State v. Quinn

¶1specially concurring.

¶2I concur in the majority opinion. I believe, however, that the result reached by the majority would be better understood and accepted by the people of Oregon, who enacted the Oregon Death Penalty Act (ORS 163.116), if stated somewhat differently.

¶3The rule that a person accused of murder is entitled to a jury trial on all of the facts necessary to prove guilt, including the required "culpable mental state,” was *408not an invention of the Oregon courts. The Supreme Court of the United States has also held that no person shall be convicted of any crime without a trial by a jury in which the jury has found beyond a reasonable doubt the existence of every fact necessary to prove that crime.1

¶4In addition, the Supreme Court of the United States, in a series of decisions, has held some state death penalty statutes to be unconstitutional2 and has held that other state death penalty statutes satisfy requirements of the Constitution of the United States.3 In doing so that Court has stated requirements which must be satisfied by state death penalty statutes.4 These requirements, as stated by that court, are binding upon all state courts, including this court.

¶5The Oregon Death Penalty Act is not a product of the Oregon Legislature. Instead, it is the product of an initiative measure submitted directly to the Oregon voters for approval. Those who drafted it for some reason chose to use as a model only a portion of the Texas state death penalty statute, which had been approved by the United States Supreme Court, but omitted other portions which that cotut found to be essential to its constitutionality.5 For *409some reason, they also chose not to propose the measure as an amendment to the Oregon Constitution, which would have resolved any doubts as to its validity under the requirements of that constitution. Instead, the drafters of this measure prepared a measure which, in my opinion, clearly fails to satisfy requirements of the Constitution of the United States as stated by the Supreme Court of the United States.

¶6For these reasons, I believe that the primary basis for the holding by the majority in this court that the Oregon Death Penalty Act is invalid should have been that it simply fails to satisfy requirements as stated by the Supreme Court of the United States and which are binding upon this court.

¶7It does not follow from the decision by the majority in this case, however, that the voters of Oregon cannot adopt a death penalty statute, if they desire to do so, using as a model a state death penalty statute which has been approved by the United States Supreme Court, and if adopted as an amendment to the Oregon Constitution.

¶8More disturbing to me has been the long delay by the majority of this court in arriving at its decision in this case — a delay which is symptomatic of the increasingly serious problem of delays by this court in its handling of appeals during the past four years. The seriousness of this problem is perhaps best exemplified by the- fact that although the Chief Justice of this court announced to the press that a decision of this case was a matter of "top priority” with the court, it has been seven months since the petition was filed in this court for review of the decision by the Court of Appeals in this case and over three months since the case was heard on oral argument in this court.

¶9The Oregon Death Penalty Act (ORS 163.116) provides:

"(5) The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court within 60 days after certification of the entire record by *410the sentencing court, unless an additional period not exceeding 30 days is extended by the Supreme Court for good cause. The review by the Supreme Court shall have priority over all other cases, and shall be heard in accordance with rules promulgated by the Supreme Court.”

¶10The death sentence of Quinn was entered by the Circuit Court for Multnomah County on November 21, 1979. On December 19,1979, a notice of appeal was filed by Quinn in the Court of Appeals. On June 4,1980, appeal was denied by it for lack of jurisdiction, based upon its decision in State v. Warren that the Court of Appeals had no jurisdiction to hear appeals under the Oregon Death Penalty Act, but that such appeals must be made directly to this court. State v. Warren, 46 Or App 253, 611 P2d 342 (1980).

¶11On June 23, 1980, a petition for review of that decision was filed in this court and was allowed on July 1, 1980. On September 4, 1980, oral argument was heard in this court on the question whether the Court of Appeals was correct in its holding that it had no jurisdiction to consider appeals under the Oregon Death Penalty Act, but that such appeals must go directly to this court. On October 15, 1980, this court affirmed that decision by the Court of Appeals.

