This is an automatic and direct appeal from defendant's convictions and sentence of death on 14 counts of aggravated murder in the death of Larry Rockenbrant. The trial court erred when it admitted evidence of the murder of another person for the purpose of using some similarities between the two homicides to identify defendant as the killer of Larry Rockenbrant. Admission of that evidence was not harmless error. Accordingly, we reverse defendant's convictions for aggravated murder and remand this case to the circuit court for a new trial.

This opinion addresses only the evidentiary issue requiring reversal and defendant's claim of error relating to the penal statutes on which the indictment was based, i.e., issues that will arise on a new trial.

From this court's recent examinations of the issue of "other crimes" evidence in State v. Johnson, 313 Or 189, 832 P2d 443 (1992); State v. Pinnell, 311 Or 98, 806 P2d 110 (1991); State v. Pratt, 309 Or 205, 785 P2d 350 (1990); and State v. Johns, 301 Or 535, 725 P2d 312 (1986), a clear methodological approach has emerged. Evidence of other crimes is not admissible as circumstantial evidence of a defendant's criminal character. OEC 404(3).^*fn1 But it may be admitted if it is introduced for some other relevant purpose, such as to prove a defendant's identity by modus operandi as the perpetrator of the crime for which he or she is on trial. OEC 404(3). The sole purpose for which the trial Judge admitted evidence in this case relating to the Gray homicide was to establish identity of defendant as Rockenbrant's killer. The jury instructions permitted the jury to consider the evidence for that purpose only. As State v. Johnson, supra, puts it, what is required is "a very high degree of similarity between the prior and charged misconduct or a methodology that is so distinctive so as to earmark the crimes as the handiwork of one criminal." 313 Or at 200. A three-part test

[314 Or Page 514]

governs the admissibility of "other crimes" evidence under OEC 404(3):

"(1) The evidence must be independently relevant for a noncharacter purpose [such as, in this case, for establishing identity by modus operandi ]; (2) the proponent of the evidence must offer sufficient proof that the uncharged misconduct was committed and that defendant committed it; and (3) the probative value of the uncharged misconduct evidence must not be substantially outweighed by the dangers or considerations set forth in OEC 403. Each of these requirements must be satisfied before uncharged misconduct evidence is admissible under OEC 404(3)." State v. Johnson, supra, 313 Or at 195 (footnote omitted).

It is the first part of that three-part test that concerns us here.

To establish identity by " modus operandi," the prosecutor must establish by a preponderance of the evidence that there is:

"(1) [A] very high degree of similarity between the prior and charged misconduct, and (2) a distinctive nature of the methodology of prior and charged misdeeds * * *." State v. Johnson, supra, 313 Or at 197 (emphasis in original).

This court has spelled out a test for determining whether similarity requirement has been met.

"In deciding * * * whether there is a very high degree of similarity between the charged and uncharged crimes, three factors are relevant: (1) the time lapse between the two crimes; (2) the geographic distance between the two crimes; and (3) the resemblances between the methodologies of the two crimes. Imwinkielreid, [Uncharged Misconduct Evidence (1984)] at 23-24, § 3.11. The three factors are just that -- merely factors in the trial court's * * * determination of the degree of similarity. Id. at 24. '[S]imilarities cannot be considered in a vacuum. The circumstances of each crime as a whole must be compared. * * * [D]issimilarities [also] must be as fully considered as the similarities * * *.' State v. Pratt, supra, 309 Or at 214. Determining what constitutes a very high degree of similarity is a matter to be decided on a case-by-case basis. Id." State v. Pinnell, supra, 311 Or at 110.

The resemblances between the methodologies of the two crimes is the most important factor. Ibid.

