Petition for Writ of Certiorari — Myklebust v. Oregon (No. 07-1057)

071057DEC.2 8 2007

No. OPFICE OF THE OLSFUC

In The

Supreme Court of the United States

Todd Allen Myklebust,

Petitioner,

v.

State of Oregon,

Respondent.

On Petition for Writ of Certiorari

To The Oregon Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Jay W. Frank

Counsel of Record

MOULE & FRANK, Lawyers

259 E. 5th Avenue

Eugene, OR 97401

(541) 485-1311]

QUESTION PRESENTED FOR REVIEW

Whether the Sixth and Fourteenth Amendments

to the Constitution of the United States require a

jury verdict of guilty on a felony charge of

manslaughter in the second degree in a state court

trial to be unanimous.

i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

OEE ME RES, ssasctnscesccnquesescecsesessncceessocnseacseses i

TABLE OF CITED AUTHORITIEBEG......................... ill

ORDERS BELOW............. MUA stadies ast lacphicnacnasineincsdeh 1

ean cabicchssnncerinscevessesinucssserenesstees 1

CONSTITUTION PROVISIONS AND STATUTE.. 2

a .. casecsunvenicaconncocainn, cocunsannassecs 3

REASONS FOR ALLOWANCE OF THE WRIT...... 5

ET 9

Ce cccncsccncconnezsneeeceanseen sue... App. 1

Order of Oregon Court of Appeals Affirming

Nee sceaseaanene App. 1

Transcript of Order of Circuit Court Denying

Motion to Require Jury Unanimity...... App. 2

Order of Oregon Supreme Court Denying

aah ckcdurenisuebtwntenianentesenen App. 6

1}

Defendant’s Circuit Court Motion to Require

PO RE vas ctticintteritcnisiiiiinapinwhai App. 7

Circuit Court Brief in Support of Defendant’s

Motion to Require Jury Unanimity...... App. 9

Appellant’s Brief in the Oregon Court of

PIE, ivitsitiniascisninianiibonaniaitiemeicaeama App. 13

Petition for Review in the Oregon Supreme

ERED sistisaiiaicenautiplabssniaciablaaacndam aaa App. 24

11]

TABLE OF CITED AUTHORITIES

Page

CASES

Apodaca v. Oregon, 406 U.S. 404 (1972)................ 6,9

Blakely v. Washington, 542 U.S. 296 (2005)......... 7,9

Johnson v. Louisiana, 406 U.S. 366, 380, 395, 399

SU eciascictecticcncsiteshendehattsacenenicts bailadlals Wigidacsan ai ciacieaes 6-7, 9

CONSTITUTION PROVISIONS AND STATUTE

The Sixth Amendment to the Constitution of the

Pn 0s bas pee gm noenoantiaian 2,6

The Fourteenth Amendment to the Constitution

SE i ion so ncadko ta ca cetnnscccasecs 2-3, 6

Article I, section 11, of the Oregon Constitution..2, 3

I ai ccicisncctrneicedlccandh tadeadasaitnamacdeons makati 2,3

1

PETITION FOR A WRIT OF CERTIORARI

Todd Allen Myklebust respectfully petitions for

a writ of certiorari to review the judgment of the

Oregon Court of Appeals in this case.

ORDERS BELOW

The circuit court’s oral denial of petitioner’s

motion to require jury unanimity (App. 3 - App. 4,

App. 12 - App. 13)) is unreported. The affirmance

without opinion by the Oregon Court of Appeals is

reported at 210 Or.App. 756, 153 P.3d 178 (App. 1).

The denial of discretionary review by the Supreme

Court of Oregon is reported at 343 Or. 224, 168 P.3d

1155 (App. 5).

JURISDICTION

The Supreme Court of Oregon denied review

October 4, 2007. The statutory provision which

confers on this Court jurisdiction to review on a writ

2

of certiorari the judgment or order in question is 28

U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS AND

STATUTE

Oregon Revised Statutes (“ORS”) 136.450(1)

states, in pertinent part, that “the verdict of a trial

jury in a criminal action shall be by concurrence of

at least 10 of 12 jurors.”

