
FILED:  April 8, 2004
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent,
v.
ERIC WALTER RUNNING,
Appellant.
(CC 9802-31142; SC S47842)
En Banc
On automatic and direct review of the judgments of
conviction and sentence of death imposed by the Multnomah County
Circuit Court.
Argued and submitted January 13, 2004.
Marshall L. Amiton, Judge.
Eric Johansen, Deputy Public Defender, Salem, argued the
cause for appellant.  David E. Groom, Acting Executive Director
and Mary M. Reese, Senior Deputy Public Defender, filed the brief
for appellant.
Timothy A. Sylwester, Attorney-in-Charge Collateral Remedies
and Post-Conviction Unit, Salem, argued the cause for respondent. 
With him on the brief were Hardy Myers, Attorney General, Mary H.
Williams, Solicitor General, Jennifer S. Lloyd, Assistant
Solicitor General, and Kathleen Cegla, Assistant Attorney
General.
DE MUNIZ, J.
The judgments of conviction, the sentence of death and
of the sentence life imprisonment without the possibility of
parole are affirmed.
DE MUNIZ, J.
This case is before the court on automatic and direct
review of a judgment of conviction and sentence of death.  ORS
138.012(1); ORAP 12.10(1); State v. Lotches, 331 Or 455, 457 n 1,
17 P3d 1045 (2002).  Defendant seeks reversal of his convictions
for two counts of aggravated murder involving two victims and one
count of felon in possession of a firearm.  In the alternative,
defendant requests that this court vacate his sentence of death
and his sentence of life imprisonment without the possibility of
parole, and remand the case for resentencing.  For the reasons
that follow, we reject each of defendant's assignments of error
and affirm the convictions for aggravated murder, the sentence of
death and the sentence of life imprisonment without the
possibility of parole.  
FACTS
Because the jury found defendant guilty of all the
crimes charged, we review the evidence in the light most
favorable to the state.  State v. Hale, 335 Or 612, 614, 75 P3d
448 (2003).
Although we discuss the events leading up to the
murders in greater detail below, the immediate facts surrounding
the murders can be summarized briefly.  At approximately 11:20
p.m. on February 24, 1998, defendant entered the Ambassador
Restaurant and Lounge on Sandy Boulevard in Northeast Portland
armed with a short-barreled shotgun.  There were approximately 20
people in the restaurant.  When defendant entered the restaurant,
he encountered Gilpin as she walked toward the restaurant's
entrance, and he shot her on the right side of her abdomen. 
Defendant then proceeded toward the back of the restaurant where
there was a room with pool tables.  Anderson was in that room. 
Defendant entered and shot Anderson in the left hip at close
range.  After she fell to the floor, defendant aimed the gun very
closely to Anderson's left cheek and fired, killing her. 
Defendant then left the pool room and walked toward the entrance
of the bar.  As he approached the entrance, he encountered 
Gilpin's body.  Defendant stopped, kicked the body and, although
it appeared that she already had died, defendant placed the gun
above Gilpin's left ear, and shot her again.  Defendant hesitated
before leaving the bar and made a gesture as if he intended to
return to the pool room.  He opted, however, to leave the bar
using the same door through which he had entered.
After defendant left the Ambassador, a witness
overheard him say to himself "I got to get me the fuck out of
here."  He then ran toward the back of the Ambassador's parking
lot and hopped over a fence.  As defendant ran, his gun again
discharged.  Approximately one block south of the Ambassador,
defendant hid the shotgun between a metal storage shed and stacks
of firewood that lined the fence to Clark's backyard.  Clark
discovered the gun approximately two months after the shootings.
A brief history of defendant's life and his
relationships with the victims is necessary to a complete 
understanding of the events of February 24, 1998, and to our
resolution of the issues that this opinion addresses.  We now
turn to that history and then to the circumstances surrounding
the events of February 24, 1998. 
Defendant was born in 1951 in San Francisco,
California.  Until shortly before the murders of Anderson and
Gilpin, defendant believed that his biological parents were
Lillian Fern Running (1) and Harry Walter Running.  In fact,
although their names were on his birth certificate, the Runnings
were not defendant's biological parents.  The couple had met a
young, pregnant woman, described as Spanish, named Ford who did
not want to keep her child.  They invited Ford to live with them,
and they supported Ford during the pregnancy.  When Ford gave
birth, the couple paid her a sum of money and took the child as
their own.  Later on in his life, because he looked different
from the rest of his family, defendant began to suspect that he
had been adopted and periodically would ask Harry Running whether
he was adopted.  Harry always responded that defendant was not
adopted.  
