
FILED:  September 16, 2004
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
MICHAEL EUGENE GEORGE,
Petitioner on Review.
(CC 98CR0850; CA A108687; SC S50135)
En Banc
On review from the Court of Appeals.*
Argued and submitted March 8, 2004.
Susan F. Drake, Deputy Public Defender, Salem, argued the
cause and filed the brief for petitioner on review.  With her on
the brief were Peter A. Ozanne, Executive Director, and Peter
Gartlan, Chief Defender, Office of Public Defense Services.
Janet A. Klapstein, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review. 
With her on the brief were Hardy Myers, Attorney General, and
Mary H. Williams, Solicitor General.
GILLETTE, J.
The decision of the Court of Appeals is reversed.  The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
Kistler, J., dissented and filed an opinion.
* Appeal from Curry County Circuit Court, Hugh C. Downer, Judge. 183 Or App 583, 54 P3d 619 (2002). GILLETTE, J.
Defendant was convicted of aggravated murder and other
crimes, and was sentenced to life imprisonment without the
possibility of parole.  On his appeal to the Court of Appeals, he
assigned error to the trial court's refusal to give an
instruction about the consequences of a verdict of guilty except
for insanity and to the trial court's decision to allow the state
to present certain "victim impact" evidence at the sentencing
proceeding that followed his conviction for aggravated murder. 
The Court of Appeals rejected both assignments and affirmed. 
State v. George, 183 Or App 583, 54 P3d 619 (2002).  We allowed
defendant's petition for review and now conclude that defendant's
arguments with respect to the first assignment of error are well
taken.  Accordingly, we reverse defendant's convictions and
remand to the trial court for further proceedings.
Briefly, the facts are as follows.  When defendant was
17 years old, he suffered from a mental disorder that manifested
itself, in part, in powerful, recurring fantasies about raping,
torturing, and killing young children.  One day, defendant
stabbed and killed a neighbor's child, stole a rifle from the
neighbor's home, and proceeded to the home of Baker, his father's
former girlfriend, intending to rape and possibly kill Baker's
10-year-old daughter.  When defendant reached Baker's house, he
entered, but found it empty.  He left the Baker home and walked
several miles out of town, then called the police and confessed.
Defendant was charged with aggravated murder, attempted
aggravated murder, attempted first-degree rape, and other crimes. 
At trial, defendant advanced an insanity defense.  
During the trial, a controversy arose over the
requirement of ORS 161.313 that, when a criminal defendant raises
an insanity defense in a case being tried to a jury, the trial
court "shall instruct the jury in accordance with ORS
161.327." (1)
  Defendant objected to Uniform Criminal Jury
Instruction 1122, the instruction that had been designed to meet
the statutory requirement in ORS 161.313, on the ground that the
uniform instruction contained some inaccuracies and included
material that was not part of ORS 161.327.  Defendant submitted a
different "means of disposition" instruction that, in his view,
was more accurate and more "jury-friendly" (because it excluded
extraneous material), and asked the trial court to give his
instruction instead. (2)

However, the trial court indicated that it would not
give any instruction regarding the consequences of a finding of
guilty except for insanity.  The trial court believed that giving
such an instruction would be unlawful under the Court of Appeals'
then-recent decision in State v. Amini, 154 Or App 589, 963 P2d
65 (1998) rev'd, 331 Or 384, 15 P3d 541 (2000). (3)

Thereafter, the jury found defendant guilty of
aggravated murder, first-degree burglary, and attempted first-degree rape.  The court then held a separate penalty-phase
proceeding as ORS 137.707(2) and ORS 163.150 require. (4)

