*1 sentencing July October for and remanded Argued affirmed and submitted rehearing petition November for denied OREGON, OF STATE review, on Respondent BURROW, RAY MELVIN review. Petitioner on 28506) A21176, C81-02-30968, SC (TC CA 653 P2d Lonergan, argued Richard Portland, L. the cause for petitioner on review. With him on the brief were Howard R. Lonergan, A. Clint Portland. Denney, Attorney Thomas H. General, Assistant Salem, argued respondent cause for on review. With him on the Frohnmayer, Attorney brief were Dave General, and Gary, William F. General, Solicitor Salem. *2 Lent, Justice, Before Chief Linde, Peterson, and Tanzer, * Campbell, Justices, and Carson.*
PETERSON, J. dissenting opinion.
Linde, J., Tempore argument. Justice Pro at time of
PETERSON, J. participated
Defendant with three others in robbery room, armed of a man and a woman a motel injured the course of which the man was and the woman fatally felony charges was murder, robbery, stabbed. At his trial on
attempted murder, and two counts of first entering defendant testified that after the motel accomplices planned room with his robbery he withdrew from the before criminal act occurred and that he did participants not know that one of the other a knife. had Defendant convicted of the two robberies and felony acquitted attempted murder and murder. After unsuccessfully appealing his on convictions several grounds,1 petitioned defendant this court to review his unconstitutionally required claim that he was to shoulder proving charge the burden of an affirmative defense to the felony murder. provided: murder statute then “(1) homicide constitutes murder [CJriminal when:
<£* * * * *
“(b) by person, acting It is committed a either alone or persons, attempts with one or more who commits or to commit in degree, burglary arson the first in the first degree, escape degree, kidnapping in the first in the first degree, rape robbery any in degree, degree the first in or sodomy in the first in in and the course of and committing attempting furtherance of the crime he is or to commit, therefrom, he, flight the or immediate or another participant any, person if there be causes the death of a * * * participants; other than one of the
U* * * * * “(3) charge is It an affirmative defense to a of violat- (b) ing paragraph of subsection of this section that the defendant:
“(a) only participant underlying Was in the crime; and sentence, Appeals The state conceded in error defendant’s and the Court of resentencing. App
remanded the
for
case
55 Or
“(b) any way in Did not commit homicidal act or solicit, command, request, importune, in cause or aid thereof; commission and
“(c) dangerous deadly Was not armed with a weapon; and
“(d) ground Had no reasonable to believe that participant dangerous deadly other with a armed weapon; and n “(e) ground Had no reasonable to believe that participant engage likely other intended to conduct result death (1979) (amended 1981).2 ORS 163.115 The trial court a jury instructed the that “[i]t defense to if charge proves this the defendant each of the following,” by the five items continuing reading (a) (e). foregoing through listed in the The court paragraphs further stated:
“This defense is an affirmative defense which must be proved by proved by the defendant. The defense must be evidence, is, preponderance that that amount of which, it, opposed weighed evidence when with that has convincing great[3] probability more force and the of truth.” excepted first, Defendant to this instruction on the grounds, proof it shifted the burden from state defendant, second, and the “reasonable test grounds” (d) (e) paragraphs stupidity make a crime.4
The court’s instruction defendant must prove the constituting items the “affirmative defense” fol- 161.055(3), lows ORS which states that when a defense is so labeled the Criminal Code of “the defendant has proving preponderance the burden of the defense the evidence.” The drafters of the criminal code allocated the burden of way judicial this before recent 163.115(3), opinion frequent This contains references ORS *4 1981, murder affirmative defense statute then in effect. It was amended in Laws Or 1981, 873, 163.115(3) 163.115(2). ch 5. § What ORS is now ORS 3 reported transcript. Possibly judge “greater”; in So said there was no objection he to what said. 4 exception, process For the first defendant invoked “due under the State and exception. legal federal constitutions.” He cited no basis at trial for the second process to which due decisions that limited the extent defendants proof allows lawmakers to shift the burden of provi- therefore examine whether the cases. We compatible of 163.115 and ORS 161.055 are sions ORS beyond a reasonable requirement guilt proved doubt as a matter of federal constitutional law.5 application
The decision in this case
involves
Amendment,
interpreted
of the Fourteenth
as
recent
Supreme
decisions. The United States
Court has held
beyond a
guilt
required by
reasonable doubt
to be
Winship,
since In re
Fourteenth Amendment due process
358,
(1970).