[314 Or Page 515]

The record in this case does not support a Conclusion that the Gray and Rockenbrant murders are sufficiently similar and distinctive to warrant admission of evidence of the Gray murder to establish identity of the murderer of Rockenbrant based on modus operandi.^*fn2 Our decision is based on the facts of this case, but also is informed by the direction taken from recent decisions of this court that a very high degree of similarity is required to justify the admission of other crimes evidence to establish identity based on modus operandi. Compare State v. Johnson, supra (reversing conviction) and State v. Pratt, supra (same) with State v. Pinnell, supra (affirming conviction based on a very high degree of similarity and a very distinctive methodology).^*fn3

The facts necessary to decide this appeal are, for its purposes, not disputed. Rockenbrant was acquainted with defendant through drug deals. Defendant asked his girlfriend, Sacha Thayer, to get him sedatives to "knock out" Rockenbrant so that he could "take it all" in one last deal. That did not work out. Later, defendant said that he was still going to go through with it, taking Thayer's baseball bat with him as he went to meet Rockenbrant again. He met Rockenbrant in the early evening on April 13, 1988, and arranged a drug deal for 1:30 a.m. on the 14th. Rockenbrant received a telephone call between 1:00 and 1:30 a.m. on April 14 and left in his Pontiac Firebird, saying he was going to meet defendant and others. Rockenbrant was never seen alive again.

At 3:30 a.m., Thayer heard defendant return the Toyota that they shared and drop off the keys, and she saw him leaving. Defendant returned to the state hospital where he was living (at the time of Rockenbrant's murder, he was an inmate in the state hospital's Mentally and Emotionally Disturbed Program) at 4:15 a.m., showed a counselor the keys to a 1982 Firebird, and explained that a friend, who had to return to jail, had given him the car provided that he make

[314 Or Page 516]

the payments. When Rockenbrant's family called at about 7:00 that morning to inquire about his whereabouts, defendant told them that Rockenbrant was headed for Portland.

Earlier, on the afternoon of April 12, defendant had begun to dig what was supposed to be a "cactus" garden near a hedge in back of his hospital cottage. The hole was six feet, eight inches long; three feet, eight inches wide; and three feet deep. It was covered by a plywood board. By 8:30 on the morning of the 14th the hole had been filled in and a note on it stated "Cottage 18 garden plot. Please leave alone. Thank you." State hospital employees were investigating the "garden plot" that morning, when defendant appeared. Defendant fled in the Pontiac after he was asked to stay.

Rockenbrant's body was then unearthed from the "garden plot." He had been bludgeoned to death by at least ten blows to the head from a blunt instrument which could have been a baseball bat. His body was clothed; his ankles and wrists were bound by ligatures made from torn cloth; and his head was covered with clothes, a backpack, and a cloth. There was a bloody trail leading from the cottage garage to the grave site, and blood and hair consistent with Rockenbrant's were found in the trunk of the Toyota. On April 14, defendant sold some items to a second-hand store in Newport, including a radar detector that matched one removed from the Firebird and a ring similar to one that Rockenbrant had worn but was not found on his body.

The murder of Anne Gray occurred four months earlier, in December 1987. Gray was a neighbor of Thayer. Defendant concocted an elaborate story, both before and after Gray's murder, to assert that Gray had decided to leave her life in Salem behind, that she had contracted with defendant to sell her belongings, and that she had left for Portland (leaving a note on her door to that effect). Defendant had Thayer come to Gray's apartment at 7:30 on the morning of December 10, 1987, to "witness" the contract that he had drawn with Gray to sell the goods that Gray was supposedly leaving behind. When Thayer arrived, Gray was not in the front room. However, Thayer heard water running in the bathroom, assumed the noise was being made by Gray, signed the contract, and left. No one saw Gray alive thereafter.

[314 Or Page 517]

Later that evening, defendant carried a heavy bundle wrapped in blankets from Gray's apartment to Thayer's station wagon. He placed the load in the back and told Thayer to drive to the house where his aunt and cousin lived. There, he unloaded the bundle, told Thayer to leave and return in 20 minutes, and carried the bundle around the side of the house. When Thayer returned, defendant, who was muddy and wet, said that he had fallen. Defendant put the muddy blankets in the car. Defendant thereafter set about trying to sell Gray's property, including her car. He tried selling her furniture to a buyer and sold other items to acquaintances.

When defendant's cousin heard of the Rockenbrant murder in April of 1988, she contacted police about a hole that defendant had dug in her backyard, near a hedge. Defendant had come into his aunt's home at 11:15 p.m. on a night in early winter of 1987 and told his cousin that he had dug a hole for a television antenna. He had placed a board over the hole.