During the sentencing proceeding, the state asked
Baker, the mother of defendant's intended rape victim, to testify
about how a sentence of life imprisonment with the possibility of
parole might affect her and her daughter.  Defendant objected,
but his objection was overruled.  Baker then testified that a
sentence of life with the possibility of parole would lower the
quality of her daughter's life because her daughter would be
fearful about what defendant might do to her when and if he were
released.  The jury thereafter chose, for defendant's aggravated
murder conviction, a sentence of life imprisonment without the
possibility of parole.
With respect to the jury instruction issue, the Court
of Appeals did not consider whether the trial court had erred by
failing to give any instruction pursuant to ORS 161.313.  That
court concluded that defendant's "sole contention [on appeal was]
that the [trial] court [had] erred in failing to deliver the
specific instruction that he offered."  George, 183 Or App at
589.  On that narrow question, the Court of Appeals concluded
that there had been no error because defendant's requested
instruction was "incomplete and inaccurate."  Id. at 590.  The
Court of Appeals was particularly concerned that the requested
instruction failed to describe the authority of the Psychiatric
Security Review Board (PSRB) to discharge a person under its
jurisdiction without supervision.  Id.
Defendant disputes the conclusion that his requested
instruction was incomplete and incorrect.  He contends that the
direction in ORS 161.313 that the trial court instruct the jury
"in accordance with ORS 161.327" (emphasis added) does not
require that every detail of ORS 161.327 be included in the
instruction.  He denies, moreover, that a proper instruction must
include information about the PSRB's authority to discharge
persons without supervision.  He notes that the PSRB's authority
in that regard is described in statutes other than ORS 161.327
and to which ORS 161.327 refers only obliquely.
We agree with defendant that the "in accordance"
wording of ORS 161.313 does not require an instruction that
includes every detail, and explains every statutory reference, in
ORS 161.327.  However, we do not agree that defendant's requested
instruction conveys a correct overall impression of ORS 161.327. 
In particular, we conclude that the requested instruction conveys
an erroneous impression of the court's and the PSRB's respective
areas of authority over a person found guilty except for
insanity.
ORS 161.327(1) provides that, upon entry of a verdict
of guilty except for insanity, the court shall order the person
placed under the PSRB's jurisdiction for care and treatment if
(1) the person would have been guilty of a felony or certain
kinds of misdemeanors; (2) the person is affected by a mental
disease or defect; and (3) the person presents a substantial
danger to others requiring commitment to a state mental hospital
or conditional release.  ORS 161.327(2) provides that the court
will decide whether the person will be hospitalized or
conditionally released with supervision, "pending any hearing
before [the PSRB]."  Under ORS 161.327(6), the court's
jurisdiction over the person ends once the PSRB is notified of
the person's conditional release.  Finally, under ORS 161.327(8),
it is incumbent upon a court, when placing a person under the
jurisdiction of the PSRB, to notify that person of his or her
right to a hearing before the PSRB "in accordance with ORS
161.336(7) and 161.341(4)."  Viewed overall, ORS 161.327
contemplates that trial courts will make an initial choice
between hospitalizing or conditionally releasing a person who is
found guilty of a crime except for insanity.  In almost all
cases, however, the person ultimately will be under the
jurisdiction of the PSRB for a period equal to the maximum
sentence for those crimes and the PSRB will have control, through
a hearings process, over the long-term disposition of the person.
Defendant's requested instruction does not describe, or
even suggest, that general arrangement.  Instead, it suggests
that the PSRB has a role (the nature of that role is unclear)
only if the trial court decides to commit the person to a state
hospital.  The instruction also suggests that the trial court's
decision is somehow final:  It does not state that, in all cases,
the person's long term fate is in the hands of the PSRB and that
the trial court's disposition stands "pending any hearing" before
that body.  Given the foregoing observations, we assume, without
deciding, that the Court of Appeals was correct in concluding
that the requested instruction was not "in accordance with ORS
161.327" and did not meet the requirements of ORS 161.313.  That
does not end our inquiry, however.  
Defendant argues that, even if his requested
instruction is incorrect, the fact remains that ORS 161.313
required the trial court to instruct the jury in accordance with
ORS 161.327 and the trial court failed to do so.  Defendant
contends that the trial court clearly erred in failing to give
some instruction that fulfilled the requirement of ORS 161.313.
We have noted that the Court of Appeals confined its
analysis to the requested instruction, concluding that defendant
was not raising before that court the related question whether
the trial court failed in its obligation to give some instruction
that comported with ORS 161.313.  If that conclusion is accurate,
then prudential rules might prevent us from considering the
question in this court. 
We agree with the Court of Appeals' assessment that
defendant did not raise separately the issue of the trial court's
compliance with ORS 161.313.  However, we think that the 
argument that defendant did advance to the Court of Appeals under
that assignment of error fairly raised the question.  Although
defendant's assignment of error in the Court of Appeals was
directed at the trial court's refusal to give "defendant's jury
instruction number 14," his argument under that assignment was
directed primarily at the court's obligation to instruct the jury
in accordance with ORS 161.313.  He pointed out that 

