*1 reversed; 8, judgment Argued and submitted March decision of Court of reversed; proceedings circuit court for further circuit court case remanded to 16, September OREGON, OF STATE Respondent Review,
v. GEORGE, MICHAEL EUGENE Petitioner on Review.
(CC S50135) 98CR0850; A108687; CA SC
Janet A. Assistant Klapstein, Attorney the cause and filed the brief for on review. argued respondent General, her on the Hardy Myers, Attorney With brief were Williams, H. Solicitor Mary General. GILLETTE, J. J.,
Kistler, dissented and filed an opinion.
GILLETTE, J.
Defendant was convicted оf aggravated murder and
crimes,
other
and was sentenced to life imprisonment with-
out the
On
possibility
parole.
to the Court
appeal
he
assigned error to the trial court’s refusal
to give
an instruction
about
consequences of verdict of guilty
except for
insanity
to the trial court’s decision to allow
the state to
certain
present
“victim impact” evidence at the
sentencing proceeding that followed his conviction for aggra-
vated murder. The Court of Appeals rejected both assign-
ments and affirmed. State v. George,
Briefly, the facts are as follows. When defendant was 17 years old, he suffered from a mental disorder that mani- fested itself, in part, powerful, recurring fantasies about raping, torturing, and killing young children. One defen- day, *3 dant stabbed and killed a neighbor’s child, stole a rifle from the neighbor’s home, and to proceeded the home of Baker, his father’s former girlfriend, kill to intending rape and possibly Baker’s 10-year-old daughter. When defendant reached house, Baker’s he entered, but found it He left empty. the Baker home and walked several town, miles out of then called the police and confessed.
Defendant was with charged aggravated murder, attempted aggravated murder, attempted first-degree rape, and other trial, crimes. At defendant advanced an insanity defense.
During trial, the a arose controversy over the of requirement ORS 161.313 when a criminal defendant raises an insanity defense in a case tried to a being jury, the trial court “shall instruct the in accordance with ORS 161.327.”1 Defendant objected to Uniform Criminal Jury consequences, defendant, ORS 161.327 sets out the for a criminal of a verdict guilty except insanity. provides: of for It “(1) Following entry judgment pursuant the аof to ORS 161.319 and the
dispositional 161.325, determination under ORS if the court finds that the to designed that had been 1122, the instruction Instruction 161.313, the statutory requirement meet the during felony, a crim- of a misdemeanor person have of a or -would been injury physical person or risk of episode the caused in the course of which inal physical by another, preponderance ofthe evi- injury a and if the court finds to person presents by and a mental disease or defect the is affected dence that hospital danger requiring a mental commitment to state to others substantial * * * release, person placed under the court shall order the conditional the or Security Psychiatric care and treatment. jurisdiction Review Board for equal jurisdiction to the maximum sentence period the board shall be The of of guilty except person by was found provided for the crime for which the statute insanity. for “(2) person to the should be committed shall determine whether The court Department designated by ofHuman Services or condition- hospital the a state ally any hearing pending as follows: before the board released “(a) danger person presents to oth- a substantial finds that the If the court release, subject the shall order the proper conditional court not a ers and is Deрartment designated by Human hospital the person a state committed to pending hearing custody, before the board treatment Services for care and to 161.351. with ORS 161.341 accordance “(b) danger person presents to oth- a substantial If the court finds that the supervision person adequately with and controlled that the can be ers but necessary supervision conditionally treat- and released and that treatment if ment are released, conditionally available, may person sub- the court order the jus- ject supervisory are in the best interests orders of the court as to those person. tice, society The court shall protеction the welfare of the person upon state, county agency supervise person designate or local a or release, subject directs in the order for condi- as the court to those conditions agency notify person designation, or the court shall release. Prior to tional person agency contemplated provide or release is to whom conditional receiving an order entered opportunity the court. After to be heard before designated supervi- agency paragraph, person shall assume or under this Psychiatric Security Review pursuant person to the direction ofthe sion оf the required supervisor agency designated shall be person as or Board. report concerning the writing per month to board no less than once supervised person’s compliance the conditions of release. “(3) section, person a mental disease purposes a affected For of this or defect to have a mental disease of remission is considered defect in a state proba- may, medical supervision with reasonable requiring bility, the disease when active, danger and, person occasionally a when render become active to others. released, “(4) conditionally determining persоn should be In whether evaluations, compliance provided in ORS as may examinations and court order 161.346(2). 