The Runnings were heavy drinkers, particularly Lillian
Running, and they periodically engaged in oral altercations. 
When defendant was 18 months old, Lillian Running left the
family.  She did not have any contact with defendant after he was
four years old. (2)  Harry's mother helped him care for
defendant before Harry married his second wife, Marion Running,
in 1960.  Marion also was a heavy drinker, and neither Harry's
mother nor Marion were loving toward defendant.  Harry often
would beat defendant with straps, sticks, cords, belts, coat
hangers, and by hand.  
Defendant became an alcoholic and a drug addict.  He
began drinking alcohol at the age of 11 and became a heavy, daily
drinker by the time of the shootings. (3)  Defendant also had
regularly used marijuana since the age of 13, LSD since the age
of 15, methamphetamine since high school, and had used cocaine
intravenously since the age of 20.  Defendant had experimented
with heroin, crack cocaine, PCP, Dexedrine, and pain pills.
Defendant met Anderson in 1996 and fell "madly in love"
with her. (4)  Though the date is unclear, the couple began
living together soon thereafter.  Anderson previously had been
involved in a 10-year romantic relationship with Gilpin and had
lived with Gilpin near Seaside.  Gilpin and Anderson had
maintained contact with each other after their relationship
ended, and it eventually appeared to defendant that Anderson
would end her relationship with defendant to return to her
previous relationship with Gilpin. 
Anderson was aware of defendant's concerns that he had
been adopted and had attempted to quell those fears by assuring
him that he probably had not been adopted.  She was with
defendant at Harry Running's home in February 1997 when, during a
heated discussion, Harry admitted to defendant, "You're damn
right, you are adopted."  Defendant was upset by the news and
later told Dr. Kirschner, a psychologist and defense witness,
that he "felt devastated, angry, enraged in two places at the
same time.  My DNA was scattered.  Scattered.  I was viewing
myself from another place.  Split.  Numb."
Defendant's relationship with Anderson began to
deteriorate shortly after defendant learned that he had been
adopted.  Defendant also began to drink more heavily and was
admitted to the Hooper Detoxification Center in Portland at least
five times between the time that he learned of the adoption and
the day of the shootings. (5)
On the day of the shootings, Anderson and defendant had
eaten lunch together, and had met each other later in the evening
when, after talking, drinking, and smoking, "ended up at the
Ambassador."  The time of the couple's arrival at the Ambassador
is unclear but, once there, they began to play pool.  The
bartender served defendant and Anderson each a drink.  Soon
thereafter, Anderson used the telephone for approximately 10 to
15 minutes.  A brief time after she returned to the pool room,
the bartender noticed defendant and Anderson quietly arguing with
each other.  After a few minutes, defendant left the pool room
and sat at the bar.  Defendant did not order a drink and, as
Foong, the bartender, testified, "just sat at the bar kind of
glaring" for about 10 minutes.  During that time, Anderson
remained in the pool room alone.  
At approximately 8:00 p.m., after sitting at the bar
for a few minutes, defendant left the Ambassador alone without
saying anything to Anderson.  Shortly after defendant left,
Anderson again used the pay telephone for about 20 minutes. 
After making that call, Anderson ordered another drink and began
looking through a book of karaoke songs.  Gilpin subsequently
joined Anderson at the bar at approximately 10:00 p.m., and she
ordered a drink for each of them.  After sitting at a table in
the bar area until about 10:45, Anderson and Gilpin ordered
dinner from a waitress and moved into the pool room to play pool. 
At about 11:15 p.m. Anderson returned to the bar and
ordered more drinks for herself and Gilpin.  Defendant returned
to the bar at about the same time, approached Anderson, and
stated "[c]ome outside right now, you fucking bitch.  I'm going
to kill you."  He then pulled an index finger across his throat. 
In response, Anderson rolled her eyes at the bartender and stated
to the waitress, "I don't like him very much anymore."  Defendant
then left the bar and Anderson returned to the pool room with the
drinks.  Almost as soon as Anderson returned to the pool room,
the bartender observed Gilpin walk into the bar area with a pool
cue and walk toward the front entrance.  At that point, defendant
re-entered the bar with the shotgun and, as described above,
killed both Gilpin and Anderson. 