Article I, section 11 of the Oregon Constitution

states, in pertinent part, that “in the circuit court

ten members of the jury may render a verdict of

guilty or not guilty.”

The Sixth Amendment to the Constitution of the

United States states: “In all criminal prosecutions,

the accused shall enjoy a right toa ... trial, by an

impartial jury ...

Section 1 of the Fourteenth Amendment to the

Constitution of the United States states:

3

.... No State shal] make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the laws.

THE CASE

Petitioner was indicted on a felony charge of

manslaughter in the second degree. (App. 10). He

moved the court, prior to trial, for an order directing

that, notwithstanding ORS 136.450(1) and Article

I, § 11, of the Oregon Constitution, any verdict of

conviction by the trial jury on the felony charge of

manslaughter in the second degree must be

“confirmed by the unanimous suffrage” of each and

every one of the 12 jurors. (App. 6, App. 12). He also

submitted a brief containing the following

4

argument in support of his motion:

kKkk*K

Notwithstanding Apodaca [v. Oregon, 406

U.S. 404 (1972)], ORS 136.450(1), and

Article I, § 11, of the Oregon Constitution,

any verdict of conviction by the trial jury on

count 1 [manslaughter in the second degree]

must be “confirmed by the unanimous

suffrage” of each and every one of the 12

jurors. Blakely [v. Washington], 124 S.Ct.

[2531 (2004),] at 2536.

(App. 7 -App. 8, App. 12 - App. 13).

Petitioner's attorney reiterated the foregoing

argument at a pretrial hearing on the motion. (App.

3 - App. 4, App. 12) The trial court denied the

motion, stating: “I deny the request.” (App. 4, App.

12).

The jury found petitioner guilty of manslaughter

5

in the second degree by a vote of 10 to 2 at trial.

(App. 11). The court sentenced petitioner to serve 75

months in prison. (App. 11)

Petitioner appealed to the Oregon Court of

Appeals, and in his second assignment of error

sought review of the trial court’s denial of his

motion for jury unanimity. (App. 9 - App. 14). The

Oregon Court of Appeals affirmed without opinion.

(App. 1).

Petitioner petitioned the Supreme Court of

Oregon for review; the second legal question

presented for review was “whether the Sixth and

Fourteenth Amendements to the Constitution of

the United States require that any jury verdict of

guilty of a felony must be unanimous.” (App. 15 -

App. 18). The Supreme Court of Oregon denied

review. (App. 5).

REASONS FOR ALLOWANCE OF THE WRIT

6

In Apodaca v. Oregon, 406 U.S. 404 (1972), five

Justices of this Court, including Justice Powell,

concluded that unanimity is an _ indispensible

feature of every criminal jury trial in federal court,

pursuant to the Sixth Amendment; and eight

Justices concluded that the concept of a jury trial,

as applicable to the States under the Fourteenth

Amendment, must be identical in every detail to

the concept required in federal courts by the Sixth

Amendment. Apodaca, 406 U.S. at 414-415

(Stewart, J., dissenting); Johnson v. Louisiana, 406

U.S. 366, 369-380 (1972) (Powell, J., concurring in

the judgment); Johnson, 406 U.S. 380, 380-394

(1972) (Douglas J., dissenting); Johnson, 406 U.S.

395, 395-396 (1972) (Brennan J., dissenting);

Johnson, 406 U.S. 399, 406 U.S. 399, 399-403

(1972) (Marshall, J., dissenting). However, Justice

Powell, one of the five member majority on the

7

former question, disagreed with all of the other

eight Justices on the latter question, and concluded

that unanimity is not an indispensible feature of

jury trials in state courts, as opposed to jury trials

in federal courts. Johnson, 406 U.S. at 369-380

(Powell, J., concurring in the judgment).