¶12On October 16, 1980, this court heard oral arguments on the merits of this case, including arguments on the question whether the Oregon Death Penalty Act is invalid as unconstitutional. On the same day the case was assigned to a member of the court to write a proposed opinion. It has taken an additional period of over 3 months from the date of the oral argument on October 16,1980, for this court to decide this "top priority” case.6

¶13*411The Standards Relating to Appellate Courts, as adopted by the American Bar Association Commission on Standards of Judicial Administration (1977), provide for Standards of Timely Disposition, including § 3.52(b)(4), which provides as follows:

"Decision. For a court sitting in panels of three judges, the average time for rendering decision should not exceed 30 days; the maximum time for any case, except one of extraordinary complexity, should not exceed 60 days. For a court sitting in larger panels, the average time should not exceed 60 days; the maximum time, eoccept in cases of extraordinary complexity, should not eocceed 90 days.” (Emphasis added)

¶14The various questions raised relating to the validity of the Oregon Death Penalty Act may or may not be such as to qualify this case as one of "extraordinary complexity.”7 It is my opinion, however, that when the people of Oregon command this court to give "priority over all other cases” to appeals under the Oregon Death Penalty Act, this court should have been able to make a decision in this case in far less than 90 days, particularly in view of the fact that members of the court are unanimous in the view that the statute is invalid. In my opinion, the people of Oregon were entitled to a more expeditious handling of this case. The defendant in this case, sitting in "death row,” as well as the defendants in other cases, facing each day with the concern that they may be put to death, were also entitled to a more expeditious handling of this case.

¶15In spite of these facts, I would not have written this opinion if this case were an isolated instance of delay in decisions by this court. The unfortunate fact is, however, that this is but one of many such cases during the past four years. Indeed, the production by this court in terms of the average number of opinions per "regular” justice has steadily declined during the past four years from 41 opinions per "regular justice” in 1976, to 37 in 1977, to 32 in 1978, to 27.6 in 1979 and now to 17.6 opinions per "regular justice” in 1980.8

¶16*412At the same time, and despite the fact that this court has written far fewer opinions during 1980 than in previous recent years, it still has been unable to satisfy the American Bar Association standard of 60 days as the "average time” for disposition of cases after oral argument, much less the ABA "maximum” of 90 days, except in cases of "extraordinary complexity.”

¶17Thus, during 1980 the average "elapsed days” from "argument to decision” was 113 days.9 As of December 31, 1980, there were 9 cases which had been assigned to members of the court for more than 90 days for which no proposed opinions had yet been written, 2 of which had remained "unwritten” by the justice to whom they had been assigned for more than six months. Also, as of December 31, 1980, there were 18 cases which were still "under advisement” pending final decisions after more than 90 days (including the 9 "assigned but unwritten” cases) and 7 of these cases were still awaiting decisions after more than six months from the date of oral arguments.

¶18Indeed, the operation of the court during the past four years appears to be an example of the operation of "Parkinson’s Law” to the effect that the less work a bureaucratic agency has to do the more time will be required to do that work. This raises the question why this court has been unable in 1980 to decide cases more promptly now that this court is completely a court of review and can control the number of cases to be heard on oral argument requiring written opinions by controlling the number of petitions allowed or denied by it for review of decisions by the Court of Appeals.10 In other words, an appellate court which has no control over the number of cases on which it must hear oral argument and decide by written opinion may have a good excuse for delays in decisions resulting from an increase in the volume of appeals over which it has no control. But a state supreme court which is a court of review of decisions by an intermediate appellate court and which can control the number of cases which it *413may choose to hear on oral argument and decide by written opinion has no good excuse for not being able to decide promptly those cases which it chooses to hear and decide.

¶19It is true that cold statistics comparing the number of cases decided in 1980 and in previous years may be misleading and that cases accepted for decision on petitions for review are often difficult cases. On the other hand, while perhaps equally misleading, is the fact that all cases, on assignment by the Chief Justice, are rated by him as (1) "Easy,” (2) "Average,” (3) "Difficult,” and (4) "Super-difficult.” Of the 123 cases decided in 1980 by written opinions, 9 were rated as "Easy,” 89 as "Average,” 24 as "Difficult,” and only one as "Super-difficult.”

¶20It is also true that this court worked under some handicaps in 1980. Four of its members spent time in hospitals and in subsequent recovery and one member faced a contested election. Nevertheless, of the only two members who wrote more than twenty opinions during 1980, one retired after serving for eleven months and the other was incapacitated for five weeks as the result of surgery.