After discarding the weapon, defendant returned to his
apartment.  The next morning, defendant's landlord saw defendant
leave his apartment with two large garbage bags.  At
approximately 10:00 a.m., defendant went to the "All That
Glitters" pawn shop in downtown Portland and sold the leather
jacket that he was wearing when he committed the murders.  Later,
at approximately 4:00 p.m., defendant saw a friend, Campbell, and
asked Campbell whether he could use Campbell's telephone because
he needed a "callback" telephone.  Defendant used Campbell's
telephone to contact someone from whom he could purchase heroin.
After using Campbell's telephone, defendant visited
with Inklebarger, whom he saw on two occasions after he had
committed the crimes.  On the first occasion, Inklebarger noticed
that defendant had cut his hair and was wearing glasses. 
Inklebarger testified, however, that defendant "hardly ever
[wore] glasses."  On the second occasion,  Inklebarger went to
purchase some beer for himself and defendant, when he noticed
defendant's picture in the newspaper associated with a story
regarding the murders of Anderson and Gilpin.  When Inklebarger
returned to his apartment, he told defendant that defendant
really had "screwed up," and defendant acknowledged as much by
stating that he had "really fucked up."  
Later that day, the two men also visited with
Inklebarger's neighbor, Shade, and defendant admitted to Shade
that he had shot Anderson and Gilpin.  Defendant also told Shade
that he had gotten scared and had thrown the shotgun away in some
bushes.  Defendant asked Shade what he thought defendant should
do, and Shade told him that, "the way [he] saw it, [defendant]
had three options.  He could get[] a lawyer and turn himself in,
or he could go on the run for the rest of his life, or [] he
[could] blow himself away."  Shade thought that defendant took
what he had said seriously, but that defendant did not
"particularly like[] the last [option]."  
While the men were at Shade's apartment, a news story
came on the television about the murders and, during the course
of the story, defendant's picture appeared on the television
screen.  Shade asked defendant what he had done during the hours
before the killings.  Defendant responded that he had tried to
contact someone with whom he could discuss how he was feeling and
who could talk him out of killing Anderson, but he had not been
able to "get a hold of anybody."
At approximately 7:30 p.m. that evening, a police
officer responded to the report of an assault victim at a
construction site on the corner of Southwest 15th Street and
Alder Street in Portland.  The victim had a severe cut on his
throat that looked as if it had been caused by a sharp
instrument.  Upon arrival at the hospital, the victim stated that
he wished that he had used the last shot in the shotgun on
himself instead of throwing it into the bushes.  And later, while
being prepared for surgery, the victim identified himself as
"Rick Jackson."  The victim, in fact, was defendant.
In the meantime, the police had begun investigating the
Anderson and Gilpin murders immediately after they occurred and,
in the early hours of the morning after the shootings, the police
contacted Anderson's mother.  She told the officers that her
daughter had been living with defendant, and she gave them his
address.  Later that day, the police obtained a warrant to search
defendant's apartment.  Once there, they seized many items,
including a book titled "Blue Book of Gun Values" and a box of
.12 gauge shotgun shells.  The police also found a bundle of
human hair in a wastebasket beneath the kitchen sink.
By conducting a trace on the murder weapon, the police
concluded that, at the time of the shootings, it belonged to
Gilpin.
PROCEDURAL HISTORY
Defendant eventually was arrested and charged with two
counts of aggravated murder and one count of being a felon in
possession of a firearm.
At trial, defendant contended that he lacked the
requisite mens rea -- intent -- to support the charge of
aggravated murder and that he was under the influence of an
extreme emotional disturbance at the time that he killed Anderson
and Gilpin.  Kirschner testified that, when defendant committed
the murders, he suffered from a disassociative disorder and was
in a disassociative state.  Defendant's disorder, Kirschner
explained, resulted from a "cumulative trauma of rejection" that
began when defendant was 18 months old when Lillian Running, the
woman defendant believed was his biological mother, left the
family.  Compounding the effect of that event, Kirschner
testified, defendant subsequently had negative experiences being
raised by Harry Running's mother and Marion Running.  Defendant
thus had lacked a nurturing and loving mother-figure and
Anderson, Kirschner opined, became for defendant the "symbiotic
partner/mother-figure" that he had been seeking since Lillian
Running left the family.  
Thus, Kirschner theorized, on the night of the
shootings, when defendant sensed that Anderson planned to leave
him to return to her previous relationship with Gilpin, that
caused defendant to experience "an acute catathymic crisis" (6)
which caused defendant to go into a disassociative state or, in
other words, to experience a "brief psychotic disorder."  "The
trigger mechanism," Kirschner explained, "invariably ha[d] to do
with rejection, abandonment."
