Oregon Supreme Ct - Nov. 27, 2015

by: Abassos • November 27, 2015 • no comments

Rt to Be Free From Unnecessary Restraint - Stun Belts - Capital Penalty Phase

A defendant has the same Art. I, Sec. 11 right to be free from unnecessary restraint in the penalty phase of a capital murder trial as in the guilt phase. That right, in turn, requires that a judge hold a hearing, consider the relevant facts, and give the defense an opportunity to be heard. It does not, however, necessarily require a “live evidentiary hearing” at which the defense may call witnesses. Nor is there a burden of proof on the state for either the issue of whether to impose restraints or what type of restraint should be imposed. Rather, the decisions are up to the judge. Here, the defendant had been convicted of aggravated murder in 1981 and 3 separate times had been sentenced to death. He had previously been shackled and, on other occasions, been required to wear a stun belt. The 2008 trial court continued to believe that defendant was a danger. Since the defense did not argue that defendant was not a security risk (only that the state had not sufficiently proven he was a risk), the judge was not required to hold a live evidentiary hearing on the matter. On the issue of type of restraint, the defense wanted to offer evidence as to the general impact of stun belts. But "the trial court weighed the relative prejudice of each type of restraint, and we cannot say that the evidence was insufficient to justify the trial court's decision." The issue is substantially the same under the federal constitution, where the trial court must exercise its discretion and consider the available evidence. Lest the court's deference to the trial court be read more broadly, the court makes sure to point out that it is not making any broad pronouncements about when a stun belt is allowed, even in aggravated murder cases:

The risk of prejudice posed by the use of a stun belt is not trivial and must be considered on an individualized basis. For example, in United States v Durham [ ], a federal court of appeals found error with a trial court's decision to require a stun belt where the record established that 'most stun belt models were designed to administer from 50,000 to 70,000 volts of electricity sustained over an eight second period' and that such a charge may cause 'the recipient to lose control of his limbs, to fall to the ground, and often to defecate or urinate upon himself."

State v Guzek, 358 Or 251 (2015).

Allocution in the Penalty Phase of a Capital Case Is Not Evidence But May Be Considered By the Jury

The defendant's unsworn statement to the jury in the penalty phase of a capital prosecution (a.k.a. allocution) is not evidence despite the fact that it may be considered by the jury. Thus, the following jury instructions were both correct:

As a defendant, Mr. Guzek has a right to make an unsworn statement. It is not evidence but it may be considered by you in answering the questions on the verdict forms.

The fourth question in this verdict is 'shall a death sentence be imposed?' . . . This question calls for a discretionary determination to be made by each of you based on the evidence."

These instructions, together, properly require the jury to "both base its decision to impose the death penalty on the evidence and still consider, and give effect to, a defendant's allocution, which is not evidence.":

"the principal value of the allocution in our current sentencing regime is its persuasive force. An allocution is not a means of adducing facts; it is a means of arguing, from the facts adduced, the sentence that a court or jury should impose. The fourth question seeks 'the jury's exercise of a reasoned moral response' to the evidence presented, [ ] and a defendant's allocution may influence a jury's moral response to the evidence even if it is not itself evidence. In the same way that the arguments of counsel are not evidence but may be persuasive, so a defendant's allocution may turn the tide to the defendant's favor."

State v Guzek, 358 Or 251 (2015).