Oregon Supreme Ct. - Jan. 15, 2015
by: Frangieringer and Abassos • January 15, 2015 • no comments
The Oregon Constitution Does Not Require a Ten Person Jury in Misdemeanor Cases
Article I, section 11, of the Oregon Constitution does not require a ten person jury. Here, defendant was convicted of reckless driving by a six-person jury. Because Article I, section 11 only dictates the number of jurors necessary for conviction (not the number the court needs to empanel), and Article VII permits the legislature “to provide for juries of six to twelve members in all Oregon courts, ” the legislature is permitted to prescribe a six person jury in a misdemeanor case. State v. Sagdal, 356 Or 639 (2015).
PCR - IAC – Failing To Request a Lesser Offense Jury Instruction is Not Always Deficient
In determining whether trial counsel was inadequate in failing to ask for a jury instruction on a lesser included offense, a post-conviction court must ask 1) is the “evidence that a defendant committed the greater crime . . . doubtful,” and 2) what is “the strength of the evidence that the defendant had committed” the lesser crime. Here, defendant was convicted of Robbery I after counsel failed to ask for a jury instruction on the lesser included offense of Robbery III. Although the evidence cast doubt on whether defendant committed Robbery I, it was also “slight,” as to the Robbery III. As such, counsel could have made a tactical decision to go all or nothing, relying on the paucity of evidence of Rob I to gain acquittal for her client. If there was such a tactical choice, then counsel was not deficient.
Justice Walters concurs to point out that, on remand, the post-conviction court should look at the “degree of risk posed by the failure to request” the jury instruction and the low cost associated with asking for the instruction to determine whether counsel made a tactical choice.
Justice Baldwin dissents to say that it is for the jury to decide whether the defendant has committed a greater or lesser offense. Here, because “there was no evidence upside to trial counsel failing to protect petitioner from a conviction on a greater offense,” the petitioner had met his burden to show that trial counsel failed to exercise reasonable professional skill and judgment by not requesting the lesser-included instruction and that failure resulted in prejudice to the petitioner.” Pereida-Alba v. Coursey 354 Or 654 (2015).