361-64,
1068,
397 US
90 S Ct
Mullaney Patterson are the cases principal two upon appeal which the outcome of this turns. Both were objection generally process law” and at trial referred to “due Defendant’s process further the state and federal constitutions” without to “the due clause of brief, I, Oregon Constitu In he cited Article section identification. his remedy by provides “every man shall have due course tion. That section property, reputation.” injury person, Fifth Unlike the law for done him his process” clauses in state constitu Amendments and similar “due and Fourteenth tions, I, deprivations “liberty” nor to does not refer to official Article section Rather, upon provides process the state to an affirmative claim “due of law.” “remedy” “injury provide legal to this case. done.” It is not relevant for
murder cases. Both concerned the mental state of a defen-
which,
dant
if established, would make a homicide either
manslaughter. Mullaney
murder or
was decided in 1975
provided:
under a Maine murder statute which
“Whoever
unlawfully
being
aforethought,
a
kills
human
with malice
express
implied,
guilty
either
Stat
of murder
The
RevMe
(1964).
Ann,
17, §
tit
was instructed
prosecution
that if the
established that the homicide was
aforethought
both
unlawful,
intentional and
“malice
was to
conclusively implied
proved
unless the defendant
a
preponderance
fair
of the evidence that he acted in the heat
passion
provocation.”
on
sudden
minds of it made unconstitutional all crimi- (as certainly defenses, nal law affirmative most the dissent hold) affecting guilt. Many would those affirmative defenses applied example, Mary- read and courts so case. For appellate land court wrote: «* * * [Mullaney] any pro- dooms as unconstitutional 1) imposes upon
cedural device which a defendant a burden standard, proving, by any his innocence as to 2) element of a crime or relieves the State of its burden of beyond persuasion a reasonable ultimate doubt as to State, fairly App in the case.” issue Evans Md A2d Mullaney, opined its carried to commentators Some logical defenses.6 conclusion, all affirmative would forbid Mullaney. dissenting opinion is consistent years Patterson, decided two it is not consistent with But essentially Patterson, indis- which concerned an In later. Supreme tinguishable legal issue, reached a con- Court overruling Mullaney trary without result. Patterson denuded it. murder under involved a conviction Patterson (1) elements: that had two York murder statute
New person”; and of another “intent “causing] cause death person.” person of a third the death of such 1975). (McKinney Malice Penal Law 125.25 NY *6 aforethought an of the crime. Under New was not element acting prove law, he if could that was York the defendant for of disturbance “under the influence extreme emotional *” * * explanation there a or excuse which the crime would be reduced to reasonable Supreme manslaughter. The imposition upon the held that the of this burden Court defendant did not violate the federal Due Process Clause. analysis began court its statement normally that the creation of affirmative defenses is within ** * power princi- of state ‘it some “unless offends justice ple of so rooted in the traditions and conscience of *” people our at 201-02 as to be ranked as fundamental.’ 432 US Speiser
(quoting Randall, 513, v. 357 US 523 (1958)). Mullaney The court made it clear that is to theory specifically rejected facts, to limited its and apparent anticipation dissenting opinion advanced in the presented of the situation here. Mullaney has language
“There is some been perhaps construing the Due Process understood as Clause require prosecution prove beyond a to reasonable affecting culpability.’ of doubt fact ‘the rule [citing law It is said that such a would review articles]. deprive of legislatures discretion whatsoever allocat- proof, practical of ing the of effect which burden 6 Court, Term, 1, (1977). Supreme See also See 1976 91 Harv L Rev 97 Comment, Mullaney v. New York’s Extreme Wilbur: Affirmative Defenses After Disturbance, (1976); Note, Brooklyn L Rev 171 The Constitu Emotional 43 York, tionality v. 78 L Rev Patterson New Colum Affirmative Defenses of After Note, 655, 656, 659, (1978); and Due Process: The 669 Defenses Affirmative Constitutionality Placing Defendant, a Criminal a Burden Persuasion on 64 of (1976). L J 871 Geo legislative might be to undermine reform of our criminal logical ** * extreme, system.