161.336(4)and “(5) hos- determining person committed to a state should be In whether *4 primary released, concern the conditionally have as its pital the court shall society. protection of notify “(6) release, person the court shall Upon placing on conditional order, supervisor release writing conditional of the court’s the board in release, person shall be and appointed, other conditions of and all ORS hearing in accordance with pending the board before release conditional 333 ground the uniform instructiоn contained some inaccuracies and included material that was not of ORS part 161.327. Defendant submitted a different “means of disposi tion” instruction view, his was more accurate and (because more “jury-friendly” it excluded extraneous mate 2 rial), and asked the trial court to give instruction instead. Upon (1) compliance 161.336 to 161.351. with this subsection and subsections (2) section, jurisdiction ofthis person the court’s over the is terminated and jurisdiction person. the board assumes over the “(7) An order of the appealable by court under this section is a final order person guilty 19.205(5). except insanity the Notwithstanding found for in accordance with ORS 19.255, appeal ORS nоtice of an under this section shall be days served and filed appealed within 90 after the order from is entered in the register. person appeal shall possessing be entitled on to suitable counsel experience skills and complexity commensurate with the nature and of the person financially eligible, case. If the appointed suitable counsel shall be provided 138.500(1), the manner compensation and the for counsel and expenses person necessary costs and appeal of the determined, to the shall be paid provided allowed and as in ORS 138.500. “(8) Upon placing person jurisdiction board, under the of thе the court notify person right shall appeal right hearing and the to a before 161.336(7) 161.341(4).” the board in accordance with ORS Defendant was tried in 1999.There are a few present small differences between the 161.327, quoted above, version of ORS and the version that was in effect in 1999. The differences between the two present versions are not relevant to the case. For convenience, present sake of we cite throughout version this case. 2 Defendant’s instruction stated: “If guilty except insanity Defendant is found for the Court will make a you
determination dence either any based on the evidence have heard and additional evi- party offers. “If the Court [defendant] finds that is now affected mental disease or presents danger defect and a substantial requiring to others commitment to a hospital State mental the Court will order that he be committed to a State hos- pital custody, for care and treatment. The Court will also order that he be jurisdiction Psychiatric under the Security period Review Board for a equal crime(s) to the maximum sentence for the for which he was found except insanity.
“Those maximum terms are: Aggravated Murder,
“1. For life. Burglary, years.
“2. For Attempted Aggravated Murder, years. “3. For Attempted Rape, years. “4. For Attempted II, years.
“5. For Assault five I, years.
“6. For Theft five Psychiatric Security “The agency Review Board is a state that has as its primary protection society. concern *5 334 it would not
However, the trial court indicated that finding of a consequences instruction the give any regarding that insanity. giv The trial court guilty of believed except unlawful under the Court of such instruction would be ing Amini, v. 154 Or then-recent decision in State App Appeals’ 3 (2000). 384, 15 541 589, (1998), rev’d, 963 P2d 331 Or P3d 65 of Thereafter, jury aggra- the found defendant guilty first- murder, first-degree burglary, attempted and vated then held a degree rape. separate penalty-phase The court 137.707(2) require.4 as and ORS 163.150 ORS proceeding state asked the the During sentencing proceeding, victim, to intended tes- Baker, rape the mother of defendant’s the of with imprisonment pos- about how а sentence life tify of affect her and her Defen- sibility parole might daughter. overruled. Baker then objected, objection dant but his was of the of possibility parole testified that a sentence life with of life because her daughter’s would lower the her quality might fearful what defendant do to would be about daughter chose, thereafter jury her when and if he were released. conviction, a sentence of for defendant’s murder aggravated without the of imprisonment possibility parole. life adequately that can controlled “If the Court determines the Defendant be necessary supervision supervision and treatment that treatment with allows, conditionally require, to is available the law release the Defendant. but does not the Court hospital determining person a State “In whether the shall be committed to released, protection society conditionally pri- the have the of as its or Court will mary concern.” 