As a_ result of Justice Powell’s. singular

conclusion that unanimity is required in criminal

trials in federal courts, but not in such trials in

state courts, persons accused of crimes in the

federal courts of Oregon and all other states during

the past 35 years have had a right to unanimous

jury verdicts, while identically situated persons

accused of crimes in the state courts of Oregon have

been deprived of the same right.

In Blakely v. Washington, 542 U.S. 296 (2005),

this Court stated:

This case requires us to apply the rule we

8

expressed in Apprendi v. New Jersey, 530 U.S.

466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000): “Other than the fact of a prior

conviction, any fact that increases. the

penalty for a crime beyond the prescribed

statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.”

This rule reflects two longstanding tenets of

common-law criminal jurisprudence: that the

“truth of every accusation” against a defendant

“should afterwards be confirmed by the

unanimous suffrage of twelve of his equals and

neighbours,” 4 W. Blackstone, Commentaries

on the Laws of England 343 (1769), and that

“an accusation which lacks any particular

fact which the law makes essential to the

punishment is ... no accusation within the

requirements of the common law, and it is no

ie tere

a Ae a A

9

accusation in reason,” 1 J. Bishop, Criminal

Procedure § 87, p. 55 (2d ed. 1872).

(Emphasis added). 542 U.S. at 301-302.

Apodaca was decided wrongly. See Blakely,

542 U.S. at 301-302; Apodaca, 406 U.S. at 414-415

(Stewart, J., dissenting); Johnson, 406 U.S. 380,

380-394 (Douglas J., dissenting); Johnson, 406 U.S.

395, 395-396 (Brennan J., dissenting); Johnson, 406

U.S. 399, 406 U.S. 399, 399-403 (Marshall, J.,

dissenting).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Jay W. Frank

Counsel of Record

MOULE & FRANK

Lawyers

10

259 E. Fifth Avenue

Eugene, OR 97401

(541) 485-1311

December 2007

App. 1

FILED: January 31, 2007

IN THE COURT OF APPEALS OF THE STATE OF

OREGON

STATE OF OREGON,

Plaintiff-Respondent

v.

TODD ALLEN MYKLEBUST,

Defendant-Appellant.

Douglas County Circuit Court

03CR2119FE

A130984

William L. Lasswell, Judge

Argued and submitted: January 12, 2007

Before Edmonds, Presiding Judge, and Wollheim,

Judge, and Riggs, Senior Judge

Attorney for Appellant: Jay W. Frank

Attorney for Respondent: Kaye E. McDonald

AFFIRMED WITHOUT OPINION.

App. 2

keke <«k &

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR THE COUNTY OF DOUGLAS

STATE OF OREGON, )

Plaintiff, )

VS. )

TODD ALLEN. )

MYKLEBUST, )

Defendant. )

)

)

Douglas County

Case No.

03CR2119FE

Court of

Appeals

Case No.

A127881

BE [IT REMEMBERED that the above-

entitled matter came on for hearing on the

30th day of November, 2004, in Circuit

Court ... Douglas County ..., before the

HONORABLE WILLIAM L. LASSWELL,

Judge Presiding.

APPEARANCES

App. 3

TIMOTHY BARNACK, Deputy District

Attorney, Medford, Oregon, appearing in

behalf of the Plaintiff.

JAY W. FRANK, Attorney at Law,

Eugene, Oregon, appearing in behalf of the

Defendant.

(Whereupon the following proceedings

tooplace before the Court, to wit:)

THE COURT: This is the time set for

the trial of the case of State of Oregon versus Todd

Allen Myklebust. ...

kkk KK

THE COURT: There are a number of

pretrial matters that we’re to consider ...

kkk

MR. FRANK: ... 1 did file a document

entitled ... “defendant’s motions.” ... That was on or

about August 17th, 2004. ...

App. 4

S222 2

MR. FRANK: Your Honor, my next

issue ... is more for the record, but I move[d] to

require jury unanimity on count one based on some

language in the recent Supreme Court decision ...

Blakely versus Washington, and I explain that in

Apodac[a] versus Oregon ... from 1972, 406 U.S.