Police unearthed Gray's body from the hole in defendant's aunt's backyard. Gray had died by asphyxiation or ligature strangulation. Her body was found in a grave five feet, five inches long; two feet, six inches wide; and two feet, three inches deep. Her body was clothed, tied by ligatures of duct tape and Gray's own climbing rope, bound in the fetal position, white tape covered her mouth, and her head was wrapped with duct tape.

The state relies primarily on the allegedly distinctive manner of handling and burying the victims and the use of false stories to explain the victims' disappearances and to get their property, to establish both the requisite very high degree of similarity between the crimes and the distinctiveness of the methodology. The state acknowledges that the victims died in completely different manners.

The methods of death for Rockenbrant and the other victim are totally different. Rockenbrant was bludgeoned. The other victim died from being deprived of air to breath. Neither method was particularly distinctive. Each victim was bound, but by different materials and in very different positions. Burial in a comparatively shallow grave is not a particularly distinctive method of disposing of a homicide victim, and the general similarity of the two different sites involved

[314 Or Page 518]

in the state's proof here (in a yard near a hedge) is not highly distinctive. A "signature crime" is not established by this level of similarity.

Other aspects of the two homicides, as related to defendant, contain general similarities as the state contends, but they are interwoven with a number of dissimilarities. Defendant took elaborate precautions to create a story for Gray's disappearance both before and after her death. He did not do so for Rockenbrant. He told Thayer that his plan for Rockenbrant was "going to come down tonight," took a bat with him, made no particular secret of the deadly 1:30 a.m. meeting, and used Rockenbrant's car publicly as his own, while contradictorily telling Rockenbrant's mother that Rockenbrant was off to Portland. Although the fact that defendant took and sold some of his victims' property is a similarity, the methods of acquiring and selling the property differed completely.

The differences between these two murders are numerous and quite significant, while the similarities are few and not of a kind to distinguish these cases from some other homicides. Accordingly, the methodologies are not distinctive. The evidence of the Gray murder was not admissible in this case to establish the identity of defendant as Rockenbrant's murderer.

We consider briefly the state's contention that, if there was error in admitting evidence of the Gray homicide, then it was harmless error. The state acknowledges that it "presented all or virtually all of its case regarding Gray's murder during the guilt phase of [the Rockenbrant murder] trial" and that "a large part of the guilt phase of this case was devoted to evidence regarding Gray's murder." Even though there was substantial and convincing evidence on which a reasonable jury could have found defendant guilty of the Rockenbrant murder without the evidence of the Gray murder, we cannot say that there was little likelihood that the error in admitting other crime's evidence, so pervasive in this trial, affected the verdict. See State v. Hansen, 304 Or 169, 180, 743 P2d 157 (1987) (stating the standard for harmless error). The extensive reliance by the state on the Gray murder in this trial could have affected the verdict and, therefore, was not harmless. Reversal is required.

[314 Or Page 519]

Because an issue concerning the indictment will arise on retrial, we address it here. Defendant demurred to the count of the indictment that charged him with aggravated murder under ORS 163.095(2)(b), which makes murder a capital offense if "[t]he defendant was confined in a state, county or municipal penal or correctional facility or was otherwise in custody when the murder occurred." Defendant asserts that the term "otherwise in custody" is unconstitutionally vague, in violation of several state and federal constitutional provisions.^*fn4

A person does not have a valid claim that a statute is unconstitutionally vague merely because it may be difficult to discern the margins of the scope of the statute's reach when, applying the statute to the case at hand, the person's acts clearly fall within the undeniable reach of the statute. State v. Farrar, 309 Or 132, 183, 786 P2d 161 (1990); State v. Robertson, 293 Or 402, 411 n 8, 649 P2d 569 (1982); Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S Ct 1186, 71 L Ed 2d 362 (1982). In this case, defendant indisputably was "in custody" in April 1988, when Rockenbrant was killed. Defendant had voluntarily transferred from imprisonment at the state penitentiary to confinement at the state hospital during the term of his imprisonment. He had not yet reached his parole release date. During closing argument in the guilt phase of the trial, defendant's own counsel stated that defendant was an "inmate" and was "in custody."

