No. 47	                     November 27, 2015	251

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                      STATE OF OREGON,
                      Respondent on Review,
                                v.
                      RANDY LEE GUZEK,
                       Appellant on Review.
                 (CC 87CR-0373-TM; SC S058677)

   On automatic and direct review of the judgment of con-
viction and sentences of death imposed by the Deschutes
County Circuit Court.*
    Argued and submitted March 9, 2015.
   Jeffrey E. Ellis, Portland, argued the cause and filed the
briefs for appellant on review. With him on the briefs was
Karen A. Steele, Salem.
   Timothy A. Sylwester, Assistant Attorney General,
Salem, argued the cause and filed the briefs for respondent
on review. With him on the briefs were Ellen F. Rosenblum,
Attorney General, Anna M. Joyce, Solicitor General, and
Michael J. Slauson, Gregory A. Rios, and Jona J. Maukonen,
Assistant Attorneys General.
  Stephen F. Deatherage, Bullivant Houser Bailey PC,
Portland, filed the brief for amicus curiae Douglas Houser.
   Before Walters, Presiding Justice, Brewer and Baldwin,
Justices, and Durham and Riggs, Senior Justices pro
tempore.**
    WALTERS, P. J.
    The sentences of death are affirmed.


______________
	**  Appeal from Deschutes County Circuit Court Thomas M. Mosgrove, Judge
(Judgment of Conviction); Jack A. Billings, Judge (Judgment of Sentencing).
	   **  Balmer, C.J., and Kistler, Linder, and Landau, JJ., did not participate in
the consideration or decision of this case.
252	                                                          State v. Guzek

    Case Summary: On automatic and direct review of the judgment of convic-
tion and sentences of death, defendant raised 87 assignments of error, including
challenges to the trial court’s order requiring him to wear a stun belt during
the penalty-phase trial and the trial court’s instructions to the jury on defen-
dant’s allocution. Held: (1) The trial court held a hearing to determine whether
to require a stun belt and, based on the facts and arguments presented, was not
required to allow defendant to present live testimony on the issue; (2) the trial
court sufficiently recorded its legal reasoning and factual findings; (3) there was
sufficient evidence of a defendant’s risk to support the requirement that he wear a
stun belt; and (4) an allocution is not a means of adducing evidence but is a means
of arguing from the evidence adduced that the jury should impose no more than
the minimum sentence.
    The judgment of conviction and sentences of death are affirmed.
Cite as 358 Or 251 (2015)	253

	          WALTERS, P. J.
	        Defendant was convicted of two counts of aggra-
vated murder in 1988. This court affirmed those convictions
in State v. Guzek, 310 Or 299, 797 P2d 1031 (1990) (Guzek I),
but has three times vacated defendant’s sentences of death
and remanded for new penalty-phase trials. See id.; State
v. Guzek, 322 Or 245, 906 P2d 272, 274 (1995) (Guzek II);
State v. Guzek, 336 Or 424, 86 P3d 1106 (2004) (Guzek III),
vac’d and rem’d, 546 US 517, 126 S Ct 1226, 163 L Ed 2d
1112 (2006) (Guzek IV), modified, 342 Or 345, 153 P3d 101
(2007) (Guzek V). This is an automatic and direct review of
the death sentences imposed on defendant after his fourth
penalty-phase trial, which occurred in 2010.
	        Defendant raises 87 assignments of error. Discussion
is merited for only 13 assignments of error, which fall into
two categories. First, defendant contends that the trial
court erred by requiring him to wear a stun belt during this
remanded penalty-phase trial. Second, defendant argues
that the trial court improperly instructed the jury on how to
consider his allocution. We summarily reject the remaining
assignments of error.1 For the reasons that follow, we affirm
defendant’s sentences of death.
                           I. BACKGROUND
	       This court previously described the facts of the
underlying offenses in Guzek I:
    	 “The facts surrounding this vicious crime can be stated
    briefly. Defendant, who was 18 years old at the time of the
    offense, had dated a high school acquaintance during the
    1986–87 school year. The high school acquaintance at the
    time lived with her uncle and aunt, Rod and Lois Houser, at
    Terrebonne, a rural community in Deschutes County. Rod
    Houser disapproved of defendant; Houser’s niece broke off

	1
       In February 2014, as part of this proceeding, defendant moved this court
to set aside his conviction for aggravated murder and remand his case for a new
guilt-phase trial. He based that motion on alleged errors in the guilt phase of the
original 1988 trial. That motion has remained pending. Defendant later included
those alleged errors as part of the 87 assignments of error raised in this direct
review proceeding. Those assignments of error do not fall within the two cate-
gories meriting discussion and are summarily rejected. After consideration, we
deny defendant’s motion to set aside his convictions for aggravated murder.
254	                                              State v. Guzek

  the relationship. The parting was not amicable; defendant
  resented both the niece and her uncle.
  	 “On Sunday, June 28, 1987, defendant met with two
  friends, Mark Wilson and Ross Cathey. The three men
  planned to burglarize a rural Deschutes County home
  where they believed a large amount of jewelry was kept.
  Defendant, who was the leader and planner in the group,
  instructed Cathey to cut the throat of their prospective vic-
  tim with a knife that defendant supplied. Cathey agreed.
  That plan failed, however, when there turned out to be too
  many lights and too many cars at the targeted residence
  when the conspirators arrived.
  	 “Thwarted, the three men started to drive back toward
  Redmond, the nearest town. They were continuing to look
  for a house to burglarize. Cathey suggested the Houser
  residence, which he and Wilson had remarked upon ear-
  lier that day as a possible target for a burglary. All three
  agreed on this alternate target.
  	 “The three returned to the home in Redmond that
  defendant shared with his father. There, defendant secured
  two guns (a .22 rifle and a .32 pistol) to be used in robbing
  the Housers. The three then departed for the Housers’. On
  the way, they stopped at a secluded spot and defendant test
  fired the rifle, showing Wilson how to clear the action of the
  weapon if it jammed. The journey resumed.
  	 “Somewhere during the drive it seems to have been set-
  tled that, if the Housers proved to be home when the three
  arrived, the couple would be killed. The Housers were at
  home. Defendant rang the doorbell and pounded on the
  door until Rod Houser finally answered it. A short, hos-
  tile discussion between defendant and Rod Houser ensued.
  Defendant then yelled “Do it!” to Wilson, who began fir-
  ing the .22 at Rod Houser. Rod Houser retreated into the
  house, where he was felled by a fatal fusillade from the .22.
  Defendant ran upstairs and shot Lois Houser three times
  with the .32 pistol, killing her.
  	 “The men then ransacked the Houser residence, tak-
  ing a great deal of personal property, including a ring
  that defendant pulled from Lois Houser’s finger after he
  had murdered her. The men took the property to Redmond
  and stored it in various locations through the help of defen-
  dant’s father.
Cite as 358 Or 251 (2015)	255

