State v. Amini

963 P.2d 65, 154 Or. App. 589, 1998 Ore. App. LEXIS 1065

• Court: Court of Appeals of Oregon
• Decided: June 24, 1998
• Docket: 94-01-30513; CA A88710
• Status: Published

Opinions

DE MUNIZ, J.

Defendant appeals his convictions of two counts of aggravated murder, and one count each of second-degree assault and attempted aggravated murder. We reverse and remand.

Defendant was charged with the fatal shooting of his wife and a guest and the injury of a second guest at his condominium. He interposed the affirmative defense of guilty except for insanity, pursuant to ORS 161.295. ORS 161.313 provides:

“When the issue of insanity under ORS 161.295 is submitted to be determined by a jury in the trial court, the court shall instruct the jury in accordance with ORS 161.327.”

ORS 161.327 defines the process that must be followed after a finding of guilty except for insanity. At the conclusion of the guilt phase of defendant’s trial, the court gave the following jury instruction, which essentially tracks the requirements of ORS 161.327:

“If the defendant is found guilty except for insanity, the defendant is subject to the following dispositions: One, by the Court: A, if the Court determines that the defendant is presently affected by mental disease or defect and presents a substantial danger to others requiring commitment to a state mental hospital, the Court will order the defendant committed to a state mental hospital pending further disposition by the Psychiatric Security Review Board: B, if the Court finds that the defendant is affected by a mental disease or defect but either that it is in remission or the defendant is not presently in substantial — a substantial danger to others requiring commitment to a state mental hospital, the Court will order the defendant placed under the jurisdiction of the Psychiatric Security Review Board and may order that the defendant be conditionally released.

“A defendant who is conditionally released is subject to such supervisory orders of the Court as are in the best interest of justice, the protection of society and welfare of the defendant.

“Two, by the Psychiatric Security Review Board: The Psychiatric Security Review Board is a state agency that by statute has [as] its primary concern the protection of society.

“After the Court places the defendant in the jurisdiction of the Psychiatric Security Review Board, the board will have jurisdiction over the defendant for a length of time equal to the maximum period of incarceration to which the defendant could have been sentenced had the defendant been found guilty of the charged crime.

“A, if the board determines that the defendant continues to be affected by a mental disease or defect and presents a substantial danger to others and is not a proper subject for conditional release, the board will order the defendant committed to a state mental hospital for custody, care and treatment.

“B, the Psychiatric Security Review Board will order the defendant be discharged from its jurisdiction at its first hearing or some later date [if] the board determines that either: The defendant is no longer affected by mental disease or defect; or two, the defendant is still affected by mental disease or defect but no longer presents a substantial danger to others.

“C, if the board, either at its first hearing or some later date, determines the defendant is still affected by a mental disease or defect and is a substantial danger to others but can be controlled adequately if conditionally released with treatment as a condition of release, the board will order the defendant to be conditionally released.

“A defendant who is conditionally released is subject to such supervisory powers of the board as are in the best interests of justice, the protection of society and the welfare of the person.

“A person is considered to have a mental disease or defect requiring supervision even when that disease or defect is in a state of remission when the disease may, with reasonable medical probability, occasionally become active and render the person a danger to others.”¹

Defendant excepted to the instruction on the ground, inter alia:

“The statute requires an instruction to that effect. And we object and take the exception because the statute unconstitutionally directs and suggests to the jury that [it] should and could consider the disposition of the charge in its deliberation. * * * And further, that the jury could be confused and feel that [it is] to consider and deliberate on the disposition of a person found guilty except for insanityf.]”

The jury rejected the defense and convicted defendant on each of the charges. Subsequently, in the penalty phase, the jury fixed the penalty on the aggravated murder counts as life imprisonment without the possibility of parole.

On appeal, defendant’s only assignment of error is directed against the giving of the “instruction advising [the jury] of the consequences of a guilty except for insanity finding.” Defendant contends that, although the disposition of a criminal defendant who is found to be insane is not a matter for the jury’s consideration, the instruction could have induced the jury to consider the possibility that an insanity finding instead of a conviction would lead to defendant’s release. Defendant argues that the giving of the instruction thereby violated his due process rights under the Fourteenth Amendment and his right to an impartial jury under the Sixth Amendment to the United States Constitution and Article I, section 11, of the Oregon Constitution.

