State v. Sagdal

• Decision Date: 09 October 2013
• Docket Number: 100545212,A146601.
• Citation: 258 Or.App. 890,311 P.3d 941
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Matthew Scofield SAGDAL, Defendant–Appellant.
• Court: Oregon Court of Appeals

258 Or.App. 890
311 P.3d 941

STATE of Oregon, Plaintiff–Respondent,
v.
Matthew Scofield SAGDAL, Defendant–Appellant.

100545212; A146601.

Court of Appeals of Oregon.

Argued and Submitted Jan. 17, 2013.
Decided Oct. 9, 2013.

[311 P.3d 942]

Jedediah Peterson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jeremy Rice, Assistant Attorney General, argued the cause for respondent. John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Samuel A. Kubernick, Assistant Attorney General, filed the brief for respondent.

Before ORTEGA, Presiding Judge, and NAKAMOTO, Judge, and DE MUNIZ, Senior Judge.

DE MUNIZ, S.J.

[258 Or.App. 891]Defendant appeals a judgment of conviction for reckless driving, ORS 811.140, which was based on a unanimous guilty verdict returned by a six-person jury. Defendant first assigns error to the admission into evidence of two Certificates of Accuracy for Alcohol Breath Testing Equipment, claiming that the admission violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. We reject that argument without further discussion.¹ Second, defendant claims that his rights under Article I, section 11, of the Oregon Constitution were violated when the court empaneled a jury of fewer than 10 persons and accepted a verdict from that jury. For the reasons stated below, we affirm.

The facts are not in dispute. One evening, defendant was found in the driver seat of his car, which was running but stopped in the left turn lane of a public road. He appeared to be asleep or unconscious. When police officers arrived, they smelled alcohol on defendant's breath and noticed that his eyes were watery, his eyelids were droopy, and his speech was slurred. After defendant performed poorly on field sobriety tests, he was arrested and transported to the police station. There, defendant agreed to take an Intoxilyzer alcohol breath test, which revealed that his blood alcohol content was 0.30.

Defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010, and reckless driving, ORS 811.140.² Before trial, defendant requested a jury of at least 10 persons. The court denied his request and empaneled a jury of six persons. At the conclusion of the trial, the jury found defendant guilty of reckless driving.

The issue we address in this case is whether, under Article I, section 11, and Article VII (Amended), section 9, of [258 Or.App. 892]the Oregon Constitution, a defendant in a misdemeanor case has a right to a jury of 10 or more persons. The court empaneled a jury of six persons, as directed by ORS 136.210(2), which provides, “In criminal cases in the circuit courts in which the only charges to be tried are misdemeanors, the trial jury shall consist of six persons.” That statute was originally enacted in 1979, under the authority of Article VII (Amended), section 9, which states, “Provision may be made by law for juries consisting of less than 12 but not less than six jurors.”

Defendant argues that the enactment of ORS 136.210(2) was not within the authority granted the legislature under Article VII (Amended), section 9, because it is contrary to a criminal defendant's pre-existing right under Article I, section 11, to a jury of at least 10 persons. Article I, section 11, provides, in part:

[311 P.3d 943]

“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; * * * provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise[.]”

Defendant interprets Article I, section 11, to mean that any criminal defendant tried in circuit court is entitled to a jury of at least 10 persons because 10 persons are required to return a verdict. He argues that Article VII (Amended), section 9, may apply to criminal cases in other courts, but it does not modify or eliminate the Article I, section 11, requirement of at least 10 jurors for criminal cases in circuit court. Because defendant's trial was held in circuit court, he argues that 10 members of the jury were required to render a verdict; therefore, empaneling a six-person jury was improper, and the verdict returned by that jury is invalid.