   	 “The Housers’ bodies were discovered two days after the
   murders. Suspicion came to center on defendant and Wilson,
   due to the enmity between defendant and the Housers.
   Eventually, police arrested defendant, Wilson, and Cathey.
   Wilson and Cathey confessed, implicating defendant. Both
   men testified against defendant at his trial. The state per-
   mitted each to plead guilty to a reduced charge in return
   for his testimony.”
Guzek I, 310 Or at 301-02 (footnote omitted). Based on those
facts, the jury found defendant guilty of two counts of aggra-
vated murder and sentenced him to death. Id. at 302.
	        On appeal from that 1988 conviction and sentence
of death, defendant “raise[d] only one challenge that could
be said to apply to the guilt phase of the proceedings in his
case: He should have been given plea agreement opportuni-
ties equal to those given to Mark Wilson.” Id. at 302. This
court rejected that argument and affirmed the two convic-
tions for aggravated murder. Id. at 302-04.
	       Defendant presented numerous challenges to the
penalty phase as well. This court rejected most of those
challenges but agreed with defendant’s argument that the
jury was not “given the full range of authority to consider
and act on mitigating evidence that the federal Constitution
requires.” Id. at 305 (citing State v. Wagner, 309 Or 5, 14-20,
786 P2d 93 (1990)). As a result, this court vacated the sen-
tences of death and remanded the case to the trial court to
retry the penalty phase. Id. at 305-06.
	        That second penalty-phase trial occurred in 1991.
The jury empaneled to hear the retrial reached the same
result as the original jury and sentenced defendant to death.
Guzek II, 322 Or at 250. During those proceedings, however,
the trial court erred by admitting victim-impact evidence
that was not relevant to any fact or proposition before the
jury under the then-applicable statutory scheme. Id. at 270.
After concluding that the error was not harmless, this court
vacated the sentences of the death and remanded the case
for another penalty-phase trial. Id. at 270-71.
	        The third penalty-phase trial occurred in 1997. That
jury also sentenced defendant to death. Guzek III, 336 Or at
426. On review of that sentence, “the state concede[d]—and
256	                                            State v. Guzek

[this court] agree[d]—that the trial court erred in failing to
instruct the jury on the ‘true-life’ sentencing option,” which
had been statutorily created after defendant’s initial trial. Id.
This court, therefore, vacated defendant’s third death sentence
and remanded the case for a fourth penalty-phase trial. Id.
	        After reaching that conclusion, this court explained
that, on remand, defendant could present alibi witnesses as
part of the penalty-phase proceeding whose testimony was
inconsistent with the alibi that he had presented during the
guilt phase. Id. at 457-63. The court based that decision, in
part, on a reading of the Eighth Amendment to the United
States Constitution. Id. The United States Supreme Court
granted the state’s petition for writ of certiorari and, after
hearing the case, held that the Eighth Amendment does not
preclude a state from limiting a defendant’s ability to intro-
duce innocence-related evidence during penalty-phase pro-
ceedings. Guzek IV, 546 US at 526.
	        The United States Supreme Court remanded the
case to this court, which then outlined the categories of alibi
evidence that defendant could present at his fourth penalty-
phase trial. Guzek V, 342 Or at 351-60. In July 2007, this court
remanded the case to the trial court for a fourth penalty-
phase trial. That penalty-phase trial was held in May and
June 2010. Like the juries in the prior three penalty-phase
trials, the jury in the fourth penalty-phase trial sentenced
defendant to death. That fourth penalty-phase trial is the
subject of the direct review now before us.
                       II. ANALYSIS
	        As noted above, the 13 assignments of error mer-
iting discussion in this case concern the use of a stun belt
during the penalty-phase trial and the jury instructions on
allocution. We begin with the 11 assignments of error con-
cerning the use of the stun belt.
A.  Use of a Stun Belt During Sentencing (Assignments of
    Error Nos. 2-12)
    1.  Background
	       In early 2008, not long after this court remanded
the case to the trial court, defendant attended a pretrial
Cite as 358 Or 251 (2015)	257

hearing to address, among other topics, his motion to assign
the case to a different judge. At that hearing, the trial court
required defendant to wear visible wrist and ankle shackles
attached to a chain around his waist. After that hearing, the
court granted defendant’s motion to assign a new judge and
appointed Judge Billings to preside over the fourth penalty-
phase trial.
	        On June 4, 2008, following Judge Billings’s appoint-
ment, defendant moved to be free from all restraints during
all court appearances, regardless of the nature of the
restraint and regardless of whether defendant was appear-
ing before the jury. Defendant argued that, before subjecting
him to any form of physical restraint, the court must hold
a hearing on whether he posed an immediate risk of dan-
ger, disruption, or escape. Defendant noted that the court
had not held such a hearing and had not made any such
findings. Defendant claimed that the shackles that he had
worn at the prior hearing were painful and distracting, lim-
ited his ability to write or otherwise communicate with his
attorneys, and, because of the media presence at the pretrial
hearings, risked tainting the potential jury pool.
	        On June 23, 2008, the trial court sent a letter to the
parties scheduling a hearing for July 31, 2008, to address
pending pretrial motions. However, the court indicated that,
during that hearing, it would not take up defendant’s motion
to be free from all restraints. Instead, the court explained
that, due to defendant’s prior convictions, there was no need
for a hearing:
   	 “It will not be necessary to conduct a hearing regarding
   the Defendant’s recent motion that he be ‘free of restraints’.
   It is inconceivable that this Court would consider releasing
   this Defendant of restraints during the time he is in court.
   Although many cases are cited in the Defendant’s memo-
   randum, none of them are apposite. Each of those prece-
   dents involve defendants who were not yet convicted of any-
   thing. They were presumed to be innocent of all charges.
   	 “In this case, the Defendant is convicted of Aggravated
   Murder, and has no right to be presumed innocent. His
   best outcome in this upcoming proceedings will be to spend
   9 more years in prison before he could be considered for
258	                                            State v. Guzek

   parole. Three separate juries have determined that he was
   eligible for the death penalty.
   	 “This Court will consider what steps may be taken to
   minimize the jurors’ exposure to the Defendant’s in-custody
   status. Neither evidence nor oral argument will be needed.”
Accordingly, the trial court entered an order denying defen-
dant’s motion to be free from all restraints.
	        About a week before the July 31, 2008, pretrial hear-
ing, defendant petitioned this court for a writ of mandamus,
seeking an order requiring the trial court to hold a hearing
on his motion to be free from all restraints. In the memoran-
dum supporting his petition to this court, defendant noted
that it was possible that his petition would become moot.
Defendant explained that the trial court had scheduled a
pretrial hearing for July 31 and that the state did not oppose
defendant’s request for a hearing on the issue of whether
defendant should be restrained.
	        As defendant anticipated, on July 31, 2008, before
this court took action on defendant’s mandamus petition,
the trial court held the scheduled pretrial hearing and con-
sidered defendant’s motion to be free from all restraints.
Introducing the issue, the court characterized the question
before it as “whether or not this defendant would be per-
mitted to be free in the courtroom of restraints during the
time that the court would be in session.” The court recog-
nized that it previously had denied that request and told
the parties that it had decided on the type of restraint that
it would require. The court explained that defendant would
be required to wear a stun belt, which is a device remotely
controlled by an officer in the courtroom that can incapac-
itate the person wearing the belt through a high-voltage
electrical charge. The court reasoned that it did not want
to impede defendant’s ability to counsel with his attorneys
and that, unlike the visible wrist and ankle shackles that
defendant had worn at the previous hearing, the stun belt
would be concealed and allow defendant to write and lean
over to communicate with counsel. The court disclosed
that it had spoken with representatives from the Oregon
Department of Corrections and the Deschutes County
Sheriff’s Office earlier that day and that those persons
Cite as 358 Or 251 (2015)	259

