Horacio Alberto Reyes-Camarena

Douglas County - Oregon

Born: 6/30/1955

Sentenced to death: 1/21/1997

Reyes-Camarena stabbed Maria Zetina and her sister, Angelica Zetina, and dumped their bodies along U.S. 101. Despite 17 stab wounds, Angelica Zetina survived and identified Reyes-Camarena as her attacker.

On appeal to the Oregon Supreme Court, his attorneys argued that his statements to police should have been suppressed because Reyes-Camarena, a Mexican citizen, was not informed of his right to speak with his consulate.

Interesting fact: Reyes-Camarena is the only Mexican national on Death Row in Oregon.

Status: Reyes-Camarena is serving his death sentence in Two Rivers Correctional Institution in Umatilla so he can undergo kidney dialysis treatment at a cost of more than $100,000 a year. He is the only inmate with a death sentence housed anywhere other than Death Row, which is in the Oregon State Penitentiary in Salem.

Death row inmate seeks organ transplant

Prison officials struggle with ethical issues, costs of caring for a killer

Alan Gustafson - Statesman Journal

April 28, 2003

Oregon taxpayers are shelling out more than $120,000 a year to provide life-saving dialysis for a condemned killer.

Horacio Alberto Reyes-Camarena was sent to death row six years ago for stabbing to death an 18-year-old girl and dumping her body near the Oregon Coast.

At the Two Rivers Correctional Institution in Eastern Oregon, Reyes-Camarena, 47, gets hooked up to a dialysis machine for four hours three times a week to remove toxins from his blood.

Without dialysis, he would die because his kidneys are failing.

Each dialysis session costs $775.80 for treatment and medication, according to Corrections Department figures. At that rate, his dialysis costs $121,025 a year.

As the state keeps Reyes-Camarena alive, thousands of older, poor, sick and disabled Oregonians are trying to survive without medications and care that vanished amid state budget cuts.

Some Oregon hospitals are considering closing dialysis units because of Medicaid-related reductions.

Reyes-Camarena said he wants to sever his ties to the dialysis machine. The convicted killer wants to be the first Oregon inmate to receive a taxpayer-financed organ transplant.

“It’s much better for me, and them, too,” Reyes-Camarena said, referring to his desire for a kidney transplant, a procedure sought by nearly 57,000 Americans.

The prisoner cited medical reports indicating that transplant costs prove to be cheaper than dialysis in the long run.

Even so, transplant surgery is costly: $80,000 to $120,000. It also requires $500 to $1,200 a month in lifelong drugs to keep the recipient from rejecting the new organ.

Studies have found that the death rate for dialysis patients is about 23 percent a year. A successful transplant reduces that risk to about 3 percent a year.

But the number of transplants is severely limited by a national scarcity of available organs. As of this month, 56,895 Americans, including 192 Oregonians, were waiting for kidney transplants, according to the Virginia-based United Network for Organ Sharing, which maintains the nation’s waiting list for organs.

Because the waiting list is long and there aren’t enough organs to go around, some people die before a transplant becomes available.

Overall, 86,157 Americans are waiting for organ transplants — mostly kidneys, livers, pancreases and lungs. Officials estimate that about 700 will die this year while waiting.

Lifesaving care for Reyes-Camarena raises questions about the bounds of medical treatment for prisoners.

Is the society he violated legally obligated to prolong his life? How much money should be spent on his care? What are the limits of compassion for a condemned man?

Doing hard time

Deep within a 1,450-inmate lockup along the Columbia River, dialysis takes place in a small, nondescript room.

“Remain seated and quiet,” reads a sign on the wall. “Failure to do so will result in disciplinary action.”

Reyes-Camarena rolls from his cell to the dialysis room in a wheelchair.

Besides Reyes-Camarena, seven other inmates are undergoing dialysis at Two Rivers.

Each prisoner rests in a comfortable blue chair while he is hooked up to a machine for four hours, the blood pumped to remove waste and excess fluid.

“It’s like when you change the oil in your car,” Reyes-Camarena said. “You’re good for another run.”

