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Eric
Walter RUNNING
Eric Running
Multnomah County - Oregon
Born: 1/3/1951
Sentenced to death: 7/28/2000
Running was convicted in 2000 in the love-triangle shotgun slayings
of Jacqueline J. Anderson, whom he had dated, and Barbara J. Gilpin, her
sometime lover, in the Ambassador Restaurant and Lounge on Northeast
Sandy Boulevard.
Interesting fact: At trial, Running's attorneys argued that he
killed the two women during a psychotic breakdown fueled by alcohol
abuse and feelings of abandonment stemming from his adoption.
Defendant seeks reversal of his
convictions for two counts of aggravated murder involving two victims
and one count of felon in possession of a firearm. In the alternative,
defendant requests that this court vacate his sentence of death and his
sentence of life imprisonment without the possibility of parole, and
remand the case for resentencing. For the reasons that follow, we reject
each of defendant's assignments of error and affirm the convictions for
aggravated murder, the sentence of death and the sentence of life
imprisonment without the possibility of parole.
FACTS
Because the jury found defendant
guilty of all the crimes charged, we review the evidence in the light
most favorable to the state. State v. Hale, 335 Or 612, 614, 75
P3d 448 (2003).
Although we discuss the events leading up to the
murders in greater detail below, the immediate facts surrounding the
murders can be summarized briefly.
At approximately 11:20 p.m. on February 24, 1998,
defendant entered the Ambassador Restaurant and Lounge on Sandy
Boulevard in Northeast Portland armed with a short-barreled shotgun.
There were approximately 20 people in the restaurant.
When defendant entered the restaurant, he encountered
Gilpin as she walked toward the restaurant's entrance, and he shot her
on the right side of her abdomen. Defendant then proceeded toward the
back of the restaurant where there was a room with pool tables. Anderson
was in that room.
Defendant entered and shot Anderson in the left hip
at close range. After she fell to the floor, defendant aimed the gun
very closely to Anderson's left cheek and fired, killing her. Defendant
then left the pool room and walked toward the entrance of the bar. As he
approached the entrance, he encountered Gilpin's body. Defendant stopped,
kicked the body and, although it appeared that she already had died,
defendant placed the gun above Gilpin's left ear, and shot her again.
Defendant hesitated before leaving the bar and made a
gesture as if he intended to return to the pool room. He opted, however,
to leave the bar using the same door through which he had entered.
After defendant left the Ambassador, a
witness overheard him say to himself "I got to get me the fuck out of
here." He then ran toward the back of the Ambassador's parking lot and
hopped over a fence. As defendant ran, his gun again discharged.
Approximately one block south of the Ambassador, defendant hid the
shotgun between a metal storage shed and stacks of firewood that lined
the fence to Clark's backyard. Clark discovered the gun approximately
two months after the shootings.
A brief history of defendant's life and his
relationships with the victims is necessary to a complete understanding
of the events of February 24, 1998, and to our resolution of the issues
that this opinion addresses. We now turn to that history and then to the
circumstances surrounding the events of February 24, 1998.
The couple had met a young, pregnant woman, described
as Spanish, named Ford who did not want to keep her child. They invited
Ford to live with them, and they supported Ford during the pregnancy.
When Ford gave birth, the couple paid her a sum of money and took the
child as their own.
Later on in his life, because he looked different
from the rest of his family, defendant began to suspect that he had been
adopted and periodically would ask Harry Running whether he was adopted.
Harry always responded that defendant was not adopted.
Defendant met Anderson in 1996 and
fell "madly in love" with her. Though the date is unclear, the
couple began living together soon thereafter. Anderson previously had
been involved in a 10-year romantic relationship with Gilpin and had
lived with Gilpin near Seaside. Gilpin and Anderson had maintained
contact with each other after their relationship ended, and it
eventually appeared to defendant that Anderson would end her
relationship with defendant to return to her previous relationship with
Gilpin.
Anderson was aware of defendant's concerns that he
had been adopted and had attempted to quell those fears by assuring him
that he probably had not been adopted. She was with defendant at Harry
Running's home in February 1997 when, during a heated discussion, Harry
admitted to defendant, "You're damn right, you are adopted." Defendant
was upset by the news and later told Dr. Kirschner, a psychologist and
defense witness, that he "felt devastated, angry, enraged in two places
at the same time. My DNA was scattered. Scattered. I was viewing myself
from another place. Split. Numb."
