STATE OF OREGON v. HAUGEN

d after first stating the grounds for the objection.").

b. Exclusion of Statement

14, 15. Having concluded that defendant preserved his objection, 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 generally admissible. OEC 609-1 ("The credibility of a witness may be attacked by evidence that the witness engaged in conduct or made statements showing bias or interest."); State v. Hubbard, 297 Or. 789, 796, 688 P.2d 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.)).

16-18. However, our cases also make clear that, while evidence of bias is relevant and may be admitted, it is not necessarily 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 evidence 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 evidence, 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 P.3d 1103 (2004), cert den, 546 US 830 (2005) (trial court did not err in excluding evidence of victim's violent acts towards others to show defendant's reasons for fearing 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 defendants 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 not necessarily demonstrate any particular hostility towards defendants, it also concedes that the comment might be susceptible 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 evidence 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 defendants] than other evidence received at trial." Further, according to the state, because there was "ample and specific evidence" of Cameron's hostility, the admission of his comment would not have substantially assisted the jury in making a decision about his credibility. We agree.

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.

19. Defendant cross-examined Cameron extensively during the state's case-in-chief and sought to develop evidence that he was hostile towards defendants and biased against them. The record reflects that, while testifying before the jury, Cameron was mocking, hostile, and uncooperative toward defense counsel, calling one of defendant's attorneys a "jerk off' and asserting that the attorney was trying 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 near the band room during the time when the band in which he and they were members was scheduled to practice. Moreover, they involved him in the attempted cover-up by trying to get him to hide their bloody clothes. He thought that murdering 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 g[iven] 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 provided evidence of bias against defendants.

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.

Cameron also testified that his life in prison had changed for the worse, not for the better, after coming forward 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 authorities 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 segregation unit after coming forward as a witness. He concluded that,

"Since I came forward on this, I have got nothing but dicked. So, you [defense counsel] are sitting over there making 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 reasons that the jury should view Cameron's testimony with suspicion, 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.

B. Penalty Phase

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

20. Defendant argues that the trial court erred in admitting testimony from the psychologists who evaluated defendant for the parole board and in connection with the presentence 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.

21. 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 P.2d 751 (1984), and subsequent cases. See State v. Lyons, 324 Or. 256, 260, 924 P.2d 802 (1996) (conducting pretrial hearing on admissibility of scientific evidence in light of Brown); State v. O'Key, 321 Or. 285, 288, 899 P.2d 663 (1995) (same). Here, defendant filed a motion for an OEC 104 hearing to challenge the admissibility of the state's anticipated 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 scientific testimony, from DNA test results to the operations of the security cameras to medical testimony concerning the victim'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 scientific 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 would be able to examine all the state's proffered expert witnesses 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' testimony 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 [defendant] will commit future acts of violence." The trial court specifically 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 determine the admissibility of the proposed evidence." (Emphasis added.)

During the penalty phase of the trial, five psychologists discussed evaluations of defendant that they had conducted 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 testimony 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' qualifications, 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 dangerousness or the probability that defendant would commit future acts of violence, a hearing on the admissibility of that evidence could be held at that time. On appeal, defendant now 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 evidence 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 testify at the penalty phase; however, if those witnesses were to offer a scientific opinion as to the probability of future dangerousness, 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 P.3d 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 conditioned 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] defendant might make at trial." Id. at 116. Discussing more generally 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 objection." 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 evidence," such as scientifically based opinion testimony on the probability of further dangerousness. Defendant therefore had the obligation to make specific objections at trial to testimony 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 objections to the scientific foundation for any testimony by the state's psychologists that he believed was improper. One purpose 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 P.3d 637 (2008) ("Preservation gives a trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether 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 testimony when it occurred, and ruling that all, some, or none of it was appropriate, without any objection or argument having been offered by defendant. The responsibility for watching for such testimony and raising defendant's earlier objection 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 testimony 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 opportunity. We conclude that the issue was not preserved for review.

2. Consecutive Sentences (Assignment of Error Number 24)

22. Defendant argues that the trial court erred in refusing to impose his death sentence consecutively to the life sentence that he was already serving. The basis for defendant'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.)

23, 24. 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, particularly when the text is not ambiguous. See State v. Gaines, 346 Or. 160, 171-73, 206 P.3d 1042 (2009) (explaining paradigm); PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 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 committed while incarcerated on a sentence of life imprisonment. 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. In defendant's view, then, his death sentence cannot be carried out until he has completed his prior sentence of life imprisonment. Defendant, 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.

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

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 automatic review of the judgment convicting defendant of aggravated murder and imposing the death penalty permits us to review defendant's claim that the judgment is inconsistent with ORS 137.123(3).

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 certiorari 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 sentence is to be executed] not less than 90 days nor more than 120 days following the effective date of the appellate judgment." ORS 137.463(5). If the death sentence "for any reason * * * is not executed on the date appointed in the death warrant" 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 further hearing." ORS 137.463(7). The new warrant must specify 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 completes service of another sentence.

In the state's view, ORS 137.123(3) can be harmonized with the death penalty statutes by either (1) interpreting "consecutive to" to mean only that the sentences must be 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. Defendant 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 particular than the other. "When a general and [a] particular provision 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 sentences 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 statutes 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 correctional facility, ORS 163.095(2)(b). To give effect to the legislature's specific decision to authorize such a murder to be prosecuted as aggravated murder — with the attendant possibility that a jury will decide to impose the death penalty — ORS 137.123(3) must be interpreted to permit the imposition of the death penalty even if a defendant is still serving a term of imprisonment.

Following the rules of statutory construction mentioned 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 statutory 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 temporal sense, are not only unlike but are mutually inconsistent. To treat them as interchangeable or capable of treatment as consecutive to one another makes little sense.

The foregoing observation assists in distinguishing between general and particular legislative intent. A "particular" legislative intent is "paramount" and must "control" the general legislative intent. ORS 174.020(2). In terms of criminal law sanctions, the death penalty is the seldom-used exception to the more often-used punishment of incarceration. 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 providing for the imposition of a sentence of death are a more specific expression of legislative intent when compared with a sentence of incarceration, because a sentence of death is exceptional. For that reason, as previously explained, the legislature 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 sentence, 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 proceedings 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 sentence 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 sentence. That result would be inconsistent with the legislature's more specific intent that the death penalty may be imposed for aggravated murders committed in prison. Defendant 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 time as the sentence of death for aggravated murder is carried 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.