Resolution of defendant's claim requires that we interpret certain provisions within Article I, section 11, and Article VII (Amended), section 9, of the Oregon Constitution. Both provisions at issue were added to the Oregon Constitution as referred constitutional amendments, so we seek to determine [258 Or.App. 893]the voters' intent using the analytical framework set forth in Roseburg School Dist. v. City of Roseburg, 316 Or. 374, 378, 851 P.2d 595 (1993), and Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or. 551, 559, 871 P.2d 106 (1994). See Stranahan v. Fred Meyer, Inc., 331 Or. 38, 57, 11 P.3d 228 (2000) (so holding). First, we consider the text and context of the provision, including relevant case law. Id. at 56, 61, 11 P.3d 228. If the voters' intent is not clear from the text and context, we consider the history of the provision, including “sources of information that were available to the voters at the time the measure was adopted and that disclose the public's understanding of the measure.” Ecumenical Ministries, 318 Or. at 560 n. 8, 871 P.2d 106. However, “caution must be used before ending the analysis at the first level, viz., without considering the history of the constitutional provision at issue.” Stranahan, 331 Or. at 57, 11 P.3d 228.

When two constitutional provisions potentially conflict, our function is to interpret them in a way that “harmonizes” them. State ex rel. Adams v. Powell, 171 Or.App. 81, 95–96, 15 P.3d 54 (2000), rev. dismissed,334 Or. 693, 56 P.3d 405 (2002) (citing In re Fadeley, 310 Or. 548, 560, 802 P.2d 31 (1990)). Both parties agree that the two constitutional provisions at issue here can be harmonized with each other, but for different reasons. Defendant argues that the two constitutional provisions can be harmonized if Article I, section 11, applies to any criminal case in circuit court, and Article VII (Amended), section 9, is limited to criminal cases in other courts. On the other hand, the state suggests that the two provisions can be harmonized if Article I, section 11, applies to felony cases, which could only be tried in circuit court, and Article VII (Amended), section 9, applies to any case in any court if the law provides for a jury of fewer than 12, but not fewer than six, jurors.

The question reduces to whether, as defendant argues, the rights established in Article I, section 11, limit the authority granted under Article VII (Amended), section 9, to cases other than criminal cases in circuit court. If so, the legislature did not act within its authority when it enacted ORS 136.210(2), providing for six-person juries in misdemeanor cases in circuit court. If, on the other hand, [258 Or.App. 894]the legislature's authority under Article VII (Amended), section 9, includes the authority to provide for six-person juries for criminal cases in circuit court, then defendant's six-person jury was proper and its verdict is valid.

ARTICLE I, SECTION 11

The part of Article I, section 11, at issue states, “[I]n the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise[.]” That part of Article I, section 11, was added to the Oregon Constitution as a referred constitutional amendment, adopted

[311 P.3d 944]

by the voters in 1934. See Or. Laws 1933, SJR 4 (2d Spec Sess) (referring the amendment to the voters); State ex rel. Smith v. Sawyer, 263 Or. 136, 138, 501 P.2d 792 (1972) (noting that the amendment was adopted in 1934).

First, we consider the text of the 1934 amendment. Defendant focuses on the phrase “in the circuit court ten members of the jury may render a verdict of guilty or not guilty[.]” He argues that the provision requires a jury of at least 10 members, because 10 jurors are required to render a verdict. Indeed, the phrase “ten members of the jury” assumes that (1) there is a jury, and (2) the jury is comprised of at least 10 members. The second half of the provision, “save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise[,]” does not address the number of persons in the jury, but whether the verdict is unanimous. The word “save” means “[t]o except, reserve, or exempt; as where a statute ‘saves' vested rights.” Black's Law Dictionary, 1583 (3d ed 1933). “Except” means “[t]o take or leave out of consideration, to exclude from a statement, or to omit or withhold.” Id. at 710. Furthermore, a “saving clause” in a statute is defined as, “an exception of a special thing out of the general things mentioned in the statute; it is ordinarily a restriction in a repealing act, which is intended to save rights, pending proceedings, penalties, etc., from the annihilation which would result from an unrestricted repeal.” Id. at 1583. If the “saved” part of the 10–member jury verdict provision is [258 Or.App. 895]that a verdict of guilty of murder in the first degree must still be unanimous, then it follows that the intended effect of the 1934 amendment was to allow a nonunanimous jury verdict in criminal cases other than murder in the first degree, not to create a right to a jury of a particular size. That interpretation is supported by the fact that a 10–person jury “may” render a verdict. The use of the permissive “may,” as opposed to the instructive “must,” is consistent...