justice Carried to its such a also, reading Mullaney might example, discourage for Congress enacting pending legislation change from felony-murder prove by permitting rule the accused to a preponderance the evidence the affirmative defense necessary a the homicide committed was neither nor reasonably consequence underlying foreseeable fel- Sess, (1975). ony. 1, Cong, See Senate bill S 94th 1st Mullaney The Court did intend to have such far- York, 197, 214 n reaching Patterson v. New 432 US effect.” 2319, (Emphasis L 2d 281 97 S Ct Ed added.) earlier
The Patterson court adhered to its decisions Delaware, v. 97 Ct 50 L Ed 2d in Rivera 429 US S (1976) (court, question, federal for want of a substantial appeal involving dismissed in a case a Delaware statute insanity a defendant defense to required raising which preponderance mental defect prove illness or evidence), Oregon, and Leland 72 S Ct 343 US placed L Ed (Oregon statute which burden proving insanity beyond a reasonable doubt on defendant constitutional), held saying: Leland Rivera. But unwilling
“We are to reconsider sanity if even we were to hold that a State must issue, put it would not neces- convict once fact is sarily prove beyond a follow that a State must reasonable fact, every of which it doubt the existence or nonexistence exculpatory mitigating willing recognize as an *7 culpability affecting degree of or the circumstance Here, severity punishment. revising in its criminal of the code, provided the affirmative defense of New York disturbance, substantially expanded extreme emotional heat-of-passion concept; but it was version of the older willing making if out the defense to do so the facts certainty. by with sufficient were established the defendant unwilling establish the State was itself to undertake to The doubt, beyond perhaps a reasonable absence of those facts many proof difficult and that too fearing would be too escape murderers would persons deserving treatment as merely reason- punishment if the evidence need raise a state. It has doubt about the defendant’s emotional able the new criminal code of New York contains been said that exculpate mitigate or affirmative defenses which some 25 by to be be established the defendant but which must
699
it,
Clause, as
see
does not
operative. The Due
we
Process
abandoning
of
those defenses
put New York to the choice
disprove
to
undertaking
their existence
order
or
to
is
its constitu-
of a crime which otherwise within
convict
punishment.” Pat-
powers
tional
to sanction
substantial
York, supra,
v. New
because Patterson was from the court should have curiam, Others, per citing Mullaney. agreeing that Patterson was indis reversed Mullaney, tinguishable from asserted that the court should have about been^honest Allen, it, Mullaney. Winship: Re A See The Restoration In overruled v. Comment on Burdens Persuasion in Criminal Cases Patterson New After York, Mich L Rev n 76 35 54 Mullaney. point largely that Patterson has limited is Mullaney unmistakably v. “The disenchanted with Wilbur and Court quite possibly egregious means limit of federal cases involvement allocating Id. at 53. courts burdens under state law.” Stilling, 297-98, (1979), In State 285 Or 590 P2d we held that carry suggest presumptions which “that the state not have to instructions on does Mullaney. proof impermissible are under the burden of on the intent element” Stockett, (1977), P2d Our in State v. Or decision 161.305, imposed upon constitutionality which a defendant involved ORS 161.295(1). proving partial responsibility diminished under ORS the burden days “as in was Patterson was We said that It rendered four after decided. state, Mullaney, 161.305, attempted through shift the burden of ORS has * * * Therefore, hold that ORS 161.305 is on this issue to the defendant. we responsibilty proving partial places insofar as it the burden of unconstitutional at 637. diminished intent on the defendant.” Or express Rehearing requested. opinion as the effect of the We no holding in Stockett. on our decision Patterson *8 The purpose of 163.115(3) creating ORS affir- mative defense was to lessen the harshness of the felony murder by doctrine creating which, affirmative defense if proved, would exculpate the defendant. The legislature had a choice: It provided could have for affirmative defenses as to which the (such defendant had the proof burden of as in the New 25.00, York Revised upon Penal Law which ORS § based) 161.055 is (as or it provided could have recom- by Code) mended the Model Penal that once the defendant has introduced some defense, evidence of the prosecu- tion persuade must then the factfinder beyond a reasonable doubt that the defense does exist.9 The legislature opted impose the burden upon defendant. The preference of this writer or other member of this court to the procedure as better is irrelevant. Patterson states decision is for the legislature, subject to the remaining constitutional imposed by constraints Mullaney.10 We therefore examine the statutes and the trial court instructions in light Mullaney, by as limited Patterson. charged defendant was with four crimes: rob- Johnson, bery of robbery of Kleinberg, attempted murder of Johnson, and felony murder Kleinberg. The uncon- tradicted evidence was that the defendant and three others planned robbery. Code, Proposed 1.12(2) (1961); See Penal § Model Final Draft No. W. Scott, (1972); McCormick,
LaFave & A.
Criminal Law
at 46-51
§
C.