"the trial court failed to give an instruction required
by Oregon law.  No other instruction even touched upon
the consequences of an insanity verdict.  Therefore,
error should be presumed because the jury instructions
were not a complete and accurate statement of Oregon
law."
Defendant also quoted trial counsel's exceptions to the jury
instructions, including the statement that "defendant excepts to
the failure to give a means of disposition instruction like that
requested in Defendant's 14 or some other that accurately sets
out the provisions of [ORS] 161.327."  When viewed as a whole,
defendant's assignment of error and argument under the assignment
sufficiently raised the issue whether the trial court erred in
failing to give some instruction that comported with the
requirement of ORS 161.313. 
The state contends that, even if defendant argued the
foregoing point in the Court of Appeals, he failed to raise it
adequately in the trial court.  The state's argument in that
regard is three-pronged.  The state suggests, first, that
defendant's exception to the jury instruction, quoted above, was
a belated expansion of defendant's initial objection, which
addressed only the trial court's refusal to give his requested
instruction.  Citing State v. Nodine, 198 Or 679, 259 P2d 1056
(1953), the state suggests that objections to an instruction must
be raised before the commencement of the jury charge and that a
claim of error cannot be based on an after-the-fact exception.  
Assuming that the state is correct in principle, our
reading of the record does not agree with the state's description
of the nature of defendant's initial objection.  It is clear to
us that the initial discussions about how and whether to instruct
the jury under ORS 161.313 occurred in chambers and were not
recorded.  As such, the specifics of defendant's objections can
only be inferred from what defendant said later, when he formally
excepted to the court's jury instructions.  At that point,
defendant focused on the fact that the trial court had not given
his instruction "or some other" instruction in accordance with
ORS 161.327.  He also acknowledged that he had objected to the
uniform instruction on technical grounds and stressed that he was
not objecting to the general requirement that an instruction on
means of disposition be given (and, in fact, had requested such
an instruction).  The trial court then confirmed, for the record,
that "we did talk before instruction" about the "means of
disposition instruction" and, particularly, the Court of Appeals'
decision in Amini.  The fairest reading of the colloquy as a
whole is that defendant previously had raised all the points that
he raised in his later exception, including the argument that the
state now contends was not preserved. (5)