Defendant's conduct falls clearly within the statutory reach of ORS 163.095(2)(b), which aggravates a murder committed while confined or "otherwise in custody." See State v. Langley, 314 Or 247, 256, 839 P2d 692 (1992) (a defendant who is in custody of a correctional facility but who

[314 Or Page 520]

is not physically confined there is "otherwise in custody"). He cannot, accordingly, succeed in his assertion that the prohibitions of the statute are unconstitutionally vague as to some other defendant in some other case. There was no error as argued.

Admission of the evidence of the Anne Gray murder to prove defendant's identity as the murderer of Larry Rockenbrant was reversible error.

The judgments of conviction for aggravated murder are reversed, and the case is remanded to the circuit court for a new trial.

Disposition

The judgments of conviction for aggravated murder are reversed, and the case is remanded to the circuit court for a new trial.

Opinion footnotes

^*fn1 OEC 404(3) provides:

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

^*fn2 Whether the two requirements, similarity and distinctiveness, have been established is a preliminary question of fact for the trial court under OEC 104(1). State v. Pinnell, 311 Or 98, 110, 806 P2d 110 (1991).

^*fn3 Treatises refer to "strikingly similar" and "unique behavorial pattern," Imwinkelreid, Uncharged Misconduct Evidence § 3:12, at 26 (1984); "'signature' identifying a unique defendant," 2 Weinstein and Berger, Weinstein's Evidence § 404(16)(3), at 404-100 (1975).

^*fn4 Defendant relies on the following provisions of Article I of the Oregon Constitution: section 11 (fair notice), section 16 (proportionality), section 20 (privileges or immunities), and section 21 (no ex post facto laws). Defendant also relies on the Due Process, Equal Protection, and Equal Privileges and Immunities Clauses of the United States Constitution.

Defendant also asserted at trial that the term "confined" is unconstitutionally vague, in reliance on the same provisions. Defendant was acquitted of the count of the indictment charging him with murder while confined (Count I). To the extent that defendant reiterates that argument on appeal, it is that the referent "confined" is vague and so is the alternative term "or was otherwise in custody."

STATE OF OREGON, Respondent,
v.
ROBERT PAUL LANGLEY, JR., Appellant.

FILED: DECEMBER 29, 2000

This is an automatic and direct review of a judgment that imposed a sentence of death for aggravated murder. Former ORS 163.150(1)(g) (1993), renumbered as ORS 138.012(1) (1999). See Or Laws 1999, ch 1055, § 1 (repealing former ORS 163.150(1)(g) (1993)). This is the second time that the case has been before this court. On the first direct review, this court affirmed all but one of defendant's convictions, vacated the sentence of death, and remanded for resentencing due to an error committed at trial. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on recons 318 Or 28, 861 P2d 1012 (1993) (Langley I). For the reasons that follow, we vacate defendant's second sentence of death and remand this case to the trial court for further penalty-phase proceedings.

This case stems from defendant's conviction on 16 counts of aggravated murder for the death of Gray. The facts regarding the crime are set out in Langley I, 314 Or at 249-52. At the time when the proceeding in Langley I was underway, defendant already had been convicted and sentenced to death for the murder of Rockenbrant. This court subsequently vacated defendant's death sentence in the Rockenbrant proceeding. See State v. Langley, 314 Or 511, 840 P2d 691 (1992) (reversing upon ground that evidence of Gray murder erroneously admitted in Rockenbrant proceeding).

Defendant murdered both Gray and Rockenbrant while he was living on the grounds of the Oregon State Hospital and participating in a residential Criminal Treatment Program (CTP) for mentally and emotionally disturbed inmates.

As noted, after defendant had been convicted and sentenced to death for the Gray murder, this court reversed the sentence of death and remanded for a new penalty-phase proceeding (remand proceeding). This review stems from that remand proceeding, at which a jury again sentenced defendant to death. On direct review, defendant raises 22 assignments of error, only three of which we address in this opinion.

Defendant's primary assignment of error relates to the trial court's refusal to permit the jury to consider the option of sentencing him to life in prison without the possibility of parole (true life). Defendant argues that the trial court was required to instruct the jury on the true-life sentencing option under former ORS 163.150(5) (1993), set out post, renumbered as ORS 138.012(2) (1999), which, according to defendant, applied retroactively to his remand proceeding. In defendant's view, because he expressly waived any constitutional ex post facto objection to retroactive application of the true-life option, former ORS 163.150(5)(e) (1993) required the trial court to instruct the jury on that option.