Prison officials would not discuss Reyes-Camarena’s medical condition or care, citing confidentiality requirements.

Although dialysis keeps him alive, Reyes-Camarena criticized his care.

The room temperature soars when the machines are running, he said, and two large fans don’t provide sufficient air conditioning. He also complained that the nurses don’t give him ice.

Reyes-Camarena also objected to the lack of a television in the dialysis unit. TV viewing would break up the monotony for patients tethered to the machines, he said.

“It’s four hours to do nothing but look at the ceiling,” he said.

Contrast in care

Carol Hutson doesn’t know anything about Reyes-Camarena. But she has one thing in common with the killer: Her kidneys are failing, too.

When kidneys shut down, the fluid and waste normally flushed out by urination build inside the body. Staying alive requires dialysis or a new kidney.

For Hutson, 58, of Salem, state budget cuts made her impending need for dialysis a secondary concern.

Weeks ago, the state notified Hutson that she would lose her disability assistance as of April 1. That threatened her with eviction from her room at a Salem assisted-living facility.

She also was slated to lose aid that pays for her medications, including twice-daily shots of insulin, pills for a heart condition and anti-depressants.

Divorced and without family able to give her shelter or financial support, Hutson felt abandoned.

“It’s horrifying,” she said. “I kind of feel like a throwaway animal right now.”

Recently, another notice came in the mail. It informed Hutson that she would keep her benefits — at least through June 30.

“I guess I’m safe for the time being,” Hutson said.

But she remains nervous because the two-year budget that starts July 1 has not been settled.

“I don’t know if there’s going to be another huge cut,” Hutson said. “I just have to wait and see. I guess we all do.”

A killer’s tale

Before death row, Reyes-Camarena’s life was predicated on hard work.

Born in Mexico on June 30, 1955, he entered the United States in 1969. He was 13.

The Mexican immigrant worked as a restaurant dishwasher in San Antonio, Texas. He later toiled in farm fields in California and Oregon.

Following a well-traveled path taken by migrant workers, Reyes-Camarena ventured into the Willamette Valley to pick fruit. He progressed from picker to field boss.

Reyes-Camarena was 40 when he committed the brutal crimes that left one woman dead and another forever scarred by violence.

During summer 1995, he was employed as a farm foreman in Woodburn. That’s where he met Angelica Zetina, 32, and her sister, Maria Zetina, 18.

On Sept. 17, 1995, Reyes-Camarena agreed to drive the sisters to Washington to help them find work. But after reaching the Oregon Coast, he drove south instead of north on Highway 101.

Stopping the car near Sea Lion Caves outside Florence, Reyes-Camarena attacked Angelica Zetina. He stabbed her 17 times, then pushed her down an embankment. She survived, and a hunter later found her walking along the highway.

Maria Zetina’s stabbed body was found near Reedsport.

In October 1996, a Douglas County jury found Reyes-Camarena guilty of aggravated murder.

A desperate escape

Two days after his murder conviction and before the punishment phase of his trial, Reyes-Camarena and a second inmate escaped from a holding cell at the Douglas County Jail in Roseburg.

The pair escaped at night by unbolting a metal screen and breaking an inch-thick pane of glass in the cell. As they were climbing down a makeshift rope made of knotted blankets and clothing, Reyes-Camarena fell four stories and landed on his buttocks.

He couldn’t walk, so his companion dragged and carried him to a nearby church. They holed up in the church basement for nearly three weeks before they were recaptured. All the time before he was caught, the injured Reyes-Camarena lay in a closet, hidden behind Christmas decorations.

After spinal surgery, Reyes-Camarena returned to finish his trial. A jury sentenced him to die by lethal injection.

Reyes-Camarena declined to talk about the jail break during a recent interview.

He also had little to say about his grisly crimes.

“I was too drunk,” he said. “I don’t even know if I did it.”

Costly treatment

In early 1997, Reyes-Camarena became the 25th inmate on death row at the Oregon State Penitentiary in Salem.