The state also suggests that defendant's objections at
trial were insufficient to preserve his present argument that an
instruction in accordance with ORS 161.327 was required when, at
the time of trial, controlling precedent (the Court of Appeals'
decision in Amini) held that giving such an instruction violated
a criminal defendant's constitutional rights.  The state does not
deny that criminal defendants may waive their constitutional
rights, including the right that was at issue in Amini.  It
argues, however, that defendant's objections and arguments at
trial in the present case cannot be viewed as waiving that right
because they were not sufficiently "express, knowing, and
voluntary."  In particular, the state contends that it was "not
incumbent on the [trial] court to treat [defendant's] proposed
instruction, flawed as it was, coupled with objections to the
standard instruction, as a waiver of a constitutional right."     
We are satisfied, however, that defendant expressed to
the trial court his wish to waive the constitutional right that,
according to the Court of Appeals' decision in Amini, an
instruction under ORS 161.313 would impair.  Specifically,
defendant informed the court that, although he objected to the
uniform instruction under ORS 161.313 on technical grounds, he
was not objecting generally to the giving of a consequences
instruction and, in fact, was asking the court to give one.  In
the context of the trial court's subsequent comment, indicating
that Amini had been at the center of the discussions, it is
difficult to see defendant's request for an instruction as
anything other than a waiver of the right at issue in Amini.   
The state asserts, finally, that defendant cannot be
heard to complain about the trial court's failure to give an
instruction "in accordance with ORS 161.327," when he objected to
the uniform instruction and failed to offer one that was a
correct statement of the law.  Although the state's position
accurately reflects the approach that we ordinarily take
regarding preservation of jury instruction issues, we reject that
argument here for two reasons.  First, it cannot be squared with
the fact that ORS 161.313 unequivocally places the responsibility
for giving the required instruction on the trial court, without
regard to whether the defendant wants or requests such an
instruction, much less offers one that is a correct statement of
the law.  Second, the state's argument ignores the fact that, at
the relevant time, the trial court already had announced that,
because of the Court of Appeals' decision in Amini, it would not
give the uniform instruction to the jury, "nor would [it] give a
variation of it."  In view of that announcement, defendant
reasonably could assume that attempting to formulate a revised
instruction that comported with the requirement of ORS 161.313
would have been an exercise in futility.  Our requirements
respecting preservation do not demand that parties make what the
record demonstrates would be futile gestures.
We conclude, in short, that defendant's objections at
trial were sufficient to preserve his present claim that the
trial court erred in failing to give an instruction that
fulfilled the statutory directive of ORS 161.313.  We proceed to
the merits of that claim.  
The answer, on the merits, is inescapable.  ORS 161.313
provides that, when a defendant's sanity is an issue, the trial
court "shall instruct the jury in accordance with ORS 161.327." 
As we already have noted, that statute unequivocally requires the
trial court to give an instruction in accordance with ORS
161.327.  The trial court failed to so instruct the jury and, in
failing to do so, erred. 
That leaves only the question whether the error was
prejudicial.  When a trial court fails to give the instruction
that ORS 161.313 requires, it denies the defendant a benefit that
the legislature intended that he or she have, viz., a jury that
will be informed adequately as to the consequences of a "guilty
but insane" verdict and, therefore, will not be influenced by
unwarranted concerns that the defendant will be released
immediately or prematurely. (6)
  Defendant did not have the
benefit of such a jury.  We see no basis, on this record, for
suggesting that such an omission could be harmless error. 
Defendant's convictions, all of which are affected by the error,
must be reversed, and the case remanded to the trial court for
further proceedings.
Defendant has sought review on two other grounds, each
of which raises important questions respecting the evidence that
is admissible in a penalty-phase hearing.  In one issue,
defendant asserts that, because he could not receive a sentence
of death in this case (because of his age at the time the crimes
were committed), it was error for the trial court to admit
"victim-impact" evidence in the penalty-phase proceeding.  In the
second, defendant argues that, even if "victim-impact" evidence
is admissible, the evidence offered by the state in this case did
not qualify because it did not relate "to the personal
characteristics of the victim or the impact of the crime on the
victim's family."  ORS 163.150(1)(a).  Important as those issues
may be, we conclude that it is inappropriate to address them now. 
Defendant's case is going back for a new trial.  Defendant may or
may not be convicted at the new trial.  And, if he is not, any
opinion that we offer now respecting the penalty-phase issues
will be irrelevant.  We decline to address the additional issues
that defendant advances at this time.
The decision of the Court of Appeals is reversed.  The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
KISTLER, J., dissenting.
The majority holds that the trial court should have
instructed the jury on the consequences of a guilty but insane
verdict, even if defendant's requested instruction on that issue
were flawed.  That holding is unexceptional, and I would have no
quarrel with it if the issue were properly before us.  Defendant,
however, made a conscious decision not to present that issue to
the Court of Appeals, and I would not reach it.  I respectfully
dissent.
ORS 161.313 provides that, when a defendant raises an
insanity defense, a trial court "shall instruct" the jury on the
consequences of a guilty but insane verdict.  Defendant submitted
a flawed instruction on that issue (7)
 and asked the trial
court to give either his instruction "or some other [instruction]
that accurately sets out the [information that ORS 161.313
requires]."  The trial court declined to give any instruction on
the issue because it understood, incorrectly it turned out, that
the Oregon Constitution prohibited it from doing so. (8)

