Oregon Supreme Court 09-16-10
by: Abassos • September 15, 2010 • no comments
Read the full article for details about the following new cases: Possession with Intent to Deliver - Jury Instruction - Permissible vs Mandatory Inference
Interesting concurring opinion from J. Kistler today on a per curiam denial of review. Kistler writes separately to point out that the following instruction violates the Due Process clause:
Under Oregon law, possession with intent to deliver constitutes delivery, even where no actual transfer is shown. An attempted transfer occurs when a person intentionally engages in conduct which constitutes a substantial step and includes, but [is] not limited to, possession of a large amount of a controlled substance, not for personal use, but consistent, instead, with trafficking in controlled substances.
That second sentence changes a permissible inference into a mandatory one.
To be sure, if a jury finds that a defendant possessed a larger amount of a controlled substance than a person ordinarily would possess for personal use, then the jury may but is not required to infer that the defendant possessed the controlled substance with the intent to sell or transfer it . . . The strength of the inference varies with the amount of the controlled substance possessed. When the amount of a controlled substance that a defendant possesses is only slightly more than a person ordinarily would possess for personal use, other evidence of the defendant's intent may be necessary to permit a reasonable juror to infer that the defendant possessed the substance with intent to deliver. Conversely, when a person possesses a substantially larger amount of a controlled substance than ordinarily would be possessed for personal use, no other evidence may be necessary to permit a reasonable juror to infer that the defendant possessed the substance with intent to deliver.
Unfortunately the issue wasn't preserved so it doesn't do the client any good. But the rest of us have been forewarned by a Supreme Court Justice. Don't let the DA or the trial judge convert an allowable inference into one that is required by the court. And, for gods sakes, object to this particular instruction, running rampant through the state, on Due Process grounds. State v. Schwab
As an aside, these preservation arguments are absurd (and downright Kafkaesque for the clients. )
According to Kistler, trial counsel argued that the instruction failed to require indicia of trafficking other than possession.
That was the wrong argument because, theoretically, possession of a ginormous amount of drugs might alone indicate trafficking.
The correct argument was that the instruction made a permissible inference into a mandatory one.
But, of course, that is what the trial attorney was saying, just not in those exact words. The instruction is like a big arrow from possession of more than normal user amounts to trafficking without requiring actual indicia of trafficking. Sure, if you have 22 pounds of cocaine it is, in of itself, indicia of trafficking. But that wasn't the case here, where the dude had a couple ounces of pot. So the instruction was wrong for this case precisely because it failed to require indicia of trafficking other than possession. It told the jury to jump directly from possession to trafficking.
It's incredibly frustrating for attorneys. But think of the client in this case. I'm sorry, the jury was wrongly instructed in a way that violated your basic Constitutional rights. In fact, the verdict may very well have been wrongly decided based on that unconstitutional instruction. And your lawyer objected to that instruction at the right time and in the correct procedural way. But, your attorney didn't say quite the right words. So that's it, then. Good luck with your life.