found the plan “acceptable.” The court also indicated that
officers in the courtroom would be allowed to carry side
arms and Tasers.
	         After outlining its security plan, the court asked
defendant for comment. Defendant began by arguing that
he was entitled to a hearing on whether restraints of any
type were necessary. Defendant referred to the court’s ear-
lier letter denying his motion to be free of restraints and
argued that the court had erred in its conclusion that the
right to be free of restraint did not apply after a defendant
had been convicted. In support of that argument, defendant
cited Deck v. Missouri, 544 US 622, 125 S Ct 2007, 161 L Ed
2d 953 (2005), in which the United States Supreme Court
recognized that the federal right to be free of unnecessary
restraints continues to apply even after guilt has been estab-
lished. The trial court responded by noting that, unlike the
defendant in Deck, who had worn shackles, defendant in
this case “would be clothed in such a way that the stun belt
would be under his clothing.”
	        Defendant then changed the focus of his argument,
asserting that he needed a hearing to establish the potential
prejudicial effects that would occur if he were required to
wear a stun belt. Defendant told the court that, if allowed to
present testimony on the issue, he would present two types
of testimony: (1) his own testimony about how he had been
affected when he was required to wear a stun belt during
his third penalty-phase trial and (2) testimony about the
prejudicial effects of a stun belt more generally—namely,
that stun belts can interfere with a defendant’s ability to
participate in his or her defense, can affect a defendant “psy-
chologically,” and can inhibit a defendant’s right to testify
because a defendant may be concerned about the stun belt
“going off” accidentally.
	        As to his own experience, defendant asserted that
he would testify that, at his earlier trial, he did not think
that he could get up to tap defense counsel on the shoul-
der or raise his hand to get counsel’s attention during the
proceedings. The court responded by asking, “Would [defen-
dant] be able to lean over to [co-counsel] Mr. Rader and
say, ‘Mr. Rader, would you let [defense counsel] Mr. Mallon
260	                                            State v. Guzek

know I have something to tell him,’ would that be possible?”
Defendant confirmed that “[i]t would be possible.” As to
the prejudicial effects of wearing a stun belt more gener-
ally, defendant asserted that he would call a medical doctor
who would testify that wearing a stun belt is “medically not
advisable” and could have an emotional and mental impact
that would interfere with a defendant’s concentration.
	        Defendant then returned to the subject of “why any
restraints are necessary at all” and argued that the court’s
refusal to hold an evidentiary hearing had denied the state
an opportunity to make the necessary record on that issue.
However, defendant summed up, “[W]e don’t care so much
about that.”
	       At that point, the state asked to be heard. The state
agreed with defendant that defendant should be able to com-
municate with his attorneys. However, the state contended,
defendant had been sentenced to death for capital murder
and presented a security risk. The state argued that
   “[defendant’s] guilt [has] not been overturned. [Defendant]
   has been convicted of two counts of capital murder; three
   times sentenced to death, and there are legitimate secu-
   rity issues for the Court, for myself, for the victims, for
   the witnesses, for everybody else. We’re in a pretty small
   courtroom.”
The state also informed the court that, as defendant had
noted, a stun belt had been used in the third penalty-phase
trial in 1997. The state took the position that no prejudice
had occurred and that a stun belt would be less restrictive
than the leg brace that had been used in the second penalty-
phase trial in 1991. The state argued that, when wearing
a stun belt in the current trial, defendant’s hands and feet
would be unrestrained and the jury would never see or know
about the stun belt unless defendant made an effort to show
it to them. In contrast, the state represented, the leg brace
used in 1991 had been “such a problem that we had to drape
the entire area for fear that perhaps the brace might click or
in some way * * * show that the defendant was in restraints.”
	        Defendant did not object to the state’s characteriza-
tion of the security risks that defendant posed or the com-
parative advantages and disadvantages of the two types of
Cite as 358 Or 251 (2015)	261

restraints that the court had ordered in the past. Defendant
did not argue that either type of restraint was preferable,
nor did he suggest that the court impose an entirely differ-
ent type of restraint.
	        After the July 31, 2008, hearing, the court entered
the following order affirming its denial of defendant’s
motion to be free of all restraints, requiring that defendant
wear a stun belt, and confirming the court’s understanding
that defendant’s hands would be free to communicate with
counsel:
   	 “THIS MATTER CAME BEFORE THE COURT for
   hearing on July 31, 2008, upon various pre-trial motions
   filed by Defendant, and other matters. * * * Each party
   having been given the right to be heard[.] * * * The court
   has received the objections to this Order presented by the
   defense and those objections are noted. However, [with one
   exception not relevant here], the Court is adhering to the
   determinations made in court on July 31, 2008.
       “USE OF RESTRAINTS IN THE COURTROOM.
   	 “Defendant has previously filed Motion No. 11, asking
   that he be free of restraints while in the courtroom. The
   Court has previously denied that motion, on June 23, 2008,
   and that ruling is affirmed. A letter which further reflects
   the Court’s opinion, dated June 23, 2008, is attached hereto
   as Exhibit A.
   	 “The Court advised counsel that after consultation with
   Captain Jenkins of the Deschutes County Sheriff’s Office,
   and with officials with the Department of Corrections, that
   it will be sufficient that the Defendant be restrained in the
   courtroom with the application of a stun belt. In addition,
   the Court has authorized that officers present in the court-
   room be armed with tasers and side arms, to the extent
   they deem necessary. It is understood that Defendant’s
   hands shall be free to communicate with counsel.”
	        After the trial court issued that order, defendant
filed a second mandamus petition with this court, seeking
an order requiring the trial court to hold an evidentiary
hearing “about stun belts in general, and in particular as
a stun belt would affect [defendant].” In his second petition
for mandamus, defendant explained why he had not offered
evidence in the trial court attempting to establish that he
262	                                                            State v. Guzek

presented no risk of danger, disruption, or escape justifying
restraint:
    “To perhaps state the obvious, [defendant] does not object
    to being restrained during trial, so long as the restraints
    are not visible to the jury, and so long as a stun belt is
    not used. Hypothetically, he may be entitled to a hearing
    on even this point, but he concedes that the nature of his
    conviction and the potential for a death sentence permit
    non-visible conventional shackles. Defense counsel told the
    court, ‘[the prosecutor] has to make a record of why any
    restraints are necessary at all, and you’re denying that as
    well, although we don’t care so much about that.’ ”
This court denied both of defendant’s mandamus petitions
in November 2008.
	        Thereafter, defendant filed two trial court motions
seeking an evidentiary hearing on the stun belt issue: one in
December 2009 and one at the end of April 2010, just days
before the start of trial, which began on May 5, 2010. The
trial court denied those motions respectively in March and
May 2010. Defendant also submitted three offers of proof.
Defendant filed the first offer of proof with the April 2010
motion and the other two offers of proof during trial. The
trial court took no action on those offers of proof.
	        On automatic review in this court, defendant argues
that the trial court’s rulings on the issue of restraints vio-
lated defendant’s state and federal constitutional rights—
namely, his rights under Article I, section 11, of the Oregon
Constitution2 and his rights under the Sixth and Fourteenth
Amendments to the United States Constitution.3 Defendant
argues that the trial court made both procedural and sub-
stantive errors by (1) failing to provide defendant with a suf-
ficient evidentiary hearing; (2) insufficiently documenting
	2
       Article I, section 11, of the Oregon Constitution, provides, “In all criminal
prosecutions, the accused shall have the right to * * * an impartial jury in the
county in which the offense shall have been committed; to be heard by himself
and counsel.”
	3
       The Sixth Amendment provides, “In all criminal prosecutions, the accused
shall enjoy the right * * * an impartial jury of the State and district wherein the
crime shall have been committed * * * and to have the Assistance of Counsel for
his defence [sic].” Section 1 of the Fourteenth Amendment contains the portion
relevant here, stating, “[N]or shall any State deprive any person of life, liberty, or
property, without due process of law.”
Cite as 358 Or 251 (2015)	263