Handbook
(2d
1972).
the Law
§
of Evidence
at 800-02
ed
apprehensive
holding may
legislature
The dissenters are
that this
lead the
evidence,”
requiring
incriminating
define crimes in terms
but
“modicum of
thrusting upon
proving
the defendant the burden of
that he or she did not commit
a crime.
ice, arson, attempt rape, robbery or in the commission of or to commit another, burglary, guilty degree.” kills of murder in the first operated legislative murder affirmative defense has to- creation of previous felony murder ameliorate the harshness of the doctrine. dissenting opinion parade If the nonexistent of horribles described crime, manipulation legislative of elements of the becomes existent reason of persons equal protecting rights courts will be to the task of the constitutional charged with crimes. Kleinberg was stabbed one of the defendant’s “Tiny” Prop- associates, erty Roberts, Richard and later died. principal taken. The defendant’s defenses were he withdrew before criminal act occurred and that *9 he did not know that Roberts was armed with a knife. evidence, however, There was that the defendant assaulted during assaulting Johnson the time that Roberts was Klein- berg and that the defendant knew that Roberts was armed with a knife. robbery Kleinberg charged indictment defen- participant and another
dant as follows: “* * * * * * unlawfully knowingly did and [Defendants physical upon Kleinberg, by use Diane force Patricia stab- bing Kleinberg, dangerous Patricia Diane and did use a knife, weapon, attempting in the to-wit: while course of property, currency lawful commit theft of to-wit: America, United preventing States of with the intent of taking prop- resistance to the said defendants’ of the said erty, contrary to the Statutes such cases made and * * provided, degree robbery The first charged statute under which defendant was provides:
is ORS It 164.415. “(1) person robbery A commits the crime of in the degree if first he violates ORS 164.395 third [the robbery and he: statute] “(a) deadly weapon; Is armed with a or “(b) attempts dangerous weapon; Uses or use a or “(c) attempts physical Causes or to cause serious injury any person.” felony alleged murder indictment
defendants “* * * unlawfully knowingly commit the crime [D]id Robbery Degree the First and in the course of and
furtherance of the said crime which the said defendants crime, committing, participant were another in the said Roberts, Tiny Richard D. did also known as cause being, death another human Diane to-wit: Patricia crime, by stabbing Kleinberg, participant not a in the added.) Kleinberg, (Emphasis Patricia Diane *.” guilty of both crimes. Defendant was found makes one of a crime “if it is guilty ORS 161.150 by the conduct of committed his own conduct or another liable, criminally for which he is or both.” ORS 161.155(2)(b) person “criminally makes a liable for the * * * person a crime if constituting conduct of another facilitate the promote the intent or commission of the attempts crime he or abets or to aid or agrees [a]ids person planning committing abet such other * * the crime It is clear that the defendant’s conviction on both the Kleinberg robbery charge and the murder Kleinberg charge participation accomplice arose from his as an in the robbery.
On the Kleinberg robbery charge trial court instructed jury: again
“Count IV charge is a Robbery in the First degree, go and I’ll through the material elements which proved beyond must be a reasonable doubt:
‡* *10 “Four, that the accomplices defendant or his were dangerous weapon, armed with a to wit: a knife.
* * * * “Now, give you some further let’s definitions about participating. person “A concerned in the may commission of a crime be convicted of such if directly crime he commits the act crime, constituting the or aids attempts and abets or to aid or abet another in its commission though person- even ally present at the place time and of the commission of the (Emphasis added.) crime.”
On the felony murder charge, jury the was instructed on the statutory elements contained in ORS 163.115(1)(b), which are quoted earlier opinion. this Relative to the defendant’s defense, affirmative the was instructed as follows:
“Now, the defendant has raised an affirmative defense Felony crime of Murder while in the commission of the Felony crime of Murder.
