State v. Herrera ( 1978 )

SCHWAB, C. J.,

specially concurring.

I take a different route to the same result on the issues of: (I) whether defendant’s requested insanity instruction should have been given; and (II) the admissibility of Steve Lerma’s prior testimony.

I

The jury would have been entitled to conclude from the testimony of the defense psychiatrist that defendant was addicted to amphetamine which, combined with his fear of withdrawal, diminished his ability to think clearly, make reasoned judgments and control his assaultive impulses. The jury would have been entitled to find persuasive the psychiatrist’s opinion that these conditions rendered defendant unable to conform his conduct to the requirements of the law.

The majority seems to be weighing the probative value of this evidence. I decline to thus invade the province of the jury. The legal question before us is whether this evidence is minimally sufficient to require an instruction on "insanity” in accordance with ORS 161.295.1 think it is //drug addiction can ever be a "mental disease or defect” within the meaning of ORS 161.295.

ORS 161.295 was derived from Model Penal Code, § 4.01. Proposed Oregon Criminal Code 34-7, Commentary, § 36 (1970). Annotation, 73 ALR3d 16, 23, 60-4 (1976), points out that, in jurisdictions that have adopted the Model Penal Code "insanity” test, the courts have consistently held or assumed that drug addiction can be a "mental disease or defect.” This body of authority cogently supports the argument that an "insanity” instruction should have been given in this case.

However, the Oregon legislature is entitled to define as it sees fit the statutory phrase "mental disease or defect.” And I conclude it has done so in such a way as to exclude the possibility of drug addiction ever being a "mental disease or defect” within the meaning of ORS 161.295.

Oregon Laws 1973, ch 697, § 2, p 1581, provides:

"The Legislative Assembly finds drug dependence is an illness. The drug-dependent person is ill and shall be afforded treatment for his illness.”¹

Other parts of Oregon Laws, ch 697, e.g., § 18, make it clear that the legislature was using "drug dependency” as a synonym for "drug addiction.” This statute, standing alone, supports the idea that drug dependency/addiction can be a mental disease or defect for criminal law purposes. However, in the same Act the legislature provided that drug dependence was, for criminal law purposes, to be dealt with the same as voluntary intoxication. Specifically, Oregon Laws 1973, ch 697, § 13, p 1586, amended ORS 161.125 by, among other things, adding the emphasized language:

"(1) Drug use, dependence on drugs or voluntary intoxication shall not, as such, constitute a defense to a criminal charge, but in any prosecution for an offense, evidence that the defendant used drugs, or was dependent on drugs, or was intoxicated may be offered by the defendant whenever it is relevant to negative an element of the crime charged.

"(2) When recklessness establishes an element of the offense, if the defendant, due to drug use, dependence on drugs or voluntary intoxication, is unaware of a risk of which he would have been aware had he been not intoxicated, not using drugs, or not drug dependent, such unawareness is immaterial.” (Emphasis supplied.)

I leave for others the task of explaining the rationale of treating drug addiction, which by definition suggests an element of involuntariness, the same as voluntary intoxication is treated. But that is precisely the legislative fiat I perceive in Oregon Laws 1973, ch 697, p 1581. I conclude that drug addiction can never be a "mental disease or defect” within the meaning of ORS 161.295. On this basis, rather than that adopted by the majority, I agree the trial court was correct in not giving an "insanity” instruction in this case.

II

Defendant’s hearsay and confrontation contentions present substantially the same issue. On the present facts, Steve Lerma’s prior testimony was admissible over a hearsay objection once he asserted his Fifth Amendment privilege if the prosecution did not cause Lerma’s testimony to be unavailable at defendant’s trial. Rogers v. Donovan, 268 Or 24, 518 P2d 1306 (1974). Likewise, on the present facts, Lerma’s prior testimony was admissible over a confrontation objection once he asserted his Fifth Amendment privilege if the prosecution made a good-faith effort to make Lerma’s testimony available at defendant’s trial. Mancusi v. Stubbs, 408 US 204, 92 S Ct 2308, 33 L Ed 2d 293 (1972); Barber v. Page, 390 US 719, 88 S Ct 1318, 20 L Ed 2d 255 (1968). The caveats in the two contexts appear to me to be different ways of expressing the same concept: Did the prosecution by omission or commission produce the situation that made Lerma’s testimony unavailable at defendant’s trial?

There is a serious argument that it did. The "conditional immunity agreement” was executed by Steve Lerma, his attorney and a deputy district attorney on August 2,1976. Lerma testified at defendant’s preliminary hearing on September 1 and 2,1976. The prosecution revoked the "conditional immunity agreement” and initiated a felony-murder charge against Lerma on the last business day before defendant’s trial began on November 29,1976. If, as the state contends, Lerma’s "immunity” was revoked because of what he said at the preliminary hearing in early September, why did it take the state until late November to effect that decision? And if the state was content to dally for almost three months, why was it not content to delay taking any action against Lerma until after defendant’s trial? The record contains no answers.

I join in resolving this close question against defendant because of the nature of the "conditional immunity agreement” between Lerma and the state. I interpret it to promise Lerma "immunity” on the condition that he committed no criminal acts. This is not a grant of immunity as contemplated by statute. See OES 136.617 and 136.619. The conditioned "promise” is at best illusory.

Assuming, as I think we often must, that people generally act rationally, I cannot comprehend why Steve Lerma gave testimony at defendant’s preliminary hearing that amounted to a confession that he (Lerma) had participated in a felony murder. Any claim that Lerma so testified in reasonable reliance on the "promised immunity” would simply be irrational. In other words, I think the decision confronting Lerma at that juncture would have been exactly the same had the "conditional immunity agreement” never been executed: He could testify against defendant in the hope that the would receive more favorable treatment in his own case or he could assert his Fifth Amendment privilege.

Exactly the same decision confronted Lerma at the time of defendant’s trial. Just as his earlier decision to testify could not reasonably have been in reliance on the so-called "promised immunity,” I fail to see how his decision at the time of trial could have been in reasonable reliance on the revocation of the so-called "promised immunity.” Since the "promise” gave nothing, its revocation took nothing away. Accordingly, although I do not find the prosecution’s conduct to be exactly laudable, I conclude that no act or omission of the prosecution had any reasonable or rational causal connection with the unavailability of Lerma’s testimony at the time of defendant’s trial.

1 Codified as ORS 430.415.