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State of Oregon v. James Anthony Harrell

February 28, 2013


On review from the Court of Appeals.*fn1 (CC CR060548; CA A138184) (CC C071438CR; CA A138740)

The opinion of the court was delivered by: DE Muniz, Justice pro tempore.

(Consolidated for opinion)

Argued and submitted March 8, 2012.

Before Balmer, Chief Justice, and Kistler, Walters, and Linder, Justices, and Durham and De Muniz, Senior Judges, Justices pro tempore.*fn2

The decisions of the Court of Appeals are reversed. The cases are remanded to the circuit courts for further proceedings.

Linder, J., concurred in part and dissented in part and filed an opinion in which Kistler, J., joined.

DE MUNIZ, Justice pro tempore.

In these two criminal cases, consolidated for purposes of opinion, each defendant attempted to waive his constitutional right to a jury trial as guaranteed by Article I, section 11, of the Oregon Constitution.*fn3 In both cases, the trial court refused to consent to the waiver, and juries subsequently convicted each defendant of the charges against him. In State v. Harrell, 241 Or App 139, 250 P3d 1 (2011), the Court of Appeals concluded that the trial court had not abused its discretion in refusing defendant Harrell's requested jury waiver and affirmed the convictions. On review in Harrell, we reverse the Court of Appeals decision and remand to the trial court with instructions to reconsider defendant's jury waiver. In State v. Wilson, 240 Or App 708, 247 P3d 1262 (2011), the Court of Appeals concluded that the trial court's refusal to consent to defendant's requested jury waiver had been within the trial court's discretion and went on to affirm defendant's convictions. On review in Wilson, we reverse the decision of the Court of Appeals and remand to the trial court to reconsider defendant's jury waiver.


A. State v. Harrell

In September 2006, defendant was involved in an altercation outside a bar in which he stabbed one victim with a folding knife and injured a second in the ensuing commotion. Defendant was charged by indictment with multiple counts of assault, attempted assault, and unlawful use of a weapon.

Following a four-day trial, the jury began deliberations and, after three hours, submitted two written questions for the trial court. First, the jury asked, "If [defendant] is found guilty of first degree is he guilty of 2nd automatically?" The trial court answered, "No. Second degree assault requires proof beyond a reasonable doubt that the defendant caused the injury 'recklessly under circumstances manifesting extreme indifferent to the value of human life.'" The jury then asked, "Can (is it allowed that a persons [sic]) a persons [sic] demeanor from 'self defense' to 'intent to cause injury' be done instantaneously?" The trial court replied, "I do not understand your question. Would you like to clarify or rephrase it?" The jury did not submit any further queries.

Shortly after the trial court had been given the jury's questions, defendant indicated that he wished to waive his jury trial right and permit the trial court to rule on the charges against him. The record shows that defendant's counsel submitted a document to the trial court captioned "Waiver of Jury Trial" and had it marked and placed in the record. The document was signed by defendant Harrell and recited that, although he was fully aware of his right to a jury determination regarding the charges against him, he nevertheless wished to waive that right in favor of a determination made by the trial court judge sitting alone. The document further stated that defendant had executed the waiver "voluntarily with full understanding of my rights and without any threat or promise."

The trial court -- after opining that it probably had the authority to grant the waiver if the prosecutor agreed -- nevertheless stated that, "absent an agreement[,] I don't think the court has the authority to grant the motion." The prosecutor responded by arguing that it "would be dangerous precedent" to allow defendants to waive jury trials whenever they disliked a question that the jury had submitted to the trial court. After the prosecutor indicated that her preference was to have the jury decide the case, the trial court denied defendant's requested jury waiver, stating:

"I think at this stage in the process I don't think I even have the discretion -- I have the discretion to do it if both sides agree. I -- as I said to you I would be willing to, but I don't think I have the discretion to dismiss the jury at this stage."