its reasoning and factual findings; and (3) requiring that
defendant wear a stun belt during the trial. We address
each of defendant’s arguments in turn, beginning with his
arguments based on state law. See State v. Babson, 355 Or
383, 432-33, 326 P3d 559 (2014) (stating reasons for consid-
ering questions of state law first).
    2.  State law
        a.  Sufficiency of the hearing
	        As a matter of state law, “ ‘[t]his court long has rec-
ognized the right of a criminal defendant to appear free of
physical restraints during a jury trial.’ ” State v. Washington,
355 Or 612, 627, 330 P3d 596 (2014), cert den, 135 S Ct 685
(2014) (quoting State v. Bowen, 340 Or 487, 495, 135 P3d
272 (2006)). That right stems from an “ancient rule of the
common law,” State v. Smith, 11 Or 205, 208, 8 P 343 (1883),
that is now “grounded in Article I, section 11, of the Oregon
Constitution.” Washington, 355 Or at 628.
	        Nevertheless, we have not previously considered
whether that right against unnecessary restraint applies to
a penalty-phase proceeding, at which time guilt has been
established. We have, however, previously applied Article I,
section 11, to penalty-phase proceedings to protect other
trial rights. See, e.g., DeAngelo v. Schiedler, 306 Or 91,
94, 757 P2d 1355 (1988) (holding that, for the purposes of
Article I, section 11, a “criminal prosecution” includes “an
ordinary sentencing hearing”); see also State v. Rogers, 352
Or 510, 542-43, 288 P3d 544 (2012) (holding that the trial
court violated Article I, section 11, by impaneling an anon-
ymous penalty-phase jury without sufficient justification).
The state does not argue that the right against unnecessary
restraint applies only to guilt-phase proceedings, and we
conclude that Article I, section 11, of the Oregon Constitution
protects that right during both the guilt and penalty phases
of a criminal trial.
	        However, the right to appear free of physical
restraints before a jury is not absolute. A trial court may
require that a defendant be physically restrained in front
of the jury, but a trial court can do so only “[a]fter hear-
ing relevant evidence from the state and the defendant” on
264	                                            State v. Guzek

whether the defendant’s risk of danger, disruption, or escape
justify the restraint. Washington, 355 Or at 628. And “[s]uch
evidence should be placed on the record in a hearing for that
purpose.” Id. Defendant argues that the trial court failed to
meet that standard, because the court denied defendant’s
repeated requests for an evidentiary hearing during which
he could offer live testimony from witnesses not only about
whether he presented a security risk justifying some sort of
restraint but also about the appropriate type of restraint.
	         Defendant begins by arguing that the trial court
erred when, in its June 2008 letter, the court indicated that
there was no need for a hearing on defendant’s motion to be
“free of restraints,” stated the basis for its decision to impose
restraints, and denied defendant’s motion. The trial court’s
summary disposition of the matter is indeed troubling, and
defendant would have a fair point if the trial court’s June
2008 letter were its only ruling on that issue. However, on
July 31, 2008, the court held a pretrial hearing at which the
parties, in fact, had an opportunity to be heard on the ques-
tion of “whether or not this defendant would be allowed to
be free in the courtroom of restraints during the time that
the court would be in session.” At that hearing, the court
referred to its prior letter stating why it deemed defendant
to be a security risk and then outlined its plan to require
defendant to wear a stun belt, explaining that law enforce-
ment personnel assigned to the courtroom had found the
plan to be “acceptable.” The court then asked for comment
and, in effect, conducted a pretrial hearing on the dual
issues of whether defendant should be restrained and what
type of restraint was appropriate.
	        Defendant does not dispute that he had an opportu-
nity to be heard on those issues. The trial court held a hear-
ing on those issues on July 31, 2008. Instead, defendant con-
tends that the trial court’s hearing was insufficient to meet
constitutional requirements, because he was not afforded a
hearing at which he could call witnesses or present evidence.
	        As we explained in Washington, 355 Or at 628, a
trial court may impose restraints only “[a]fter hearing rel-
evant evidence” on a defendant’s risk of danger, disruption,
or escape. There are, however, various ways in which parties
Cite as 358 Or 251 (2015)	265

may present evidence to a court, and we have never held
that Article I, section 11, requires that a court allow parties
to present live witnesses in every case.4 Whether an eviden-
tiary hearing involving live testimony is required depends
on the particular circumstances of each case, including
the nature of the issues presented and the extent to which
the parties’ arguments rest on disputed facts that may be
informed by witness testimony. For instance, a court may
not be required to hear testimony in support of undisputed
facts, undisputed representations of counsel, or facts that,
even if true, would not change the trial court’s legal decision.
	        As a result, we review the trial court’s decision
denying defendant’s request for an evidentiary hearing
involving live testimony to determine whether live testi-
mony was needed to resolve factual disputes relevant to the
court’s decision to impose restraints. And we review that
decision based on the record that was before the trial court
at the time of the decision. See State v. Pitt, 352 Or 566, 575,
293 P3d 1002 (2012) (“[I]n the usual case, we will evaluate
a claim of pretrial error on the basis of the same record that
the trial court relied on in making the challenged ruling.”).
	       In this case, the trial court denied defendant’s
request for a live evidentiary hearing in July 2008 and
again in March and May 2010. In July 2008, on the issue
of whether defendant posed any security risk justifying
restraint, the trial court considered the uncontested facts
that defendant had been convicted of two counts of capital
murder and three times sentenced to death as well as the
	4
       Other courts have held that live testimony is not always required. See, e.g.,
State v. Wall, 252 Or App 435, 439, 287 P3d 1250 (2012), rev den, 353 Or 280
(2013) (“The information need not be presented in a formal adversarial proceed-
ing, but it must provide a basis for the trial court to make an independent assess-
ment of the risk.”); State v. Kessler, 57 Or App 469, 473, 645 P2d 1070 (1982) (“The
information utilized need not come in a formal adversary proceeding.”); People
v. Lomax, 49 Cal 4th 530, 561, 234 P3d 377, 404 (2010) (“[W]e have held that a
formal hearing is not required, so long as the court makes its own determination
about the need for restraints based on facts shown to it, and does not simply defer
to the recommendation of law enforcement.”); People v. Buchanan, 13 NY3d 1, 4,
912 NE2d 553, 555 (2009) (“A formal hearing may not be necessary, but the trial
court must conduct a sufficient inquiry to satisfy itself of the facts that warrant
the restraint.”); State v. Kunze, 2007 ND 143, ¶ 20, 738 NW2d 472, 478 (2007)
(“The district court is not required to conduct an evidentiary hearing in every
case.”).
266	                                           State v. Guzek

state’s representations that defendant had been restrained
for security purposes in at least two prior trials, that the
courtroom was small, and that the trial presented legitimate
security issues for the court, the prosecutor, the victims, and
the witnesses. Defendant did not counter those facts or rep-
resentations or offer to prove additional facts, such as facts
indicating that—even if he had been dangerous at the time
of the murders or the previous trials—he was no longer a
danger. Rather than asserting that a live evidentiary hear-
ing was required to demonstrate that he did not present
a security risk, defendant argued only that the state had
failed to justify the use of restraints, adding that “we don’t
care so much about that.” Thus, the parties’ arguments did
not rest on disputed facts, and the trial court did not err by
deciding that there was no need for a live evidentiary hear-
ing on the issue of whether to impose restraints.
	        The trial court also did not err by denying defen-
dant a live evidentiary hearing on the type of restraints to
impose. The court was aware that defendant previously had
been required to wear both shackles and a stun belt. In his
June 2008 motion to be free of all restraints, defendant had
taken the position that the shackles he had been required to
wear at a pretrial hearing had caused him pain and inter-
fered with his ability to confer with counsel. The state rep-
resented that defendant had worn a stun belt during a pre-
vious trial without evident prejudice and that a stun belt
was preferable to leg shackles when measured by its effect
on communications with defense counsel and the risk of jury
exposure.
	        Defendant did not directly respond to the state’s
representations. Instead, he took the position that stun belts
are generally prejudicial because they make defendants
fearful and limit their ability to communicate with coun-
sel. Defendant also asserted that, during the 1997 penalty-
phase trial when he had worn a stun belt, he had felt limited
in his ability to get counsel’s attention during trial court
proceedings.
	       The record indicates that, although the trial court
decided to require defendant to wear a stun belt, the court
considered and credited the facts that defendant presented
Cite as 358 Or 251 (2015)	267

