State v. Burrow

• Decision Date: 23 November 1982
• Citation: 293 Or. 691,653 P.2d 226
• Parties: STATE of Oregon, Respondent on review, v. Melvin Ray BURROW, Petitioner on review. TC C81-02-30968; CA A21176; SC 28506.
• Court: Oregon Supreme Court

Page 226

653 P.2d 226

293 Or. 691

STATE of Oregon, Respondent on review, v. Melvin Ray BURROW, Petitioner on review.

TC C81-02-30968; CA A21176; SC 28506.

Supreme Court of Oregon.

Argued and Submitted July 13, 1982.

Decided Oct. 26, 1982.

Reconsideration Denied Nov. 23, 1982.

Richard L. Lonergan, Portland, argued the cause for petitioner on review. With him on the brief were Howard R. and Clint A. Lonergan, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before LENT, C.J., LINDE, PETERSON, TANZER and CAMPBELL, JJ., and CARSON, ^** J. Pro Tem.

PETERSON, Justice.

Defendant participated with three others in an armed robbery of a man and a woman in a motel room, in the course of which the man was injured and the woman was fatally stabbed. At his jury trial on charges of felony murder, attempted murder, and two counts of first degree robbery, defendant testified that after entering the motel room with his accomplices he withdrew from the planned robbery before any criminal act occurred and that he did not know that one of the other participants had a knife.

Defendant was convicted of the two robberies and of felony murder and acquitted of attempted murder. After unsuccessfully appealing his convictions on several grounds, ¹ defendant petitioned this court to review his claim that he was unconstitutionally required to shoulder the burden of proving an affirmative defense to the charge of felony murder.

The felony murder statute then provided:

"(1) * * * [C]riminal homicide constitutes murder when:

"* * *.

"(b) It is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit arson in the first degree, burglary in the first degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree or sodomy in the first degree and in the course of and in furtherance of the crime he is committing or attempting to commit, or the immediate flight therefrom, he, or another participant if there be any, causes the death of a person other than one of the participants; * * *

"* * *.

"(3) It is an affirmative defense to a charge of violating paragraph (b) * * * of subsection (1) of this section that the defendant:

"(a) Was not the only participant in the underlying crime; and

"(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid in the commission thereof; and

"(c) Was not armed with a dangerous or deadly weapon; and

"(d) Had no reasonable ground to believe that any other participant was armed with a dangerous or deadly weapon; and

"(e) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death * * *."

ORS 163.115 (1979) (amended 1981). ²

The trial court instructed the jury that "[i]t is a defense to this charge if the defendant proves each of the following," continuing by reading the jury the five items listed in the foregoing paragraphs (a) through (e). The court further stated:

"This defense is an affirmative defense which must be proved by the defendant. The defense must be proved by a preponderance of the evidence, that is, by that amount of evidence which, when weighed with that opposed to it, has more convincing force and the great ³ probability of truth."

Defendant excepted to this instruction on the grounds, first, that it shifted the burden of proof from the state to the defendant, and second, that the "reasonable grounds" test of paragraphs (d) and (e) make stupidity a crime. ⁴

The court's instruction that the defendant must prove the items constituting the "affirmative defense" follows ORS 161.055(3), which states that when a defense is so labeled in the Criminal Code of 1971, "the defendant has the burden of proving the defense by a preponderance of the evidence." The drafters of the criminal code allocated the burden of proof in this way before recent judicial decisions that limited the extent to which due process allows lawmakers to shift the burden of proof to defendants in criminal cases. We therefore examine whether the provisions of ORS 163.115 and ORS 161.055 are compatible with the requirement that guilt be proved beyond a reasonable doubt as a matter of federal constitutional law. ⁵

