FILED: MAY 4, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DAYTON LEROY ROGERS,

Appellant.

(CC 88-355, 88-356, 88-357, 88-358, 88-359, 88-360; SC S41392)

On automatic and direct review of the sentence of death imposed by the Clackamas County Circuit Court.

Argued and submitted January 8, 1999.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for appellant. With her on the briefs was Sally L. Avera, Public Defender, Salem.

Janet Metcalf, Assistant Attorney General, Salem, argued the cause for respondent. With her on the briefs were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and David B. Thompson, Assistant Attorney General. Robert B. Rocklin, Assistant Attorney General, Salem, filed a supplemental brief for respondent.

Before Carson, Chief Justice, Gillette, Van Hoomissen, Durham, Leeson, and Riggs, Justices.*

DURHAM, J.

The sentence of death is vacated, and the case is remanded to the circuit court for further proceedings.

*Kulongoski, J., did not participate in the consideration or decision of this case.

DURHAM, J.

Defendant appeals from a judgment that imposed a sentence of death following his conviction on 13 counts of aggravated murder. The judgment is subject to automatic review in this court. Former ORS 163.150(1)(g), repealed by Or Laws 1999, ch 1055,