about the risks that stun belts pose. For instance, with
respect to defendant’s specific concerns about communicat-
ing with counsel, the court obtained defendant’s assurance
that, even while wearing the stun belt, he could get the
attention of co-counsel sitting next to him, who could get
the attention of lead counsel during the trial proceedings.
Although the court did not specifically address the evidence
that defendant claimed that he could proffer on the psycho-
logical effects of a stun belt, neither the state nor the court
suggested disagreement with that evidence or indicated
doubts about its veracity. Instead, the court acknowledged
the facts that defendant said he would adduce through live
witnesses. Although the court did not find those facts per-
suasive, it did not err in making its decision without hearing
directly from the witnesses that defendant proffered.
	        Defendant’s further contention that he was enti-
tled to question the law enforcement personnel with whom
the court had spoken is also without merit. Although those
communications had occurred off the record, the trial court
placed them on the record at the July 2008 hearing and indi-
cated that law enforcement personnel had found his plan to
use a stun belt to be an acceptable form of restraint.5 At that
time, defendant expressed no need or desire to examine the
law enforcement personnel and gave the trial court no rea-
son to believe that their communications raised a contested

	5
       Defendant also argues that, in deciding to impose restraints and in decid-
ing what types of restraints to require, the court delegated its authority to law
enforcement personnel or relied on an erroneous legal conclusion—namely, that
a defendant has no right to be unrestrained during a penalty-phase trial. We dis-
agree. The record indicates that the court made its own decision to require a stun
belt and based that decision on its consideration of the facts as well as the law.
	    Defendant notes that, at a hearing on August 3, 2009, more than a year after
the court made its decision to require a stun belt, a question arose about whether
the stun belt requirement would again be discussed. The trial court stated, “I’ve
taken the position everywhere I’ve ever sat that the conditions requested by the
agency that is holding the defendant are what I’m going to do. And I think it’s
going to be—he’s going to be turned over to Deschutes County, and that’s what
they said they wanted, so that’s what I said they were going to get.” That state-
ment does not change the fact that the trial court held a hearing in July 2008,
considered the parties’ arguments and evidence at that hearing, and identified
on the record at that time the role that law enforcement personnel played. As a
result, the trial court’s August 2009 statement does not indicate that the court
failed to exercise its discretion in July 2008 or failed to consider the arguments
and evidence of the parties.
268	                                                          State v. Guzek

issue of fact.6 The trial court did not err in denying defen-
dant’s request for a live evidentiary hearing in July 2008.
	        Nor did the trial court err in denying defendant’s
motions for a live evidentiary hearing in March and May
2010. In making those later motions, defendant did not pres-
ent new reasons for requesting the presence of live witnesses;
instead, defendant reasserted his previous arguments and
more fully developed the factual record that he had summa-
rized in his argument to the court at the July 2008 hear-
ing. Defendant’s motions, in effect, sought reconsideration
of the court’s July 2008 order. In determining whether to
reconsider its earlier rulings, a trial court has broad discre-
tion, and defendant does not persuade us that the trial court
abused its discretion in denying reconsideration in this case.
See State v. Herrin, 323 Or 188, 197, 915 P2d 953 (1996)
(concluding that a trial court did not abuse its discretion by
refusing to reconsider prior evidentiary ruling based on a
new legal argument); see also State v. Rogers, 330 Or 282,
300-01, 4 P3d 1261 (2000) (stating that a trial court “gen-
erally possesses broad discretion to control the proceedings
before it,” including the “discretion to ensure that the trial
is orderly and expeditious”).
           b.  Sufficiency of the trial court’s findings
	        Defendant next argues that the trial court failed
to make a sufficient record. Previously we have held that a
trial court must “make a record of its factual findings and
reasoning in support of its order” requiring a defendant to
wear a stun belt. Washington, 355 Or at 628. The purpose
of those findings is to facilitate appellate review. Id. That
	6
        Defendant eventually asked to examine the law enforcement personnel, but
that request came too late. The trial court had made its decision to require a stun
belt and not to take live testimony on that issue in July 2008. Defendant did not
ask to examine the law enforcement personnel until December 2009, nearly a
year and half after the communications at issue.
	    In his reply brief, defendant argues extensively that the trial court’s commu-
nications with law enforcement personnel constituted improper ex parte commu-
nications justifying reversal. To the extent that those arguments are separate
from defendant’s arguments on his procedural rights to a hearing, defendant
failed to preserve them. See ORAP 5.45(6) (“Each assignment of error shall be
followed by the argument.”); see also Strawn v. Farmers Ins. Co., 350 Or 336,
369 n 23, 258 P3d 1199, adh’d to on recons, 350 Or 521, 256 P3d 100 (2011) (“[A]
dvancing such a new and different argument for the first time in a reply brief is
not the proper way to preserve an argument in the Court of Appeals.”).
Cite as 358 Or 251 (2015)	269

review is better facilitated by a record of findings that is
direct, express, and clearly delineated. See, e.g., id. at 629-
30 (describing a trial court’s extensive findings on need for
restraint). Nevertheless, the standard for determining error
in the sufficiency of the judicial record is a functional one—
namely, whether the record reveals the findings and rea-
soning for the court’s actions. See, e.g., McCarthy v. Oregon
Freeze Dry, Inc., 327 Or 185, 187, 957 P2d 1200 (1998) (in
the context of a trial court’s discretion to award attorney
fees, stating that “the requirement of explanatory findings
stems * * * from prudential and practical considerations
that undergird the interests of the parties and the court in
meaningful appellate review”).
	        Here, the court’s factual findings and reasoning are
apparent from the record. In its June 2008 letter, the trial
court found that defendant presented a security risk, and,
at the July 2008 hearing, the trial court reaffirmed that
finding and outlined its plan to have defendant wear a stun
belt to address that risk. As part of its reasoning, the court
stated that, unlike the shackles that defendant had worn at
a previous hearing, the stun belt would be positioned under
defendant’s clothes and would not be visible to the jury or
the media. The court also reasoned, and defendant con-
firmed, that defendant would be able to communicate with
lead counsel because he would be sitting beside co-counsel
who could get the attention of lead counsel if needed and
because defendant also could write and take notes to share
with both counsel. The court was not persuaded that defen-
dant’s objections about the generalized risk of accidental
activation and the fear that that risk could engender jus-
tified prohibiting use of the stun belt.7 Those findings and
that reasoning are sufficient to permit appellate review of
the trial court’s decisions.
           c.  Sufficiency of facts supporting the order
	       Defendant next argues that, even if the trial court
complied with the procedural requirements that it hold a
hearing, make factual findings, and explain its reasoning,
	7
       Defendant did not argue that the officer operating the stun belt was unqual-
ified to do so or that there was a substantial risk that the stun belt itself would
malfunction.
270	                                           State v. Guzek

