Oregon Supreme Court 02-17-11

by: Abassos • February 16, 2011 • no comments

Read the full article for details about the following new cases:

• Appellate Acquittal: Remanding for Resentencing
• DUII: Convictions under Former ORS 487.540 as a Predicate for License Revocation
• Use of Anonymous Juries: Requisite Findings and Mitigating Prejudice

Following the trend set by the COA yesterday, the Supremes publish three criminal opinions this morning. Well, almost three. The first is a modification of the Court's instructions on remand in its prior case State v. Sierra. The other two, however, are more substantive.

Appellate Acquittal: Remanding for Resentencing

This is a clarification of the opinion issued in State v. Sierra, 349 Or. 506 (2010), on a motion for reconsideration. The Court begins by noting that ORS 138.222 (5)(b) requires an appellate court to remand for resentencing whenever it overturns at least one conviction but affirms at least one other, and at least one count was a felony. Because that statute was implicated in this case, the Court clarifies its instructions on remand to include resentencing.[http://www.publications.ojd.state.or.us/S057794A.htm State v. Sierra] (en banc)

DUII: Convictions under Former ORS 487.540 as a Predicate for License Revocation

Defendant was charged with DUII and had two prior Oregon convictions for the same offense on his record. The first conviction was from 1981, and was obtained under former ORS 487.540. At sentencing, defendant argued that the plain terms of ORS 809.235 precluded the court from relying on his 1981 conviction as a predicate offense for permanent license revocation. Both the trial court and the COA rejected defendant's argument.

The Court essentially employs a "contextual" approach to statutory construction in rejecting defendant's argument that the legislature's use of the phrase "in violation of ORS 813.010? was meant to narrow the class of in-state convictions that may serve as a predicate to revocation. After employing this analysis, the Court holds that "we are persuaded by the text and context of ORS 809.235 that a misdemeanor DUII conviction in violation of former ORS 487.540 counts as a predicate conviction for the purposes of permanent revocation of a person's driver's license." Affirmed. State v. Kellar

Use of Anonymous Juries: Requisite Findings and Mitigating Prejudice

This is a matter of first impression before the Supreme Court addressing the propriety of using anonymous juries in a criminal trial. In this case, the trial court withheld from the defense all juror names and addresses as well as the names and addresses of their employers. Defendant was ultimately convicted of several crimes.

At the outset, the Court recognizes that because the use of anonymous juries is permissible under Oregon law, "trial courts have the authority to require that the jury be seated without disclosing the names, addresses, and employers of prospective jurors to the parties." However, the court also notes that such procedures must be employed "consistently with the defendant's constitutional rights"-specifically, a defendant's Article I, section 11 right to an "impartial jury." In order to strike an appropriate balance between those competing factors, the court lays out the following test:

"[A]nonymous juries are permissible only if the trial court 'concludes that there is a strong reason to believe that the jury needs protection' and the court takes 'reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.'"

Under the first prong of that test, "the trial court must make a determination that the circumstances of the particular trial provide sufficient grounds to believe that jurors need the protection provided by anonymity." A demonstrative, but non-exclusive, list of factors to be considered in that analysis is provided by the Court:

"(1) the defendants' involvement with organized crime; (2) the defendants' participation in a group with the capacity to harm jurors; (3) the defendants' past attempts to interfere with the judicial process or witnesses; (4) the potential that the defendants will suffer lengthy incarceration if convicted; and (5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment."

Under the second prong of the Sundberg test, the Court refuses to set out any standard procedures to be employed by the trial court. Yet, its explication does suggest that two distinct concessions to the defense are generally proper: (1) A more thorough voir dire on each juror's background; and (2) Providing the jury a neutral explanation for the trial court's decision to employ anonymity.

Because the trial court neither made the requisite findings of necessity nor employed any procedures to mitigate the risk of prejudice to the defendant, the defendant's convictions were reversed and the case remanded.[http://www.publications.ojd.state.or.us/S058116.htm State v. Sundberg]