The state responds, initially, that defendant’s exception in the trial court was inadequate to preserve the issue he asserts on appeal. It is correct, as the state argues, that defendant’s exception did not refer to a particular constitutional provision that the instruction offended. However, the exception clearly alerted the trial court and the state to defendant’s rationale — that the instruction directed the jury’s attention to matters that it could not permissibly consider in arriving at its finding on the merits of the insanity defense. That rationale, conjoined with defendant’s references to the unconstitutionality of the statute, was sufficient to preserve the constitutional arguments that defendant advances now. See State v. Hitz, 307 Or 183, 766 P2d 373 (1988). We turn to the merits.

Article I, section 11, of the Oregon Constitution, provides, in material part, that “[i]n all criminal prosecutions, the accused shall have the right to public trial by an impartial jury.” In State ex rel Ricco v. Biggs, 198 Or 413, 428, 255 P2d 1055 (1953), the court observed:

“The right to a public trial ‘by an impartial jury’ has been interpreted by all courts as meaning a right to ‘a fair and impartial trial.’ ” (Emphasis supplied.)

In State v. Minnieweather, 99 Or App 166, 171, 781 P2d 401 (1989), after citing Article I, section 11, and reiterating the foregoing statement from Ricco, we stated:

“Fairness is ultimately a question ‘for our own judicial sense of fairness, guided by our knowledge of the traditions which have shaped procedural rights and by our understanding of the mechanics of trial procedures, including the functioning in our present day practice.’ ” (Quoting Brooks v. Gladden, 226 Or 191, 204, 358 P2d 1055, cert den 366 US 947 (1961).)

We are required to decide state constitutional issues before reaching questions arising under the federal constitution. State v. Kennedy, 295 Or 260, 660 P2d 1316 (1983). In the present case, however, it is not clear whether and how the analysis under Article I, section 11, and under the Due Process Clause of the Fourteenth Amendment might differ. In State v. Tucker, 315 Or 321, 336, 845 P2d 904 (1993), the Oregon Supreme Court said:

“The test for whether a particular criminal procedure violates the Due Process Clause of the Fourteenth Amendment is whether the procedure is fundamentally fair, or whether a different procedure is necessary to prevent miscarriages of justice.” (Citation omitted; emphasis supplied.)

See also Dowling v. United States, 493 US 342, 353, 97 S Ct 2044, 110 S Ct 668, 107 L Ed 2d 708 (1990) (procedure fundamentally unfair if it violates fundamental conceptions of justice and “community sense of fair play and decency”).

In addition to the fact that Article I, section 11, and the Due Process Clause embody a similar “fairness” standard, we have previously used due process as the basis for sustaining a criminal defendant’s argument that requiring him to wear shackles in the jury’s presence, “without a showing of substantial necessity,” violated his right to a fair trial. State v. Kessler, 57 Or App 469, 475, 645 P2d 1070 (1982). The defendant’s contention in Kessler was analogous to that of defendant’s here insofar as it posited that the court’s action could have led the jury to a finding of guilt based on an impermissible consideration or inference. Id. at 472. However, our decision in Kessler predated the Supreme Court’s decision in Kennedy, where the order of analysis of state and federal issues was firmly mandated. Accordingly, the initial focus of our inquiry will be on Article I, section 11. However, insofar as case authority that applies the largely similar analysis under the Due Process Clause is apposite, we also will consider it in addressing the state constitutional issue.²

As far as the parties inform us or we find, no decision by any court has specifically addressed the question presented here, i.e., whether the giving of a “consequences instruction” over a defendant’s objection is a violation of the defendant’s constitutional rights. However, there has been a substantial amount of case law relating to other issues associated with instructing juries about the consequences of an insanity finding and about other matters relating to the sentencing or disposition of criminal defendants. In both the general and the specific contexts, the basic rule in Oregon and in most, if not all, other jurisdictions has been that the sentence that a defendant will receive if convicted, and the disposition that will be made of a defendant who is found to have a mental disorder, are not matters for the jury’s consideration, and juries should not be instructed regarding them.³

In State v. Daley, 54 Or 514, 103 P 502, 104 P 1 (1909), the defendant in a murder case raised an insanity defense and requested an instruction that, if the jury found in accordance with the defense, the court would “order him to be committed to [a] lunatic asylum” if he constituted a public danger. The trial court refused to give the instruction, the defendant was convicted and, on appeal, he assigned error to the court’s refusal to give the instruction. The Supreme Court rejected the assignment, explaining:

“If the jury concluded that in consequence of the defendant’s mental incapacity he was not responsible for the killing, they should have returned a verdict of not guilty by reason of insanity. Whether or not the defendant should be confined in a lunatic asylum was not a matter for the jury to consider. The determination of that question devolved exclusively upon the court: Section 1424, B. & C. Comp.