those findings and that reasoning were substantively insuffi-
cient to justify the court’s order that defendant be restrained
and be required to wear a stun belt. First, defendant asserts
that the record lacks evidence that he posed a substantial
risk of danger, disruption, or escape. Defendant is incorrect.
The trial court reasonably inferred a risk of danger, disrup-
tion, or escape from the conduct that resulted in defendant’s
convictions for aggravated murder and the state’s representa-
tions about the size of the courtroom and the concerns of trial
participants. Defendant presented no argument or evidence
to the trial court to refute the existence of that risk. In his
second petition for mandamus to this court, defendant con-
ceded “that the nature of his conviction and the potential for
a death sentence permit non-visible conventional shackles.”
	        Defendant’s second assertion is that there was
insufficient evidence of danger to require that he be sub-
jected to a particular type of restraint—a stun belt. Whether
a particular type of restraint is justified depends on the risk
of prejudice that the restraint presents and the risk of dan-
ger, disruption, or escape that the defendant poses. Evidence
that justifies one type of restraint may not justify another
type of restraint, particularly if those restraints present a
markedly different risk of prejudice. A decision about which
type of restraint to impose requires an exercise of discretion,
and, to appropriately exercise its discretion, a court may be
required to weigh the available alternatives presented by
the parties. The trial court’s choice of restraints must be
supported by evidence in the record. Washington, 355 Or at
628-29.
	         In this case, there was evidence that each of the
potential restraints that the trial court considered posed a
risk of prejudice. Defendant presented evidence that a stun
belt carries risks of psychological prejudice; both parties
also presented evidence of the risk of prejudice that shack-
les pose. The state presented evidence that it had been dif-
ficult to ensure that leg shackles would not be visible, and
defendant presented evidence that shackles were painful
and had inhibited his ability to confer with counsel. There
was also evidence that the use of a stun belt would elimi-
nate some of those risks because it would be more easily con-
cealed and would permit defendant to confer with counsel.
Cite as 358 Or 251 (2015)	271

The trial court weighed the relative prejudice of each type of
restraint, and we cannot say that the evidence was insuffi-
cient to justify the trial court’s decision.8
	        Based on the foregoing, we affirm the trial court’s
exercise of discretion ordering defendant to wear a stun belt
during the penalty-phase trial under Article 1, section 11, of
the Oregon Constitution.9
      3.  Federal law
	        Defendant’s arguments under federal law substan-
tially overlap with his arguments under state law. Defendant
argues that, under the United States Supreme Court deci-
sion Deck, he was entitled to an evidentiary hearing with
the opportunity to call witnesses on the need for restraints
and that the state did not meet its burden to prove the need
for restraints.
	In Deck, the trial court had required that the defen-
dant wear visible shackles during his penalty-phase trial.
On review, the Supreme Court, like this court, recognized
that the rule prohibiting routine shackling “has deep roots

	8
       Our conclusion is based on the specific facts and arguments presented to
the trial court in this case. We do not intend, in this case, to define the boundaries
of a trial court’s discretion to require a stun belt or hold that a court would be
justified to require a stun belt in all cases in which a defendant was convicted of
aggravated murder. The risk of prejudice posed by the use of a stun belt is not
trivial and must be considered on an individualized basis. For example, in United
States v. Durham, 287 F3d 1297 (11th Cir 2002), a federal court of appeals found
error with a trial court’s decision to require a stun belt where the record estab-
lished that “most stun belt models were designed to administer from 50,000-
70,000 volts of electricity sustained over an eight-second period” and that such a
charge may cause “the recipient to lose control of his limbs, to fall to the ground,
and often to defecate or urinate upon himself’.” Id. at 1301. On remand, the trial
court made express findings putting those facts in context, explaining that “the
wearer is immobilized without any electrical effect upon his heart or internal
organs” and that “[n]umerous tests have shown that a stun belt does not cause
either short-term or long-term injury to the wearer.” United States v. Durham,
219 F Supp 2d 1234, 1238 (ND Fla 2002). Despite that more favorable record,
the trial court still made individualized findings on prejudice, noting that “[t]he
Marshal’s Service has reviewed the defendant’s medical records and determined
that the stun belt does not pose any health risk to him.” Id. at 1238-39.
	9
       After oral argument, the state filed a motion to strike parts of defendant’s
reply brief that included a factual record developed after the trial court’s relevant
rulings. Defendant offered that record to refute the state’s contention that any
error with regard to the stun belt was harmless error. Because we reject defen-
dant’s argument that there was error, we do not reach the question of harmless
error. As a result, we deny the state’s motion as moot.
272	                                              State v. Guzek

in the common law.” Deck, 544 US at 626. The Court iden-
tified three interests protected by that rule: the jury’s fact-
finding function; the defendant’s right to participate in his
or her own defense; and the dignity of the judicial process.
Id. at 631. Because of the importance and longstanding
nature of that rule, the Supreme Court declared that the
right to remain free of physical restraints that are visible to
the jury is a right that is “a basic element of the ‘due process
of law’ protected by the Federal Constitution.” Id.
	        The Court explained, however, that that right is not
absolute. A trial court may, in the exercise of its discretion,
require restraints when they are justified by a state interest
specific to a particular trial:
   “[T]he Fifth and Fourteenth Amendments prohibit the
   use of physical restraints visible to the jury absent a trial
   court determination, in the exercise of its discretion, that
   they are justified by a state interest specific to a partic-
   ular trial. Such a determination may of course take into
   account the factors that courts have traditionally relied
   on in gauging potential security problems and the risk of
   escape at trial.”

Id. at 622.
	        The problem that the Supreme Court identified in
reviewing the trial court’s decision in Deck was that the trial
court had determined, based solely on the jury’s finding that
the defendant was guilty of the charged crime, that defen-
dant no longer had a right against unnecessary restraints.
Id. at 634. Because the trial court had based its ruling on a
misunderstanding of the law and not on an exercise of dis-
cretion, the Supreme Court reversed the jury’s imposition of
the death sentence. Id.
	        In this case, defendant argues that Deck entitles
him to call witnesses on the issue of whether the trial court
may impose restraints. Defendant also contends that, like
the trial court in Deck, the trial court in this case commit-
ted reversible error when it decided that defendant must be
restrained based solely on the fact that the jury had con-
victed him of the charged crime.
Cite as 358 Or 251 (2015)	273

	        Deck does not require reversal in this case. First,
Deck does not address the type of hearing that a court must
conduct before ordering restraints. In Deck, the error that
the Court identified was the trial court’s failure to exercise
its discretion, not its failure to hold a formal evidentiary
hearing. Id. Second, in this case, the trial court exercised
the discretion that was missing in Deck. The trial court did
not decide that defendant had no right against unnecessary
restraint. Rather, the court determined that safety concerns
permitted it to impose nonvisible restraints. Consistent
with our holding applying state law, we conclude that the
trial court in this case operated within its discretion under
federal law when it ordered defendant to wear a stun belt
during the penalty-phase trial.10
B.  Jury Instructions on Allocution (Assignments of Error
    Nos. 14-15)
      1.  Background
	        Defendant also assigns error to the instructions
that the trial court gave to the jury regarding defendant’s
allocution. An allocution is a defendant’s opportunity to be
heard after the defendant has been found guilty but before
the penalty is determined. Rogers, 330 Or at 296. In this
case, defendant presented an allocution, but, he contends,
the trial court erred in instructing the jury about its effect.
Defendant argues that the trial court erred both by refus-
ing to give defendant’s proposed preliminary instruction
on allocution and by giving the state’s instructions on allo-
cution at the conclusion of the trial. Both of those errors,
defendant asserts, precluded the jury from considering the
allocution in determining defendant’s sentence. The state
responds that defendant mischaracterizes the trial court’s
instructions as a whole and that the court was correct in

