State v. Langley

363 Or. 482

424 P.3d 688

STATE of Oregon, Plaintiff-Respondent,

v.Robert Paul LANGLEY, Jr., Defendant-Appellant.

CC 88C21624 (SC S062353)

Supreme Court of Oregon.

Argued and submitted September 22, 2017.

August 16, 2018

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

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Timothy A. Sylwester, Joanna L. Jenkins, and Lauren P. Robertson, Assistant Attorneys General, Salem, filed the brief for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Nakamoto, Flynn, and Nelson, Justices, and Brewer and Baldwin, Senior Justices pro tempore.^*

NAKAMOTO, J.

Defendant was convicted on 16 counts of aggravated murder in 1989. This court affirmed 15 of those convictions in State v. Langley , 314 Or. 247, 839 P.2d 692 (1992), adh'd to on recons , 318 Or. 28, 861 P.2d 1012 (1993) ( Langley I ), but vacated defendant's death sentence and remanded his case for a new penalty-phase trial. See id . (so stating). The court has since done so twice more, first in State v. Langley , 331 Or. 430, 16 P.3d 489 (2000) ( Langley II ), and, most recently, in State v. Langley , 351 Or. 652, 273 P.3d 901 (2012) ( Langley III ). This automatic and direct review proceeding arises as the result of the death sentence imposed on defendant in 2014 following his fourth penalty-phase trial.

On review, defendant raises 77 assignments of error, only 12 of which warrant discussion here. Those 12 issues encompass four broad contentions: (1) the penalty-phase trial court judge was, or appeared to be, biased and should not have presided over the proceeding; (2) the court erroneously admitted evidence not specific to defendant regarding the second capital sentencing question set out at ORS 163.150(1)(b)(B) (whether there is a probability that defendant would commit criminal acts of violence constituting a "continuing threat to society"); (3) the court failed to expressly preclude jury consideration of aggravation evidence regarding the fourth capital sentencing question set out at ORS 163.150(1)(b)(D) (whether defendant "should receive a death sentence"); and (4) the court erroneously applied sentencing-only remand provisions in capital cases arising before the United States Supreme Court's decision in Penry v. Lynaugh , 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). For the reasons that follow, we affirm defendant's sentence of death.

I. FACTUAL AND PROCEDURAL BACKGROUND

This matter comes before the court following the fourth jury determination that defendant should be sentenced to death for the 1987 aggravated murder of Anne Gray. At the time of Gray's death, defendant—while serving a term of incarceration for crimes not at issue here—lived in a cottage on the grounds of the Oregon State Hospital in Salem, where he voluntarily participated in a low-security Correctional Treatment Program for mentally and emotionally disturbed inmates. The program was designed to help inmates nearing the end of their prison terms—like defendant—to transition back into the community through extensive psychological counseling, training in job and independent living skills, and general assistance in establishing productive post-prison lives.

Gray—a neighbor of defendant's girlfriend—disappeared on December 10, 1987. The same day, defendant enlisted his girlfriend's help in transporting a large, awkward bundle wrapped in a comforter from Gray's apartment to the home of defendant's aunt. In April 1988, Gray's decomposed body was found buried in a shallow grave located in the aunt's backyard. The discovery of Gray's body was facilitated in large part by the discovery a day earlier of defendant's second victim, Larry Rockenbrant, one of defendant's acquaintances.¹ Gray had died from asphyxiation, her body tightly tied into a fetal position by multiple bindings around her wrists, ankles, torso, and legs; her head was duct-taped to cover her mouth and nose, and a shoestring-type ligature was knotted tightly around her neck.

In December 1989, a jury found defendant guilty of aggravated murder in the death of Gray and sentenced defendant to die. In 1992, this court affirmed 15 of defendant's 16 aggravated murder convictions, but it vacated his death sentence on the ground that the trial court had failed to give a proper jury instruction on the consideration and use of mitigating evidence. Langley I , 314 Or. 247, 839 P.2d 692.

A second penalty-phase proceeding followed, and defendant was again sentenced to death for Gray's murder. In 2000, this court vacated that death sentence on direct review, concluding that the trial court had erred by (1) refusing to allow defendant to waive any ex post facto objection to retroactively considering a true-life sentencing option in his case and (2) refusing to instruct the jury on that sentencing option. Langley II , 331 Or. 430, 16 P.3d 489.