“It is a defense to charge this if the proves defendant each of the following:
a* * * * * deadly “Three, dangerous he was a or not armed with * * weapon; 163.115(3) is claims that ORS The defendant felony in a case in which the murder unconstitutional robbery underlying the because affir crime first (“that 163.115(3)(c) defendant the mative defense ORS effectively dangerous weapon”) with a not armed was required robbery disprove underlying an element of the him to (a robbery person if, in the commits course deadly weapon”). robbing he “is armed with a The another prove every Mullaney ingredient rule is that state must beyond may not, doubt of an offense a reasonable presumption otherwise, shift defendant a disproving compare the crime. We an element of burden the instructions Mullaney rule whether the see violated. deadly concerning a use of
The instructions analyzed by putting weapon are them side side. best Felony Robbery Murder Instructions Instructions “* * * go through this I’ll “It is a defense to [felony charge if material which elements murder] proves proved beyond a each of the must be defendant * * * Three, Four, following: he reasonable doubt: dangerous armed or his was not defendant * * weapon deadly accomplices armed with a were (ORS 163.115(2)(c)) dangerous weapon, to-wit: ”* Irnifp o (ORS 164.415(l)(a)) though similar, instructions, are not inconsis- . robbery required charge tent. The instructions on the accomplices prove or his were state to “the defendant added.) (Emphasis dangerous weapon.” armed with a required murder instruction defendant weapon.” dangerous If the under the that he “was not armed with of the defendant alone is considered conduct *11 They they plainly not, are instructions, are inconsistent. entirety. however, necessary It was when considered their guilty armed to be for the defendant guilty, robbery. not because found the defendant weapon, dangerous he was a but because he was armed with accomplice Roberts, who was armed.11 an guilty use bases —the been found on two other The defendant could also have (b) 164.415(1) accomplice, weapon by attempted dangerous ORS a an use of
instructions did not have the effect of transferring an element of the underlying being armed with a dan- crime — gerous weapon the state to the defendant. —from
Concededly, when the statutes, relevant ORS 163.115(3) (c) and 164.415(1)(a), ORS compared, are an apparent Mullaney problem problem arises. But the apparent one, an for other are statutes involved and must be considered in making Mullaney analysis. In cases in which the robbery defendant’s liability criminal derives from his status as an accomplice under ORS 161.150-161.155, the role of those statutes must be consid- ered. every Almost crime described in the criminal code by implication includes responsibility language 161.150-.155, ORS and it would us, be error for making Mullaney analysis, to fail to consider the defen- liability dant’s as an accomplice. Therefore, in examining the language of 164.415(1)(a), (as ORS we must did the judge instructions) trial in his add the words “or his accomplice.” addition, With that for already stated, reasons apparent Mullaney problem disappears.
We do not commend the giving of instructions 163.115(3) under ORS when there is dispute no as to the court, issue. The trial in giving the affirmative defense instructions under 163.115(3), ORS should have mentioned only those subsections which were issue. Even though the affirmative defense 163.115(3)(c) instruction under ORS should not have been given, convinced, we are beyond any doubt, the giving of the instructions way no preju- diced the defendant.
The defendant also claims that the trial court erred in instructing the jury, on the murder affirmative defense, that it is a defense to the charge “if the defendant proves each of the following:
<<* * * * * “Four, he had ground no reasonable to believe that participant other dangerous deadly was armed with a weapon; or attempted causing physical injury or the accomplice, Kleinberg by or actual of serious 164.415(l)(c). ORS
705 “Five, ground to believe that he had no reasonable likely engage in participant intended to conduct other person.” in death of a result jury that it was error to instruct
The defendant claims believe, the defendant had reason to in terms of what excepted knowledge. He in terms of his actual rather than as follows: to the instructions except “I instructions which involve that the defen- that, grounds
dant must have reasonable to believe one deadly weapon he participants was not armed with a or death, may must have a reasonable belief that it not end — forget I the rest the instruction “MR. GARDNER: Four and five of affirmative defense of murder. Yes; grounds
“MR. LONERGAN: on the that this crime, stupidity acting that he was would make whether appropriate or is in this case.” reasonable not not defining a The defendant claims that crime person terms of what a would believe is reasonable improper.12 Aschenbrenner, 664, In State v. 171 Or 138 P2d (1943), charged the defendants under a statute were culpable provided in which described no mental state and part “[a]ny person up relevant that who shall take estray larceny jury guilty deemed *.” The shall be liability was instructed that the defendants’ criminal turned ordinary intelligence on whether “a man of and observa- estray place tion” in were tions animals defendants’ would believe that appealed their flock. The defendants their convic- claiming that the instruction was erroneous because permitted conviction on evidence evidence of actual short of saying: knowledge. reversed, This court
“* * *
happens
It
can
seldom
that direct evidence
be
produced
knowledge
that
the accused had actual
of a fact.
may
knowledge
And
the absence of direct evidence
Redeman,
329,
(1972),
App
He cites State v.
9 Or
were knowledge under the circum- could have obtained appeared might It have the evidence. stances disclosed them, defendants, did not or some of man, ordinary possess intelligence or observation of them, they, acted or some of given in a instance carelessly, unreasonably, imprudently but not unwisely, complained The instruction intent. erroneous, prejudicial to the defendants’ highly but *13 674. rights.” 171 Or at distinguishable. There the statute
Aschenbrenner is required conviction. This mental state for silent on the upon require conduct based the statute to court construed ‘knowingly’ saying “[although knowledge, the] word implied statute, that it is we believe not used the that it is did not hold Or at 668. Aschenbrenner legislature constitutionally improper to define a crime for a reason an accused’s defense in terms of or an affirmative impropriety grounds in establish see no able for belief. We objective ing stand terms of an affirmative defense in grounds for belief. reasonable ard—the defendant’s defendant has not shown why the statute is reason discern such unconstitutional, we are unable to and reason. sentencing.13 trial for court
Affirmed. Remanded dissenting opinion. J., Linde, filed a dissenting. LINDE, J., York before the New Patterson’s case was When Judge Appeals, in a con- Breitel cautioned Chief Court of curring opinion: defenses, as it would an abuse of affirmative “It would be law, purpose if criminal the presumptions.