Kirschner explained that disassociative disorder has
"various major symptoms," only one of which is necessary for a
person to be diagnosed with the disorder.  Kirschner theorized
that defendant likely suffered from disassociative amnesia which
occurs when "a person might do something and totally be fogged
out, amnesic for the event."  Kirschner also believed that
defendant had behaved consistently with two other major symptoms
of disassociative disorder:  identity confusion and identity
alteration. (7)  Kirschner supported his theory by quoting
statements that defendant made to the state's psychologist, Dr.
Hulteng.  For example, Kirschner noted that defendant told
Hulteng that, when he realized that Anderson planned to leave
him, he "felt all of this going to end.  I was actually madly
in love with this woman and did not dismiss the idea
that perhaps some day we could find happiness together
or that we could remain happy in a way for as long as
time would allow.  Yet, all of this seemed to be
suddenly destroyed."
Kirschner also theorized that defendant "was most probably in a
state of disinhibition and weakened ego controls * * * because of
self-medication for an underlying depression, via excessive drug
and/or alcohol abuse." (8)
The jury convicted defendant, as charged, of two counts
of aggravated murder and one count of being a felon in possession
of a firearm.  At the conclusion of the penalty phase of
defendant's trial, the jury determined that defendant should be
sentenced to death for the murder of Anderson and to life
imprisonment without the possibility of parole for the murder of
Gilpin.  The court sentenced defendant in accordance with the
jury's determinations. 
Defendant now raises 36 assignments of error.  After a
careful review of each of those assignments of error, we reject
each one.  Of those assignments of error, three merit specific
discussion.  We address those assignments below.
PRE-TRIAL ASSIGNMENT OF ERROR
In his fourth assignment of error, defendant argues
that the trial court erred when it granted a motion to quash
subpoenas duces tecum that defense counsel had issued to the
State Court Administrator, Click, and the Multnomah County Trial
Court Administrator, Bray.  The subpoenas required Click and Bray
to produce essentially all the information that their offices
possessed that was related to jury selection in Oregon. (9) 
Click and Bray, through counsel, filed a motion with
the trial court to quash the subpoenas.  That motion resisted the
subpoenas on four grounds:  (1) that "[t]he information sought
through the subpoenas duces tecum [was] not material and
favorable to the defense"; (2) that ORS 10.215 "preclude[d]
discovery of the jury lists"; (3) that "[s]ource, master and term
jury lists are not public records and no statutory or
constitutional provision requires disclosure of jury lists"; and
(4) that "[b]ecause [defendant was] unable to prove a
constitutionally significant underrepresentation of a racial or
minority group, producing the jury records [would be] of no value
to the defense."  (Emphasis in original.)  In oral arguments on
the motion before the trial court, counsel for Click and Bray
also stated that he had given defense counsel a copy of the disk
that the trial court administrator used to select juries.  He
argued that, "if [defense counsel] or the defense bar chose to do
so, they could purchase copies of the voter registration list as
well as the lists of registered voters in this state or within
this county and perform the same process that we have performed
to determine whether or not there's some violation of
[defendant]'s rights."  He also argued that no court had ruled
that using voter registration and Driver and Motor Vehicles
Services (DMV) lists to create jury lists (as Oregon does) was a
constitutionally defective method of selecting petit juries.
In response, defense counsel acknowledged that counsel
for Click and Bray was correct that she could obtain a list of
registered voters and lists of licensed drivers from DMV, and
that, using the disk, she "could generate [her] own master list
of jurors[.]"  However, defense counsel argued, the fact that she
could obtain access to those materials necessarily undermined the
state's argument that the jury information that the defense
sought was confidential.  To the contrary, defense counsel
argued, defendant's request for the jury information was akin to
seeking discovery.  She further disclaimed any reliance on Brady
v. Maryland, 373 US 83, 87, 83 S Ct 1194, 10 L Ed 2d 215 (1963),
which held that the suppression "of evidence favorable to an
accused upon request violates due process when the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution."  She argued:

"Essentially, we are asking for discovery,
discovery that is pertinent to a statutory provision
which allows the defendant to challenge the jury panel
on the ground that there has been a material departure
from the requirements of the law governing the
selection of juries; that we're entitled to discover
that information and evaluate that information and to
insure that Mr. Running is guaranteed a trial of
impartial jurors drawn from a fair cross-section of the
community."
Defense counsel indicated that the basis for her concern that the
jury would not represent a fair cross-section of the community
was that the proscription against persons with felony convictions
serving on juries could serve to exclude a disproportionate
number of racial and ethnic minorities.  