On the day of the shootings, Anderson
and defendant had eaten lunch together, and had met each other later in
the evening when, after talking, drinking, and smoking, "ended up at the
Ambassador." The time of the couple's arrival at the Ambassador is
unclear but, once there, they began to play pool. The bartender served
defendant and Anderson each a drink. Soon thereafter, Anderson used the
telephone for approximately 10 to 15 minutes.
A brief time after she returned to the
pool room, the bartender noticed defendant and Anderson quietly arguing
with each other. After a few minutes, defendant left the pool room and
sat at the bar. Defendant did not order a drink and, as Foong, the
bartender, testified, "just sat at the bar kind of glaring" for about 10
minutes. During that time, Anderson remained in the pool room alone.
At approximately 8:00 p.m., after sitting at the bar
for a few minutes, defendant left the Ambassador alone without saying
anything to Anderson. Shortly after defendant left, Anderson again used
the pay telephone for about 20 minutes.
After making that call, Anderson ordered another
drink and began looking through a book of karaoke songs. Gilpin
subsequently joined Anderson at the bar at approximately 10:00 p.m., and
she ordered a drink for each of them. After sitting at a table in the
bar area until about 10:45, Anderson and Gilpin ordered dinner from a
waitress and moved into the pool room to play pool.
At about 11:15 p.m. Anderson returned to the bar and
ordered more drinks for herself and Gilpin. Defendant returned to the
bar at about the same time, approached Anderson, and stated "[c]ome
outside right now, you fucking bitch. I'm going to kill you." He then
pulled an index finger across his throat. In response, Anderson rolled
her eyes at the bartender and stated to the waitress, "I don't like him
very much anymore."
Defendant then left the bar and Anderson returned to
the pool room with the drinks. Almost as soon as Anderson returned to
the pool room, the bartender observed Gilpin walk into the bar area with
a pool cue and walk toward the front entrance. At that point, defendant
re-entered the bar with the shotgun and, as described above, killed both
Gilpin and Anderson.
After discarding the weapon, defendant
returned to his apartment. The next morning, defendant's landlord saw
defendant leave his apartment with two large garbage bags. At
approximately 10:00 a.m., defendant went to the "All That Glitters" pawn
shop in downtown Portland and sold the leather jacket that he was
wearing when he committed the murders. Later, at approximately 4:00
p.m., defendant saw a friend, Campbell, and asked Campbell whether he
could use Campbell's telephone because he needed a "callback" telephone.
Defendant used Campbell's telephone to contact someone from whom he
could purchase heroin.
After using Campbell's telephone, defendant visited
with Inklebarger, whom he saw on two occasions after he had committed
the crimes. On the first occasion, Inklebarger noticed that defendant
had cut his hair and was wearing glasses. Inklebarger testified, however,
that defendant "hardly ever [wore] glasses."
On the second occasion, Inklebarger went to purchase
some beer for himself and defendant, when he noticed defendant's picture
in the newspaper associated with a story regarding the murders of
Anderson and Gilpin. When Inklebarger returned to his apartment, he told
defendant that defendant really had "screwed up," and defendant
acknowledged as much by stating that he had "really fucked up."
Later that day, the two men also visited with
Inklebarger's neighbor, Shade, and defendant admitted to Shade that he
had shot Anderson and Gilpin. Defendant also told Shade that he had
gotten scared and had thrown the shotgun away in some bushes. Defendant
asked Shade what he thought defendant should do, and Shade told him that,
"the way [he] saw it, [defendant] had three options. He could get[] a
lawyer and turn himself in, or he could go on the run for the rest of
his life, or [] he [could] blow himself away." Shade thought that
defendant took what he had said seriously, but that defendant did not "particularly
like[] the last [option]."
While the men were at Shade's apartment, a news story
came on the television about the murders and, during the course of the
story, defendant's picture appeared on the television screen. Shade
asked defendant what he had done during the hours before the killings.
Defendant responded that he had tried to contact someone with whom he
could discuss how he was feeling and who could talk him out of killing
Anderson, but he had not been able to "get a hold of anybody."
At approximately 7:30 p.m. that
evening, a police officer responded to the report of an assault victim
at a construction site on the corner of Southwest 15th Street and Alder
Street in Portland. The victim had a severe cut on his throat that
looked as if it had been caused by a sharp instrument. Upon arrival at
the hospital, the victim stated that he wished that he had used the last
shot in the shotgun on himself instead of throwing it into the bushes.
And later, while being prepared for surgery, the victim identified
himself as "Rick Jackson." The victim, in fact, was defendant.