be of presumption of inno- unhinge procedural effect were constitutionally historically shields one and which cence Indeed, abuse by-product of such charged with crime. supra. note See privilege against self- also to undermine might well be forcing by in effect a defendant incrimination testify in his own behalf.” action to v,
People 898, Patterson, 347 NE2d 39 NY2d (1976), quoted York, 197, 211 v. New 432 US in Patterson In the LEd2d 291 n. 13 n. 97 Ct S Supreme joined Court, Powell, Justice United States began with the Marshall, and his dissent Justices Brennan warning legislative “surrenders to the the Court part responsibility protect significant of its branch a presumption Patterson, at 216. of innocence.” 432 US Today’s cogency of those warn- decision demonstrates ings and critical when a state court does not use sensitive respon- judgment applying Patterson nor exercise its own sibility maintaining the state’s historic burden of for prosecutions. in criminal goes, process due
As far as fourteenth amendment
may permit
Supreme
opinion
in Patterson
Court’s
reading
though
compel
majority’s
case,
it.
in this
it does not
Mullaney1
Patterson,
it,
dealt
like
before
guilt
mitigating
of an
disturbance on the
effect of emotional
killer,
New York law
intentional
held
because
murder, the
made intent alone sufficient for the crime of
it to the
to show the mental
state could leave
defendant
manslaughter.
guilt
It is
condition that would reduce his
important
*14
the issue
to note the two characteristics of
proof of a
First,
it dealt
decided
Patterson.
intentionally
state of mind at
the time he
defendant’s
committed an unlawful homicide as a factor
determining
culpability.
the
of his
This focus on defendant’s
extent
emphasized by
lengthy
is
the
attention
mental condition
gave
insanity, contrasting
prior
on
of the
the Court
to its own
decisions
States, 160
defense of
Davis v. United
(1895) (placing
469,
353,
708
the Patterson
opinion
concerning
treated the issue as one
mitigation
appropriate degree
punishment.
the
prove sanity
if we were to hold that a State must
“[E]ven
issue,
put to convict once that fact is
it would not
necessarily
prove beyond
follow that a State must
a reason-
fact,
every
able doubt
the existence or nonexistence of
willing
recognize
exculpatory
which it is
as an
or miti-
gating
affecting
degree
culpability
the
circumstance
severity
punishment.”
the
The majority’s reading is invited the shifting vocabulary of the Supreme United States Court’s state- ments that due process requires prosecution prove beyond a reasonable doubt defendant’s “guilt,”4 of “every necessary fact to constitute the crime charged,”5 or “every offense,”6 ingredient of an or “the existence every element “Every of the offense.”7 fact” connotes
3
repeated
point:
The Court
recognize
mitigates the
a factor that
“If the State nevertheless chooses to
may
criminality
punishment,
assure itself
we think
State
certainty.
recognize
To
with reasonable
that the fact has been established
require
mitigating
its
the State to
at all a
circumstance does
issue,
put
if in its
in each case in which
fact
nonexistence
cumbersome,
expensive,
judgment
and too inaccu-
too
this would be too
omitted).
(footnote
rate.”
Patterson,
accompanied by
quotation
supra,
a footnote
209. This
432 US at
Code,
Model Penal
which recommends
the American Law Institute’s
reference to
disprove
placing
“affirmative defenses” of
on the state to
so-called
the burden
issue,
evidence of
the defendant has come forward with some
kind here at
once
1955).
(Tent.
1.13, Comment, p.
Draft No.
§
ALI Model Penal Code
defense.
358, 362,
Winship,
LEd2d
90 S Ct
In re
397 US
Mullaney, supra, n.