We begin by setting out the relevant procedural history. Gray was reported missing in December 1987, and her body was discovered in April 1988. In November 1989, a jury convicted defendant of 16 counts of aggravated murder for Gray's death. At the time of defendant's trial, aggravated murder proceedings were governed by ORS 163.150 (1989), which recently had been amended by the 1989 Legislature and which, as relevant here, purported to apply retroactively to "trials commencing on or after July 19, 1989." ORS 163.150(4) (1989). Among other things, the 1989 amendments added true life as a sentencing option in aggravated-murder cases. Or Laws 1989, ch 720, § 2. Before the 1989 amendments, only death and life imprisonment with the possibility of parole (ordinary life) were possible sentences for aggravated murder. ORS 163.150(2) (1987).

The trial court in Langley I applied ORS 163.150 (1989) retroactively to defendant's case, instructing the jury on the new, true-life sentencing option. The jury unanimously answered "yes" to the four statutory questions set out in ORS 163.150(1)(b) (1989), and the trial court entered a judgment that convicted defendant of aggravated murder and sentenced him to death. Langley I, 314 Or at 252, 254 n 5.

In 1992, this court considered the case on direct review and affirmed all but one of defendant's convictions. However, the court concluded that the fourth question, asked of the jury pursuant to ORS 163.150(1)(b)(D) (1989), constitutionally was inadequate under State v. Wagner, 309 Or 5, 18, 786 P2d 93 (1990), because it failed to allow for proper consideration of mitigating evidence. Accordingly, the court vacated defendant's sentence of death and remanded the case to the trial court for further penalty-phase proceedings. Langley I, 314 Or at 272. The court declined to consider defendant's additional pro se argument that application of the true-life sentencing option violated his constitutional protection against ex post facto laws, concluding that, on remand, defendant would be sentenced under the statutory scheme in effect at the time of his crime. In support, the court quoted State v. Isom, 313 Or 391, 395, 837 P2d 491 (1992), for the proposition that "the legislature intends that Oregon courts sentence criminal defendants under the statutory scheme in force when a particular criminal act was committed." Langley I, 314 Or at 254 n 5.

Both defendant and the state petitioned for reconsideration, which this court allowed to consider the ex post facto issue. Langley I, 314 Or 247, on recons 318 Or at 30 (Langley I (on reconsideration)). On reconsideration, the court discussed the then-recent case of State v. Wille, 317 Or 487, 505, 858 P2d 128 (1993), in which this court had held that "[r]etroactive imposition of [the true-life sentencing option] violated Article I, section 21, of the Oregon Constitution, and Article I, section 10, of the Constitution of the United States." The court concluded that the constitutional prohibition against ex post facto laws discussed in Wille, rather than the general rule set out in Isom, precluded retroactive application of the true-life sentencing option in defendant's case. See State v. McDonnell, 329 Or 375, 384 n 5, 987 P2d 486 (1999) (summarizing Langley I (on reconsideration) in that manner). The court adhered to its earlier decision in Langley I and vacated defendant's sentence of death, based upon the inadequacy of the fourth question. As with Langley I, the court remanded the case to the trial court for further proceedings. Langley I (on reconsideration), 318 Or at 32.

At his remand proceeding, which commenced in 1994, defendant changed his strategy regarding the true-life sentencing option and sought to waive his ex post facto objection to retroactive application of ORS 163.150 (1989). Defendant specifically argued that the true-life option was available in his remand proceeding under former ORS 163.150(5) (1993), which provided for application of the true-life option in penalty-phase proceedings conducted on remand and purportedly applied "to any defendant sentenced to death after December 6, 1984." Former ORS 163.150(5)(e) (1993). The trial court rejected defendant's attempted waiver, reasoning that, because the true-life option did not exist at the time of defendant's crime, that option was not available in defendant's case in any circumstance under this court's collective decisions in Langley I. The trial court then applied the statute in effect at the time of defendant's crime, ORS 163.150 (1987), and instructed the jury that defendant must be sentenced either to death or to ordinary life. The jury answered the four statutory questions in the affirmative, and the trial court again sentenced defendant to death.

