Supreme Court of Oregon.

Argued and Submitted March 9, 2015.

Decided Nov. 27, 2015.

Jeffrey E. Ellis, Portland, argued the cause and filed the briefs for appellant on review. With him on the briefs was Karen A. Steele, Salem.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent on review. With him on the briefs were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael J. Slauson, Gregory A. Rios, and Jona J. Maukonen, Assistant Attorneys General.

Stephen F. Deatherage, Bullivant Houser Bailey PC, Portland, filed the brief for amicus curiae Douglas Houser.

Before WALTERS, Presiding Justice, BREWER and BALDWIN, Justices, and DURHAM and RIGGS, Senior Justices pro tempore.^**

WALTERS, P.J.

Defendant was convicted of two counts of aggravated murder in 1988. This court affirmed those convictions in State v. Guzek, 310 Or. 299, 797 P.2d 1031 (1990) (Guzek I ), but has three times vacated defendant's sentences of death and remanded for new penalty-phase trials. See id.; State v. Guzek, 322 Or. 245, 906 P.2d 272, 274 (1995) (Guzek II ); State v. Guzek, 336 Or. 424, 86 P.3d 1106 (2004) (Guzek III ), vac'd and rem'd, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006) (Guzek IV ), modified, 342 Or. 345, 153 P.3d 101 (2007) (Guzek V ). This is an automatic and direct review of the death sentences imposed on defendant after his fourth penalty-phase trial, which occurred in 2010.

Defendant raises 87 assignments of error. Discussion is merited for only 13 assignments of error, which fall into two categories.

First, defendant contends that the trial court erred by requiring him to wear a stun belt during this remanded penalty-phase trial. Second, defendant argues that the trial court improperly instructed the jury on how to consider his allocution. We summarily reject the remaining assignments of error.¹ For the reasons that follow, we affirm defendant's sentences of death.

I. BACKGROUND

This court previously described the facts of the underlying offenses in Guzek I:

"The facts surrounding this vicious crime can be stated briefly. Defendant, who was 18 years old at the time of the offense, had dated a high school acquaintance during the 1986–87 school year. The high school acquaintance at the time lived with her uncle and aunt, Rod and Lois Houser, at Terrebonne, a rural community in Deschutes County. Rod Houser disapproved of defendant; Houser's niece broke off the relationship. The parting was not amicable; defendant resented both the niece and her uncle.

"On Sunday, June 28, 1987, defendant met with two friends, Mark Wilson and Ross Cathey. The three men planned to burglarize a rural Deschutes County home where they believed a large amount of jewelry was kept. Defendant, who was the leader and planner in the group, instructed Cathey to cut the throat of their prospective victim with a knife that defendant supplied. Cathey agreed. That plan failed, however, when there turned out to be too many lights and too many cars at the targeted residence when the conspirators arrived.

"Thwarted, the three men started to drive back toward Redmond, the nearest town. They were continuing to look for a house to burglarize. Cathey suggested the Houser residence, which he and Wilson had remarked upon earlier that day as a possible target for a burglary. All three agreed on this alternate target.

"The three returned to the home in Redmond that defendant shared with his father. There, defendant secured two guns (a .22 rifle and a .32 pistol) to be used in robbing the Housers. The three then departed for the Housers'. On the way, they stopped at a secluded spot and defendant test fired the rifle, showing Wilson how to clear the action of the weapon if it jammed. The journey resumed.

"Somewhere during the drive it seems to have been settled that, if the Housers proved to be home when the three arrived, the couple would be killed. The Housers were at home. Defendant rang the doorbell and pounded on the door until Rod Houser finally answered it. A short, hostile discussion between defendant and Rod Houser ensued. Defendant then yelled "Do it!" to Wilson, who began firing the .22 at Rod Houser. Rod Houser retreated into the house, where he was felled by a fatal fusillade from the .22. Defendant ran upstairs and shot Lois Houser three times with the .32 pistol, killing her.

"The men then ransacked the Houser residence, taking a great deal of personal property, including a ring that defendant pulled from Lois Houser's finger after he had murdered her. The men took the property to Redmond and stored it in various locations through the help of defendant's father.

"The Housers' bodies were discovered two days after the murders. Suspicion came to center on defendant and Wilson, due to the enmity between defendant and the Housers. Eventually, police arrested defendant, Wilson, and Cathey. Wilson and Cathey confessed, implicating defendant. Both men testified against defendant at his trial. The state permitted each to plead guilty to a reduced charge in return for his testimony."