Reyes-Camarena claimed that his kidneys shut down after he arrived at the maximum-security prison. He blamed his condition on a medication mistake by a prison doctor.

Corrections officials denied the allegation but refused to elaborate.

Penitentiary employees said Reyes-Camarena initially received dialysis in the Intensive Management Unit. That is an ultra-secure wing where disruptive inmates normally are confined to their cells for 23 hours a day.

His treatment was handled by a nurse who ventured inside the unit. When that arrangement ended, Reyes-Camarena was transported to a Salem dialysis center three times a week.

Every time Reyes-Camarena left the penitentiary, he was shackled and escorted by three corrections officers, prison employees said.

A year ago, Reyes-Camarena and several other inmates who had received dialysis in Salem were moved to Two Rivers, a new, medium-security lockup near Umatilla. The $121 million prison opened in 2000.

By centralizing dialysis care at Two Rivers, prison officials said they pruned hefty transportation and security costs that arose from taking inmates to community dialysis centers.

It now costs nearly $1 million a year to provide dialysis for eight inmates behind prison walls, according to the Corrections Department. But prison-based dialysis saves nearly $390,000 a year when compared with outside treatment, agency figures show.

A right to treatment

Ask Reyes-Camarena why taxpayers should finance a kidney transplant to extend his life, and he pauses to consider his answer.

Peering through sunglasses that shade his sensitive eyes, he said he is legally entitled to the same medical treatment that is provided in the “free world.”

In fact, numerous court rulings have established that inmates are entitled to medical care that conforms with community standards. Prison systems that fail to provide inmates with necessary care can be held liable for violating the constitutional ban against cruel and unusual punishment.

In some cases, courts have ordered prison officials to give organ transplants to inmates whose requests had been denied.

But ethical questions abound when it comes to Reyes-Camarena and his desire for a transplant. Does a death row inmate have a right to an organ transplant?

“There are a lot of complex issues here,” said Dr. Susan Tolle, director of the Center for Ethics in Health Care at Oregon Health & Science University in Portland. “But the biggest issue is, should he be considered at all? Is he eligible at all? Or is this not part of the basic package of health care?”

Only months ago, Tolle said her stance on the issue would have been clear. Simply put, prisoners — even death row inmates — should have an equal-opportunity right to transplants.

Her reasoning: Prisoners should get the same medical services provided to low-income residents covered by the Oregon Health Plan — transplants included.

But now, the foundation of her ethical stand has been rocked by budget cuts.

Cuts to the Oregon Health Plan are prompting some hospitals to remove poorer uninsured patients from waiting lists for organ transplants or to keep them off the lists altogether. They fear that such patients won’t be able to afford the expensive drugs necessary to keep new organs from being rejected.

“So we’re now holding on those patients,” Tolle said. “If we’re holding on those patients, I’m not in a position to say prisoners should get something more.”

Clearly, though, Reyes-Camarena thinks the law is on his side.

“They can’t discriminate against me because I’m a prisoner,” he said.

The desire to live

A new kidney could give him more time to live and more time to pursue his appeals.

Unless Reyes-Camarena decides at some point to relinquish his rights to appeal, he could stave off execution for many years.

Death-penalty appeals can take a decade or longer, sometimes far longer, to wend their way through state and federal courts.

Automatic Oregon Supreme Court scrutiny of Reyes-Camarena’s death penalty case occurred in 2000. That was the first of 10 steps of appeal available to him.

Reyes-Camarena and his public defender attempted to convince the justices that the trial judge made numerous mistakes.

In one of the more unusual claims, they claimed that statements that Reyes-Camarena made to police after his arrest should not have been allowed into evidence because authorities violated terms of the Vienna Convention.

Under the Vienna Convention, law-enforcement officers are supposed to inform foreign detainees of their right to get in touch with their national consulates. The United States is a party to the treaty.

Police failed to notify the Mexican consulate of his arrest, Reyes-Camarena said, and they failed to tell him that he had a right to contact consulate officials.

Although the Supreme Court acknowledged that the treaty was violated, it found that the lapses did not constitute sufficient grounds to throw out statements Reyes-Camarena made to police.