On direct review of the remand proceeding, defendant now argues that the trial court erred by refusing to allow him to waive his ex post facto objections to the true-life sentencing option set out in former ORS 163.150(5) (1993). He primarily relies upon McDonnell, 329 Or 375, in which this court held that a trial court erred by refusing to allow a defendant to waive his ex post facto objections to retroactive application of that statute. The state responds that, for various reasons, the rule set out in McDonnell either should not or cannot apply to this case.

We begin with the state's various preliminary contentions. The state first argues that the trial court lacked authority to instruct on the true-life sentencing option because that option was beyond the scope of this court's remand instructions in Langley I (on reconsideration). The state bases that argument upon its understanding that, in Langley I (on reconsideration), this court "unambiguously held that this defendant may not be sentenced to true life on remand." That characterization is inaccurate. Langley I (on reconsideration) merely recognized that defendant's constitutional protection against ex post facto laws, if asserted, would preclude the trial court from applying the true-life option retroactively. Nothing in the remand instructions precluded the trial court from accepting defendant's waiver of those constitutional rights on remand; indeed, waiver was not at issue in the Langley I proceedings.

Second, the state argues that the doctrine of "the law of the case" precludes application of the rule set out in McDonnell. The law of the case applies here, the state argues, because, "[w]hen this case previously was before this court, the court fully considered the issue and held (1) that the issue of potential sentences on remand properly was before it, and (2) that the true-life sentencing option was not among them."

Under the doctrine of the law of the case,

"when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review."

State v. Pratt, 316 Or 561, 569, 853 P2d 827 (1993) (internal quotation marks omitted). Thus, the law of the case "precludes relitigation or reconsideration of a point of law decided at an earlier stage of the same case." Koch v. So. Pac. Transp. Co., 274 Or 499, 512, 547 P2d 589 (1976) (emphasis omitted).

In Langley I, the "point of law" at issue was whether retroactive application of the true-life sentencing option to defendant during his initial penalty-phase proceeding, to which defendant timely had objected, would violate constitutional ex post facto prohibitions. On reconsideration, this court concluded that it would. That point of law is not in dispute here. Rather, the question is whether defendant, on remand, was entitled to waive his constitutional protections against ex post facto laws. Because that question was not presented or decided in the earlier proceeding, the doctrine of the law of the case does not prevent us from considering it now.

Finally, the state asserts that, during the Langley I proceeding, defendant did more than merely assert his ex post facto rights; rather, he made a separate, more general argument that the true-life sentencing option should not be provided to any jury in his case. Specifically, the state argues:

"It is important to note the breadth of defendant's position: He did not state merely that application of the true-life sentencing option to him would violate ex post facto principles; rather, he insisted that he must be sentenced under the law as it existed at the time he committed his offense. The difference may be important, because the latter position does not leave room for an argument that, although the law is ex post facto, the ex post facto violation may be waived. In short, defendant's position was that under no circumstances could he be sentenced to true life."

In the state's view, defendant is bound by that argument here.

We disagree. Even if defendant had made such an argument in Langley I -- a point with which we do not necessarily agree -- such an argument would have no bearing upon our present review of the remand proceeding, particularly in light of the rule announced in McDonnell, discussed below.

We now apply the rule from McDonnell to determine whether remand is appropriate in this case. The defendant in McDonnell, who committed his crime in 1984, filed a waiver of all ex post facto objections to retroactive application of the true-life sentencing option at a remand proceeding that took place in 1993. The trial court refused to provide the true-life instruction in accordance with former ORS 163.150(5) (1993) and, instead, instructed the jury as to only the two sentencing options that were in effect in 1984 -- death and ordinary life. The defendant was sentenced to death. On review, this court concluded that the trial court had erred in refusing to provide the true-life instruction, reasoning that the defendant was entitled to, and did, waive his constitutional protections against ex post facto laws. McDonnell, 329 Or at 390, 392.