The decision in this case involves the application of the Fourteenth Amendment, as interpreted in recent decisions. The United States Supreme Court has held proof of guilt beyond a reasonable doubt to be required by Fourteenth Amendment due process since In re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 1070-73, 25 L.Ed.2d 368 (1970). Exactly what must be proved beyond a reasonable doubt has been phrased in various ways. Winship, 397 U.S. at 362, 90 S.Ct. at 1071, quoted two earlier cases which said that what must be proved beyond a reasonable doubt in a criminal case is "guilt." In Winship, 397 U.S. at 362, 90 S.Ct. at 1071, quoting from Davis v. United States, 160 U.S. 469, 484, 16 S.Ct. 353, 356, 40 L.Ed. 499, 507 (1895), and later in Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S.Ct. 1881, 1883, 44 L.Ed.2d 508 (1975), the Court stated the due process requirement to be that the prosecution prove beyond a reasonable doubt "every fact necessary to constitute the crime" charged. The Winship phrasing was quoted in Patterson v. New York, 432 U.S. 197, 204, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281 (1977). The same opinion said that "Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt * * *," 432 U.S. at 215, 97 S.Ct. at 2329. In a later case, the court has phrased the Winship principle as requiring proof "beyond a reasonable doubt of the existence of every element of the offense." Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979).

Mullaney and Patterson are the two principal cases upon which the outcome of this appeal turns. Both were murder cases. Both concerned the mental state of a defendant which, if established, would make a homicide either murder or manslaughter. Mullaney was decided in 1975 under a Maine murder statute which provided: "Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder * * *." Me.Rev.Stat.Ann., tit. 17, § 2651 (1964). The jury was instructed that if the prosecution established that the homicide was both intentional and unlawful, "malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation." 421 U.S. at 686, 691-92, 95 S.Ct. at 1883, 1885-86. The Supreme Court observed that "the fact at issue--the presence or absence of the heat of passion on sudden provocation--has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide. * * * [T]he clear trend has been toward requiring the prosecution to bear the ultimate burden of proving this fact." 421 U.S. at 696, 95 S.Ct. at 1888. The court held that the presumption had the effect of relieving the state of the burden to prove malice aforethought. The presumption forced the defendant to disprove malice aforethought in his heat of passion affirmative defense. The court struck down Maine's affirmative defense of provocation on the ground that requiring the defendant to prove provocation was inconsistent with the teaching of Winship that the state prove "every fact necessary to constitute the crime with which he is charged." Mullaney, 421 U.S. at 685, 704, 95 S.Ct. at 1883, 1892; Winship, 397 U.S. at 364, 90 S.Ct. at 1073.

The Mullaney decision was unanimous. In the minds of many it made unconstitutional virtually all criminal law affirmative defenses, most certainly (as the dissent would hold) those affirmative defenses affecting guilt. Many courts so read and applied the case. For example, a Maryland appellate court wrote:

" * * * [Mullaney] dooms as unconstitutional any procedural device which 1) imposes upon a defendant a burden of proving, by any standard, his innocence as to any element of a crime or 2) relieves the State of its burden of ultimate persuasion beyond a reasonable doubt as to any issue fairly in the case." Evans v. State, 28 Md.App. 640, 654, 349 A.2d 300, 312 (1975).

Some commentators opined that Mullaney, carried to its logical conclusion, would forbid all affirmative defenses. ⁶

The dissenting opinion is consistent with Mullaney. But it is not consistent with Patterson, decided two years later. In Patterson, which concerned an essentially indistinguishable legal issue, the Supreme Court reached a contrary result. Patterson denuded Mullaney without overruling it.

Patterson involved a murder conviction under a New York murder statute that had two elements: (1) "intent to cause the death of another person"; and (2) "caus[ing] the death of such person or of a third person." N.Y. Penal Law 125.25 (McKinney 1975). Malice aforethought was not an element of the crime. Under New York law, if the defendant could prove that he was acting "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse * * *" the crime would be reduced to manslaughter. The Supreme Court held that the imposition of this burden upon the defendant did not violate the federal Due Process Clause.

The court began its analysis with the statement that the creation of affirmative defenses is normally within the power of the state "unless * * * 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' * * * " 432 U.S. at 201-02, 97 S.Ct. at 2322 (quoting Speiser v. Randall, 357 U.S. 513, 523, 78 S.Ct. 1332, 1340, 2 L.Ed.2d 1460 (1958))....