“Where the jury are not authorized by statute to prescribe the punishment to be inflicted for the commission of a crime, no error is committed in refusing to instruct them what the penalty might be if the defendant is found guilty as charged!.]”Id. at 522-23.

The same principles have generally been followed in the federal system. In Shannon v. United States, 512 US 573, 114 S Ct 2419, 129 L Ed 2d 459 (1994), the criminal defendant sought an instruction that, if he was found not guilty by reason of insanity (NGI), he would be involuntarily committed. He argued that the instruction was required as a matter of “general federal criminal practice,” or, alternatively, pursuant to the Insanity Defense Reform Act of 1984, 18 USC sections 17, 4241-4247 (IDRA). The United States Supreme Court rejected the argument, stating that the “principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury,” and that “the inevitable result” of an instruction of the kind sought by the defendant “would be to draw the jury’s attention toward the very thing — the possible consequences of its verdict — it should ignore.” Shannon, 512 US at 579, 586.

The case most often cited for the contrary position is Lyles v. United States, 254 F2d 725 (DC Cir 1957), cert den 356 US 961 (1958). The prevailing opinion in that case stated:

“This point arises under the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation. But we think that doctrine does not apply in the problem before us. The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9, 1955. It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.” Id. at 728 (footnote omitted).

However, in Shannon, the United States Supreme Court observed that the District of Columbia Circuit, which decided Lyles, was the only federal Court of Appeals “to endorse the practice of instructing the jury regarding the consequences of an insanity acquittal,” 512 US at 576, and the Supreme Court signified its agreement with other circuits that had rejected “a Lyles-type instruction” on the ground, inter alia, “that juries are not to be concerned with the consequences of their verdicts.” 512 US at 584 n 9.

In addition to that rationale for the general rule, the Oregon and federal decisions have also expressed the view that apprising the jury of the consequences of successful insanity or mental disorder defenses is intrinsically prejudicial to a criminal defendant. In State v. Wall, 78 Or App 81, 715 P2d 96, rev den 301 Or 241 (1986), we cited Daley and a subsequent case of similar import in addressing the defendant’s argument that the trial court had erred by allowing the prosecutor to cross-examine an expert witness as to whether the defendant would be confined if his mental defect defense succeeded. We agreed with the defendant that the “disposition of a person found not guilty by reason of mental disease or defect is not to be considered by the jury,” and with his argument that the substance of the cross-examination and the testimony “could have influenced the jury to find [the defendant] guilty in order to avoid his early release back into society, thereby depriving him of a fair trial.” Wall, 78 Or App at 84. We continued:

“The inquiry in this case, suggesting that the state could not keep defendant confined if he was found not guilty by reason of mental disease or defect, was very likely to have influenced the jury. It encouraged the jury to make its determination on impermissible grounds * * *. It placed before the jury the spectre that, if it found defendant not guilty by reason of mental disease or defect, he would be back in society very soon, perhaps to kill again. It appealed to the fears of the jurors and tended to persuade them to convict rather than risk that defendant would soon be released.” Id. at 85.⁴

Similarly, in Shannon, the Court noted that the defendant’s reason for seeking the consequences instruction was to prevent the jurors from mistakenly believing that “a defendant who is found NGI will be immediately released into society,” 512 US at 584. However, the Court explained that the instruction could well have the opposite effect and be adverse to the defendant:

“We also are not persuaded that the instruction Shannon proposes would allay the fears of the misinformed juror about whom Shannon is concerned. ‘[I]f the members of a jury are so fearful of a particular defendant’s release that •they would violate their oaths by convicting [the defendant] solely in order to ensure that he is not set free, it is questionable whether they would be reassured by anything short of an instruction strongly suggesting that the defendant, if found NGI, would very likely be civilly committed for a lengthy period.’ An accurate instruction about the consequences of an NGI verdict, however, would give no such assurance. Under the IDRA, a postverdict hearing must be held within 40 days to determine whether the defendant should be released immediately into society or hospitalized. Thus, the only mandatory period of confinement for the insanity acquittee is the period between the verdict and the hearing. Instead of encouraging a juror to return an NGI verdict, as Shannon predicts, such information might have the opposite effect — that is, a juror might vote to convict in order to eliminate the possibility that a dangerous defendant could be released after 40 days or less.” 512 US at 585-86 (footnote and citations omitted).