3 instructing jury Appeals’ that in accor The Court Amini held of decision 161.327, requires, right ORS as ORS violates a defendant’s dance with 161.313 I, jury. 11, Oregon impartial It to an does under Article section of Constitution concluded, jury so, Appeals to focus on a matter of because it causes Court a jury’s result from certain is not for the consideration —the sentence will Appeals Amini, Amini, App rеversed 154 Or at 601-02. This court verdict. (2000). stands, 384, 15 there no P3d As the law now is v. 331 Or 541 State by impediment giving contemplated ORS 161.313. constitutional to the instruction 4 separate provides penalty-phase proceeding when a crim for a ORS 163.150 aggravated proceeding, the murder. In is of such inal defendant found possibil imprisonment possible with the life must decide between three sentences: (true life), parole possibility or ity parole, imprisonment of death. life without the of 137.707(2) charged provides applies person when a that ORS 163.150 years 15, 16, age time aggravated at the of murder was of and convicted subject pen committed, except person not the deаth to the offense was that that and, question alty. time he committed the crimes Defendant was 17 at the being therefore, subject possibility death. not sentenced to was to issue,
With instruction the Court respect did not consider whether the trial court had erred Appeals to instruction to ORS 161.313. failing give any pursuant That court concluded that defendant’s “sole contention [on was] that court erred in appeal failing [trial] [had] deliver the specific instruction that he offered.” George, Or at 589. On that App narrow the Court of question, concluded that there had been no error because defendant’s requested instruction was “incomplete and inaсcurate.” Id. at 590. The Court of Appeals particularly was concerned that failed to describe the authority (PSRB) the Psychiatric Security Review Board discharge *6 person jurisdiction under its without supervision. Id.
Defendant the disputes conclusion that requested instruction was and incomplete incorrect. He con- tends that the direction ORS 161.313 that the trial court instruct the jury “in accordance with ORS 161.327” (empha- added) sis does not require that detail every of ORS 161.327 be included in the instruction. He denies, moreover, that a proper instruction must include information about the PSRB’s authority to discharge persons without supervision. He notes that the PSRB’s authority in that regard is described statutes other than ORS 161.327 and to which ORS 161.327 refers only obliquely.
We agree with defendant the “in accordance” of ORS wording 161.313 does not an instruction require detail, includes every and explains every reference, statutory in ORS 161.327. However, we do not agree that defendant’s requested instruction conveys a correct overall of impression ORS 161.327. In particular, we conclude that the requested instruction conveys an erroneous of the impression court’s and the PSRB’s respective areas of over a authority person found guilty for except insanity. 161.327(1)
ORS that, provides upon entry of a ver- dict of guilty for except insanity, the court shall order the per- son placed under the PSRB’s jurisdictiоn for care and treat- (1) ment if the would have person felony been of a (2) certain kinds misdemeanors; the is affected a person (3) mental defect; disease or and the a person presents sub- stantial danger to others commitment to a state requiring 161.327(2) pro- hospital or conditional release. ORS
mental person that the court will decide whether the will be vides conditionally supervision, hospitalized or released with [the PSRB].” “pending any hearing before Under ORS 161.327(6), jurisdiction person the court’s over the ends once person’s is of the conditional release. the PSRB notified 161.327(8), Finally, upon court, under it is incumbent a ORS person jurisdiction plаcing PSRB, a when notify under right hearing person her of his or to a before the 161.336(7) 161.341(4).” and PSRB “in accordance with ORS contemplates overall, 161.327 that trial courts Viewed hospitalizing will make initial choice between or condi- releasing tionally except person guilty of a who is found a crime insanity. person however, cases, In almost all ultimately jurisdiction a will be under the PSRB for period equal to those the maximum sentence for crimes through hearings process, control, the PSRB will have over disposition person. long-term not describe, Defendant’s instruction does suggest, general arrangement. sug- Instead, it or even (the gests that the has a role nature of that role is PSRB the trial court decides to commit unclear) only person if hospital. suggests that the trial state The instruction also final: It not state in all court’s decision somehow does person’s long fate is hands of PSRB cases, term in the any disposition “pending that the trial court’s stands foregoing hearing” body. observations, before that Given the *7 deciding, Appeals assume, of was we without the Court concluding requested correct in that the instruction was not 161.327” and did not meet the “in accordance with ORS inquiry, requirements our of 161.313. That does not end however. requested argues that, even if his instruc-
Defendant required incorrect, fact remains that ORS 161.313 tion is jury with ORS the trial court to instruct the in accordance failed Defendant con- trial court to do so. 161.327 give clearly failing to some tends that the trial court erred requirement of ORS 161.313. that fulfilled the Appeals have that the Court of confined its We noted concluding analysis requested defen instruction, to the question raising the related dant was not before court obligation give whether the trial court failed in its some comported instruction that with ORS If 161.313. that conclu- prudential might prevent accurate, sion is then rules us from considering question in this court. agree Appeals’