On remand for a third penalty-phase proceeding, defendant was once again sentenced to death—after going through seven different defense attorneys and being ordered to proceed as a pro se litigant. On direct review in 2012, this court concluded that the trial court had erred by not securing a valid waiver of defendant's right to counsel, and defendant's case was remanded for yet another penalty-phase proceeding. Langley III , 351 Or. 652, 273 P.3d 901.

In May 2014, after considering for a fourth time whether defendant should be executed for the murder of Gray, a jury again sentenced defendant to death for that crime. Our opinion now focuses on four different aspects of that 2014 proceeding.

II. ASSIGNMENTS OF ERROR REGARDING JUDICIAL BIAS AND RECUSAL

We begin with defendant's contention that the assigned trial court judge should not have presided over his latest penalty-phase trial. On direct appeal, defendant has tendered more than 20 assignments of error that assert the penalty-phase trial judge was, or appeared to be, biased and that defendant's motions for her removal or recusal were erroneously denied. Of those assignments of error, we address the following four:

"Presiding Judge Rhoades erred in failing to ‘re-set’ [defendant's] ORS 14.260 challenges upon this Court's vacating [defendant's] death sentence and remanding to the Circuit Court for resentencing[.]" (Assignment of Error No. 12.)

"Presiding Judge Rhoades erred by denying [defendant's] Motion to Disqualify Judge James pursuant to ORS 14.250 - 14.270 [.]" (Assignment of Error No. 7.)

"Presiding Judge Rhoades erred by denying [defendant's] Motion for Cause or to Recuse Judge James pursuant to ORS 14.210 [.]" (Assignment of Error No. 8.)

"Presiding Judge Rhoades erred in failing to grant [defendant's] Motion No. 39, in which [defendant] raised additional facts and information related to Judge James' conflict, bias and/or appearance of bias due to Judge James' former employment with the ODOJ and relative to the Gray , Rockenbrant and Langley- related matters[.]" (Assignment of Error No. 13.)

A. Procedural Background

On April 6, 2012, Judge Jamese Rhoades, Presiding Judge of the Marion County Circuit Court, filed a circuit court form titled Criminal Assignment Notice as part of the run-up to defendant's latest penalty phase proceeding. In that document, Judge Rhoades assigned Judge Mary Mertens James to preside over defendant's remanded sentencing trial. Before assuming their positions on the bench, both judges had worked as government lawyers: Judge Rhoades as an attorney in the Marion County District Attorney's Office and Judge James as an assistant attorney general in the Oregon Department of Justice's (DOJ) general counsel and trial divisions.

Defendant's newly appointed defense counsel apparently learned of that assignment on Monday, April 23, 2012, and, on Friday, April 27, 2012, filed two motions seeking Judge James's removal from the case. The first, captioned as "Motion for Change of Judge," cited as its authority ORS 14.250 to 14.270. In a nutshell, under certain conditions, those statutes prohibit a circuit court judge from hearing a matter when a party or attorney timely files a motion that establishes that the "party or attorney believes that such party or attorney cannot have a fair and impartial trial or hearing before such judge. In such case the presiding judge for the judicial district shall forthwith transfer the cause, matter or proceeding to another judge of the court[.]" ORS 14.250(1).

The second of defendant's removal-related motions was based on the fact that Judge James had been employed by the DOJ during the period that the DOJ had represented the state while defendant appealed his convictions and sentences. In that motion, captioned as a "Motion to Disqualify Judge for Cause or to Recuse Judge," defendant relied primarily on ORS 14.210, which, among other things, prohibits a judge from presiding over a matter if the judge "has been attorney in the action, suit or proceeding for any party." ORS 14.210(1)(d). However, an important caveat attached to the prohibition set out in ORS 14.210(1)(d). Notwithstanding the particular circumstances articulated in that statute, disqualification would be deemed waived unless the motion for disqualification had been made "as provided by statute or court rule." ORS 14.210(2).

Defendant's motions were heard by Presiding Judge Rhoades; defendant raised no objections to Judge Rhoades's participation in that proceeding based on her prior employment with the county prosecutor's office.

In May 2012, Rhoades denied both the "Motion for Change of Judge" and the "Motion to Disqualify Judge for Cause," indicating that the first was "[u]ntimely & successive," while writing with regard to the second, "Untimely. Successive. Authorities not on point." Judge Rhoades's ruling that the new filings were successive was based on the fact that defendant previously had relied on...