6Patterson, supra, US at 215. *15 307, 316, Virginia, LEd2d 571 S Ct 443 US 7 Jackson circumstances, time at the and of those events occurrence consequences, alleged either do or do that act and its of the not add “guilt” up guilty time. Proof of conduct at that to conveys thought similarly all must that the state the guilt defendant’s on which events and circumstances depends. “every ingredient” phrases or contrast, the In “every focus of the offense in the “definition” element” thereby analysis legal and rather than facts attention on open manipulation. legislative to the door possibility at the core this about Concern opinion dissenters: for three Powell’s Justice legislature to today allows the Court establishes “The test respect will, persuasion with shift, virtually burden of at the case, not long as it is careful so a criminal factor statutory in the factor of that mention the nonexistence requirement is The sole language defines the crime. to those confined the factor be references defense.” provide for an affirmative sections that omitted). (footnote majority acknowl- at 223 US expressed edged not confidence that it would risk and this happen. 211 n. 12. 432 US at question, affirmative therefore, the is whether 163.115(3) (1979) in ORS murder stated defense “affecting mitigation
merely with deals punishment” severity whether, culpability or or Judge quoted Breitel, from the Court which in the words presumption procedural unhinge above, is “to its effect against privilege self- and “to undermine innocence” of incrimination forcing a criminal a defendant in effect testify own behalf.” in his action to gra- 163.115(3) (1979) not concerned ORS punishment.8 mitigation culpability Nor is and dations of 1981): 163.115(3) (1979) (amended ORS (b) paragraph charge violating “(3) defense to a It is an affirmative (c) defendant: of this section of subsection crime; underlying “(a) only participant and in the Was solicit, request, any way “(b) or in the homicidal act Did not commit thereof; command, and importune, aid in the commission cause or weapon; deadly “(c) dangerous not armed with Was it confined to the issue of mental state with which Rather, deals committed an intentional act. *16 defendant leading to the of a with events of a crime death factual par- nonparticipant, circumstances under a the which ticipant guilty is or of murder. The first fact is either is not only participant the whether the defendant was or was not in the commit, The fact is he did not crime. second whether did or
verbally counsel, cause, act. or aid in the homicidal or armed The third fact is whether defendant was was not deadly weapon. dangerous a or and fifth with facts fourth grounds he are whether had “reasonable to believe” participant to was armed and intended that another endanger sum, in the someone’s life. In if a death occurs participant crime, an nei- course of a listed unarmed who act, nor in the or reason to ther counseled expect aided fatal had participant it, another would commit has that a murder. the would force a defen- committed dant to But statute procedural prove these facts. This both shifts the to in the case and in effect forces the defendant burdens testify concerning “underlying crime” the events alleged by prosecution. negating murder statute lists the facts prescribed
cumulatively.
legislature
words, the
has
In other
participates
is
in the
crime
a murderer
fatal
that one who
only
counseled,
committed,
or
in
if,
if, he
assisted
but
armed,
to
that
act,
or had reason
believe
fatal
or was
anyone’s
participant
or intended to risk
was armed
another
facts,
one
these
defendant
If the
believes
death.
Only
felony murder,
of the
otherwise not.
one
committed
(a)
(e)
prerequisite
paragraphs
to
is
in
items listed
my
guilt
in
murder, not all of them. But
defendant’s
long
the facts must have occurred
view, as
as at least one of
con-
cannot
murderer,
the state
defendant
to make the
stitutionally
fact.
that
of the burden
relieve itself
any
verbally possible to redefine
Of course
is
exceptions,
exculpatory
general
broad,
terms with
crime in
participant was
“(d)
ground
other
no reasonable
believe
Had
deadly weapon;
dangerous
armed with a
participant
“(e)
ground
other
to believe
Had no reasonable
likely
engage
in death.”
to result
intended to
conduct
argue
guilty
broadly
and then to
that an individual is
proves
exculpatory
defined crime unless he
circum-
manipulation
stances. This is the kind of textual
by
against
Supreme
Judge
cautioned
Court and
Breitel
disguise
in Patterson. But the statute’s words do not
legislative
substance of the
determination that a criminal is
a murderer
if he either did or had reason to believe
163.115(3) (1979)
things
one of the
assigned
listed ORS
and there
disprove.
himto
It is what he did or should
have known at the time of the crime that made
crime
his
murder or not under the statute. The shift of the burden of
proving
very
mitigation
these facts is
different from the
culpability
for intentional murder
reason of
a defendant’s emotional state which
at
issue
Patter-
majority may quote
son. Whatever words the
from the
majority opinion
holding
compelled
Patterson,
its
is not
holding
in that case.