In July 2000, the state Supreme Court affirmed his murder conviction and his death sentence.

Even so, no execution date is near. Reyes-Camarena has many years worth of appeals left to pursue before the state can legally execute him.

Inmate transplants

Last year, Oregon doctors performed 313 organ transplants; about three-quarters were kidney transplants.

The bulk of the transplants were done at Oregon Health & Science University and Legacy Good Samaritan hospitals in Portland.

Although Oregon’s prison system has not allowed an organ transplant, two inmates received bone marrow transplants in the past two years. Both surgeries were performed at OHSU.

Bone-marrow transplants replace diseased blood-making cells with a transfusion of healthy cells from a matched donor.

One inmate died after receiving new bone marrow. The other is recuperating at the Oregon State Penitentiary.

Price tags for those transplants: $108,000 and $178,000, according to Corrections Department figures.

Corrections officials cited a key distinction between bone-marrow transplants and organ transplants.

“Bone-marrow transplants are not the same as organ transplants because you don’t use up a scarce resource when you’re transplanting bone marrow,” said Perrin Damon, a Corrections Department spokeswoman.

Nationwide, numerous inmates have received organ transplants, according to published reports. But data are hard to come by.

When inmates receive transplants, the public often doesn’t find out because of strict medical confidentiality

Still, some transplants have ignited public outrage.

Last year, a furor arose in California when news reports revealed that a prison inmate serving 14 years for robbery had been given a heart transplant.

In that case, the inmate received the heart at Stanford University Medical Center on Jan. 3, 2002, after an ethics committee there approved him and put him on the waiting list.

The cost of the prisoner’s transplant was put at nearly $1 million with follow-up care. It came as 500 Californians were waiting for heart transplants.

In December, less than a year after getting his new heart, the 32-year-old inmate died at the same medical center where he received the controversial transplant.

Waiting for a kidney

The United Network for Organ Sharing has an ethics policy that puts prison inmates on equal footing with others.

A similar policy exists at the transplant program at OHSU.

“The best way to describe it is that we treat all patients who are here the same, whether they are somebody famous or somebody with no money,” said OHSU spokeswoman Christine Pashley.

To get on a kidney waiting list, a prison inmate first would have to be referred to OHSU by the Corrections Department, Pashley said. “Then we would evaluate him to see if he met the criteria and need for a kidney transplant.”

Within Oregon’s prison system, high-cost medical procedures — from expensive medications to bone-marrow transplants — are evaluated by review panels in Salem, Pendleton and Ontario. Prison system doctors and nurse practitioners make case-by-case calls on whether to authorize specific treatments.

No inmate requests for organ transplants are pending, Damon said.

Reyes-Camarena said he is exploring his options. One way or another — via the prison system or the court system — he sees hope for winning a transplant.

As the condemned man fights to stay alive, the thought of dying — by natural causes or a lethal injection — apparently does not faze him.

“When the Lord says it’s your time, it doesn’t matter what you do,” he said. “Everybody’s got his time.”

This criminal case is before the court on automatic and direct review of defendant's conviction for aggravated murder and sentence of death. Former ORS 163.150(1)(g), repealed by Or Laws 1999, ch 1055, § 1. For the reasons that follow, we affirm the judgment of conviction and the sentence of death.

Defendant was employed as a foreman at a farm where the victim worked. Defendant agreed to drive the victim and her sister to a farm in Washington to find work. After defendant, the two women, and a male companion left the farm, defendant robbed and repeatedly stabbed the women, and left them beside rural roads in Douglas County. The victim died as a result.

In October 1996, a jury found defendant guilty of aggravated felony murder, first-degree robbery, and two counts of aggravated murder. In January 1997, after a penalty phase proceeding in which the jury answered affirmatively the four death-penalty questions set out in ORS 163.150(1)(b), the trial court sentenced defendant to death. Defendant asks this court to reverse his conviction or, alternatively, to vacate the sentence and remand the case to the trial court for further proceedings.

