State v. Counts

• Decision Date: 01 August 1991
• Citation: 816 P.2d 1157,311 Or. 616
• Parties: STATE of Oregon, Respondent on Review, v. Johnny J. COUNTS, Petitioner on Review. CC C88-08-35588; CA A60040; SC S37272.
• Court: Oregon Supreme Court

Page 1157

816 P.2d 1157

311 Or. 616

STATE of Oregon, Respondent on Review, v. Johnny J. COUNTS, Petitioner on Review.

CC C88-08-35588; CA A60040; SC S37272.

Supreme Court of Oregon.

Argued and Submitted Dec. 5, 1990.

Decided Aug. 1, 1991.

Leland R. Berger, Portland, argued the cause for petitioner on review. With him on the petition was Jon P. Martz, Portland.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

William L. Tufts, Eugene, filed a brief on behalf of amici curiae for Oregon Criminal Defense Lawyers Ass'n and Nat. Ass'n of Criminal Defense Lawyers.

Before PETERSON, C.J., and CARSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

VAN HOOMISSEN, Justice.

The issue in this criminal case is whether the affirmative defense of mental disease or defect, ORS 161.295(1), ¹ and the affirmative defense of extreme emotional disturbance, ORS 163.135(1), ² are mutually exclusive. ³ The trial court ruled that the defenses are mutually exclusive. The Court of Appeals affirmed. State v. Counts, 101 Or.App. 439, 790 P.2d 1209 (1990). We hold that the defenses are not mutually exclusive and, therefore, we reverse.

Defendant waived his right to a jury trial and the court tried this case on stipulated facts. Defendant took a gun from his closet and shot his wife in the head while she was sleeping. Defendant put the gun in his wife's hand, dialed "911," and reported that she had committed suicide. Later, defendant told the police that he had killed his wife because he believed that she was trying to kill him and his dogs. He said he believed this because there was a spot on his arm where he thought his wife had given him an injection of poison, because his cigarettes "tasted real funny," because a soft drink he had been drinking tasted strange, because, when he walked by his wife's bedroom, he thought he heard her whisper "die, die," and because he believed that she had taken out an insurance policy on his life. ⁴ Defendant was charged with intentional murder. ORS 163.115(1)(a). ⁵

In preparation for trial, defendant timely filed notices of intent to rely on the affirmative defenses of mental disease or defect and extreme emotional disturbance. See ORS 161.309(3) (notice required to introduce evidence of insanity); ORS 163.135(3) (notice required to introduce evidence of extreme emotional disturbance). Psychiatric evaluations conducted at the request of defense counsel and the state indicated that defendant suffered from an "organic delusional syndrome" and a "paranoid disorder." A psychiatrist retained by the state reported:

"[Defendant] is clearly psychotic and in all likelihood was so at the time of the commission of the crime with which he is charged. I do believe that he did suffer from a mental defect at the time of the commission of the crime and that the defect rendered him incapable of appreciating the criminality of his conduct. I further believe that he committed the alleged homicide under the influence of extreme emotional disturbance and that the disturbance was not the result of his own intentional, knowing, reckless or criminal neglect. The explanation appears to be chronic paranoid state with continuing psychosis."

At trial, the focus of the discussion was on whether defendant could rely on both the mental disease or defect and extreme emotional disturbance defenses. Defendant argued that he could rely on both defenses and that both had been proved. The state conceded that defendant had proved the defense of mental disease or defect, but argued that defendant had not proved the defense of extreme emotional disturbance. ⁶ The state argued that defendant should be found guilty except for insanity of intentional murder.

The trial court held that the defenses are mutually exclusive. More precisely, the court held that upon a defendant's proof of the mental disease or defect defense, the trier of fact is precluded from considering the mitigating factor of extreme emotional disturbance. The court then found that defendant had proved the defense of mental disease or defect and entered a judgment that defendant was guilty except for insanity of intentional murder. ORS 161.319; ORS 161.325(2)(a). The Court of Appeals affirmed. State v. Counts, supra, 101 Or.App. at 442-43, 790 P.2d 1209.