In the meantime, the police had begun investigating
the Anderson and Gilpin murders immediately after they occurred and, in
the early hours of the morning after the shootings, the police contacted
Anderson's mother. She told the officers that her daughter had been
living with defendant, and she gave them his address. Later that day,
the police obtained a warrant to search defendant's apartment. Once
there, they seized many items, including a book titled "Blue Book of Gun
Values" and a box of .12 gauge shotgun shells. The police also found a
bundle of human hair in a wastebasket beneath the kitchen sink.
By conducting a trace on the murder weapon, the
police concluded that, at the time of the shootings, it belonged to
Gilpin.
PROCEDURAL HISTORY
Defendant eventually was arrested and
charged with two counts of aggravated murder and one count of being a
felon in possession of a firearm.
At trial, defendant contended that he lacked the
requisite mens rea -- intent -- to support the charge of
aggravated murder and that he was under the influence of an extreme
emotional disturbance at the time that he killed Anderson and Gilpin.
Kirschner testified that, when defendant committed the murders, he
suffered from a disassociative disorder and was in a disassociative
state.
Defendant's disorder, Kirschner explained, resulted
from a "cumulative trauma of rejection" that began when defendant was 18
months old when Lillian Running, the woman defendant believed was his
biological mother, left the family. Compounding the effect of that event,
Kirschner testified, defendant subsequently had negative experiences
being raised by Harry Running's mother and Marion Running. Defendant
thus had lacked a nurturing and loving mother-figure and Anderson,
Kirschner opined, became for defendant the "symbiotic partner/mother-figure"
that he had been seeking since Lillian Running left the family.
Kirschner supported his theory by quoting statements
that defendant made to the state's psychologist, Dr. Hulteng. For
example, Kirschner noted that defendant told Hulteng that, when he
realized that Anderson planned to leave him, he "felt all of this going
to end. I was actually madly in love with this woman and did not dismiss
the idea that perhaps some day we could find happiness together or that
we could remain happy in a way for as long as time would allow. Yet, all
of this seemed to be suddenly destroyed."
The jury convicted defendant, as charged, of two
counts of aggravated murder and one count of being a felon in possession
of a firearm. At the conclusion of the penalty phase of defendant's
trial, the jury determined that defendant should be sentenced to death
for the murder of Anderson and to life imprisonment without the
possibility of parole for the murder of Gilpin. The court sentenced
defendant in accordance with the jury's determinations.
Defendant now raises 36 assignments of error. After a
careful review of each of those assignments of error, we reject each one.
Of those assignments of error, three merit specific discussion. We
address those assignments below.
Click and Bray, through counsel, filed a motion with
the trial court to quash the subpoenas. That motion resisted the
subpoenas on four grounds: (1) that "[t]he information sought through
the subpoenas ducestecum [was] not material and favorable
to the defense"; (2) that ORS 10.215 "preclude[d] discovery of the jury
lists"; (3) that "[s]ource, master and term jury lists are not public
records and no statutory or constitutional provision requires disclosure
of jury lists"; and (4) that "[b]ecause [defendant was] unable to prove
a constitutionally significant underrepresentation of a racial or
minority group, producing the jury records [would be] of no value to the
defense." (Emphasis in original.)
In oral arguments on the motion before the trial
court, counsel for Click and Bray also stated that he had given defense
counsel a copy of the disk that the trial court administrator used to
select juries. He argued that, "if [defense counsel] or the defense bar
chose to do so, they could purchase copies of the voter registration
list as well as the lists of registered voters in this state or within
this county and perform the same process that we have performed to
determine whether or not there's some violation of [defendant]'s rights."
He also argued that no court had ruled that using voter registration and
Driver and Motor Vehicles Services (DMV) lists to create jury lists (as
Oregon does) was a constitutionally defective method of selecting petit
juries.
In response, defense counsel acknowledged that
counsel for Click and Bray was correct that she could obtain a list of
registered voters and lists of licensed drivers from DMV, and that,
using the disk, she "could generate [her] own master list of jurors[.]"
However, defense counsel argued, the fact that she could obtain access
to those materials necessarily undermined the state's argument that the
jury information that the defense sought was confidential.
To the contrary, defense counsel argued, defendant's
request for the jury information was akin to seeking discovery. She
further disclaimed any reliance on Brady v. Maryland, 373 US 83,
87, 83 S Ct 1194, 10 L Ed 2d 215 (1963), which held that the suppression
"of evidence favorable to an accused upon request violates due process
when the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution." She
argued:
"Essentially, we are asking for discovery,
discovery that is pertinent to a statutory provision which allows
the defendant to challenge the jury panel on the ground that there
has been a material departure from the requirements of the law
governing the selection of juries; that we're entitled to discover
that information and evaluate that information and to insure that Mr.
