State v. Allen
Decision Date | 22 April 1986 |
Citation | 301 Or. 35,717 P.2d 1178 |
Parties | STATE of Oregon, Respondent on review/petitioner on review, v. Roger Scott ALLEN, Petitioner on review/respondent on review. CC C82-07-36518; CA A28862; SC S32405; S32418. |
Court | Oregon Supreme Court |
Phillip M. Margolin, Portland, argued the cause and filed the petition for petitioner/respondent on review.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent/petitioner on review. With him on the petition were Dave E. Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
We allowed review in this case to decide whether to approve a rule stated by the Court of Appeals, 76 Or.App. 263, 708 P.2d 1201 (1985), concerning how a trial court in a criminal case should instruct a jury on lesser included offenses.
In this case the trial court instructed the jury that if the jury found the defendant not guilty of kidnapping in the first degree, it should then consider whether the state has proved the defendant guilty of the lesser included charge of kidnapping in the second degree. The Court of Appeals held this instruction to constitute prejudicial error and reduced the defendant's convictions on the kidnapping charges from first to second degree. We agree that the instruction was erroneous, but hold that the error requires a different disposition than that chosen by the Court of Appeals.
In 1978, the Court of Appeals, in State v. Ogden, 35 Or.App. 91, 580 P.2d 1049 (1978), held that it was improper for a trial court to tell a jury that it must find a defendant not guilty of the charged offense before it could consider a lesser included offense. In Ogden, the Court of Appeals suggested that a proper instruction would tell the jury "first to consider the charge in the accusatory instrument and if they cannot agree upon a verdict on that charge they are to consider the lesser included offenses." 35 Or.App. at 98, 580 P.2d 1049. The Court of Appeals followed this decision in State v. Bird, 59 Or.App. 74, 650 P.2d 949, rev. den. 294 Or. 78, 653 P.2d 999 (1982); State v. Martin, 64 Or.App. 469, 668 P.2d 479 (1983); and State v. Ross, 66 Or.App. 504, 674 P.2d 85 (1984).
In June 1984, the Uniform Criminal Jury Instruction Committee of the Oregon State Bar adopted UCrJI No. 1009, which reads as follows:
The comment to this rule reads:
We recognize that the "acquittal first" instruction was first mentioned by this court in State v. Steeves, 29 Or. 85, 96, 43 P. 947 (1896), and was the standard instruction given in this state for over 75 years. The "acquittal first" instruction is also the favored instruction in many federal courts, see Pharr v. Israel, 629 F.2d 1278, 1281-82 (7th Cir.1980), cert. den. 449 U.S. 1088, 101 S.Ct. 880, 66 L.Ed.2d 815 (1981); United States v. Hanson, 618 F.2d 1261, 1265-66 (8th Cir.), cert. den. 449 U.S. 854, 101 S.Ct. 148, 66 L.Ed.2d 67 (1980); United States v. Butler, 455 F.2d 1338, 1340 (D.C.Cir.1971); Fuller v. United States, 407 F.2d 1199, 1227-32 (D.C.Cir.) (in banc), cert. den. 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969), 1 and is the instruction used in many state courts, see State v. Wussler, 139 Ariz. 428, 679 P.2d 74 (1984); Lindsey v. State, 456 So.2d 383, 388 (Ala.Cr.App.1983), aff'd on other grounds sub. nom. Ex parte Lindsey, 456 So.2d 393 (Ala.1984), cert. den. 470 U.S. 1023, 105 S.Ct. 1384, 84 L.Ed.2d 403 (1985); Nell v. State, 642 P.2d 1361, 1367 (Alaska Ct.App.1982); Stone v. Superior Court, 31 Cal.3d 503, 519, 183 Cal.Rptr. 647, 646 P.2d 809 (1982); People v. Padilla, 638 P.2d 15, 18 (Colo.1981); Middlebrooks v. State, 156 Ga.App. 319, 321, 274 S.E.2d 643 (1980); Commonwealth v. Edgerly, 13 Mass.App.Ct. 562, 581-83, 435 N.E.2d 641 (1982); State v. Wilkins, 34 N.C.App. 392, 399-400, 238 S.E.2d 659 (1977); State v. McNeal, 95 Wis.2d 63, 68, 288 N.W.2d 874 (1980); Ballinger v. State, 437 P.2d 305, 309-11 (Wyo.1968).
Despite its common usage, however, the instruction has inherent problems. When the jury is instructed in accordance with the "acquittal first" instruction, a juror voting in the minority probably is limited to three options upon deadlock: (1) try to persuade the majority to change its opinion; (2) change his or her vote; or (3) hold out and create a hung jury.
The recent Arizona case of State v. Wussler, 139 Ariz. 428, 679 P.2d 74 (1984), prompted a case note in which the author quoted social psychology studies in demonstrating that only in rare situations can a minority persuade a majority to change its mind and that the minority either relinquishes its free will, changes its mind or the jury hangs:
These studies demonstrate that the "acquittal first" instruction exacerbates the risk of coerced decisions, a risk that is probably inherent in any jury deliberation.
We admit that there is some logic to the position taken by Judge Johnson in his concurring opinion (joined by Schwab, C.J.) in State v. Ogden, supra, that a jury should be totally unfettered in its selection of which offense it wishes to consider first; certainly it would not be error for a trial judge not to direct the jury how to proceed. However, because of...
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