The trial court granted the motion to quash the
subpoenas duces tecum, explaining briefly in a letter opinion
that "there ha[d] been an inadequate showing by the defense that
the materials requested are either material and/or favorable to
the defense.  Nor has the defense shown that such material is
otherwise available by statute."  Beyond the request for the jury
lists via subpoena, defendant did not otherwise challenge the
composition of the jury by, for example, filing a motion
supported by information that he could have obtained on his
own. (10)
In this court, defendant argues that the trial court
erred for two reasons when it quashed the subpoenas.  First,
defendant asserts that the trial court erred because State ex rel
Click v. Brownhill, 331 Or 500, 15 P3d 990 (2000), decided after
the trial court ruled on the motion to quash, held that ORS
10.215(1) does not preclude "use" of information related to jury
selection records by a defendant in a criminal action. (11) 
Second, defendant asserts that the trial court erred when it
quashed the subpoenas on the ground that defendant had failed to
make a showing that the jury selection records were material and
favorable.  Rather, defendant argues, he is entitled to the jury
selection records pursuant to ORS 136.580, the statute governing
the issuance of subpoenas duces tecum. (12)  That statute
provides:

"(1) If books, papers or documents are required, a
direction to the following effect shall be added to the
form provided in ORS 136.575:  'And you are required,
also, to bring with you the following:  (describing
intelligibly the books, papers or documents required).
"(2) Upon the motion of the state or the
defendant, the court may direct that the books, papers
or documents described in the subpoena be produced
before the court prior to the trial or prior to the
time when the books, papers or documents are to be
offered in evidence and may, upon production, permit
the books, papers or documents to be inspected and
copied by the state or the defendant and the state's or
the defendant's attorneys."

Defendant asserts that, had he received the jury
selection records, he would have "use[d] the lists to determine
whether the jury panel selection procedure substantially complied
with all requirements of statutory and constitutional law." 
However, he argues, when the trial court quashed the subpoenas,
he "was unlawfully deprived of the means and opportunity to mount
a statutory and constitutional challenge to the composition of
the jury panel."  The practical import of defendant's argument is
that, because he did not obtain the jury selection records, he
was precluded from determining whether the jury selection for his
case complied with the requirements of law and, therefore, was
precluded from challenging the make-up of his jury.  Thus, in
light of Click and his interpretation of ORS 136.580, defendant
argues that this court should remand the case to the trial court
for a hearing on the issue, thereby permitting defendant to
advocate for and to potentially receive a new trial.  
For defendant to prevail on this assignment of error, 
we must conclude that defendant has either a statutory or a
constitutional right to obtain the jury selection records.  At
the outset, we note that defendant expressly disclaimed having a
constitutional right to obtain the jury selection records.  We
therefore need only decide whether defendant has established a
statutory right to obtain the jury selection records.  We begin
with a discussion of Click's applicability to this case.  
In that case, the relators (13) sought "a peremptory
writ of mandamus commanding the trial court to vacate an order
that require[d] [them] to provide certain jury lists to the
defendant in a pending criminal case."  Click, 331 Or at 502. 
The defendant had served the relators "with subpoenas duces tecum
requesting, among other things, a number of jury-related records,
including Clatsop County source lists, master lists, term lists,
and individual voir dire lists from 1990 to the date of the
subpoena."  Id.  The relators filed a motion to quash the
subpoenas based in part on their assertion that they "were
precluded from disclosing the jury lists under ORS 10.215(1)." 
Id.  The trial court denied the motion, but narrowed both the
scope of the materials to which the defendant would be allowed
access and the scope of the defendant's use of the materials. 
Id.
The relators then sought a writ of mandamus from this
court directing the trial court to grant their motion to quash
the subpoena.  Id.  This court addressed the issue "whether ORS
10.215(1), by implication, prohibits [the court administrators]
from providing th[e] lists to [the defendant]."  Id. at 502-03. 
The court, employing this court's statutory construction
methodology, concluded that it did not.  Id. at 508.