Running is guaranteed a trial of impartial jurors drawn from a fair
cross-section of the community."
Defense counsel indicated that the basis for her
concern that the jury would not represent a fair cross-section of the
community was that the proscription against persons with felony
convictions serving on juries could serve to exclude a disproportionate
number of racial and ethnic minorities.
In this court,
defendant argues that the trial court erred for two reasons when it
quashed the subpoenas. First, defendant asserts that the trial court
erred because State ex rel Click v.
Brownhill, 331 Or 500, 15 P3d 990 (2000), decided after the trial
court ruled on the motion to quash, held that ORS 10.215(1) does not
preclude "use" of information related to jury selection records by a
defendant in a criminal action. Second, defendant asserts that the trial
court erred when it quashed the subpoenas on the ground that defendant
had failed to make a showing that the jury selection records were
material and favorable. Rather, defendant argues, he is entitled to the
jury selection records pursuant to ORS 136.580, the statute governing
the issuance of subpoenas ducestecum. That statute
provides:
"(1) If books, papers or documents are required,
a direction to the following effect shall be added to the form
provided in ORS 136.575: 'And you are required, also, to bring with
you the following: (describing intelligibly the books, papers or
documents required).
"(2) Upon the motion of the state or the
defendant, the court may direct that the books, papers or documents
described in the subpoena be produced before the court prior to the
trial or prior to the time when the books, papers or documents are
to be offered in evidence and may, upon production, permit the books,
papers or documents to be inspected and copied by the state or the
defendant and the state's or the defendant's attorneys."
Defendant asserts that, had he received the jury
selection records, he would have "use[d] the lists to determine whether
the jury panel selection procedure substantially complied with all
requirements of statutory and constitutional law." However, he argues,
when the trial court quashed the subpoenas, he "was unlawfully deprived
of the means and opportunity to mount a statutory and constitutional
challenge to the composition of the jury panel."
The practical import of defendant's argument is that,
because he did not obtain the jury selection records, he was precluded
from determining whether the jury selection for his case complied with
the requirements of law and, therefore, was precluded from challenging
the make-up of his jury. Thus, in light of Click and his
interpretation of ORS 136.580, defendant argues that this court should
remand the case to the trial court for a hearing on the issue, thereby
permitting defendant to advocate for and to potentially receive a new
trial.
For defendant to prevail on this assignment of error,
we must conclude that defendant has either a statutory or a
constitutional right to obtain the jury selection records. At the outset,
we note that defendant expressly disclaimed having a constitutional
right to obtain the jury selection records. We therefore need only
decide whether defendant has established a statutory right to obtain the
jury selection records. We begin with a discussion of Click's
applicability to this case.
In that case, the relators sought
"a peremptory writ of mandamus commanding the trial court to vacate an
order that require[d] [them] to provide certain jury lists to the
defendant in a pending criminal case." Click, 331 Or at 502. The
defendant had served the relators "with subpoenas ducestecum
requesting, among other things, a number of jury-related records,
including Clatsop County source lists, master lists, term lists, and
individual voir dire lists from 1990 to the date of the subpoena."
Id. The relators filed a motion to quash the subpoenas based in
part on their assertion that they "were precluded from disclosing the
jury lists under ORS 10.215(1)." Id. The trial court denied the
motion, but narrowed both the scope of the materials to which the
defendant would be allowed access and the scope of the defendant's use
of the materials. Id.
The relators then sought a writ of mandamus from this
court directing the trial court to grant their motion to quash the
subpoena. Id. This court addressed the issue "whether ORS
10.215(1), by implication, prohibits [the court administrators] from
providing th[e] lists to [the defendant]." Id. at 502-03. The
court, employing this court's statutory construction methodology,
concluded that it did not. Id. at 508.
This court's conclusion was based
primarily on four observations: (1) ORS 136.005(1) provided that both
the district attorney and a criminal defendant could challenge the jury
panel "on the ground that there has been a material departure from the
requirements of the law governing the selection of jurors[;]" (2) the "requirements
of the law governing selection of jurors" could be found in ORS chapter
10; (3) ORCP 57 A also provided for a challenge to the jury for "substantial
failure to comply with the applicable provisions of ORS chapter 10 in
selecting the jury[;]" and (4) ORCP 57 A also provided that "the [party
challenging the jury] is entitled to present in support of the motion: *
* * any relevant records and papers not public or otherwise available
used by the clerk or court administrator[.]" Id. at 506-08 (emphasis
in original).
