Oregon Supreme Court October 11, 2012

by: Stephanie Clark • October 12, 2012 • no comments

The State Cannot Rely on Principal Liability on Appeal when they Relied on Accomplice Liability at Trial

When the state solely argues at trial that defendant is liable for first-degree assault as an accomplice, due process precludes affirming that conviction on appeal based on a new theory that defendant was a principal actor in the assault. State v. Burgess, __ Or __ (2012).

Anonymous Juries

An anonymous jury is permitted "only when there are strong grounds for believing that the jury needs the protection of anonymity and the trial court takes reasonable precautions to minimize the prejudicial effects on the defendant." Here, even though defense counsel knew the identities of the jurors, the jury was nonetheless anonymous because the defendant did not. The trial court made no findings, as required, that the circumstances of the case justified empanelling an anonymous jury. Moreover, the trial judge's instruction to the jury that anonymity was to protect them from the public and the press did not negate the prejudicial implication that defendant was dangerous.

Evidence of past nonviolent, homosexual conduct is admissible to show that a defendant is a "continuing threat" to society only if the state presents evidence of "a close link" between that sexual history and future dangerousness. Here, evidence that defendant murdered his female victims to fulfill sexual urges insufficiently linked his past homosexual activity to the future danger of defendant doing the same to other male prison inmates.

Defendant also challenged the constitutionality of Measure 6 (1984) on the basis that it made multiple changes and additions to the Oregon Constitution that required a separate vote under Article XVII, section 1. The Court recognized only four of the fifteen changes raised by the defendant and held that the changes were too closely related to require an additional vote.

State v. Rogers, __ Or __ (2012).