Several hours later, the trial court judge submitted his own sealed verdict, which the parties agreed to accept to avoid a retrial if the trial court had erred in refusing to allow defendant's requested jury waiver. Ultimately, the jury convicted defendant on two counts of second-degree assault and acquitted him on the remaining charges. After the jury had been released, the trial court judge stated that he would have acquitted defendant on all eight counts. As noted, the Court of Appeals affirmed defendant's convictions, and we allowed defendant's petition for review.

B. State v. Wilson

In April 2007, defendant was driving his vehicle one night after consuming a significant quantity of alcohol. His driver license was suspended at the time as a result of an earlier conviction for driving under the influence of intoxicants. Eventually, defendant ran a stop sign and collided with another car, killing its driver. Defendant subsequently was charged with first-degree manslaughter, second-degree assault, driving under the influence of intoxicants, and driving while suspended.

Before his scheduled trial, defendant sought to waive his right to a jury. We are unable to find anything in the record showing that a written waiver was ever tendered to the trial court or that the need for such a writing was even discussed.*fn4 The record does show that, following an in-chambers discussion with the parties, the trial court declined to accept defendant's requested waiver. When trial began the next day, the trial court allowed the parties to recite, for the record, the previous day's discussions regarding defendant's attempted jury trial waiver:

"[DEFENSE COUNSEL]: I do want the record to reflect what happened yesterday, that we had a meeting in chambers, that the prosecutor objected to our waiver of a jury. In this case, the specific grounds were that he felt that the extreme indifference to the value of human life was a community standard that a jury and not a Judge should decide.

"I would simply argue that it's a legal standard like any others that we're dealing with. The Court's certainly capable of determining whether the facts meet that or not. And I would just point out that I don't think the State has any authority to intervene or object to a waiver. That's a defendant's right, again, with the Court's consent. *

"[TRIAL COURT]: Okay. Is there anything you want to say for the record on that?

"[PROSECUTOR]: Simply I -- I didn't object. I just did -- I did request that the Court exercise its discretion."

The trial court then explained the rationale for its decision:

"[TRIAL COURT]: Okay. Well, it's been my policy over the years to try to be in a situation where if someone had an objection to me acting as the finder of fact that I would not, in fact, act in that capacity. And, so, based upon the State's request here, I do not give my consent to -- to allow the defendant to waive his right to jury trial and that's the end of the matter, as far as I'm concerned." (Emphasis added.) Defendant's case was then tried to a jury, and he was found guilty on all counts. Defendant appealed, the Court of Appeals affirmed his convictions, and, as already noted, we allowed defendant's petition for review.


Under the Oregon Constitution, criminal defendants possess both the right to be tried by a jury and the concomitant right -- albeit bounded by judicial consent -- to waive that jury trial guarantee in favor of a bench trial. To that end, Article I, section 11 provides, in part:

"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; * * * provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing[.]"

As we discuss later in this opinion, the people adopted that wording as a constitutional amendment in 1932.

In State v. Baker, 328 Or 355, 976 P2d 1132 (1999), this court interpreted the jury waiver portion of that constitutional provision following an amendment to ORS 136.001 that granted the state its own separate statutory right to pursue jury trials in criminal prosecutions. The court concluded that the statute was unconstitutional because it authorized the state to insist on a jury trial despite a defendant's unequivocal request to waive such proceedings under Article I, section 11. See 328 Or at 360 ("Granting the state the right to demand a jury trial, when the defendant desires otherwise and the trial judge accepts the defendant's choice, is inconsistent with Article I, section 11."). In doing so, the court identified the trial court as the only entity possessing the "discretionary choice to deny a criminal defendant in a non-capital criminal case the right to waive trial by jury." Id. at 364.

On review, both defendants argue that the scope of that judicial discretion, when applied to a trial court's consent in matters of jury waiver, is limited to ascertaining whether the defendant's waiver request was knowingly, intelligently, and voluntarily made. The state, however, contends that nothing in the text, context, or history of the Article I, section 11, amendment at issue here suggests that Oregon voters intended to impose any specific subject-matter limitation on the trial court's "consent" authority. According to the state, the text and context of that provision "gives the trial court the voluntary choice to consent or to withhold consent, according to its own free and deliberated choice." (Emphasis in original.) Moreover, the state adds that the history of Oregon's jury waiver provision demonstrates that voters did not intend to place any limitations on what a trial court could consider in reaching that decision. Specifically, it argues that "voters would have understood that the trial court, as an individual entity, had subjective authority over its consent decision and thus, was not limited to its consideration of specific factors." (Emphasis in original.)