Based on those observations, the court
noted that ORCP 57 A(2) allowed a party in a civil case access to the
type of information that the defendant was seeking. The court noted
further that it was "difficult to imagine that the legislature intended
to give civil litigants greater access to records and papers than it
gives criminal litigants." Id. at 508. The court thus concluded
that "the legislature's intent respecting use of jury lists for the
purposes contemplated by [the defendant] is clear: Such a use is
permissible." Id.
From the foregoing, it is apparent that the question
in Click was not whether a defendant in a criminal case has
either a statutory or constitutional right to jury selection records. As
noted, the question instead was whether the then-extant version of ORS
10.215(1) impliedly, but absolutely, prohibited the relators in
that case from disclosing the jury selection records. Although the
answer to that question was "no," stating the negative did not announce
the positive. Because Click did not establish any blanket rule
giving criminal defendants a right to obtain jury selection records from
the court administrators' offices, that case does not provide a basis
for reversing the trial court's decision.
Defendant, however, also argues that, in issuing the
subpoenas to Click and Bray, he was relying on ORS 136.580 as a
discovery statute. He argues that he was entitled, therefore, to obtain
the jury selection records, via subpoena, just as he is entitled to
obtain discovery under the criminal discovery statutes. However, this
court recently explained in State v. Cartwright, 336 Or 408,
415-16, 85 P3d 305 (2004), that ORS 136.580 is not a discovery statute.
There, this court explained:
"There are two important points to be drawn from
the words of ORS 136.580(2). First, subsection (2) presupposes the
existence of a subpoena duces tecum issued in accordance with
ORS 136.567 and ORS 136.580(1), i.e., one that properly
summons documentary materials to trial or to some other court
proceeding where they 'are to be offered in evidence.' The provision
thus allows parties to ask for early production of material
that, in the ordinary course and as a matter of right, will be
available for evidentiary use at the proceeding to which they
already have been subpoenaed. Second, the trial court's decision to
deny or accede to a request for such early production under ORS
136.580(2) is within the court's discretion: The statute states that
'the court may direct that the books, papers or documents
described in the subpoena' be produced early. (Emphasis added.)
"* * * [D]efendant was attempting to use the
subpoena as a discovery device to command the early production of
the audiotapes, either to the court or to himself. However, as we
have explained, the statute on which he relies does not appear to
grant him such authority and, absent such authority, the trial court
acted properly in quashing the subpoena."
We reaffirm our conclusion in Cartwright that
ORS 136.580 does not allow a criminal defendant to use the subpoena
ducestecum as a discovery device. It necessarily follows
that ORS 136.580 also does not provide defendant with a statutory right
to obtain the jury selection records that he sought here.
The trial court did not err when it granted Click and
Bray's motion to quash defendant's subpoena duces tecum.
GUILT-PHASE ASSIGNMENT OF ERROR
In defendant's eighteenth assignment
of error, he argues that the trial court erred when, during the guilt
phase, it instructed the jury that the jury could consider the
affirmative defense of extreme emotional disturbance (EED) only
if the jury first concluded that defendant was not guilty of committing
aggravated murder. The trial court instructed the jury as follows:
"Now, the next instruction deals with the
affirmative defense of extreme emotional disturbance. Only if you
find the defendant not guilty of Aggravated Murder may you consider
the defense of extreme emotional disturbance, which is the defense
which applies only to the charge of Intentional Murder.
"An intentional homicide that would otherwise
constitute murder is reduced to Manslaughter in the First Degree if,
at the time of the homicide, the defendant was under the influence
of extreme emotional disturbance."
Defendant acknowledges that this court previously has
ruled that the affirmative defense of extreme emotional disturbance does
not apply to aggravated murder as charged here. SeeState v.
Moore, 324 Or 396, 411-13, 927 P2d 1073 (1996) (so holding). However,
defendant argues specifically that, "[a]lthough the defense of EED does
not apply to the murder that was charged as the aggravated murder, it
does apply to the intentional murder that the state would have to prove
as an aggravating circumstance to that murder."