We with the Court of assessment that separately defendant did not raise the issue of the trial complianсe court’s with ORS 161.313. However, we think argument that the that defendant did advance to the Court of Appeals assignment fairly under that of error raised the question. Although assignment defendant’s error was directed at the trial court’s refusal to give jury argument “defendant’s 14,” instruction number his assignment primarily under that was directed at the court’s obligation jury to instruct in accordance with ORS pointed 161.313. He out that
“the trial court give failed to an instruction required by Oregon law. No other instruction even touched upon the consequences insanity of an Therefore, verdict. error should presumed be because the jury instructions were not a com- plete and accuratе statement of Oregon law.” quoted exceptions Defendant also trial counsel’s to the including instructions, the statement that “defendant excepts give disposition to the failure to a means of instruc- requested tion like that in provisions Defendant’s or some other that accurately [ORS] sets out 161.327.”When assignment viewed argu- whole, as a defendant’s of error and assignment sufficiently ment under the raised the issue failing give whether the trial court erred in some instruc- comported requirement tion that with the of ORS 161.313. argued The state contends that, even if defendant foregoing point in the Court he failed to raise adequately argument in the trial court. The state’s in that rеgard three-pronged. suggests, The state first, that defen exception quoted dant’s instruction, above, was a expansion objection, belated of defendant’s initial which only give addressed the trial court’s refusal to Citing instruction. Nodine, State v. 679, 259 198 Or P2d 1056 (1953), suggests objections the state to an instruction jury charge must be raised before the commencement of the *8 a claim of cannot be on an after-the-fact and that exception. error based
Assuming principle, state is in our that the correct agree reading descrip- of the record does not with the state’s objection. nature It is clear to tion of the of defendant’s initial initial and whether to us that discussions about how in instruct the under ORS 161.313 occurred chambers specifics such, not As of defendant’s and were objections recorded. only can inferred from what defendant said be formally excepted to later, when he the court’s instruc- point, fact At that defendant focused on the that the tions. trial court given had his “or some other” not instruction in with 161.327. He also instruction accordance acknowledged objected that to uniform he had grounds objecting not on technical and stressed that he was general requirement an instruction means of to given (and, disposition fact, be had such an instruction). confirmed, record, The then for the trial сourt the “means that “we did talk before instruction” of dis- about position particularly, Appeals’ and, the Court of instruction” reading colloquy in Amini. The fairest as a decision previously points all the whole is that defendant had raised argument exception, including raised in later that he his preserved.5 not that the state now contends was objections suggests The state also that defendant’s argument preserve present insufficient to at trial were instruction in accordance with ORS 161.327 was that an (the controlling precedent required when, trial, at the time of Amini) giving Appeals’ held that such decision constitutional violated a criminal defendant’s instruction rights. may deny criminal defendants The state does not rights, including right their that was waive constitutional objec- argues, however, Amini. that defendant’s at issue in It arguments present trial in the case cannot be tions and at waiving they right were not because suffi- viewed as knowing, voluntary.” particular, ciently “express, In excepting comments to state’s brief breaks down defendant’s various prior objection, mistakenly part of them as defendant’s treats the instructions place transcript. attributing in the When to them an earlier and erroneous corrected, argument diminishes the force of the state’s miscitation is inadvertent significantly. court [trial] incumbent on that it was “not contends state was, instruction, flawed as proposed treat [defendant’s] instruction, as the standard objections coupled *9 right.” waiver of a constitutional however, that defendant satisfied, expressed
areWe right the constitutional trial court his wish to waive to the Amini, an decision in to the Court of that, according Appeals’ impair. Specifically, under OES 161.313 would instruction he to that, objected the court although defendant informed technical under ORS 161.313 on the uniform instruction to the of a con- giving he was not grounds, objecting generally the court to and, fact, asking instruction in was sequences court’s com- subsequent one. In the context of the trial give ment, that Amini had been at the center of the dis- indicating defendant’s for an cussions, request it is difficult to see at right instruction as other than a waiver of the anything issue in Amini. cannot be asserts, finally,