After defendant's arrest, police officers advised defendant of his Miranda rights in both English and Spanish, and he signed waivers in both languages. The police then interviewed defendant. The trial court admitted evidence of some statements that defendant made to the police.

In his first assignment of error, defendant argues that he is a Mexican citizen and that the court should have suppressed his statements to the police, because the state obtained them in violation of the Vienna Convention on Consular Relations, opened for signature April 24, 1963, 21 UST 77, TIAS No 6820 ("VCCR").

Defendant reasons as follows. The VCCR is a treaty entered into by the federal government. See US Const, Art II, § 2 (President shall have power, subject to concurrence of two-thirds of the Senate, to make treaties). As such, under the Supremacy Clause of the United States Constitution, the VCCR is binding on state courts. US Const, Art VI. Article 36 of the VCCR requires designated authorities in signatory countries (1) to inform foreign consulates when police arrest or detain one of the citizens of the foreign country, (2) to allow communication between foreign consulates and their arrested or detained citizens, (3) to allow consulates to assist their citizens, and (4) to advise arrested or detained foreign citizens of their rights under the VCCR.

The police in this case did not comply with the VCCR. In particular, the police did not inform the Mexican Consulate that defendant was in custody or inform defendant of his rights under the VCCR. Defendant argues that the trial court should have suppressed statements that he made to police as a remedy for those violations of the VCCR.

The state asserts a number of arguments in response to that assignment of error. First, the state contends that this court should not review the assignment, because the claim of error was not preserved. The state observes that defendant raised no issue regarding the VCCR in the trial court. Defendant did not move to suppress his statements, and neither he nor anyone else mentioned the VCCR at trial.

The state further argues that the assignment is not subject to review under the plain error doctrine, because the legal point at issue is not obvious and the error does not appear on the face of the record. See ORAP 5.45(2) (unpreserved error of law may be considered on appeal if error is apparent on face of record).

Next, the state contends that the record in this case is insufficient to establish that the VCCR applies. Third, the state argues that, if this court reach the merits, then it should conclude, as have several federal courts, that the VCCR confers no rights that individuals may enforce. Fourth, the state contends that, to the extent that the VCCR confers individual rights, an individual must establish prejudice to be entitled to relief, and defendant has not done so. Finally, the state argues that, even if defendant is entitled to relief under the VCCR, suppression of his statements to the police is not an appropriate remedy.

Defendant concedes that the claim of error was not preserved. Ordinarily, this court will not consider any matter assigned as error unless it was preserved in the lower court. ORAP 5.45(2); see also State v. Stevens, 328 Or 116, 123-24, 970 P2d 215 (1998) (defendant sought to exclude evidence as inadmissible profile evidence; court declined to consider whether evidence was inadmissible scientific evidence, because defendant did not preserve that issue); State v. Montez, 324 Or 343, 356, 927 P2d 64 (1996) (because defendant did not object to testimony on grounds asserted on appeal, claim of error not preserved). In this case, defendant raised no issue about the admissibility of his statements to police, let alone whether evidence of those statements was inadmissible because of asserted violations of the VCCR.

Even if a party fails to preserve a claim of error, appellate courts nonetheless possess discretion to consider it if it is plain error, also known as error "apparent on the face of the record." ORAP 5.45(2); State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990); Ailes v. Portland Meadows, Inc., 312 Or 376, 381, 823 P2d 956 (1991). An appellate court may review unpreserved error as plain error if (1) it is an error of law, (2) the error is "obvious, not reasonably in dispute," and (3) it appears "'on the face of the record,' i.e., the reviewing court * * * need [not] go outside the record to identify the error or choose between competing inferences," and the facts constituting the error are irrefutable. Ailes, 312 Or at 381-82. Even if an appellate court concludes that an error is plain, it must exercise its discretion, explaining its reasons for doing so, to consider the claim of error. Id. at 382, 382 n 6 (stating nonexhaustive list of factors appellate court weighs when deciding whether to exercise discretion to consider plain error).