404, there was a plurality of Justices of the

Supreme Court that said jur[ies] don’t have to be

unanimous under the sixth amendment. There was

another Justice, Justice Powell, who [held] that

even though jury unanimity was required under the

sixth amendment that that aspect of the right to

jury trial wasn’t applicable to the states, and as a

result Oregon was permitted to have _ non-

unanimous juries in felony cases. However, in

Blakely versus Washington decided last summer,

124 S Court 2531, at page 2536, a majority of five

App. 5

justices state that the truth of every ac[cu]s[a]tion

against a defendant should afterwards’ be

confirmed by the unanimous suffrage of twelve of

his equals and neighbors, quoting Blackstone. And

so my argument is that Apodac[a] is no longer good

law. The Oregon statute 136.450 sub 1, and article

[I] section 11 of the Oregon constitution are

unconstitutional in light of Blakely, adn therefore a

unanimous verdict should be required.

MR. BARNACK: I- don’t have any

response on that, your Honor.

THE COURT: I deny the request.

App. 6

IN THE SUPREME COURT OF THE STATE OF

OREGON

STATE OF OREGON,

Plaintiff-Respondent, Respondent on Review

v.

TODD ALLEN MYKLEBUST

Defendant-Appellant, Petitioner on Review

Court of Appeals

A130984

5054663

ORDER DENYING REVIEW

Upon consideration by the court,

The court has considered the petition for review and

orders that it be denied.

October 4, 2007 /s/ Paul J. De Muniz

CHIEF JUSTICE

c: Kaye Ellen McDonald

Jay W Frank

App. 7

FILED

04 AUG 18 AM 9:07

DOUGLAS COUNTY

TRIAL COURTS

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR DOUGLAS COUNTY

THE STATE OF OREGON, ) Case No.

Plaintiff, ) 03CR2119FE

VS. ) DEFENDANT'S

TODD ALLEN ) MOTIONS

MYKLEBUST, )

Defendant. )

or. 2 s

Defendant respectfully moves the court for an

order directing that, notwithstanding ORS

136.450(1), and Article, I, § 11, of the Oregon

Constitution, any verdict of conviction by the trial

jury on count 1 must be “confirmed by the

ears:

se

a

App. 8

unanimous suffrage” of each and every one of the 12

jurors.

KRKEK* =

The foregoing motions are supported by the

attached ... brief, ...

by reference.

which [is] incorporated herein

Respectfully submitted,

MOULE & FRANK,

Lawyers

/s/ Jay W. Frank

Jay W. Frank

Attorney for Defendant

Bar No. 79042

Phone: (541) 485-1311

App. 9

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR DOUGLAS COUNTY

THE STATE OF OREGON, ) Case No.

Plaintiff, ) 038CR2119FE

vs ) BRIEF

TODD ALLEN )

MYKLEBUST, )

Defendant )

x**x*kete

MOTION TO REQUIRE JURY UNANIMITY ...

kkk et

In Apodaca v. Oregon, 406 U.S. 404... (1972), a

plurality of four Justices of the Supreme Court of

the United States (Justice White, Chief Justice

Burger, Justice Blackmun and Justice Rehnquist)

concluded that the Sixth Amendment guarantee of

a jury trial, made applicable to the states by the

Fourteenth Amendment, does not require that the

App. 10

jury's vote be unanimous. 406 U.S. at 405-412. A

fifth Justice, Justice Powell, concluded that,

although on the basis of history and precedent the

Sixth Amendment mandates unanimity in a federal

jury trial, the Due Process Clause of the Fourteenth

Amendment, while requiring states to provide jury

trials for serious crimes, does not incorporate all

the elements of a jury trial within the meaning of

the Sixth Amendment and does not require jury

unanimity. Johnson v. Louisiana, 406 U.S. 366,

369-375 ... (1972).

In Blakely v. Washington, U.S. __,124S.Ct.