Justice Stevens dissented in Shannon for himself and one other member of the Court. He took the view that a Lyles-type consequences instruction should generally be given in cases to which the IDRA applies. He noted, however, with respect to the point in question here:

“The Court suggests that the instruction might actually prejudice the defendant. Ante, at 585-86. That argument lacks merit, as there is no need to give the instruction unless the defendant requests it.” 512 US at 591.

Correspondingly, some state courts have held that consequences instructions may or must be given if they are requested or not objected to by the defendant. See, e.g., People v. Thompson, 197 Colo 232, 591 P2d 1031 (1979); Guilford v. State, 258 Ga 253, 368 SE 2d 116 (1988); Erdman v. State, 315 Ind 46, 553 A2d 133 (1989). However, no case of which we are aware holds that such an instruction may properly be given if the defendant does object. In People v. Goad, 421 Mich 20, 364 NW2d 584 (1984), and State v. Huiett, 271 SC 205, 246 NE2d 862 (1978), the appellate courts held that it was error for the trial courts to give the consequences instructions over the defendants’ objections. Indeed, even in Lyles, the court indicated that it would not be “reversible error” for a trial court not to give a consequences instruction if it is objected to by the defendant. 254 F2d at 728-29.

It appears that the 1983 legislature’s objective in enacting ORS 161.313 was to prevent juries from inferring that a finding of insanity would necessarily result in the defendant’s immediate or “premature” freedom. Or Laws 1983, ch 800, § 16. See Minutes, Senate Judiciary Committee, HB 2075, June 29, 1983, p 7. It is clear, however, than an accurately stated consequences instruction, like the one given here, is as much open to the implication that the defendant will be released from custody in the proximate future as that he will not. Indeed, the instruction expressly said that both eventualities are possible. Consequently, it is as possible in any given case that the jury will be drawn to the implication that is adverse to the defendant as to the one that favors him. It is also possible, of course, that a given jury will give little or no weight to either implication and will, instead, abide by the standard instruction that it is not to consider the sentence or disposition that the defendant might receive. However, we held in Wall that an instruction of that kind was inadequate to cure the prejudice that inhered in a witness’s testimony about the prospects of the defendant’s confinement or release. See 154 Or App at 598 n 4. Given that holding, the same brief standard instruction certainly cannot be viewed as sufficient to assure that the jury will not consider and give weight to the lengthy instruction required by ORS 161.313, which apprises the jury of every permutation and variation of the dispositions that can follow from an insanity finding, and which is imparted to the jury by the court itself.

Succinctly stated, a consequences instruction is a two-edged sword, and ORS 161.313 and ORS 161.327 mandate that criminal defendants submit to the risk of which edge a particular jury might find more alluring. Further, neither edge of the sword — i.e., that an insanity finding may not result in the defendant’s freedom or that it may result in the defendant being freed — is a matter that the jury may properly consider at all. It may be that the legislature may authorize such an instruction to be given if requested by the defendant and thereby allow defendants to choose whether to avail themselves of its potential benefits and its risks. It may also be the case that a succinct and nonsuggestive type of consequences instruction, as contrasted with the instruction given here, could permissibly be required by statute in all cases where the insanity defense is raised. However, neither of those questions is the one before us, and we decide neither. We are concerned here with the instruction that ORS 161.313 and ORS 161.327 do require and that the trial court gave over defendant’s objection.

In many instances where a criminal defendant raises the affirmative defense of guilty except for insanity, the defense is realistically or in fact the only alternative to a conviction.⁵ Although the sentence or disposition of a criminal defendant is not a matter that the jury may properly consider, as the United States Supreme Court noted in Shannon and we noted in Wall and have discussed here, instructions or evidence regarding the consequences of an insanity finding carry with them the risk or propensity of inducing jurors to compare the duration of the defendant’s removal from society — or the appropriateness of the “penalty” — that might follow from a finding of insanity versus a finding of guilt. The effect of such instructions or evidence, as we explained in Wall, can be to influence a jury to disregard the merits of the defense and to find the “defendant guilty in order to avoid his early release back into society, thereby depriving him of a fair trial.” Wall, 78 Or App at 84.