The state argues that any error here is not obvious, because courts that have considered similar issues have reached different conclusions. The state further argues that, even if the asserted error is plain, this court should exercise its discretion against considering it, because the Ailes factors counsel against considering the error as plain error. Defendant does not attempt to counter the state's argument against plain error.

The asserted error here is not plain, because the legal point on which defendant relies is not obvious and reasonably is in dispute. No Oregon appellate court has considered the issue, let alone held that defendant's position is correct. Furthermore, the United States Supreme Court has not decided the issue. See Van De Hey v. U.S. National Bank, 313 Or 86, 95, 95 n 9, 829 P2d 695 (1992) (only decisions of United States Supreme Court are binding on this court in interpretation of federal law). The only pertinent Supreme Court case is Breard v. Greene, 523 US 371, 118 S Ct 1352, 140 L Ed 2d 529 (1998). Breard is a habeas corpus case in which the petitioner argued that the Court should overturn his conviction and sentence because of alleged violations of the VCCR. The Court held that, because the petitioner had not raised the claim in state court, he had lost any claim under the VCCR. 523 US at 375. Accordingly, the only Supreme Court holding that addresses a claim under the VCCR does not establish that defendant here was entitled to suppression of his statements to police because of an alleged VCCR violation.

Other discussion of the VCCR in Breard is equivocal and does not help defendant satisfy the plain error rule. For example, as the state observes, to prevail on his VCCR claim, defendant must establish that the VCCR creates individual rights. The Breard Court referred to that issue in passing, noting: "The Vienna Convention -- which arguably confers on an individual the right to consular assistance following arrest -- has continuously been in effect since 1969." Id. at 376 (emphasis added). Even if that statement were necessary to the holding in Breard, it is insufficient to permit this court to conclude that the claimed individual right plainly exists.

Defendant argues that, even if he failed to preserve any claim of error and the error is not plain, this court nevertheless should consider his VCCR argument. He presents three reasons:

"[T]his issue is largely unexplored throughout the United States. * * * Relationships with foreign countries depend on the court rulings on this issue. In addition to that, this defendant's life depends on Oregon's treatment of this issue."

For the following reasons, we disagree.

Defendant's first reason -- the lack of precedent on the meaning and effect of the VCCR -- actually militates against considering the unpreserved VCCR issue as plain error. Significant disputes regarding the VCCR persist because no pertinent legal authority has resolved them. See Ailes, 312 Or at 381 (unpreserved error not considered "plain" if legal point disputed). Second, defendant has not persuaded us that the diplomatic issues to which he alludes are sufficiently real or significant to overcome the important considerations that undergird the preservation doctrine. See State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988) (rules pertaining to preservation of error are intended to advance goals such as ensuring that positions of parties are presented clearly to initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument).

Finally, this court applies the preservation of error principles discussed above uniformly in all cases, including capital cases. See, e.g., State v. Barone, 329 Or 210, 242, 986 P2d 5 (1999) (declining to consider unpreserved claim of error in death penalty case).

Any claim of error with regard to defendant's statements to police was not preserved. Any error attributable to violation of the VCCR is not plain error. We decline to consider defendant's first assignment of error.

Before trial, defendant moved to require the state to provide discovery. In paragraph 24 of his written motion, defendant sought discovery of "the name and case number of every capital murder trial in Oregon in which the expert has testified for the prosecution about the future dangerousness issue." The trial court denied that request.

Defendant assigns error to that denial, contending that he sought discovery relevant to "proportionality review." Defendant explains that he sought the identified documents to show that the manner in which the state charges criminal defendants with aggravated murder and seeks the death penalty is arbitrary and capricious. He also contends that juries in Oregon do not impose the death penalty in a consistent manner. Finally, he argues that evidence that the state has filed aggravated murder charges and obtained death sentences in an arbitrary manner is "exculpatory" evidence that the state must disclose to defendant under Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963), and various provisions of the state and federal constitutions.

The state first argues that defendant failed to preserve that claim of error. Defendant does not address whether he preserved this assignment of error at trial.