2531 ... (2004), a majority of five Justices of the

Supreme Court of the United States, none of whom

were members of the Supreme Court in 1972,

stated:

This case requires us to apply the rule we

expressed in Apprendi v. New Jersey, 530

App. 11

U.S. 466, 490, ... (2000), “Other than the fact

of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.”

This rule reflects two longstanding tenets of

common-law criminal jurisprudence: that the

“truth of every accusation” against a

defendant “should afterwards be confirmed

by the unanimous suffrage of twelve of his

equals and neighbours,” 4 W. Blackstone,

Commentaries on the Laws of England 343

(1769), and that “an accusation which lacks

any particular fact which the law makes

essential to the punishment is ... no

accusation within the requirements of the

common law, and it is no accusation in

reason,” 1 J. Bishop, Criminal Procedure §

App. 12

87, p. 55 (2d ed. 1872).

(Emphasis added). 124 8.Ct. at 2536.

Notwithstanding Apodaca, ORS 136.450(1), and

Article I, § 11, of the Oregon Constitution, any

verdict of conviction by the trial jury on count 1

must be “confirmed by the unanimous suffrage” of

each and every one of the 12 jurors. Blakely, 124

S.Ct. at 2536.

Respectfully submitted,

MOULE & FRANK,

Lawyers

/s/ Jay W. Frank

Jay W. Frank

Attorney for Defendant

App. 13

IN THE COURT OF APPEALS OF THE STATE OF

OREGON

STATE OF OREGON, )

Plaintiff-Respondent, ) Douglas County

V. ) Circuit Court No.

TODD ALLEN ) 0O38CR2119FE

MYKLEBUST, ) CA A130984

Defendant-Appellant. )

APPELLANT’S BRIEF AND EXCERPT OF

RECORD |

Appeal from a judgment of the Circuit Court

for Douglas County;

Honorable WILLIAM L. LASSWELL, Judge.

JAY W. FRANK, Attorney for Appellant

Moule & Frank, Lawyers

259 E. 5th Avenue

Eugene, OR 97401

79042

App. 14

(541) 485-1311

MARY H. WILLIAMS, Attorney for Respondent

Assistant Attorney General

1162 Court Street NE

Salem, OR 97301

#91124

(503) 378-4402

01/23/06

ke kK

APPELLANT’S BRIEF

STATEMENT OF THE CASE

The nature of the action or proceeding, the

relief sought and the indictment, ...

Defendant Todd Allen Myklebust

(“defendant”) seeks reversal in this criminal case of

his conviction for manslaughter in the second degree

Defendant was accused by indictment of the

App. 15

offenses of manslaughter in the second degree ...,

and driving while under the influence of intoxicants

(“DUII’), committed as follows:

COUNT 1

The said TODD ALLEN MYKLEBUST, on or

about the 23rd day of November, 2003, in said

County of Douglas and State of Oregon, then and

there being, did unlawfully and recklessly cause the

death of another human being, to-wit: Dennis

Clayton Zuver, by colliding into a tree causing

portions of said tree to fall into a public highway,

a2 2

The nature of the judgment sought to be

reviewed, and the fact that trial was before a

jury

On November 30, 2004, defendant pled guilty

to the charge of DUII (count 2) and, thereafter, trial

: i

App. 16

commenced before a jury on the charge of

manslaughter in the second degree (count 1). On

December 2, 2004, the jury found defendant guilty

of manslaughter in the second degree by a vote of

SS

On December 20, 2004, at sentencing, the

Honorable William L. Lasswell, Circuit Court

Judge, (1) adjudged that defendant had been

convicted of manslaughter in the second degree on

the basis of the aforementioned jury verdict; ...;

sentenced defendant, ..., to serve 75 months in

prison; ordered that defendant may not receive

credit for time served, or be considered for

alternatives to incarceration or alternative

sanctions, ...; [and] suspended execution of

defendant’s sentence pending appeal; ...; and (2)

adjudged that defendant had been convicted of DULI

on the basis of the aforementioned guilty plea; ...;

