Filed: December 14, 2000
STATE OF OREGON,
Petitioner on Review,
v.
DARIUSH DAVID AMINI,
Respondent on Review.
On review from the Court of Appeals.*
Argued and submitted November 10, 1999.
Ann Kelley, Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Louis R. Miles, Deputy Public Defender, Salem, argued the cause for respondent on review. With him on the brief was David E. Groom, State Public Defender.
Before Carson, Chief Justice, and Gillette, Van Hoomissen, Durham, and Leeson Justices.**
LEESON, J.
The decision of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for further proceedings.
Durham, J., filed a concurring opinion.
*Appeal from Multnomah County Circuit Court, Stephen S. Walker, Judge. 154 Or App 589, 963 P2d 65 (1998).
**Kulongoski and Riggs, JJ., did not participate in the consideration or decision of this case.
LEESON, J.
The issue in this criminal proceeding is whether a jury instruction advising the jury of the consequences of a finding that defendant was guilty except for insanity violated defendant's right to trial by an impartial jury under Article I, section 11, of the Oregon Constitution. The Court of Appeals held that it did. State v. Amini, 154 Or App 589, 963 P2d 65 (1998). For the reasons that follow, we reverse the decision of the Court of Appeals and remand the case to that court to consider defendant's other assignments of error.
Defendant was charged with two counts of aggravated murder, one count of attempted aggravated murder, and one count of second-degree assault with a firearm. Those charges stemmed from the deaths of defendant's wife and a foreign exchange student who resided with defendant's wife, and gunshot injuries to another student who was visiting at the residence. At trial, defendant raised the affirmative defense of mental disease or defect constituting insanity. ORS 161.295; ORS 161.305. (1) ORS 161.313 provides that, when the issue of insanity under ORS 161.295 is submitted to the jury for determination, "the court shall instruct the jury in accordance with ORS 161.327." ORS 161.327, in turn, lists the circumstances under which a defendant may be placed in the jurisdiction of the Psychiatric Security Review Board (PSRB) for care and treatment after a verdict of guilty except for insanity.
At defendant's trial, the state asked the trial court to give Uniform Criminal Jury Instruction (UCrJI) 1122, which closely parallels the wording of ORS 161.327. (2) Defendant excepted, arguing that the mandate of ORS 161.313, combined with the jury instruction required by ORS 161.327, unconstitutionally suggested to the jury that it should and could consider the consequences of a guilty-except-for-insanity verdict in its deliberations. The trial court overruled defendant's objection and gave UCrJI 1122. The court also instructed the jury not to consider what sentence the court might impose if defendant were found guilty. The jury subsequently found defendant guilty. On appeal, defendant argued that the trial court erred in giving UCrJI 1122. He contended that the instruction violated the guarantee of the right to trial by an impartial jury under Article I, section 11, because the instruction could induce the jury to believe that a finding of insanity would lead to defendant's release.
A majority of the Court of Appeals, sitting en banc, agreed. The majority believed that, in State ex rel. Ricco v. Biggs, 198 Or 413, 255 P2d 1055 (1953), this court had held that the right to trial by an impartial jury included the right to a trial that was evaluated for fairness under the same due process standards as those used to evaluate a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution. Amini, 154 Or App at 594. (3) The majority concluded that the instruction was unfair, because
"the sentence that a defendant will receive if convicted, and the disposition that will be made of a defendant who is found to have a mental disorder, are not matters for the jury's consideration, and juries should not be instructed regarding them."
Id. at 595-96.
Judge Warren dissented. He maintained that defendant's appeal "raises no issue of jury impartiality pursuant to Article I, section 11," and that the only issue was whether giving UCrJI 1122 violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Amini, 154 Or App at 603 (Warren, J., dissenting). Judge Warren analyzed whether giving UCrJI 1122 deprived defendant of due process and concluded that the trial court's instruction that the jury was not to consider what sentence the court might impose if the jury found defendant guilty made it unlikely that the jury had applied UCrJI 1122 in a manner that was fundamentally unfair to defendant. He therefore would have affirmed the conviction. Id. at 620 (Warren, J., dissenting). This court allowed the state's petition for review.
Although defendant asserted, and the Court of Appeals agreed, that Article I, section 11, does not permit a jury instruction like UCrJI 1122, we initially must determine whether Article I, section 11, includes a broad fairness standard for reviewing such an instruction. We conclude that it does not.
In interpreting an original provision of the Oregon Constitution, such as Article I, section 11, this court considers the specific wording of the provision, the historical circumstances that led to its creation, and the case law surrounding it. Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). The purpose of the inquiry is "to understand the wording in the light of the way that wording would have been understood and used by those who created the provision." Vannatta v. Keisling, 324 Or 514, 530, 931 P2d 770 (1997). This court also seeks to "apply faithfully the principles embodied in the Oregon Constitution to modern circumstances as those circumstances arise." State v. Rogers, 330 Or 282, 297, 4 P3d 1261 (2000).
The part of Article I, section 11, that is relevant to this case provides that, "[i]n all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * *." The clause guarantees only a trial by an impartial jury; it does not mention a fair trial. The broader context of Article I, section 11, provides no insight into whether the guarantee of trial by an impartial jury means a "fair and impartial trial."
We turn to the historical circumstances that led to the inclusion of the guarantee of trial by an impartial jury in the Oregon Constitution. The framers of the Oregon Constitution adopted Article I, section 11, verbatim from Article I, section 13, of the Indiana Constitution of 1851. W.C. Palmer, The Sources of the Oregon Constitution, 5 Or L Rev 200, 201 (1926). They did so without any record of debate. See Charles Henry Carey, ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, 310 (1926) (demonstrating absence of debate). However, such a guarantee was a feature of all state constitutions, beginning with the Virginia Declaration of Rights of 1776. See Article 8, Virginia Declaration of Rights ("That in all * * * criminal prosecutions a man hath a right * * * to a speedy trial by an impartial jury * * *"), quoted in 1 Bernard Schwartz, The Bill of Rights: A Documentary History 235 (1971).
Impartiality had not always been the norm. Before the fifteenth century, witnesses and persons who had participated in the indictment of an accused person were allowed to sit on the jury. Theodore F. T. Plucknett, A Concise History of the Common Law, 124-29 (5th ed 1956). By the mid-fifteenth century, however, the jury had evolved into "a body of impartial men who come into court with an open mind." Id. at 129. By the seventeenth century, it was well established that a juror must have "such freedom of mind that he stands indifferent as he stands unsworne." 1 Edward Coke, Institutes of the Laws of England; or a Commentary Upon Littleton,