Here, defendant argues that, as in McDonnell, he was entitled to the true-life instruction at his remand proceeding, even though that instruction was added by an amendment enacted after his crime. In McDonnell, this court concluded that, in enacting former ORS 163.150(5) (1993), the legislature intended the true-life sentencing option to be available in remand proceedings in which a defendant had been sentenced to death after December 6, 1984. Because defendant originally was sentenced to death in 1989, he falls within that class of defendants. We therefore conclude that the legislature intended the true-life option to be available in defendant's remand proceeding.

The final question is whether, given our conclusion that the legislature intended that former ORS 163.150(5) (1993) apply retroactively to defendant's case, defendant in fact waived any ex post facto objection. In McDonnell, this court concluded that the defendant's written waiver indicated that his decision not to invoke his constitutional protection against ex post facto laws constituted an intentional relinquishment of a known right. 329 Or at 389, 392; see also State v. Rogers, 330 Or 282, 291, 4 P3d 1261 (2000) (reaching same conclusion in similar circumstances). Similarly, defendant here intentionally decided not to invoke the protection of the state and federal ex post facto clauses and submitted a written waiver to the court. We conclude that defendant waived the protection afforded by those clauses.

The state argues, nonetheless, that this case is distinguishable from McDonnell in two ways. First, the state emphasizes that, in McDonnell, the state acquiesced in the defendant's request to apply the true-life sentencing option, whereas, in this case, the state consistently has objected to application of that option. This court rejected that same argument in Rogers, 330 Or at 291: "That the state objected to defendant's waiver in this case, whereas, in McDonnell, it did not, makes no difference to the result. As this court observed in McDonnell, the 'claim [that application of ORS 163.150(5) (1993) violated the prohibition against ex post facto laws] was defendant's to assert, and he did not do so.' 329 Or at 390. Any objection by the state to defendant's waiver of the protection of the ex post facto clauses has no effect. Because defendant did not invoke those constitutional protections in this case, he waived those protections."

(Brackets in original.) We reject the state's argument here for that same reason.

Second, the state argues that this case differs from McDonnell because the trial court in the Langley I proceeding instructed the jury on the true-life sentencing option and the jury nonetheless sentenced defendant to death. The state argues:

"Defendant's first jury, knowing that it had the option of sentencing defendant to ordinary life, true life, or death, chose the latter. In short, what defendant seeks here -- an opportunity for a jury to consider the true-life sentencing option -- he already has received. This court should not reverse defendant's death sentence simply to allow a second jury to consider the options that one jury already has considered."

Defendant counters that, although the jury in the Langley I proceeding was instructed on the true-life sentencing option, that jury received inadequate instructions on mitigating evidence. Defendant further points out that, although the jury in his remand proceeding received adequate instructions on mitigating evidence, it was not instructed properly on the true-life option. Defendant argues that he is entitled to a penalty-phase proceeding in which the jury properly is instructed in all respects.

We agree with defendant. A properly instructed jury, that is, a jury properly instructed both on the true-life sentencing option and on mitigating evidence, could have returned a verdict supporting a sentence other than death. We reject the state's contrary argument.

In sum, we conclude that we must vacate defendant's sentence of death and remand the case for further proceedings. See Rogers, 330 Or at 291-92 (reaching same conclusion and disposition); McDonnell, 329 Or at 392 (same). Defendant raises two additional assignments of error that are likely to arise on remand, which we address below. See, e.g., Rogers, 330 Or at 292 (following that methodology).

Defendant contends that certain evidence was admitted at his remand proceeding in violation of the psychotherapist-patient privilege set out in OEC 504(2). Specifically, defendant objects to the admission of five exhibits and the testimony of eight witnesses (discussed in further detail below), the substance of which, to some extent, either pertained or referred to defendant's participation in the CTP at the Oregon State Hospital. In defendant's view, the substance of all the evidence at issue constituted privileged communications under OEC 504, which provides, in part:

"(1) * * * As used in this section, unless the context requires otherwise:

"(a) 'Confidential communication' means a communication not intended to be disclosed to third persons except:

"* * * * *

"(C) Persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient's family.

"(b) 'Patient' means a person who consults or is examined or interviewed by a psychotherapist.

"* * * * *

"(2) * * * A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of the patient's mental or emotional condition among the patient, the patient's psychotherapist or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family."