The state that defendant an give heard to about the trial court’s failure to complain 161.327,” instruction “in accordance with ORS when he to the uniform instruction and failed to offer one objected Although was a correct statement of the law. the state’s posi- tion the take accurately approach ordinarily reflects we issues, reject we regarding preservation jury First, here it cannot argument for two reasons. be fact squared with the that ORS 161.313 unequivocally places the the instruction on the responsibility giving required court, trial without to whether the defendant wants regard instruction, such an much less offers one that is a requests Second, correct statement of the law. the state’s argument that, time, the fact at the relevant the trial court ignores that, Appeals’ had announced because of already the uniform instruction Amini, give decision in it would not a variation of it.” In view of jury, give [it] “nor would announcement, reasonably defendant could assume that instruction that comported to formulate revised attempting of ORS 161.313 would have been requirement preserva- in Our futility. requirements respecting exercise make what the record dem- tion do not demand that parties futile gestures. onstrates would be objections conclude, short,
We that defendant’s at preserve present trial were sufficient to claim that the failing give trial court erred in an instruction that fulfilled statutory proceed directive of ORS 161.313. We merits of that claim. inescapable. answer, merits, provides sanity
161.313 when a issue, defendant’s is an jury the trial court “shall instruct accordance with already ORS 161.327.” As we noted, have that statute unequivocally requires give the trial court to an instruction in accordance with ORS 161.327. The trial court failed to so failing and, instruct the so, to do erred. only question
That leaves whether the error was prejudicial. give When a trial court fails to the instruction requires, that ORS 161.313 that the denies defendant a benefit legislature intended that he have, viz., or she *10 adequately consequences that will informed be as to the of a “guilty and, therefore, but insane” verdict will not be influ by enced unwarranted concerns that the defendant will be immediately prematurely.6 released Defendant did not jury. have the benefit of such a We basis, see no on this rec suggesting ord, for that such an omission could be harmless by error. Defendant’s convictions, all ofwhich are affected the error, reversed, must be and the case remanded to the trial proceedings. court for further sought grounds,
Defendant has review on two other important questions respecting each of which raises the evi- penalty-phase hearing. dence that is admissible in a In one issue, that, defendant asserts because he could not receive a (because age sentence of death in this case of his at the time committed), the crimes were it was error for the trial court to “victim-impact” penalty-phase pro- admit evidence in the ceeding. argues In second, the defendant that, even if “victim- impact” evidence is admissible, the evidence offered Amini, Appeals appears leg As noted in its deсision in it that the jurors might shy away islature enacted ORS 161.313 out of a concern that from finding guilty except insanity per criminal defendants for because of an erroneous ception finding premature that such a would result in the defendant’s immediate or Amini, App (describing legislative history suggesting release. See 154 Or at 600 purpose). that not relate “to it did did not because qualify in this case state of the impact the victim or characteristics of the personal 163.150(l)(a). Important ORS family.” crime on the victim’s inappropriate that it is be, we conclude may those issues as a new going case is back now. Defendant’s address them trial. at the new not be cоnvicted may ormay trial. Defendant offer now respecting that we not, any if he is And, opinion decline to address irrelevant. We will be issues penalty-phase time. advances at this that defendant the additional issues The is reversed. The decision of the Court reversed, and the case is circuit court is judgment court for further proceedings. remanded to the circuit BUSTLER, J., dissenting. court should have holds that the trial majority of a but insane consequences guilty on the
instructed if instruction on verdict, even defendant’s I holding unexceptional, issue were flawed. That it if the issue were properly would have no quarrel however, made a conscious decision nоt Defendant, before us. and I not that issue to the Court of would to present I dissent. reach it. respectfully a defendant raises 161.313 when provides “shall instruct” the defense, a trial court insanity Defendant insane verdict. but consequences and asked the instruction on that issue1
submitted flawed “or some other either his instruction give trial court [information sets out accurately [instruction] any declined to give The trial court requires].” ORS 161.313 it understood, incorrectly on the issue because it from Constitution out, Oregon prohibited turned *11 so.2 doing 1 requested unnecessary majority defendant’s to decide whether finds opinion, hold, majority in the reasons noted was flawed. I would instruction that it was. issue, Appeals held that of had ruled on this the Court When the trial court prohibited giving I, 11, Oregon the sort of Constitution section
Article
589,
Amini,
App
requires.
v.