	10
        Defendant’s Assignments of Error Nos. 2 to 12 all relate to use of the stun
belt at trial. Assignments of Error Nos. 2 to 6 are resolved above. Assignments
of Error Nos. 7 to 12 are premised on defendant’s claim that use of the stun
belt was unjustified. Because we reject that argument, we also reject defendant’s
Assignments of Error Nos. 7 to 12.
	   In Assignment of Error No. 13, defendant argues that use of a stun belt vio-
lated the federal Supremacy Clause, Article VI, clause 2, of the United States
Constitution, because use of the stun belt violates international treaties signed
by the federal government. We summarily reject that argument.
274	                                               State v. Guzek

refusing to give defendant’s preliminary instruction and in
giving the state’s proposed final instructions. For the rea-
sons that follow, we agree with the state.
	       Shortly before the remanded penalty-phase trial,
defendant proposed that the trial court give the jury a pre-
liminary instruction that stated:
   “Your duty is to decide the facts from the evidence. You,
   and you alone, are the judges of the facts. You will hear the
   evidence, decide the facts, and then apply those facts to the
   law I give you. That is how you will reach your verdict. * * *
   “The material you are to consider in this case consists of
   testimony of the witnesses, exhibits received in evidence,
   mitigating data and the defendant’s allocution. Exhibits
   are physical things such as letters, photographs, charts, or
   physical objects. You will be able to examine the exhibits
   while you deliberate. You may draw any reasonable infer-
   ences from the evidence, but you must not engage in guess
   work.”
(Emphasis added.) The trial court gave a modified version
of that instruction that deleted a reference to defendant’s
allocution. At the state’s request, the trial court instead
instructed the jury: “The evidence you are to consider in this
case consists of testimony of witnesses * * * and exhibits that
are received in evidence.” (Emphasis added.)
	        In deciding to give that modified instruction, the
trial court not only rejected defendant’s request that it
instruct the jury that it was entitled to consider defendant’s
allocution, but it also rejected a separate request from the
state to inform the jury that a defendant’s allocution is an
unsworn statement and is not evidence. In objecting to
the state’s request, defendant conceded that, as a “hyper-
technical matter[,] the [proposed instruction] is correct that
an allocution is not evidence.” But, nevertheless, defendant
argued that the state’s instruction would tend to confuse the
jury. The trial court responded by eliminating all references
to allocution in the preliminary instructions.
	       Following the preliminary jury instructions, the
parties presented their respective cases to the jury. Then,
before defendant’s allocution and the parties’ closing argu-
ments, the trial court heard arguments from the parties on
Cite as 358 Or 251 (2015)	275

the final jury instructions. The parties again disagreed over
how to characterize the allocution. The state renewed its
request to instruct the jury that the allocution is unsworn
and is not evidence. This time, over defendant’s objection,
the trial court agreed with the state. The trial court’s final
jury instructions informed the jury that defendant’s allocu-
tion was not evidence but could be considered in reaching
the verdict:
   “As a defendant, Mr. Guzek has a right to make an unsworn
   statement. It is not evidence but it may be considered by you
   in answering the questions on the verdict forms. Neither
   party may comment on the Defendant’s allocution.”
(Emphasis added.)
	       With respect to the fourth question that appeared
on the verdict form, required by ORS 163.150(1)(b), the trial
court also instructed the jury to base its decision on the
evidence:
   “The fourth question in this verdict is ‘shall a death sen-
   tence be imposed?’ The burden of proof beyond a reasonable
   doubt does not apply to this question. Regarding this ques-
   tion, neither side bears any burden of proof. This question
   calls for a discretionary determination to be made by each
   of you based on the evidence. * * *
   “Any one of you has the power and discretion to choose life
   imprisonment with the possibility of parole or release as
   the appropriate sentence. You must answer this question
   ‘no’ if, after considering any mitigating evidence concerning
   any aspect of the Defendant’s character or background or
   any circumstance of the offense and any impact evidence
   relating to the personal characteristics of the victims or the
   impact of the crime on the victim’s family, one or more of
   you believe that the Defendant should not receive a death
   sentence.”
(Emphasis added.) The trial court gave similar instructions
with regard to both counts of aggravated murder.
	        Immediately following the final jury instructions,
defendant read his allocution, which expressed his regret
over the loss suffered by the family of the victims and sym-
pathized with the family for the fact that they were partic-
ipating in a fourth penalty-phase trial. Although defendant
276	                                                        State v. Guzek

stated that he was “truly sorry for all the unnecessary pain”
that he caused and that he “failed Rod and Lois Houser and
the Houser family,” he did not address the crime itself or
his role in the crime. When directing his comments to the
jury, defendant blamed himself for his “failures” and left the
choice of life or death to the jury:
   “And it is for that reason that I’m not standing before you,
   at this moment, asking for you to spare my life, nor am I
   asking you to sentence me to death. You’ve heard a tremen-
   dous amount of evidence in this case, and I will respect
   whatever decision you either individually and/or collec-
   tively agree upon.”
	        After defendant’s allocution, counsel presented their
closing arguments and the jury deliberated. Ultimately, the
jury returned a verdict sentencing defendant to death.
       2.  Defendant’s requested preliminary instruction
	         Defendant asserts that the trial court erred by
refusing to give his proffered preliminary instruction
informing the jury that it could “consider” his allocution.11
But defendant fails to address the fact that the trial court
gave precisely that instruction at the close of the evidence.
There is no error in refusing to give a proffered instruction
“if the substance of the proffered instruction, even if correct,
was covered fully by the trial court’s other instructions.”
State v. Barnes, 329 Or 327, 334, 986 P2d 1160 (1999); see
also United States v. Whittemore, 776 F3d 1074, 1078 (9th
Cir 2015) (stating that failing to give a proffered instruc-
tion is error only when the defendant can show, among
other things, “that the given instructions did not adequately
encompass his theory”).
	        In this case, the trial court covered the substance
of defendant’s proffered instruction in its final jury instruc-
tions when it informed the jury that defendant’s allocution
“is not evidence but it may be considered by you in answer-
ing the questions on the verdict forms.” Because the sub-
stance of defendant’s proffered instruction was fully covered