He points further to the evidence that he presented
at trial about his state of mind at the time of the murders and argues
that, "if the jury believed that defendant was acting under the
influence of an extreme emotional disturbance when he killed Jacqueline
Anderson, then he would be culpable for manslaughter, not murder." And,
therefore, defendant argues, the "jury would have acquitted defendant of
both counts [of aggravated murder]." In defendant's view, the trial
court's actions "deprived [him] of this plausible route to acquittal."
As we understand defendant's argument, he posits essentially that,
because he committed the second murder while under the influence of an
extreme emotion disturbance, he should have received the benefit of the
affirmative defense provided in ORS 163.115(1)(a).
In other words, the jury should have been able to
decide the merits of defendant's EED defense in determining whether the
state had proven all of the elements of aggravated murder. Although
phrased differently, that argument is almost identical in substance to
the argument that the defendant presented in Moore. 324 Or at
411-12.
When called upon to interpret a
statute, this court utilizes the paradigm set out in PGE v. Bureau of
Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). As a
part of that paradigm, the court considers not only the wording of the
statute, but also the previous constructions that this court has given
that wording. Ordinarily, this court treats such constructions as
authoritative. That is, the familiar doctrine of stare decisis is
applicable to such circumstances. Here, defendant's arguments are the
same as those advanced by the defendant in Moore. Thus, we
already have considered and rejected them in Moore. Those
arguments afford no occasion or justification to consider modifying our
decision in Moore. Moore controls here.
The trial court did not err by instructing the jury
in the manner that it did.
PENALTY-PHASE ASSIGNMENT OF ERROR
In defendant's thirty-sixth assignment
of error, he argues that the trial court erred when it ordered that he
serve his sentence of life imprisonment without the possibility of
parole consecutively to his death sentence. Defendant specifically "does
not challenge the court's decision to impose consecutive sentences." We
therefore assume, for the purposes of this discussion, that the trial
court properly ordered that the sentences run consecutively. Our inquiry
therefore is limited to whether the trial court properly ordered that
defendant must serve the life sentence consecutive to the death sentence.
Defendant argues that the trial court violated ORS
163.105(1)(b) by "deferring" defendant's life sentence. That statute
provides that "[a] person sentenced to life imprisonment without the
possibility of release or parole under this section shall not have that
sentence suspended, deferred or commuted by any judicial officer[.]"
The state argues that defendant relies too heavily on
the word "defer." If defendant is correct, the state argues, then any
defendant the court sentences both to death and to life without the
possibility of parole is immune from the death sentence. The defendant,
according to the state, would be obliged first to serve the entire life
sentence before any other sentence could be executed. Rather, the state
proposes, the purpose of ORS 163.105(1)(b) is to "preclude a court
from setting aside, staying or reducing the term of the mandatory
life sentence." (Emphasis in original.) Thus, the state argues, when a
sentencing court orders a defendant to serve his life sentence without
the possibility of parole consecutively to his death sentence, the court
is not deferring the sentence. Instead, "the term and full execution of
that life sentence remains unaffected by the consecutive-sentence order."
This court has not interpreted ORS 163.105(1)(b)
previously and, in so doing, we apply the statutory interpretation
methodology set out in PGE, 307 Or at 610-12. As noted, ORS
163.105(1)(b) provides that "[a] person sentenced to life imprisonment
without the possibility of release or parole under this section shall
not have that sentence suspended, deferred or commuted by any judicial
officer[.]"
In determining the legislative intent, we give words
of common usage their plain, natural, and ordinary meaning. 317 Or at
611. The dictionary defines "deferred" as "to postpone"; "delay"; "to
put off". Webster's Third New Int'l Dictionary 591 (unabridged ed
1993). The dictionary also states that "[d]efer indicates a delaying or
putting off till a later time, often in recognition of developments that
prevent proceeding[.]" Id.
We agree with the state that, when a
trial court imposes a life sentence without the possibility of parole to
be served consecutively to a death sentence, that does not mean that the
court has "postponed," "delayed," or "put off" the life sentence in
violation of ORS 163.105(1)(b). Rather, the life sentence remains
currently in force. It will be extinguished, however, at the time that
the state carries out a defendant's death sentence.
We do not need to look further than the text and
context of ORS 163.105(1)(b) to conclude that the trial court did not "defer"
defendant's life sentence in violation of that statute. We therefore
conclude that the trial court did not err when it ordered defendant's
life sentence without the possibility of parole to be served
consecutively to the death sentence.
CONCLUSION
We have reviewed all defendant's
assignments of error and have concluded that none is well taken.
The judgments of conviction, the sentence of death
and the sentence of life imprisonment without the possibility of parole
are affirmed.