This court's conclusion was based primarily on four
observations:  (1) ORS 136.005(1) provided that both the district
attorney and a criminal defendant could challenge the jury panel
"on the ground that there has been a material departure from the
requirements of the law governing the selection of jurors[;]" (2)
the "requirements of the law governing selection of jurors" could
be found in ORS chapter 10; (3) ORCP 57 A also provided for a
challenge to the jury for "substantial failure to comply with the
applicable provisions of ORS chapter 10 in selecting the jury[;]"
and (4) ORCP 57 A also provided that "the [party challenging the
jury] is entitled to present in support of the motion:  * * * any
relevant records and papers not public or otherwise available
used by the clerk or court administrator[.]"  Id. at 506-08
(emphasis in original).  Based on those observations, the court
noted that ORCP 57 A(2) allowed a party in a civil case access to
the type of information that the defendant was seeking.  The
court noted further that it was "difficult to imagine that the
legislature intended to give civil litigants greater access to
records and papers than it gives criminal litigants."  Id. at
508.  The court thus concluded that "the legislature's intent
respecting use of jury lists for the purposes contemplated by
[the defendant] is clear:  Such a use is permissible."  Id.
From the foregoing, it is apparent that the question in
Click was not whether a defendant in a criminal case has either a
statutory or constitutional right to jury selection records.  As
noted, the question instead was whether the then-extant version
of ORS 10.215(1) impliedly, but absolutely, prohibited the
relators in that case from disclosing the jury selection records. 
Although the answer to that question was "no," stating the
negative did not announce the positive.  Because Click did not
establish any blanket rule giving criminal defendants a right to
obtain jury selection records from the court administrators'
offices, that case does not provide a basis for reversing the
trial court's decision.
Defendant, however, also argues that, in issuing the
subpoenas to Click and Bray, he was relying on ORS 136.580 as a
discovery statute.  He argues that he was entitled, therefore, to
obtain the jury selection records, via subpoena, just as he is
entitled to obtain discovery under the criminal discovery
statutes.  However, this court recently explained in State v.
Cartwright, 336 Or 408, 415-16, 85 P3d 305 (2004), that ORS
136.580 is not a discovery statute.  There, this court explained:

"There are two important points to be drawn from
the words of ORS 136.580(2).  First, subsection (2)
presupposes the existence of a subpoena duces tecum
issued in accordance with ORS 136.567 and ORS
136.580(1), i.e., one that properly summons documentary
materials to trial or to some other court proceeding
where they 'are to be offered in evidence.'  The
provision thus allows parties to ask for early
production of material that, in the ordinary course and
as a matter of right, will be available for evidentiary
use at the proceeding to which they already have been
subpoenaed.  Second, the trial court's decision to deny
or accede to a request for such early production under
ORS 136.580(2) is within the court's discretion:  The
statute states that 'the court may direct that the
books, papers or documents described in the subpoena'
be produced early. (Emphasis added.)
"* * * [D]efendant was attempting to use the
subpoena as a discovery device to command the early
production of the audiotapes, either to the court or to
himself. However, as we have explained, the statute on
which he relies does not appear to grant him such
authority and, absent such authority, the trial court
acted properly in quashing the subpoena."

We reaffirm our conclusion in Cartwright that ORS
136.580 does not allow a criminal defendant to use the subpoena
duces tecum as a discovery device.  It necessarily follows that
ORS 136.580 also does not provide defendant with a statutory
right to obtain the jury selection records that he sought here.  
The trial court did not err when it granted Click and
Bray's motion to quash defendant's subpoena duces tecum.
GUILT-PHASE ASSIGNMENT OF ERROR
In defendant's eighteenth assignment of error, he
argues that the trial court erred when, during the guilt phase,
it instructed the jury that the jury could consider the
affirmative defense of extreme emotional disturbance (EED) only
if the jury first concluded that defendant was not guilty of
committing aggravated murder.  The trial court instructed the
jury as follows:

"Now, the next instruction deals with the
affirmative defense of extreme emotional disturbance. 
Only if you find the defendant not guilty of Aggravated
Murder may you consider the defense of extreme
emotional disturbance, which is the defense which
applies only to the charge of Intentional Murder.
"An intentional homicide that would otherwise
constitute murder is reduced to Manslaughter in the
First Degree if, at the time of the homicide, the
defendant was under the influence of extreme emotional
disturbance."
Defendant acknowledges that this court previously has
ruled that the affirmative defense of extreme emotional
disturbance does not apply to aggravated murder as charged here. 