The requirement of preservation of error ensures that the trial court will have an opportunity to consider the pertinent issue and to correct an asserted legal error without the need for an appeal. See Brown, 310 Or at 356 (reasons for preservation rule are to allow adversary to present its position and to permit trial court to understand and correct any error.) On appeal, our task is to determine whether defendant preserved at trial his claim that the trial court erred by refusing to require the state to provide the information that he sought. Defendant contends that "defendant's pretrial motion * * * would, in essence, have required the trial judge to undertake a proportionality review of the imposition of the death penalty throughout the State of Oregon."

Defendant's written motion sought identifying information about capital cases in which future dangerousness was at issue. That request did not inform the trial court that defendant actually wanted information about the state's charging decisions or the results of jury verdicts in aggravated murder cases to establish arbitrariness of the kind that he describes on appeal. The reference to expert testimony and the phrase "the future dangerousness issue" in defendant's discovery motion indicate that the apparent objective of that motion did not resemble the discovery purposes that he now asserts on appeal.

Neither was defendant's argument at the hearing on the motion sufficient to present to the trial court the issues that defendant raises on appeal. At that hearing, the following colloquy occurred:

"[The state]: * * * There are, of course, some objections having to do with -- I believe there was a request in there having to do with prior death penalty prosecutions and the State providing that to the defense. I have no objection to the Court entering an order that we comply with the discovery statutes and provide all police reports. * * * The only thing I would object to, of course, has to do with other prosecutions.

"[Defendant]: I think State vs. Cunningham discusses that. I wouldn't expect the trial court to disagree with the Supreme Court. So unless the issue has federal validity I am not going to push it any further.

"The Court: You mean you would want a copy of all previous capital case records pertaining to any other death penalty cases in Douglas County as well as other counties in --

"[Defendant]: Yes. That motion has been filed in a lot of cases. I think the Supreme Court addressed it in State vs. Cunningham. As I say unless --

"The Court: Yeah, I remember it was raised in Cunningham.

"[Defendant]: I'm not going to push it beyond what's in the paperwork because for purposes at this point the Supreme Court addressed the question."

In that colloquy, defendant conceded that, in State v. Cunningham, 320 Or 47, 880 P2d 431 (1994), this court affirmed the denial of the defendant's request for certain records in other death penalty prosecutions. Defendant further conceded that he knew that the trial court would follow this court's decision in Cunningham and deny any request by him for discovery of similar records on that basis. Defendant did not state -- as he now attempts to argue on appeal -- that Cunningham was wrongly decided or that some other reason justified his request. Defendant did not hint that he wanted the court to examine the issues regarding death penalty prosecutions that he raises on appeal. If defendant was attempting to extend the scope or purpose of his request beyond the four corners of his written motion, then he did not make that position clear to the trial court. In fact, defendant stated that he was "not going to push it beyond what's in the paperwork * * *." That statement indicated to the trial court that defendant wished to pursue only his written motion. As we have determined above, the written motion did not preserve the claim of error that defendant seeks to raise on appeal. Because defendant's claim of error under this assignment was not preserved, we decline to consider it.

III. SYMPATHY INSTRUCTION

Defendant contends that the trial court erred in not giving his requested jury instruction as follows:

"A decision to grant HORACIO REYES CAMARENA mercy does not violate the law. The law does not forbid you from being influenced by pity for HORCIO [sic] REYES CAMARENA and you may be governed by mere sentiment and sympathy for HORACIO REYES CAMARENA in arriving at a proper penalty in this case.

"You need not find the existence of any mitigating fact or circumstance in order to return a sentence of less than death. You may consider any aspect of defendant's life in your determination on the fourth question and any aspect of defendant's life that may be relevant in your determination of the first three questions. Defendant need not prove the existence of a mitigating circumstance beyond a reasonable doubt. If you reasonably believe that a mitigating circumstance exists, you may consider it as established."

Defendant argues that juries are entitled to consider mercy and sympathy in their deliberations and, accordingly, that the trial court should have given his requested instruction. The state responds that this court previously has upheld a decision not to give an instruction nearly identical to the first part of the instruction requested here. As to the second part, the state contends that the trial court adequately instructed the jury on the same issue using different words.