In a case where a defendant asserts the defense of mental disease or defect under ORS 161.295(1), before a trier of fact may find the defendant "guilty except for insanity" of a crime, the defendant must first be found "guilty" of that crime. ⁷ This conclusion is supported by the plain language of ORS 161.295(1), its legislative history, and this court's case law.

ORS 161.295(1) provides:

"A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law." (Emphasis added.)

The form of the verdict, "guilty except for insanity," implies that the trier of fact's initial inquiry is one of criminal culpability. A trial court, when appropriate, has always asked a jury if it found the defendant "guilty," "not guilty," or "guilty except for insanity" (or some verbal variation of the third option). See Leland v. Oregon, 343 U.S. 790, 793-94, 72 S.Ct. 1002, 1004-1005, 96 L.Ed. 1302, reh'g den. 344 U.S. 848, 73 S.Ct. 4, 97 L.Ed. 659 (1952) (recognizing this method). In such a case, if the state did not prove beyond a reasonable doubt that the defendant committed a crime or if the defendant proved a complete defense to the crime, then regardless of the defendant's sanity, the proper verdict was "not guilty."

ORS 161.295(1) also requires that, before a trier of fact may find a defendant "guilty except for insanity," the defendant must have been engaging in "criminal conduct." Conduct is not "criminal" unless it meets the elements of an offense defined by the legislature, the state has disproved any raised defenses, and the defendant has failed to prove available affirmative defenses. ORS 161.055; ORS 136.415. In other words, the requisite proof of "criminal conduct" is requisite proof of "guilt." Likewise, by its plain language, ORS 161.295(1) questions whether the defendant could appreciate the "criminality" of conduct and had the capacity to "conform the conduct to the requirements of law." ⁸ If a defendant's conduct, in fact, is not criminal and conforms to the requirements of law, it would make little sense to question whether the defendant appreciated the criminality of the conduct or had the capacity to conform to the requirements of law.

The legislative history of ORS 161.295(1) and this court's case law also support the conclusion that a defendant's "guilt" must be established before sanity becomes an issue in the case. In State v. Olmstead, 310 Or. 455, 800 P.2d 277 (1990), this court considered whether the insanity defense could be applied to a strict liability offense. We held that it could be applied to such an offense because a defendant's proof of the insanity defense was not an issue of whether a defendant possessed or lacked a culpable mental state; rather, it was an issue of whether society wanted to hold that person criminally responsible. Id. at 461-66, 800 P.2d 277. In considering the issues, we examined the legislative history of the insanity defense. We determined that one of the reasons the insanity defense did not go to the issue of defendant's mental state is because an application of the insanity defense presupposes proof of all of the material elements of the crime charged, including any requisite mental state. An absence of proof on any material element of the crime would mandate acquittal rather than a verdict of "guilty except for insanity." Id. at 462, 800 P.2d 277. ⁹

Thus, the application of the defense of mental disease or defect requires a serial inquiry: (1) Did the state prove all of the material elements of the crime and disprove any defenses raised by the defendant beyond a reasonable doubt? (2) Has the defendant failed to prove, by a preponderance of evidence, any raised affirmative defenses to the crime? (3) Was the defendant "insane" (as defined by ORS 161.295(1)) at the time of engaging in the criminal conduct? A defendant may be found "guilty except for insanity" of the crime only if all three questions are answered in the affirmative. In sum, we hold that the defense of mental disease or defect requires a finding that the defendant is criminally culpable before a question arises as to whether society will hold the defendant criminally responsible.

We now turn to the role of the affirmative defense of extreme emotional disturbance in the determination of criminal culpability when the crime charged is intentional murder. ORS 163.135(1) provides in part:

"It is an affirmative defense to murder for purposes of ORS 163.115(1)(a) [intentional murder] that the homicide was committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation."

The three components of extreme emotional disturbance are: (1) Did the defendant commit the homicide under the influence of an extreme emotional disturbance? (2) Was the disturbance the result of the defendant's own intentional, knowing, reckless, or criminally negligent act? ¹⁰ (3) Was there a reasonable explanation for the disturbance?

The first element of the extreme emotional disturbance defense is a purely subjective inquiry. It asks whether the defendant was in fact acting under the influence of an extreme emotional disturbance when committing the homicide. The defendant is entitled to the defense only if the defendant was...