Before the Court of Appeals, defendant assigned error
to the trial court's decision not to give his requested
instruction.  He did not assign error to the court's refusal to
give any instruction on the issue, nor did he argue in his brief
that the court erred in that respect.  Rather, defendant
identified only one error in the course of his argument.  He
contended, consistently with his assignment of error, that the
court had erred in refusing to give his requested instruction.
It is true, as the majority notes, that defendant's
brief in the Court of Appeals referred to the trial court's
"fail[ure] to give an instruction required by Oregon law."  But
he did so only in the course of arguing that the ruling he had
assigned as error (the failure to give his requested instruction)
had prejudiced him. (9)
  In my view, defendant did not contend
in his brief that the failure to give any instruction on the
consequences of his insanity defense constituted a separate,
reversible error.
Were there any doubt about the matter, defense
counsel's remarks at oral argument removed it.  Defense counsel
began her oral argument to the Court of Appeals by explaining
that she was challenging only the trial court's failure to give
her requested instruction.  She was not raising any other issue. 
Defense counsel stated:

"First of all, I want to just clarify that, I'm
sticking with my assignment of error.  I'm saying that
it was error not to give defendant's special
instruction.  I am not arguing that the court erred in
not giving something.  Okay.  The state spent a lot of
time on how I couldn't do that.  I didn't do that, and
I am not going to do it today.  So we are just talking
about defendant's special instruction number 14."

Defense counsel's remarks eliminated whatever ambiguity may have
inhered in the brief.  The only issue that defendant raised in
his first assignment of error was whether the trial court had
erred in not giving his requested instruction.  Not surprisingly,
the Court of Appeals limited its discussion of defendant's first
assignment of error to that issue.
Before this court, defendant advances both the issue
that he preserved in the Court of Appeals (the failure to give
his requested instruction) and also the issue that he
deliberately chose not to raise in that court (the failure to
give any instruction on the effects of a guilty but insane
verdict).  The majority does not reach the issue that defendant
preserved but reverses on an issue that he chose not to pursue in
the Court of Appeals.  In my view, the court errs in doing so.
The court has long recognized that a party may not
raise an issue in this court that he or she failed to raise in
the Court of Appeals.  Tarwater v. Cupp, 304 Or 639, 644, 748 P2d
125 (1988).  More recently, this court held that it may not reach
an issue that was not "properly before" the Court of Appeals. 
State v. Wyatt, 331 Or 335, 345-46, 15 P3d 22 (2000) (applying
ORAP 9.20(2)).  That is so even though the adverse party concedes
that the Court of Appeals may reach the issue, and the Court of
Appeals does so.  Id.  In this case, defendant chose not to
pursue, before the Court of Appeals, the issue that he now
pursues in this court, and the Court of Appeals did not decide
that issue.  The issue upon which the majority bases its decision
was not "before" the Court of Appeals, much less "properly
before" it.
Admittedly, it would have been helpful if the state had
argued to us that defendant had failed to brief the issue in the
Court of Appeals that he now asks us to decide, and it would have
been particularly helpful if the state (or defendant for that
matter) had directed us to defense counsel's remarks at oral
argument, which remove any doubt about defendant's appellate
strategy.  The state's failure to do so, however, does not excuse
our independent obligation to reach only those issues that were
properly before the Court of Appeals, a proposition that Wyatt
makes clear.  Id. at 346 (stating that proposition).
Having failed to preserve this issue in the Court of
Appeals, defendant is left with a claim of plain error.  See
Wyatt, 331 Or at 346 (describing procedural options).  Here, even
if one assumes that the error is apparent on the face of the
record, that does not end the inquiry.  See Ailes v. Portland
Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991) (explaining
plain error doctrine).  As Ailes makes clear, under the plain
error doctrine, the question is not only whether the error is
apparent on the face of the record but also whether a court
should exercise its discretion to reach the unpreserved issue. 
Id. at 382.  To me, the answer to the latter question is clear. 
When, as in this case, a party has deliberately bypassed the
opportunity to raise an issue in the Court of Appeals, we should
not exercise our discretion to reach it.
Because defendant deliberately chose not to pursue in
the Court of Appeals the issue upon which the majority bases its
decision and because it is not appropriate to reach that issue
under the plain error doctrine, I respectfully dissent.


