State v. Stockett
| Decision Date | 10 January 1977 |
| Citation | 28 Or.App. 35,558 P.2d 1241 |
| Parties | STATE of Oregon, Respondent, v. Joseph Charles STOCKETT, Appellant. |
| Court | Oregon Court of Appeals |
Patrick B. Gilmore, Certified Law Student, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Catherine Allan, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LEE and RICHARDSON, JJ.
Defendant was indicted for first degree arson, ORS 164.325, but was convicted of the lesser included offense of second degree arson, ORS 164.315. 1 Defendant interposed affirmative defenses of mental disease or defect excluding responsibility, ORS 161.295, and diminishing intent, ORS 161.300. He assigns as error the failure of the court to give an instruction on mental disease or defect diminishing intent. He also challenges admission in evidence of a poem he had written.
Defendant admitted setting fire to the building housing the Planned Parenthood Association. He relied on the two defenses arising from his mental condition. The evidence indicated defendant felt Planned Parenthood had forced his wife to have an abortion, had killed his baby and contributed to problems between him and his wife. During the evening of the fire the defendant had drunk 12 or 13 beers, took a pill called Quaalude and smoked hashish. Several people testified he was in a state of emotional turmoil and was very agitated at Planned Parenthood, and that he was in an unstable mental and emotional condition just prior to the fire. An examining psychiatrist testified defendant was a paranoid schizophrenic but was legally responsible for his conduct.
Both the state and defendant requested the same jury instruction regarding the defense of diminished intent. 2 The court declined to give the instruction on essentially two grounds. First, the court reasoned ORS 161.300 is an evidentiary statute that has nothing to do with affirmative defenses. Secondly, the court felt instructing the jury on partial responsibility as an affirmative defense would be inconsistent with the state's burden to prove the element of intent beyond a reasonable doubt.
We disagree with the court's reasoning. ORS 161.305 allows defendant to prove as an affirmative defense that he did not have the requisite intent because of a mental disease or defect. Regardless, what the legislature has named the defense in ORS 161.305 (partial responsibility), the substance of the defense is contained in ORS 161.300, which is incorporated by reference into the affirmative defenses related to a mental disease or defect.
The court's second point is disposed of by reference to State v. Dodson, 25 Or.App. 859, 551 P.2d 484, Sup.Ct. Reviewed denied (1976). We held in Dodson the statute requiring a defendant to prove the affirmative defense of mental disease or defect excluding responsibility did not violate defendant's right to due process of law. The same reasoning would apply where the affirmative defense involves mental disease or defect diminishing intent.
In addition the court said the instruction on a lesser included offense of reckless burning '* * * sufficiently covers any defense in regard to intent. * * *' The court apparently reasoned if the state failed to prove the element of intent the jury could find defendant not guilty or guilty of reckless burning. Pursuant to ORS 161.300 the jury, in determining if there is specific intent, is entitled to consider not only the evidence proffered by the state but also the evidence that defendant was not capable of forming an intent due to mental disease or defect.
Intent is rarely proven by subjective evidence of the defendant's state of mind. It is most often established by inference from the objective conduct of defendant surrounding commission of the crime. It may very well be the state could establish the objective basis for intent and the defendant could prove by a preponderance of the evidence he could not form the intent his conduct seemed to illustrate. Under the instructions of the court, the jury could believe the defendant had a mental disease or defect, not sufficient to diminish responsibility, but that they were not authorized to use this evidence in determining if intent had been established. The instruction requested by both parties correctly stated the law and should have been given.
The state, essentially conceding the court erred in denying the instruction, argues it was not a prejudicial error. The state advances the novel argument that the questioning by both trial counsel of the witnesses focused the jury's attention on the relationship of defendant's mental condition to the 'intent' element of the crime. This, coupled with the court's instructions regarding the state's burden to prove intent, the lesser included offense of 'reckless burning' 3 and the definitions of 'intentionally' and 'recklessly' brought the issues clearly to the jury.
The adversary questioning of witnesses and the arguments respecting the meaning of the evidence are not a substitute for the court's obligation to instruct the jury on the law. The jury was presented with substantial evidence of defendant's mental condition but was instructed only on the use of such evidence in relation to defendant's claim of insanity under ORS 161.295. Having rejected this defense the jury could rightfully assume, under the instructions given by the court, the evidence of mental disease or defect was no longer relevant. Under ORS 161.300 it clearly was relevant.
Defendant is entitled to have his theory of the case presented to the jury by proper instructions if there is evidence to support it. State of Oregon v. Anderson, 207 Or. 675, 298 P.2d 195 (1956); State v. Ollison, 16 Or.App. 544, 519 P.2d 393 (1974); State v. Burns, 15 Or.App. 552, 516 P.2d 748 (1973),...
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State v. Stockett
...that the statute placed the burden of proving diminished intent on the defendant did not make the statute unconstitutional. 28 Or.App. 35, 558 P.2d 1241 (1977). We granted review in order to consider the constitutionality of the Defendant Stockett was indicted for arson in the first degree ......