App. 17

sentenced defendant to serve 30 days in jail; ...;

fand] ordered that this sentence shall be concurrent

with the foregoing sentence on the conviction for

manslaughter in the second degree; ....

kkk ke

A brief statement of questions presented on

appeal

ee

4. Do the Sixth and Fourteenth

Amendments to the Constitution of the United

States require that any verdict of guilty of

manslaughter in the second degree must be

unanimous?

kkk KS

A concise summary of the arguments

appearing in the body of the brief

z<¢22s 23

4. The Sixth and Fourteenth Amendments

App. 18

to the Constitution of the United States require

that any verdict of guilty of manslaughter in the

second degree must be unanimous.

kKKKK

SECOND ASSIGNMENT OF ERROR

The trial court erred in denying defendant’s

motion to require jury unanimity for conviction on

count 1.

A. Preservation of Error

Defendant respectfully move[d] the

court for an order directing that,

notwithstanding ORS 136.450(1) and

Article I, § 11, of the Oregon

Constitution, any verdict of conviction

by the trial jury on count 1 must be

“confirmed by the unanimous suffrage”

of each and every one of the 12 jurors.

.... A brief in support of the motion stated:

App. 19

Notwithstanding Apodaca, ORS

136.450(1), and Article I, § 11, of the

Oregon Constitution, any verdict of

conviction by the trial jury on count 1

must be “confirmed by the unanimous

suffrage” of each and every one of the

12 jurors. Blakely, 124 S.Ct. at 2536.

At the hearing on the motion, defendant’s

attorney reiterated the foregoing argument. ... The

trial court denied the motion, stating: “I deny the

request.” ...

=: 2 2S

ARGUMENT

In Apodaca v. Oregon, 406 U.S. 404 ... (1972),

a plurality of four Justices of the Supreme Court of

the United States (Chief Justice Burger, and

Justices White, Blackmun, and _ Rehnquist)

concluded that the Sixth Amendment guarantee of

App. 20

a jury trial, made applicable to the states by the

Fourteenth Amendment, does not require that a

jury’s vote be unanimous. 406 U.S. at 405-412. A

fifth Justice, Justice Powell, concluded that,

although on the basis of history and precedent the

Sixth Amendment mandates unanimity in a federal

jury trial, the Due Process Clause of the Fourteenth

Amendment, which requires states to provide jury

trials for serious crimes, does not incorporate all

the elements of a jury trial within the meaning of

the Sixth Amendment, and does not require jury

unanimity. Johnson v. Louisiana, 406 U.S. 366,

369-375 ... (1972).

In Blakely v. Washington, 542 U.S. 296, 301

... (2004), a majority of five Justices of the Supreme

Court of the United States, none of whom were

members of the Supreme Court in 1972, stated:

This case requires us to apply the

ey &

App. 21

rule we expressed in Apprendi v. New

Jersey, 530 U.S. 466, 490 ... (2000);

“Other than the fact of a prior

conviction, any fact that increases the

penalty for a crime-~ beyond the

prescribed statutory maximum must

be submitted to a jury, and proved

beyond a reasonable doubt.” This rule

reflects two longstanding tenets of

common-law criminal jurisprudence:

that the “truth of every accusation”

against a defendant “should

afterwards be confirmed by the

unanimous suffrage of twelve of

his equals and neighbors,” 4 W.

Blackstone, Commentaries on_ the

Laws of England 343 (1769), and that

eé

an accusation which lacks any

BS

aud

Ca

App. 22

particular fact which the law makes

essential to the punishment is ... no

accusation within the requirements of

the common law, and it is no

accusation in reason,” 1 J. Bishop,

Criminal Procedure § 87, p. 55 (2d ed.

1872).

(Emphasis added).

The Sixth and Fourteenth Amendments to

the Constitution of the United States required jury

unanimity for a conviction on count 1. Blakely, 542

U.S. at 301.