See State v. Moore, 324 Or 396, 411-13, 927 P2d 1073 (1996) (so
holding).  However, defendant argues specifically that,
"[a]lthough the defense of EED does not apply to the murder that
was charged as the aggravated murder, it does apply to the
intentional murder that the state would have to prove as an
aggravating circumstance to that murder."  He points further to
the evidence that he presented at trial about his state of mind
at the time of the murders and argues that, "if the jury believed
that defendant was acting under the influence of an extreme
emotional disturbance when he killed Jacqueline Anderson, then he
would be culpable for manslaughter, not murder."  And, therefore,
defendant argues, the "jury would have acquitted defendant of
both counts [of aggravated murder]."  In defendant's view, the
trial court's actions "deprived [him] of this plausible route to
acquittal."  As we understand defendant's argument, he posits
essentially that, because he committed the second murder while
under the influence of an extreme emotion disturbance, he should
have received the benefit of the affirmative defense provided in
ORS 163.115(1)(a).  In other words, the jury should have been
able to decide the merits of defendant's EED defense in
determining whether the state had proven all of the elements of
aggravated murder.  Although phrased differently, that argument
is almost identical in substance to the argument that the
defendant presented in Moore.  324 Or at 411-12.
When called upon to interpret a statute, this court
utilizes the paradigm set out in PGE v. Bureau of Labor and
Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).  As a part
of that paradigm, the court considers not only the wording of the
statute, but also the previous constructions that this court has
given that wording.  Ordinarily, this court treats such
constructions as authoritative.  That is, the familiar doctrine
of stare decisis is applicable to such circumstances.  Here,
defendant's arguments are the same as those advanced by the
defendant in Moore.  Thus, we already have considered and
rejected them in Moore.  Those arguments afford no occasion or
justification to consider modifying our decision in Moore.  Moore
controls here.
The trial court did not err by instructing the jury in
the manner that it did.
PENALTY-PHASE ASSIGNMENT OF ERROR
In defendant's thirty-sixth assignment of error, he
argues that the trial court erred when it ordered that he serve
his sentence of life imprisonment without the possibility of
parole consecutively to his death sentence.  Defendant
specifically "does not challenge the court's decision to impose
consecutive sentences."  We therefore assume, for the purposes of
this discussion, that the trial court properly ordered that the
sentences run consecutively.  Our inquiry therefore is limited to
whether the trial court properly ordered that defendant must
serve the life sentence consecutive to the death sentence.  
  Defendant argues that the trial court violated ORS
163.105(1)(b) by "deferring" defendant's life sentence.  That
statute provides that "[a] person sentenced to life imprisonment
without the possibility of release or parole under this section
shall not have that sentence suspended, deferred or commuted by
any judicial officer[.]"  The state argues that defendant relies
too heavily on the word "defer."  If defendant is correct, the
state argues, then any defendant the court sentences both to
death and to life without the possibility of parole is immune
from the death sentence.  The defendant, according to the state,
would be obliged first to serve the entire life sentence before
any other sentence could be executed.  Rather, the state
proposes, the purpose of ORS 163.105(1)(b) is to "preclude a
court from setting aside, staying or reducing the term of the
mandatory life sentence."  (Emphasis in original.)  Thus, the
state argues, when a sentencing court orders a defendant to serve
his life sentence without the possibility of parole consecutively
to his death sentence, the court is not deferring the sentence. 
Instead, "the term and full execution of that life sentence
remains unaffected by the consecutive-sentence order."  
This court has not interpreted ORS 163.105(1)(b)
previously and, in so doing, we apply the statutory
interpretation methodology set out in PGE, 307 Or at 610-12.  As
noted, ORS 163.105(1)(b) provides that "[a] person sentenced to
life imprisonment without the possibility of release or parole
under this section shall not have that sentence suspended,
deferred or commuted by any judicial officer[.]"  In determining
the legislative intent, we give words of common usage their
plain, natural, and ordinary meaning.  317 Or at 611.  The
dictionary defines "deferred" as "to postpone"; "delay"; "to put
off".  Webster's Third New Int'l Dictionary 591 (unabridged ed
1993).  The dictionary also states that "[d]efer indicates a
delaying or putting off till a later time, often in recognition
of developments that prevent proceeding[.]"  Id.
    We agree with the state that, when a trial court
imposes a life sentence without the possibility of parole to be
served consecutively to a death sentence, that does not mean that
the court has "postponed," "delayed," or "put off" the life
sentence in violation of ORS 163.105(1)(b).  Rather, the life
sentence remains currently in force.  It will be extinguished,
however, at the time that the state carries out a defendant's
death sentence.  
  We do not need to look further than the text and
context of ORS 163.105(1)(b) to conclude that the trial court did
not "defer" defendant's life sentence in violation of that
statute.  We therefore conclude that the trial court did not err
when it ordered defendant's life sentence without the possibility
of parole to be served consecutively to the death sentence. 
CONCLUSION
We have reviewed all defendant's assignments of error
and have concluded that none is well taken.  
