stating, with reference to McNassar, that the instruction “may be appropriate” if “the state’s failure to produce evidence could give rise to an inference that the evidence would be adverse to the state— that is, when it appears that the state may be trying to hide something”
How later courts described this case
- stating, with reference to McNassar, that the instruction “may be appropriate” if “the state’s failure to produce evidence could give rise to an inference that the evidence would be adverse to the state— that is, when it appears that the state may be trying to hide something”
- stating that words of common usage need not be defined for the jury
- noting that the instruction “is perhaps as close to a comment on the evidence as any presently allowed and it is not appropriate in most cases”
- McDonnell ID, citing Ball v. Gladden, 250 Or 485, 489, 443 P2d 621 (1968
Written by the judges who cited it.
The opinion
FADELEY, J.,
dissenting.
I dissent from the remand for retrial of a portion of this case for the reasons stated in the dissenting portion of my separate opinion entered when this case was previously before this court over two years ago, State v. McDonnell, 310 Or 98, 106, 118 , 794 P2d 780 (1990). The plea bargain, which called for a sentence to imprisonment for life, 1 should be enforced. No further expense or additional jury trial or other proceeding is needed to determine whether life or death is to be chosen as the penalty.
Additional recent cases that support the result of enforcing the plea bargain, as I urge, include U.S. v. Canada, 960 F2d 263, 268 (1st Cir 1992); U.S. v. Goroza, 941 F2d 905 (9th Cir 1991), and People v. Walker, 54 Cal 3d 1013, 1 Cal Rptr 2d 902, 819 P2d 861, 869 (1991).
I also dissent from the majority’s remand for a new penalty-phase trial for the reason stated in the first three paragraphs of my dissenting opinion in State v. Williams, 313 Or 19, 44-45 , 828 P2d 1006 (1992).
At the time of defendant’s motion to enforce the plea bargain (deleting the illegal condition, discussed in my original dissent), ORS 163.150(2) provided that “[w]hen the defendant is found guilty of aggravated murder upon a plea of guilty * ** * and * * * the state declines to present evidence for purposes of sentencing, * * * the court shall sentence the defendant to life imprisonment as prescribed by ORS 163.105.”