KkeKEEKK

Respectfully submitted,

MOULE & FRANK,

Lawyers

/si Jay W. Frank

Jay W. Frank

App. 23

Attorney for Appellant

App. 24

IN THE SUPREME COURT OF THE STATE OF

OREGON

STATE OF OREGON, )

Respondent on Review, ) Douglas County

v. ) Circuit Court No.

TODD ALLEN ) O3CR2119FE

MYKLEBUST, ) CA A130984

Petitioner on Review. )

PETITION FOR REVIEW

Petition for review of the decision of the

Court of Appeals on appeal from a judgment of the

Circuit Court for Douglas County; Honorable

WILLIAM L. LASSWELL, Judge.

AFFIRMED WITHOUT OPINION: January 31,

2007

Before EDMONDS, Presiding Judge

WOHLHEIM, Judge

RIGGS, Senior Judge

App. 25

JAY W. FRANK, Attorney for Appellant

Moule & Frank, Lawyers

259 E. 5th Avenue

Eugene, OR 97401

#79042

(541) 485-1311

KAYE E. MCDONALD, Attorney for Respondent

Assistant Attorney General

1162 Court Street NE

Salem, OR 97301

#91124

(503) 378-4402

kkk

Concise statements of the legal questions

presented on review and of the rules of law

that the petitioner proposes be established, if

review is allowed.

x*ekk

Se

etal

App. 26

2. The second legal question is whether the

Sixth and Fourteenth Amendments to _ the

Constitution of the United States require that any

jury verdict of guilty of a felony must be unanimous.

The rule of law that defendant proposes be

established is that the Sixth and Fourteenth

Amendments to the Constitution of “he United

States requires [sic] that any jury verdict of guilty

of a felony must be unanimous.

tke etek

A brief argument concerning the legal

questions presented on review.

a a a

2. In Apodaca v. Oregon, 406 U.S. 404 ...

(1972), a plurality of four Justices of the Supreme

Court of the United States (Chief Justice Burger,

and Justices White, Blackmun, and Rehnquist)

concluded that the Sixth Amendment guarantee of

App. 27

a jury trial, made applicable to the states by the

Fourteenth Amendment, does not require that a

jury’s vote be unanimous. 406 U.S. at 405-412. A

fifth Justice, Justice Powell, concluded that,

although on the basis of history and precedent the

Sixth Amendment mandates unanimity in a

federal jury trial, the Due Process Clause of the

Fourteenth Amendment, which requires states to

provide jury trials for serious crimes, does not

incorporate all the elements of a jury trial within

the meaning of the Sixth Amendment, and does not

require jury unanimity. Johnson v. Louisiana, 406

U.S. 366, 369-375 ... (1972).

In Blakely v. Washington, 542 U.S. 296, 301

... (2004), a majority of five Justices of the Supreme

Court of the United States, none of whom were

members of the Supreme Court in 1972, stated:

This case requires us to apply the

App. 28

rule we expressed in Apprendi v. New

Jersey, 530 U.S. 466, 490 ... (2000);

“Other than the fact of a _ prior

conviction, any fact that increases the

penalty for a crime beyond the

prescribed statutory maximum must

be submitted to a jury, and proved

beyond a reasonable doubt.” This rule

reflects two longstanding tenets of

common-law criminal jurisprudence:

that the “truth of every accusation”

against a defendant “should

afterwards be confirmed by the

unanimous suffrage of twelve of

his equals and neighbors,” 4 W.

Blackstone, Commentaries on _ the

Laws of England 343 (1769), and that

“

an accusation which lacks’ any

App. 29

particular fact which the law makes

essential to the punishment is ... no

accusation within the requirements of

the common law, and it is_ no

accusation in reason,” 1 J. Bishop,

Criminal Procedure § 87, p. 55 (2d ed.

1872).

(Emphasis added).

The Sixth and Fourteenth Amendments to

the Constitution of the United States required jury

unanimity for a conviction of a felony. Blakely, 542

U.S. at 301.

Respectfully submitted,

MOULE & FRANK,

Lawyers

Jay W. Frank

Jay W. Frank

Attorney for [Petitioner]