The judgments of conviction, the sentence of death and
the sentence of life imprisonment without the possibility of
parole are affirmed.


1. Defendant's birth certificate lists his birth mother as
Lillian Fern Reese.  However, Lillian also went by her married
name, Lillian Running.
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2. In approximately 1995, Harry discovered that Lillian
Running had died when he read her obituary.
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3. Defendant experienced a five-year period of sobriety
during the 1980s while he was in his thirties.
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4. Stites, an ex-girlfriend of defendant's with whom
defendant had remained close, testified at trial that defendant
was obsessed with Anderson.
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5. Individuals admitted to the Hooper Center typically
arrive there because they were extremely intoxicated in a public
place and either concerned citizens or police officers pick them
up and take them there.  
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6. Kirschner's psychological evaluation, quoting a
textbook, defined "acute catathymic crisis" the following way:
"'[T]he acute catathymic process taps deeper sources of emotional
tension than situational acts or assaults brought on by specific
conditions, and is triggered by an overwhelming emotion attached
to an underlying emotional conflict.  Many times the perpetrator
of the assault cannot give a logical explanation for the act; and
in many, but not all cases, he only partially recalls it.'"
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7. In a psychological evaluation of defendant, Kirschner
explained that "[t]he major symptom of identity confusion is a
subjective feeling of uncertainty, puzzlement, or conflict about
one's identity.  That is often accompanied by a struggle as to
who one is, or an inner battle regarding identity."  (Emphasis
omitted.)  The evaluation explained further that "[t]he major
symptom of identity alternation, is defined as 'behaviors that
are the manifestations of the assumption of different identities,
such as referring to oneself by different names[,] being told by
others that he or she has been acting like a completely different
person[, and] severe mood change (especially if accompanied by
amnesia).'" (Emphasis omitted.)  That defendant often went by
false names led Kirschner to conclude that defendant possessed
the symptoms for identity alteration.
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8. We express no opinion whether Kirschner's testimony was
evidence that properly may be characterized as extreme emotional
disturbance evidence.
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9. For example, the subpoena required, among several other
things, production of 

"[a]ll records, including but not limited to
correspondence, e-mail, letters, office memorand[a],
Court Orders or memorand[a], minutes of meetings of
state court personnel or trial court personnel,
pertaining to * * * the establishment and
implementation of jury selection in the State of
Oregon, [and] policies and procedures for jury
selection, juror eligibility, juror qualification,
juror empanelment, [and] ascertaining felony or
misdemeanant status of prospective jurors[.]"
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10. Click and Bray's motion to quash the
subpoenas duces tecum explained:

"The procedures for selecting and summoning juries in
circuit court are set forth in ORS 10.205 to ORS
10.265.  The State Court Administrator has implemented
many of these procedures through the operation of data
processing programs.  The source lists are the [DMV]
files and the most recent electors [--defined by ORS
247.002 as 'individual[s] qualified to vote under
section 2, Article II, Oregon Constitution'--] of the
county.  After the lists are merged into a master jury
list, the term list (jury pool list) is prepared 'by
selecting a random starting point on the jury source
list, then selecting every nth name until the number of
jurors selected equals the number request[ed]' by the
judicial district.  The same random method is used in
selecting individual jury panel lists."
(Emphasis in original; internal citations and footnotes omitted.) 
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11. In his Memorandum of Additional Authorities, defendant
also argues that this court's decision in State v. Rogers, 334 Or
633, 55 P3d 488 (2002), supports his argument.  We do not agree. 
Even though the court addressed a similar issue in Rogers, ORS
10.215 had been amended by that time, and its text was different
from what it had been at the time of defendant's trial. 
Specifically, the legislature had amended ORS 10.215 "to provide
procedures for criminal defendants to obtain jury lists."  Id. at
636.  The analysis relating to ORS 10.215 in Rogers does not
apply here.
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12. Defendant also argues that the trial court's decision
to quash the subpoenas violated his state and federal
constitutional rights to compulsory process.  He acknowledges
that he did not raise that argument before the trial court, but
asserts that such a claim "is implied when a defendant attempts
to compel the production of evidence via a subpoena duces tecum
and that subpoena is quashed," an argument with which we
disagree.  Because, as defendant acknowledges, he did not
preserve that argument, and because we do not believe that it
reflects an error apparent on the face of the record, we decline
to address it.
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13. The relators were Click, the State Court Administrator,
and the Clatsop County Trial Court Administrator.  The case did
not identify the Clatsop County administrator by name.
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