1. ORS 161.327 sets out the consequences, for a criminal
defendant, of a verdict of guilty except for insanity.  It
provides:  

"(1) Following the entry of a judgment
pursuant to ORS 161.319 and the dispositional
determination under ORS 161.325, if the court finds
that the person would have been guilty of a felony, or
of a misdemeanor during a criminal episode in the
course of which the person caused physical injury or
risk of physical injury to another, and if the court
finds by a preponderance of the evidence that the
person is affected by mental disease or defect and
presents a substantial danger to others requiring
commitment to a state mental hospital * * * or
conditional release, the court shall order the person
placed under the jurisdiction of the Psychiatric
Security Review Board for care and treatment.  The
period of jurisdiction of the board shall be equal to
the maximum sentence provided by statute for the crime
for which the person was found guilty except for
insanity. 
"(2) The court shall determine whether the
person should be committed to a state hospital
designated by the Department of Human Services or
conditionally released pending any hearing before the
board as follows:
"(a) If the court finds that the person
presents a substantial danger to others and is not a
proper subject for conditional release, the court shall
order the person committed to a state hospital
designated by the Department of Human Services for
custody, care and treatment pending hearing before the
board in accordance with ORS 161.341 to 161.351.
"(b) If the court finds that the person
presents a substantial danger to others but that the
person can be adequately controlled with supervision
and treatment if conditionally released and that
necessary supervision and treatment are available, the
court may order the person conditionally released,
subject to those supervisory orders of the court as are
in the best interests of justice, the protection of
society and the welfare of the person.  The court shall
designate a person or state, county or local agency to
supervise the person upon release, subject to those
conditions as the court directs in the order for
conditional release.  Prior to designation, the court
shall notify the person or agency to whom conditional
release is contemplated and provide the person or
agency an opportunity to be heard before the court. 
After receiving an order entered under this paragraph,
the person or agency designated shall assume
supervision of the person pursuant to the direction of
the Psychiatric Security Review Board.  The person or
agency designated as supervisor shall be required to
report in writing no less than once per month to the
board concerning the supervised person's compliance
with the conditions of release.
"(3) For purposes of this section, a person
affected by a mental disease or defect in a state of
remission is considered to have a mental disease or
defect requiring supervision when the disease may, with
reasonable medical probability, occasionally become
active and, when active, render the person a danger to
others.
"(4) In determining whether a person should
be conditionally released, the court may order
evaluations, examinations and compliance as provided in
ORS 161.336(4) and 161.346(2).
"(5) In determining whether a person should
be committed to a state hospital or conditionally
released, the court shall have as its primary concern
the protection of society.
"(6) Upon placing a person on conditional
release, the court shall notify the board in writing of
the court's conditional release order, the supervisor
appointed, and all other conditions of release, and the
person shall be on conditional release pending hearing
before the board in accordance with ORS 161.336 to ORS
161.351.  Upon compliance with this subsection and
subsections (1) and (2) of this section, the court's
jurisdiction over the person is terminated and the
board assumes jurisdiction over the person.
"(7) An order of the court under this section
is a final order appealable by the person found guilty
except for insanity in accordance with ORS 19.205(5). 
Notwithstanding ORS 19.255, notice of an appeal under
this section shall be served and filed within 90 days
after the order appealed from is entered in the
register.  The person shall be entitled on appeal to
suitable counsel possessing skills and experience
commensurate with the nature and complexity of the
case.  If the person is financially eligible, suitable
counsel shall be appointed in the manner provided in
ORS 138.500(1), and the compensation for counsel and
costs and expenses of the person necessary to the
appeal shall be determined, allowed and paid as
provided in ORS 138.500.
"(8) Upon placing a person under the
jurisdiction of the board, the court shall notify the
person of the right to appeal and the right to a
hearing before the board in accordance with ORS
161.336(7) and 161.341(4)."

Defendant was tried in 1999.  There are a few small differences
between the present version of ORS 161.327, quoted above, and the
version that was in effect in 1999.  The differences between the
two versions are not relevant to the present case.  For the sake
of convenience, we cite to the present version throughout this
case.
Return to previous location.