Guzek I, 310 Or. at 301–02, 797 P.2d 1031 (footnote omitted). Based on those facts, the jury found defendant guilty of two counts of aggravated murder and sentenced him to death. Id. at 302, 797 P.2d 1031.

On appeal from that 1988 conviction and sentence of death, defendant "raise[d] only one challenge that could be said to apply to the guilt phase of the proceedings in his case: He should have been given plea agreement opportunities equal to those given to Mark Wilson." Id. at 302, 797 P.2d 1031. This court rejected that argument and affirmed the two convictions for aggravated murder. Id. at 302–04, 797 P.2d 1031.

Defendant presented numerous challenges to the penalty phase as well. This court rejected most of those challenges but agreed with defendant's argument that the jury was not "given the full range of authority to consider and act on mitigating evidence that the federal Constitution requires." Id. at 305, 797 P.2d 1031 (citing State v. Wagner, 309 Or. 5, 14–20, 786 P.2d 93 (1990) ). As a result, this court vacated the sentences of death and remanded the case to the trial court to retry the penalty phase. Id. at 305–06, 797 P.2d 1031.

That second penalty-phase trial occurred in 1991. The jury empaneled to hear the retrial reached the same result as the original jury and sentenced defendant to death. Guzek II, 322 Or. at 250, 906 P.2d 272. During those proceedings, however, the trial court erred by admitting victim-impact evidence that was not relevant to any fact or proposition before the jury under the then-applicable statutory scheme. Id. at 270, 906 P.2d 272. After concluding that the error was not harmless, this court vacated the sentences of the death and remanded the case for another penalty-phase trial. Id. at 270–71, 906 P.2d 272.

The third penalty-phase trial occurred in 1997. That jury also sentenced defendant to death. Guzek III, 336 Or. at 426, 86 P.3d 1106. On review of that sentence, "the state concede[d]—and [this court] agree [d]—that the trial court erred in failing to instruct the jury on the 'true-life' sentencing option," which had been statutorily created after defendant's initial trial. Id. This court, therefore, vacated defendant's third death sentence and remanded the case for a fourth penalty-phase trial. Id.

After reaching that conclusion, this court explained that, on remand, defendant could present alibi witnesses as part of the penalty-phase proceeding whose testimony was inconsistent with the alibi that he had presented during the guilt phase. Id. at 457–63, 86 P.3d 1106. The court based that decision, in part, on a reading of the Eighth Amendment to the United States Constitution. Id. The United States Supreme Court granted the state's petition for writ of certiorari and, after hearing the case, held that the Eighth Amendment does not preclude a state from limiting a defendant's ability to introduce innocence-related evidence during penalty-phase proceedings. Guzek IV, 546 U.S. at 526, 126 S.Ct. 1226.

The United States Supreme Court remanded the case to this court, which then outlined the categories of alibi evidence that defendant could present at his fourth penalty-phase trial. Guzek V, 342 Or. at 351–60, 153 P.3d 101. In July 2007, this court remanded the case to the trial court for a fourth penalty-phase trial. That penalty-phase trial was held in May and June 2010. Like the juries in the prior three penalty-phase trials, the jury in the fourth penalty-phase trial sentenced defendant to death. That fourth penalty-phase trial is the subject of the direct review now before us.

II. ANALYSIS

As noted above, the 13 assignments of error meriting discussion in this case concern the use of a stun belt during the penalty-phase trial and the jury instructions on allocution. We begin with the 11 assignments of error concerning the use of the stun belt.

A. Use of a Stun Belt During Sentencing (Assignments of Error Nos. 2–12)

1. Background

In early 2008, not long after this court remanded the case to the trial court, defendant attended a pretrial hearing to address, among other topics, his motion to assign the case to a different judge. At that hearing, the trial court required defendant to wear visible wrist and ankle shackles attached to a chain around his waist. After that hearing, the court granted defendant's motion to assign a new judge and appointed Judge Billings to preside over the fourth penalty-phase trial.

On June 4, 2008, following Judge Billings's appointment, defendant moved to be free from all restraints during all court appearances, regardless of the nature of the restraint and regardless of whether defendant was appearing before the jury. Defendant argued that, before subjecting him to any form of physical restraint, the court must hold a...