That inherent risk of consequences instructions and evidence is exacerbated where, as here, the instruction is nine paragraphs in length and exhaustively detailed. The extensive attention that the matter has received from the court in instructing the jurors can suggest to them that the matter is one for them to consider because, seemingly, there would be no other apparent reason to apprise them about it at such length and in such detail. However, even if the jurors do not discern such a suggestion in the instruction, the potential for misuse of the instruction is nevertheless heightened by its length and detail, because it alerts the jury to a large array of uncertain contingencies and provides the jury with a multitude of speculative comparisons between the consequences of an insanity finding and the simple alternative of the defendant’s imprisonment (or other punishment) that would follow from a finding of guilt.

Although our statement in Wall that the evidence “depriv[ed] [the defendant] of a fair trial” was not made in the context of a constitutional issue, we reach the same conclusion about the instruction here in the context of the constitutional question that is presented now. Its potential for diverting the jury from the question that was properly before it, and leading it to reject the defense on the basis of impermissible considerations unrelated to its merits, deprived defendant of a fair trial. We hold that the instruction violated Article I, section 11, of the Oregon Constitution.⁶

Reversed and remanded for new trial.

1 The court also instructed the jury that it was not to “consider what sentence might be imposed by the Court if this defendant is found guilty.” However, it later clarified that instruction to apprise the jury that the jury would determine the sentence if it convicted defendant of aggravated murder.

2 No separate discussion or analysis under the Sixth Amendment is necessary to our decision.

The dissent is not correct in its understanding that this opinion “essentially inserts a due process clause into Oregon’s Constitution via Article I, section Ilf.]” 154 Or App at 603 n 1. Our analysis and application of Article I, section 11, here, like the Supreme Court’s in State ex rel Ricco v. Biggs, 198 Or 413, 428, 255 P2d 1055 (1953), pertains only to the right to a fair and impartial jury trial, and does not extend to the many other rights that the Due Process Clause protects or affects. For purposes of those different areas where the respective provisions operate, the Oregon Supreme Court has interpreted Article I, section 11, as embodying a substantive standard that is similar to the one that the United States Supreme Court has ascribed to the Due Process Clause. That fact does not mean that either of those courts has “inserted” one provision into the other, much less that we have done so by following what the two Supreme Courts have said. There is no rule of jurisprudence that different constitutional provisions — especially ones with related purposes — must be interpreted or applied in disparate ways in order to retain their separate identities.

3 These principles, of course, do not apply or apply in modified ways when the jury sets the penalty as well as making the guilt determination. In this state, for example, the jury is responsible for determining the penalty in aggravated murder cases. See State v. Montez, 324 Or 343, 357-59, 927 P2d 64 (1996).

4 We also rejected the state’s contention that the error was diffused by a “curative” instruction that was identical in substance to the one that was given here. See 154 Or App at 592 n 1. We explained:

“The jury was instructed at the end of the trial: ‘You must not consider what sentence might be imposed upon the defendant.’ That instruction was too little, too late. It did not tell the jury that it was not to consider the disposition of defendant if he was found not guilty by reason of mental disease or defect. It was insufficient to dissipate the prejudice.” State v. Wall, 78 Or App 81, 85, 715 P2d 96, rev den 301 Or 241 (1986).

5 A defendant may, of course, raise the defense and still plead not guilty, as defendant did here. That does not change the fact that, by raising the defense and presenting it to the factfinder, the defendant has put many, if not all, of his eggs in that basket.

6 By way of comparison, in Lakeside v. Oregon, 435 US 393, 98 S Ct 1091, 55 L Ed 2d 319 (1978), the question was whether the defendant’s Fifth and Sixth Amendment rights were violated by an instruction, given over his objection, that the jury was to attach no significance to the fact that he did not testify. Unlike the instruction here, only one implication could be found in the terms of that instruction. The defendant’s argument that the United States Supreme Court rejected in Lakeside was that the instruction violated his rights because it could have the effect of calling the jurors’ attention to the fact that it told them to disregard and, in turn, cause them to do the very thing that it unambiguously told them not to do. By contrast, the consequences instruction here, equally unambiguously, tells the jury at least two things, one of which is that the defendant may be a free man in the proximate future if he is found insane instead of guilty. Unlike the situation in Lakeside, this instruction imparts information to the jury that is unfavorable to the defendant by its own terms; and, unlike the putative problem in Lakeside, the harm that the consequences instruction can do inheres in what it does say rather than in the jury disregarding what it says.