State v. Stockett

• Citation: 565 P.2d 739,278 Or. 637
• Parties: STATE of Oregon, Petitioner, v. Joseph Charles STOCKETT, Respondent.
• Decision Date: 21 June 1977
• Court: Supreme Court of Oregon

Page 739

565 P.2d 739

278 Or. 637

STATE of Oregon, Petitioner, v. Joseph Charles STOCKETT, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 6, 1977.

Decided June 21, 1977.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for petitioner. With him on the brief were Catherine Allan, Asst. Atty. Gen., and James A. Redden, Atty. Gen.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed a brief for respondent.

HOWELL, Justice.

This is a petition for review of a decision of the Court of Appeals which reversed defendant's conviction for arson. Defendant contended that the trial court erred in refusing to give his requested instruction on diminished intent or partial responsibility under ORS 161.305, and the Court of Appeals agreed with that contention. In doing so, the court held that the fact 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 statute.

Defendant Stockett was indicted for arson in the first degree and convicted by a jury of arson in the second degree. ¹ The indictment charged him with setting fire to a building in Eugene which was occupied by the Planned Parenthood Association. There was evidence that defendant was despondent and that, while attending a small party at a private home across the street from the Planned Parenthood building, he drank several beers, took a Quaalude pill, and smoked hashish. Several witnesses testified that he was in a very unstable mental and emotional state and that he monopolized the conversation with a prolonged discussion on abortion, contraceptives and the relative merits of burning down the Planned Parenthood building. He felt that the Planned Parenthood Association was responsible for causing his former wife to have an abortion and for encouraging women to use IUD contraceptives which he felt were dangerous. Defendant left when the party broke up but later returned to the house with a can of gasoline. He left again when he was refused admittance, and shortly thereafter the Planned Parenthood building exploded into flames.

Throughout the trial, defendant was uncooperative with his court-appointed attorneys, and he refused to submit to a psychiatric examination on his own behalf. However, there was a substantial amount of lay testimony that defendant was "very agitated," "emotionally upset," or "out of control" both before and after the fire. The state's psychiatrist testified that defendant was a paranoid schizophrenic with grandiose tendencies, but he concluded that the defendant was legally responsible for his conduct.

At trial, the defendant relied upon affirmative defenses of mental disease or defect excluding responsibility and of partial responsibility or diminished intent. ² The partial responsibility defense is not a complete defense to the crime charged but results in a conviction on a lesser-included offense. An instruction was given on the affirmative defense of mental disease or defect excluding responsibility, but the trial court refused to give the uniform jury instruction on partial responsibility, although both the state and defendant requested it. ³ Apparently, the court felt that ORS 161.300 was simply an evidentiary statute and that the element of intent would be adequately covered in the instructions on second degree arson and reckless burning. The record is ambiguous, but the court may also have concluded that requiring the defendant to affirmatively prove diminished intent under ORS 161.305 was inconsistent with the state's constitutional burden of proving each element of the offense beyond a reasonable doubt. ⁴ In any event, the trial court gave no instruction at all on the issue of partial responsibility or diminished intent, and the jury found defendant guilty of arson in the second degree.

On appeal to the Court of Appeals, the defendant assigned as error the failure to give his requested instruction on partial responsibility under ORS 161.305. ⁵ The Court of Appeals concluded that defendant's requested instruction properly stated the law and should have been given and also held that ORS 161.305 was not unconstitutional. The court then reversed and remanded this case for a new trial on the grounds that the trial court committed prejudicial error in failing to give defendant's requested instruction. The state then petitioned this court for review, contending that the trial court's failure to give defendant's requested instruction was not prejudicial and, therefore, was not reversible error. We granted review in order to consider the constitutional questions raised by ORS 161.305 and the Court of Appeals decision in light of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

In determining that ORS 161.305 was not unconstitutional, the Court of Appeals noted that State v. Dodson, 25 Or.App. 859, 551 P.2d 484, S.Ct. rev. denied (1976), had held that the first part of ORS 161.305, which requires the defendant to affirmatively prove a mental disease or defect sufficient to completely exclude responsibility, did not violate defendant's due process rights. ⁶ The court then held that the same reasoning should apply to the affirmative defense of partial responsibility set forth in the second part of ORS 161.350. We disagree with this conclusion.

The existence of the required mental state in a specific intent crime is an essential element of the offense charged. Under Mullaney v. Wilbur, supra, and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the state cannot shift the burden on this issue to the defendant. In Mullaney the Court held that a murder defendant could not be required to carry the burden of affirmatively proving heat of passion in order to reduce the crime to manslaughter:

"Maine law requires a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter. In re Winship, 397 U.S. at 372, 90 S.Ct. (1068), 25 L.Ed.2d 368 (concurring opinion). We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case. * * *." 421 U.S. at 703-704, 95 S.Ct. at 1892. (Emphasis in original.)

The Court of Appeals' decision in State v. Dodson, supra, dealt only with the issue of defendant's burden of affirmatively proving his insanity by a preponderance of the evidence. As Justice Rehnquist points out in his concurrence in Mullaney v. Wilbur, supra, this is an entirely different issue from that of placing the burden on the defendant to negate any of the necessary elements of the offense charged, such as the requisite mens rea:

"I agree with the Court that In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), does require that the prosecution prove beyond a reasonable doubt every element which constitutes the crime charged against a defendant. I see no inconsistency between that holding and the holding of Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). In the latter case this Court held that there was no constitutional requirement that the State shoulder the burden of proving the sanity of the defendant.

"The Court noted in Leland that the issue of insanity as a defense to a criminal charge was considered by the jury only after it had found that all elements of the offense, including the mens rea, if any, required by state law, had been proved beyond a reasonable doubt. Id., at 792, 795, 72 S.Ct. (1002), at 1004-1005, 96 L.Ed. 1302. Although as the state court's instructions in Leland recognized, id., at 794-795, 72 S.Ct. (1002), at 1005-1006, 96 L.Ed. 1302, evidence relevant to insanity as defined by state law may also be relevant to whether the required mens rea was present, the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime. For this reason, Oregon's placement of the burden of proof of insanity on Leland, unlike Maine's redefinition of homicide in the instant case, did not effect an unconstitutional shift in the State's traditional burden of proof beyond a reasonable doubt of all necessary elements of the offense." 421 U.S. at 705-06, 95 S.Ct. at 1893. (Emphasis added.)

See also Buzynski v. Oliver, 538 F.2d 6 (1st Cir. 1976); People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898 (1976), appeal pending 45 USLW 3599 (March 1, 1977).

As in Mullaney v. Wilbur, supra, the issue in this case relates to defendant's mens rea: whether he entertained the requisite mental intent to be guilty of the offense charged. Also as in Mullaney, the state, through ORS 161.305, has attempted to shift the burden of proof on this issue to the defendant. The distinction between this situation and that which arose in State v. Dodson, supra, may be subtle, but, as Justice Rehnquist pointed out in the passage quoted above, it is nonetheless one of constitutional dimensions. Therefore, we hold that ORS 161.305 is unconstitutional insofar as it places the burden of proving partial...