2. Defendant's requested instruction stated:

"If the Defendant is found guilty except for
insanity the Court will make a determination based on the
evidence you have heard and any additional evidence either
party offers. 
"If the Court finds that [defendant] is now
affected by mental disease or defect and presents a
substantial danger to others requiring commitment to a State
mental hospital the Court will order that he be committed to
a State hospital for custody, care and treatment.  The Court
will also order that he be under the jurisdiction of the
Psychiatric Security Review Board for a period equal to the
maximum sentence for the crime(s) for which he was found
guilty except for insanity.   
"Those maximum terms are: 
"1. For Aggravated Murder, life.
"2. For Burglary, 20 years.
"3. For Attempted Aggravated Murder, 20 years.
"4. For Attempted Rape, 10 years.
"5. For Attempted Assault II, five years.
"6. For Theft I, five years.
"The Psychiatric Security Review Board is a state
agency that has as its primary concern the protection of
society.
"If the Court determines that the Defendant can be
adequately controlled with supervision and treatment and
that necessary supervision and treatment is available the
law allows, but does not require, the Court to conditionally
release the Defendant.
"In determining whether the person shall be
committed to a State hospital or conditionally released, the
Court will have the protection of society as its primary
concern."

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3. The Court of Appeals' Amini decision held that
instructing the jury in accordance with ORS 161.327, as ORS
161.313 requires, violates a defendant's right under Article
I, section 11, of the Oregon Constitution to an impartial
jury.  It does so, the Court of Appeals concluded, because
it causes the jury to focus on a matter that is not for the
jury's consideration -- the sentence that will result from a
certain verdict.  Amini, 154 Or App at 601-602.  This court
reversed the Court of Appeals in State v. Amini, 331 Or 384,
15 P3d 541 (2000).  As the law now stands, there is no
constitutional impediment to giving the instruction
contemplated by ORS 161.313.
Return to previous location.



4. ORS 163.150 provides for a separate penalty phase
proceeding when a criminal defendant is found guilty of
aggravated murder.  In such a proceeding, the jury must
decide between three possible sentences:  life imprisonment
with the possibility of parole, life imprisonment without
the possibility of parole (true life), or death.  ORS
137.707(2) provides that ORS 163.150 applies when a person
charged with and convicted of aggravated murder was 15, 16,
or 17 years of age at the time that the offense was
committed, except that that person is not subject to the
death penalty.  Defendant was 17 at the time that he
committed the crimes in question and, therefore, was not
subject to the possibility of being sentenced to death.     
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5. The state's brief breaks down defendant's various
comments in excepting to the instructions and mistakenly
treats part of them as defendant's prior objection,
attributing to them an earlier and erroneous place in the
transcript.  When that inadvertent miscitation is corrected,
the force of the state's argument diminishes significantly.
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6. As the Court of Appeals noted in its decision in
Amini, it appears that the legislature enacted ORS 161.313
out of a concern that jurors might shy away from finding
criminal defendants guilty except for insanity because of an
erroneous perception that such a finding would result in the
defendant's immediate or premature release.  See Amini, 154
Or App at 600 (describing legislative history suggesting
that purpose). 
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7. The majority finds it unnecessary to decide
whether defendant's requested instruction was flawed.  I
would hold, for the reasons noted in the majority opinion,
that it was.
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8. When the trial court ruled on this issue, the
Court of Appeals had held that Article I, section 11, of the
Oregon Constitution prohibited giving the sort of
instruction that ORS 161.313 requires.  See State v. Amini,
154 Or App 589, 963 P2d 65 (1998) (so holding).  After the
trial court entered judgment in this case, this court
reversed the Court of Appeals decision in Amini.  State v.
Amini, 331 Or 384, 15 P3d 541 (2000).
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9. Defendant's brief stated:

"The trial court's error prejudiced defendant
when the jury instructions are considered as a
whole.  See State v. Williams, 313 Or 19, 38, 828
P2d 1006 (1992) (stating standard for reversible
error).  Here, the trial court failed to give an
instruction required by Oregon law.  No other
instruction even touched upon the consequences of
an insanity verdict.  Therefore, error should be
presumed harmful because the jury instructions
were not a complete and accurate statement of
Oregon law."  (Emphasis in original.)

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