State v. Amini

• Decision Date: 24 June 1998
• Parties: STATE of Oregon, Respondent, v. Dariush David AMINI, Appellant. 94-01-30513; CA A88710. . *
• Court: Oregon Court of Appeals

Page 65

963 P.2d 65

154 Or.App. 589

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

94-01-30513; CA A88710.

Court of Appeals of Oregon In Banc. ^*

Argued and Submitted March 13, 1997.

Resubmitted in Banc Feb. 11, 1998.

Decided June 24, 1998.

Sally L. Avera, Public Defender, argued the cause and filed the brief for Appellant.

Ann F. Kelley, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

De MUNIZ, Judge.

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 insanity[.]"

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 P.2d 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 P.2d 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 P.2d 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 P.2d 1055, cert. den. 366 U.S. 974, 81 S.Ct. 1942, 6 L.Ed.2d 1263 (1961).)

We are required to decide state constitutional issues before reaching questions arising under the federal constitution. State v. Kennedy, 295 Or. 260, 666 P.2d 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 P.2d 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 U.S. 342, 353, 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 P.2d 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, 645 P.2d 1070. However, our decision in Kessler pre-dated 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...