*17
glaring
premise
flaw
a
that
the state’s
proof
only
burden of
extends
to those “elements” which it
defining
chooses to describe as such in
a crime is that such
provides
a
point
constitutional
test
no terminal
for the
potential rearrangement
of the burden of
in criminal
prosecutions.
recognizes
Whenever the state
that some fact
important
truly
or circumstance is
to whether conduct
expensive
awkward,
but finds it
troublesome, or
to
produce evidence of that
circumstance,
fact or
the state can
simply
prove
shift
to the defendant
the burden to
its
By
person
possession
test,
nonexistence.
a
found in
property
another’s
can be defined as a thief unless he
proves
property
that he did not take the
or receive it
knowing
person
trespass-
that it was not his own. A
found
ing
premises
burglar
on another’s
can be defined to be a
proves
unless he
that he entered with consent or did not
examples
intend to commit a crime. In both
the facts which
are made an “affirmative defense” remain elements of person’s guilt
burglary
or innocence of theft or
at the time
they
legal
act;
are shifted
as elements of the
proof.
definition of the crime in order to shift the burden of
respect
This court has taken a different view with
removing
guilt
jury
to
elements of a defendant’s
from
trial.
Quinn,
In State v.
289 Or
In State v. the court drew the con supra, constitute stitutional line between “the facts which defendant,” crime . . . and those which characterize I always simple. the distinction is not acknowledging exculpatory But when simple. it is not even agree Patterson, excluded, mental factors are as in emotional or shifting to draw a line short of unmanageable is not and circum prove objective defendant the burden to events himself. stances external that affirmative defenses argued
It is sometimes way they device because offer lawmakers a are desirable they would be general to ameliorate harsh rules when the defendant unwilling to do so unless has argument persuasive. circumstances.9 The is not mitigating First, crimes is a generally the definition substantive choice, guarantee but constitutions legislative matter procedures by jury of such as trial protections prove guilt beyond a reasonable doubt state’s burden *18 A testimony legisla- of the accused. compelling without element of making faced with the choice between ture altogether eliminating of the state’s case or guilt part Perhaps not make the harsher choice. may may kept code would have drafters of the revised criminal the affirmative old, rule of murder without stringent prosecution left it to the defense, perhaps they would have listed in ORS 163.115 at least one of the elements Patterson, See, supra, e.g., quoted Judge further comments Breitel’s US 211 n. 13. (3)(a)-(e) (1979). penal policy more or less harsh Waves of by applies go. process which the state its come and penal power individual, however, is not left to the policy. goes changing relationship It to the essence of the winds of government and the individual between acknowledged system Patterson, Second, law. as our prosecution disprove place on the most states the burden by at 207 n. 10 and a defense offered the accused. 432 US incompatible suggest not that the burden is 211. This does penal either with effective or with humane laws. closely majority parsing majority sticks
opinion
Supreme
of the United States
Court in Patterson v.
only
Court,
course,
New York. That
tells us the mini-
permits
the fourteenth amendment
no
mum below which
state to fall. Fourteenth amendment
necessarily
process
due
is not
process,
correct
but more often than not cases
quotes
are
if it
Justice
briefed as
were. Patterson
Cardozo’s
old definition under which the fourteenth amendment
procedure
if “it
denies the states
offends
principle
justice
in the
some
so rooted
traditions and
people
ranked as fundamental.”
conscience of our
432
as to be
quoting Snyder
Massachusetts,
(1934).
at
291 US
US
54 S Ct
It seems beyond except upon proof guilt a reasonable doubt crime 10 Const, I, § Or art 33: privileges rights, be construed to shall not “This enumeration of people.” deny
impair retained others *19 question recognized.11 what if affirma- But the sowas recognized been at that time has not were tive defenses majority points out, defendant miscites briefed, and, as the place, This is not the constitutional clause. the relevant therefore, pursue the federal the difference between sustaining premises. event, the shift In the state the burden of prosecution to the defense from the eager majority the words case, is too to follow this the beyond holding. its Patterson prosecu- “presumption and the of innocence” prove guilt beyond rank a reasonable doubt
tion’s burden commonly high among boasted that are those distinctions supposedly system justice place less those of above our including enlightened a defendant nations, some in which perhaps may court, some confronted with haled before persuade incriminating evidence, and invited modicum committed a crime. Under that he has not the tribunal view majority adopted case, to its in this if carried relegated logical to Law conclusion, can be those boasts misconceptions popular Day of television and the editorials programs. I therefore dissent. crime dissenting opinion. joins
Lent, C. J. in this proved by competent laid down § . . . . Each fact See, e.g., Or L 1845-64 the case of State v. necessary evidence, (Deady, Glass, Commonwealth Webster [59 Mass] to the conclusion beyond 1866) Or at 476. a reasonable sought (“The doubt”); to be true rule was established, 5 Cush code of undoubtedly must be [1850]