We begin by observing that the state is incorrect in its attempt to categorize a trial court's authority to grant or deny consent under Article I, section 11, as a purely subjective judicial consideration, one having no boundaries whatsoever outside of the trial judge's own "free and deliberated choice." The act of choosing to consent or not consent as described by the state is itself a classic example of an exercise in judicial discretion. See State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000) (explaining, in terms of evidentiary decisions, that "'discretion' * * * refers to the authority of a trial court to choose among several legally correct outcomes. If there is only one legally correct outcome, 'discretion' is an inapplicable concept[.]"). It is well established, however, that judicial discretion is not absolute. State v. Hubbard, 297 Or 789, 794 n 2, 688 P2d 1311 (1984). Judicial discretion should, for example, "be exercised according to fixed legal principles in order to promote substantial justice." Elliott v. Lawson, 87 Or 450, 453-54, 170 P 925 (1918). And judicial discretion "never authorizes arbitrary, capricious action that tends to defeat" that substantive end. State ex rel Bethke v. Bain, 193 Or 688, 703, 240 P2d 958 (1952). In short, judicial discretion is always bounded by a simple framework: It must be lawfully exercised to reach a decision that falls within a permissible range of legally correct outcomes. See Rogers, 330 Or at 312 (no abuse of discretion where trial court's decision falls within range of legally correct choices and produces a permissible, legally correct outcome). Our task here is to construe the parameters of that framework as it applies to Article I, section 11, and to determine whether the trial courts' refusal to consent to defendants' jury waivers was an exercise of discretion that took place within those legal confines.

The range of legally correct outcomes under Article I, section 11, depends on the voters' intent in enacting the "jury waiver" amendment to that constitutional provision. See, e.g., Dickinson v. Davis, 277 Or 665, 673, 561 P2d 1019 (1977) (describing discretion as a range of responsible choices in pursuing objectives "more or less broadly indicated by the legislature (or, in Oregon, by the people themselves) under various circumstances pertinent to those objectives"). Because the jury waiver provision was added to Article I, section 11, by legislative referral, we apply the interpretive methodology for initiated constitutional provisions and amendments set out in Roseburg School Dist. v. City of Roseburg, 316 Or 374, 378, 851 P2d 595 (1993), and Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 559, 871 P2d 106 (1994). See Stranahan v. Fred Meyer, Inc., 331 Or 38, 56, 11 P3d 228 (2000) (explaining methodology). Under that framework, our task is to discern the intent of the voters. Id. The best evidence of the voters' intent is the text and context of the provision itself and, if the intent is clear, "the court does not look further." Ecumenical Ministries, 318 Or at 559. Nevertheless, "caution must be used before ending the analysis at the first level, viz., without considering the history of the constitutional provision at issue." Stranahan, 331 Or at 57.

We begin with the pertinent text. The portion of Article I, section 11, at issue here provides that criminal defendants, "in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing[.]"

Adopted by Oregon voters as a state constitutional amendment in 1932, the provision has remained unchanged from the time of its adoption.

It is clear from the text set out above that a criminal defendant cannot waive his or her right to trial by jury without at least two components: a written waiver and the trial court's consent to that waiver. As to written waivers, we have recognized that, for purposes of Article I, section 11, that component is essential to a valid jury waiver. In State v. Barber, 343 Or 525, 173 P3d 827 (2007), the defendant had been convicted of burglary and theft in a bench trial conducted on stipulated facts. On appeal, the judgment was affirmed by the Court of Appeals. The record, however, contained neither a written waiver of defendant's right to a jury trial nor any other indication that defendant had executed such an agreement. Id. at 527. On review, this court reversed and remanded, holding that "[t]here is no ...

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