	11
     Defendant’s proposed instruction also referred to “mitigation data.”
However, defendant does not explain what that term refers to or how it should be
understood as separate from the “evidence,” as defined by the instructions.
Cite as 358 Or 251 (2015)	277

by the trial court’s later instructions, the trial court did not
err by refusing to give defendant’s proffered preliminary
instruction.
    3.  Final instructions
	       Defendant further argues that the trial court vio-
lated Article I, section 11, of the Oregon Constitution and the
Eighth and Fourteenth Amendments to the United States
Constitution by giving the jury incorrect final instructions.
We again begin with defendant’s arguments under state
law. Babson, 355 Or at 432-33.
        a.  State law
	        Based on a request by the state, and over defendant’s
objection, the trial court instructed the jury that defendant’s
allocution was unsworn and not evidence but that it never-
theless could be considered when answering the questions on
the verdict form. Defendant does not argue that the allocu-
tion was sworn or was evidence. Instead, defendant argues
that the trial court erred by instructing the jury that the
allocution is not evidence and then instructing the jury that
its answers to the fourth verdict question must be “based on
the evidence” given and “after considering any mitigating
evidence.” According to defendant, those instructions, read
together, erroneously precluded the jury from considering
defendant’s allocution.
	        The accuracy of the trial court’s instructions is a
question of law. State v. Moore, 324 Or 396, 427, 927 P2d
1073 (1996). We review the instructions as a whole in deter-
mining whether a trial court erred by giving a particular
instruction and whether the instruction accurately stated
the law. State v. Serrano, 355 Or 172, 187, 324 P3d 1274
(2014), cert den, ___ US ___, 135 S Ct 2861 ___ L Ed 2d ___
(2015).
	        Assessing the accuracy of the trial court’s instruc-
tions requires us to determine whether a jury can both base
its decision to impose the death penalty on the evidence
and still consider, and give effect to, a defendant’s allocu-
tion, which is not evidence. Thus, we must assess the pur-
pose that the right of allocution serves. Article I, section 11,
of the Oregon Constitution states that, “[i]n all criminal
278	                                           State v. Guzek

prosecutions, the accused shall have the right * * * to be
heard by himself.” That provision “encompasses the right
of all criminal defendants to allocution, which ‘refers to a
convicted defendant’s opportunity to speak before sentenc-
ing[.]’ ” Rogers, 330 Or at 296 (quoting DeAngelo, 306 Or at
93 n 1).

	          Before Oregon adopted Article I, section 11, state
law prohibited criminal defendants from testifying under
oath in their defense. But “after a jury had returned a ver-
dict of guilty against a defendant, courts would inquire
whether the defendant knew of any reason why the court
should not pronounce judgment. The courts allowed crimi-
nal defendants to make a responsive statement and labeled
this process ‘allocution.’ ” Id. at 299. The purpose of the
allocution was “ ‘to provide the defendant an opportunity to
plead for mitigation of the sentence,’ ” id. at 306 (quotation
omitted), “to convince the sentencing authority to impose
no more than the minimum sentence[,] and * * * to address
other matters pertaining to the sentence,” id. at 305. As a
result, a defendant’s allocution could address “legal reasons
why the court should not impose a potential sentence, gen-
eral pleas for leniency, mitigating factors, and requests for
pardon.” Id. Although the permissible scope of a common-law
allocution was therefore broad, it was often of little effect;
common-law courts had little discretion in sentencing. State
v. Ferman-Velasco, 333 Or 422, 435, 41 P3d 404 (2002).
Instead, common-law courts considered the allocution only
for “ ‘strictly defined legal reasons which required the avoid-
ance or delay of sentencing: he was not the person convicted,
he had benefit of clergy or a pardon, he was insane, or if a
woman, she was pregnant.’ ” Id. (quotation omitted).

	       Today, criminal trial practice and sentencing
schemes are different than they were at common law. If a
defendant has personal knowledge of facts for the jury to
consider, the defendant may take the stand, testify as a wit-
ness to those facts, and have them considered by the jury
along with the other evidence in the case. Also, defendants
have a right to be represented by attorneys who may assert
legal reasons why the court may not impose a particular
sentence. Thus, an allocution is no longer necessary for a
Cite as 358 Or 251 (2015)	279

defendant to raise legal defenses or present his or her own
version of the facts.
	         However, the right to allocution continues to serve
its historic function of providing defendants with the oppor-
tunity to seek mitigation. Because modern sentencing
schemes often grant sentencing discretion that was largely
unknown at common law, an allocution that presents a com-
pelling plea for leniency may have a greater impact on a
defendant’s sentence today than it had at common law. And
it is still true that a defendant’s personal plea may carry
more weight than a plea from counsel. As the United States
Supreme Court recognized in Green v. United States, 365 US
301, 81 S Ct 653, 655, 5 L Ed 2d 670 (1961):
    None of these modern [legal] innovations lessens the need
    for the defendant, personally, to have the opportunity to
    present to the court his plea in mitigation. The most per-
    suasive counsel may not be able to speak for a defendant
    as the defendant might, with halting eloquence, speak for
    himself.
Id. at 304.
	        Given the continuing importance of the right to
allocution, it is apparent that, in this case, the trial court
correctly instructed the jury that it could consider the allo-
cution when making its decisions about whether to impose
the death sentence. The question is whether the trial court
erred when it also instructed the jury to decide the fourth
question “based on the evidence” and “after considering any
mitigating evidence.” Defendant contends that the instruc-
tions thereby precluded the jury from considering the allo-
cution in deciding whether defendant should receive a death
sentence.12
	        We disagree. The court’s instruction that the answer
to the fourth question must be “based on the evidence” and
“after considering any mitigating evidence” is a correct
statement of law. See Washington, 355 Or at 654 (explain-
ing that certain jury instructions were improper if they

	12
        Defendant asserts that argument with regard to all four statutory ques-
tions on the verdict form. But the trial court’s instructions with regard to the first
three questions do not contain the same limiting instructions.
280	                                                       State v. Guzek

“failed to inform the jury that their decisions must be based
on the evidence before them”). And, to defendant’s point,
that instruction does not preclude the jury from consider-
ing defendant’s allocution. Although, as defendant acknowl-
edges, a defendant’s allocution is not itself evidence, that
does not mean that the allocution may not play an import-
ant role in determining the proper sentence. As noted, the
principal value of the allocution in our current sentencing
regime is its persuasive force. An allocution is not a means
of adducing facts; it is a means of arguing, from the facts
adduced, the sentence that a court or jury should impose.
The fourth question seeks “the jury’s exercise of a reasoned
moral response” to the evidence presented, Wagner, 309 Or
at 19, and a defendant’s allocution may influence a jury’s
moral response to the evidence even if it is not itself evi-
dence. In the same way that the arguments of counsel are
not evidence but may be persuasive, so a defendant’s allocu-
tion may turn the tide to the defendant’s favor.
	        In this case, the trial court correctly instructed
the jury that it could consider defendant’s allocution when
deciding the statutory questions on the verdict form and also
correctly instructed the jury that its answer to the fourth
question must be based on the evidence admitted during the
trial. Those two instructions are not logically inconsistent,
and the trial court did not necessarily negate the former by
giving the latter.
           b.  Federal law
	       Defendant makes essentially the same arguments
under federal law, contending that the instructions violated
the Eighth Amendment to the United States Constitution,
which requires that the jury have an adequate “vehicle for
expressing its ‘reasoned moral response’ to * * * mitigating
evidence.” Abdul-Kabir v. Quarterman, 550 US 233, 263, 127
S Ct 1654, 167 L Ed 2d 585 (2007) (quotation omitted).13
As explained with respect to state law, by instructing the
	13
       The Eighth Amendment to the United States Constitution states that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” The Fourteenth Amendment applies the
Eighth Amendment to the states. See Rogers, 330 at 294 n 5 (citing Robinson v.
California, 370 US 660, 667, 82 S Ct 1417, 8 L Ed 2d 758 (1962)).
Cite as 358 Or 251 (2015)	281

jury that it was permitted to consider the allocution when
deciding the statutory verdict questions, the instructions
allowed the jury to consider the allocution while forming its
reasoned moral response to the mitigating evidence admit-
ted during the penalty-phase trial.14
                          III. CONCLUSION
	      For the reasons stated above, the circuit court’s
judgment sentencing defendant to death is affirmed.
	          The sentences of death are affirmed.




	14
       Additionally, we have previously observed “that it is uncertain whether
and to what extent the right of allocution may have a basis in the United States
Constitution.” Ferman-Velasco, 333 Or at 435; see also Rogers III, 330 Or at 303
(reviewing United States Supreme Court case law).
