State v. Amini

• Decision Date: 18 July 2001
• Citation: 175 Or. App. 370,28 P.3d 1204
• Parties: STATE of Oregon, Respondent, v. Dariush David AMINI, Appellant.
• Court: Oregon Court of Appeals

28 P.3d 1204

175 Or. App. 370

STATE of Oregon, Respondent, v. Dariush David AMINI, Appellant.

94-01-30513, A88710.

Court of Appeals of Oregon, En Banc.

Submitted on Remand January 31, 2001.

Resubmitted May 1, 2001.

Decided July 18, 2001.

Sally L. Avera, Public Defender, for appellant.

Hardy Myers, Attorney General, Virginia L. Linder, Solicitor General, and Ann Kelley, Assistant Attorney General, for respondent.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, and BREWER, Judges.

Resubmitted En Banc May 1, 2001.

EDMONDS, J.

Defendant appeals his conviction for two counts of aggravated murder, ORS 163.095(1), (2), attempted aggravated murder, ORS 163.095(3), and assault in the second degree with a firearm, ORS 163.175(4). In his only assignment of error, he argues that the giving of a jury instruction about the consequences of a verdict of "guilty except for insanity" violates his constitutional right to a fair trial under the Oregon and United States Constitutions. On appeal, this court initially reversed the convictions on the ground that the instruction violated defendant's right to trial by an impartial jury under Article I, section 11, of the Oregon Constitution. State v. Amini, 154 Or.App. 589, 963 P.2d 65 (1998). On review, the Supreme Court reversed, 331 Or. 384, 15 P.3d 541 (2000), and remanded the case for us to consider defendant's challenge to the trial court's instruction under the Sixth and Fourteenth Amendments to the United States Constitution. On remand, we affirm.

To set the stage for the discussion of defendant's assignment of error under the federal constitution, we quote from the Supreme Court's opinion:

"Defendant was charged with two counts of aggravated murder, one count of attempted aggravated murder, and one count of second-degree assault with a firearm. Those charges stemmed from the deaths of defendant's wife and a foreign exchange student who resided with defendant's wife, and gunshot injuries to another student who was visiting at the residence. At trial, defendant raised the affirmative defense of mental disease or defect constituting insanity. ORS 161.295; ORS 161.305.¹ ORS 161.313 provides that, when the issue of insanity under ORS 161.295 is submitted to the jury for determination, `the court shall instruct the jury in accordance with ORS 161.327.' ORS 161.327, in turn, lists the circumstances under which a defendant may be placed in the jurisdiction of the Psychiatric Security Review Board (PSRB) for care and treatment after a verdict of guilty except for insanity.

"At defendant's trial, the state asked the trial court to give Uniform Criminal Jury Instruction (UCrJI) 1122, which closely parallels the wording of ORS 161.327.² Defendant excepted, arguing that the mandate of ORS 161.313, combined with the jury instruction required by ORS 161.327, unconstitutionally suggested to the jury that it should and could consider the consequences of a guilty-except-for-insanity verdict in its deliberations. The trial court overruled defendant's objection and gave UCrJI 1122. The court also instructed the jury not to consider what sentence the court might impose if defendant were found guilty. The jury subsequently found defendant guilty." Amini, 331 Or. at 386-88, 15 P.3d 541.

The Sixth and Fourteenth Amendments to the United States Constitution guarantee defendant the right to a fair trial. The Sixth Amendment provides:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

The Fourteenth Amendment makes the Sixth Amendment applicable to the states and provides, in part:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law[.]"

Defendant contends that his fundamental right to a fair trial includes a right to elect whether the statutorily mandated instruction about the consequences of the jury verdict of "guilty except for insanity" should be given. He asserts that,

"[t]o the extent that an instruction under ORS 161.313 is distracting and extraneous to the chief function of jurors on the issue, the procedure it compels is fundamentally unfair to a defendant who should be entitled to expect a decision on the relevant facts rather than an outcome-focused examination of the facts."

Although defendant does not label it as such, his argument constitutes a facial challenge to ORS 161.313 that requires a jury to be instructed about the consequences of a "guilty except for insanity" verdict. Thus, our inquiry is whether the statute's requirements, when complied with, necessarily prevent a defendant from having a fair trial.

We model our analysis after the course of reasoning in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), which requires us to (1) identify the right in question, (2) determine whether that right is fundamental, and then, if it is fundamental, (3) decide whether the challenged procedure that the trial court employed necessarily prevented the realization of the fundamental right. Duncan, 391 U.S. at 148-51, 88 S.Ct. at 1446-49, 20 L.E.2d at 495-97 (using this methodology to evaluate the constitutionality of a limitation on the right to trial by jury); see also Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994)

(using the same analysis to evaluate the constitutional implications of a jury instruction on "reasonable doubt").

More to the point, the same kind of analysis has been used by the United States Supreme Court in regard to a jury instruction authorized by an Oregon statute. In Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), the defendant was tried for armed robbery. He chose not to testify, and most of the evidence against him was presented in the form of the testimony of witnesses to his alleged criminal activity. The state requested, and the trial court gave, a jury instruction stating that the jury could presume the truthfulness of the witnesses who testified against the defendant, unless the witnesses were otherwise found to be untruthful. The instruction was proper under the Oregon statute. However, the defendant asserted that the instruction violated federal constitutional guarantees in two particulars: the right to have the jury determine credibility and the right to have the state prove every element of the crime beyond a reasonable doubt. The Court identified the right as the fundamental right to have the prosecution prove guilt beyond a reasonable doubt. It referred to the historical analysis of that right, an analysis that the court had recently undertaken in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), in which it had concluded that such a right was fundamental. Cupp, 414 U.S. at 147, 94 S.Ct. 396. The Court characterized the issue as whether the instruction "so infected the entire trial that the resulting conviction violates due process." Id. While reaffirming its holding in In re Winship, the Court concluded that the instruction in Cupp did not shift the burden of proving innocence to the defendant. The Court explained:

"The well-recognized and long-established function of the trial judge to assist the jury [in its deliberations] by such instructions is not emasculated by such abstract and conjectural emanations from Winship.

"It must be remembered that `review by this Court of state action expressing its notion of what will best further its own security in the administration of criminal justice demands appropriate respect for the deliberative judgment of a state in so basic an exercise of its jurisdiction.'

"* * * * *

"The jury here was charged fully and explicitly about the presumption of innocence and the State's duty to prove guilt beyond a reasonable doubt. Whatever tangential undercutting of these clearly stated propositions may, as a theoretical matter, have resulted from the giving of the instruction on the presumption of truthfulness is not of constitutional dimension. The giving of that instruction, whether judged in terms of the reasonable-doubt requirement in In re Winship, supra,

or of offense against `some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,' did not render the conviction constitutionally invalid." Cupp, 414 U.S. at 149-150,

94 S.Ct. 396 (citations omitted).

Following the same analytical framework, we turn to the analysis in this case. The right in question is the constitutional guarantee of a fair trial. Without a doubt, such a right is fundamental to our system of justice. The question, then, becomes whether the giving of an instruction that tells the jury about the consequences of one of the three potential verdicts necessarily made defendant's trial and his subsequent conviction constitutionally infirm.

As an initial matter, there is a well-established deference in the United States Supreme Court decisions to legislative determinations by states about criminal prosecutions. As stated in Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977):

"It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally `within the power of the State to regulate procedures under which its laws

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