We review a trial court's refusal to give a requested jury instruction for errors of law. State v. Moore, 324 Or 396, 427, 927 P2d 1073 (1996).

In Moore, the trial court refused to give the following instruction requested by the defendant:

"A decision to grant [the defendant] mercy does not violate the law. The law does not forbid you from being influenced by pity for [the defendant] and you may be governed by sentiment and sympathy for [the defendant] in arriving at a proper penalty in this case.

"You need not find the existence of any mitigating fact or circumstances in order to return a sentence less than death."

This court held that the trial court did not err in refusing to give that instruction, because it was not a correct statement of the law. Id. at 427-28. That instruction is identical to the first part of the instruction that defendant challenges in this assignment of error. Defendant does not contend that Moore was decided incorrectly. Because defendant's requested sympathy instruction, considered in its entirety, did not state the law correctly in all respects, the trial court did not err in refusing to give that sympathy instruction regardless of whether the instruction was correct in part. See, e.g., Hernandez v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998) (trial court does not err in refusing to give requested instruction that is not correct in all respects).

Defendant next contends that the trial court erred in not giving his requested jury instruction on future dangerousness as follows:

"'Criminal acts of violence' refers to a relatively narrow range of acts characterized by the application or overt threat of force which have the potential for inflicting bodily injury on another person."

The trial court gave the following instruction:

"The second question asked by the law is, is there a probability, meaning is it more likely than not, that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society. 'Criminal acts of violence' refers to acts characterized by the application of force which has the potential for inflicting bodily injury on another person or the overt threat of such force."

Defendant's requested jury instruction defined "criminal acts of violence" as "a relatively narrow range of" acts, while the instruction given by the trial court did not contain that phrase. Defendant argues that the trial court erred by refusing to include that phrase in its instruction, relying on State v. Huntley, 302 Or 418, 428, 730 P2d 1234 (1986), in which this court addressed the meaning of the term "dangerousness of the defendant" in ORS 161.725, the dangerous offender sentencing statute.

This court rejected an argument similar to defendant's in State v. Tucker, 315 Or 321, 336-37, 845 P2d 904 (1993). Defendant does not argue that Tucker was decided incorrectly. We follow Tucker and conclude that the trial court did not err in refusing to give the future dangerousness instruction proposed by defendant.

Defendant next contends that the trial court erred in not giving his requested jury instruction as follows:

"The law presumes that the defendant will not commit criminal acts of violence in the future. That presumption stays with the defendant unless and until the probability of his commission of acts of criminal violence is proven beyond a reasonable doubt. The burden is upon the State to prove the probability of the defendant committing criminal acts of violence in the future."

Defendant argues that the trial court erred in declining to give his requested instruction, because a defendant is presumed to be peaceable, even after a guilty verdict, and "to suggest otherwise would improperly shift the burden of persuasion on the sentencing issues."

The state argues that this court has held that a presumption instruction of the kind requested here is not required. See, e.g., State v. Douglas, 310 Or 438, 451, 800 P2d 288 (1990) (presumption of peaceableness instruction not required). Defendant does not argue that Douglas and similar cases were decided incorrectly. The trial court did not err in refusing to give the presumption instruction that defendant requested.

Finally, defendant assigns error to the trial court's rejection of his contention that Oregon's statutory death penalty scheme is unconstitutional in a number of respects. He concedes that this court has rejected the same challenges in previous death penalty appeals. That concession is well taken. See State v. Hayward, 327 Or 397, 414, 963 P2d 667 (1998) (declining to discuss such challenges, because it would not benefit bench or bar in light of previous holdings); Moore, 324 Or at 429 n 19 (same).

For the foregoing reasons, we conclude that none of defendant's assignments of error provides a basis for reversal.

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

Horacio Alberto Reyes-Camarena, 47, a death-row inmate at Two Rivers Correctional Facility in Eastern Oregon, sits through four-hour dialysis treatments three times a week at the prison.