154 Or
ORS 161.313
See State
instruction that
(so
case,
(1998)
judgment
this
holding).
in this
After the trial court entered
P2d 65
384,
Amini,
Appeals
331 Or
in Amini. State v.
the Court of
decision
court reversed
(2000).
Before the Court of defendant give requested error to the trial court’s decision not to his assign instruction. He did not error to the court’s refusal to give any argue instruction issue, on the nor did he in his brief respect. that the court Rather, erred defendant iden- only argument. tified tended, one error in the course of his He con-
consistently assignment with error, his that the refusing give requested court had erred in his instruction. majority It true, as the notes, that defendant’s brief in the Court of referred to the trial court’s give fail[ure] required Oregon an instruction But law.” only arguing ruling he did so in the course of that the he had (the assigned give requested as error failure to instruc tion) prejudiced my had view, him.3 In defendant did not con give any tend in his brief that the failure to instruction on the consequences insanity separate, of his defense constituted a reversible error. any
Were there doubt matter, about the defense argument counsel’s remarks at oral removed it. Defense began argument Appeals by counsel explaining her oral Court challenging only
that she wаs trial court’s fail- give raising any ure to her instruction. She was not other issue. Defense counsel stated: just clarify sticking all, that, “First of I want to I’m
my assignment
saying
I’m
error.
that it was error not to
give
special
arguing
defendant’s
instruction. I am not
giving something. Okay.
the court
erred
not
The state
spent lot oftime onhowI couldn’tdothat. I didn’tdo
going
today.
just talking
and I am not
to do it
So we are
special
about defendant’s
14.”
number
ambiguity
Defense counsel’s remarks eliminated whatever
may
only
have inhered in the brief. The
issue that defendant
assignment
raised in his first
of error was whether the trial
3 Defendant’s brief stated:
prejudiced
“The trial court’s error
defendant when the
instructions
Williams,
19, 38,
are cоnsidered as a whole. See State v.
313 Or
court had erred limited its discussion Appeals the Court of surprisingly, to that issue. first of error assignment defendant’s the issue court, defendant advances both Before this (the to give failure Appeals he in the Court preserved that instruction) he and also the issue that dеliber- his requested (the give any in that court failure to chose not to raise ately verdict). The insane instruction on the effects of a but defendant preserved does not reach the issue that majority in the pursue on an issue that he chose not to but reverses so. view, doing In the court errs my Court of Appeals. that a not recognized party may The court has long in the that he or she failed to raise raise an issue this court Tarwater v. P2d Cupp, 639, 644, 748 304 Or Court of Appeals. (1988). may More this court held that not recently, reach an that was not before” the Court of “properly issue (2000) State v. Wyatt, 335, 345-46, 15 331 Or P3d 22 Appeals. 9.20(2)). the adverse though ORAP That is so even (applying may concedes that the Court of reach party Appeals does so. Id. In this issue, case, the Court of Appeals defendant chose not to before the Court of pursue, Appeals, court, he and the Court of issue that now this pursues did not decide that issue. The issue which the Appeals upon its decision was not “before” the Court of majority bases much less before” it. Appeals, “properly if the state it would have been
Admittedly, helpful had to us that defendant had failed to brief issue argued decide, and it in the Court of that he now asks us (or if the state defen- would have particularly helpful been matter) dant had directed us to defense counsel’s any remarks at oral which remove doubt about argument, so, The state’s failure to do strategy. defendant’s appellate to reach however, obligation does not excuse our independent that were before the Court only properly those issues makes clear. Id. at 346 Wyatt a Appeals, proposition (stating proposition). in the Court of failed to this issue
Having
preserve
error. See
a claim of
plain
defendant
is left with
Here,
Wyatt,
(describing procedural options).
Because defendant chose not to majority upon in the Court of which the issue appropriate decision and to reach bases its because is not respectfully plain doctrine, I issue under the error dissent.