¶21The record of this court during 1980 is reminiscent of its performance 25 years ago. In 1955 this court produced 147 opinions, for an average of 21 opinions per justice. Only three members of the court wrote over 20 opinions. Four members wrote from 13 to 17 opinions each.11 In addition, the problem of delays on appeals to the Oregon Supreme Court had become so serious that the Committee on Judicial Administration of the Oregon State Bar made an investigation of the problem and published a report which included a table listing the number of opinions written by each member of the court each year.12 A Legislative Interim Committee on Judicial Administration also made an investigation of the problem.13 Legislation was then enacted which, among other things, extended the term of the *414Chief Justice from two to six years14 and provided for appointment of retired justices and justices pro tem for use in an effort by the court to catch up with its backlog and become current in its work.15

¶22By dint of hard work under the leadership of a strong Chief Justice and with the help of retired justices and justices pro tem, this court then did catch up with its backlog and became relatively current in its work, so as to become recognized as one of the most hard-working, efficient and productive of all state supreme courts. This was an enviable achievement, and one which the court was able to maintain for several years.

¶23By 1968 it had become apparent that the volume of appeals each year was increasing at such a rapid rate as to threaten to seriously overload the capacity of the court and thus to again substantially increase the period of delay in its disposition of appeals. In response to that problem, the Court of Appeals was established on July 1, 1969.

¶24It is of significance to note, however, that in 1968, this court’s last year as a court of direct appeal, prior to the establishment in 1969 of the Court of Appeals, this court was able to decide 271 cases by written opinions by the seven regular members of the court (plus 74 opinions by pro tem judges), or an average of 38.7 opinions per regular member of the court.

¶25In 1976, seven years after the establishment of the Court of Appeals, with jurisdiction over approximately one-half of all direct appeals, this court received 467 petitions for review. In spite of the added burden of considering and acting upon these petitions for review, this court heard 299 cases on oral argument and was able in 1976 to decide 305 cases by written opinions, including 288 by regular members of the court, plus 17 opinions by pro tem judges, and including both opinions in cases arising on petitions for review and in cases on direct appeal, for an average of 41 written opinions by each regular member of the court. By way of contrast, in 1980, after the Court of Appeals had *415been granted jurisdiction over the remaining one-half of all direct appeals (with some exceptions), this court received 628 petitions for review. In 1980, however, this court heard only 155 cases on oral argument and decided only 123 cases by written opinion, including both opinions in cases arising on petitions for review and in other cases, or an average of 17.6 per member of the court.16

¶26It should be noted, however, that since 1976 the personnel of this court has undergone an almost complete "turnover” and only two members of the 1976 court still remain. Members of the 1976 court were also considerably older than members of the 1980 court.17

¶27Nearly two years ago, in State v. Classen, 285 Or 221, 590 P2d 1198 (1979), I wrote a specially concurring opinion in a criminal case in which a conviction which should have been set aside was not reversed for more than 8 months, despite the fact that it was not a case of "extraordinary complexity” and that the court was unanimous in reversing the conviction. At that time statistics were set forth which demonstrated both the decline in the average number of opinions written per "regular justice” for the years 1977 and 1978 and also the increase in the number of cases "under advisement,” including "assigned but unwritten” cases as of December 31, 1978.18

¶28*416In addition to expressing concern over such delays, attention was called by that concurring opinion to the fact that all Oregon trial judges are required by statute (ORS 1.050) to sign a "Certificate of Compliance” as a condition for payment of their salaries that they have no cases under advisement or undecided for more than three months "unless prevented by sickness or unavoidable casualty, or the time is extended by stipulation in writing ….” It was noted that although the requirement of such a "Certificate of Compliance” for appellate judges would not insure action by the entire court on cases within 90 days, such a statutory requirement could require individual appellate judges to at least write proposed opinions on cases assigned to them within 90 days. At the time of that concurring opinion in State v. Classen, supra,it was proposed to the court that it voluntarily adopt by rule of court a requirement for such a "Certificate of Compliance.” That proposal was rejected by the court.

¶29In June 1980 attention was again called by dissenting opinion in State v. Beason, 289 Or 215, 221-222, 611 P2d 1150 (1980), to the fact that as of that date the court had made little progress toward facing and solving this problem during 1979 and during the first five months of 1980, citing statistics for that period. Further attention was called to this problem later during 1980 by special concurring opinion in Haynes v. Burks, 290 Or 75, 619 P2d 632 (1980), a case involving a petition for a writ of habeas corpus for denial of a speedy trial, which was not decided for over four months despite the fact that by tradition "the great writ” for the protection of the rights of persons held unlawfully in jails is to be expedited by all courts so as to grant or deny such writs in a matter of hours or days, rather than weeks or months. See also dissenting opinion in McPherson v. Employment Division, 285 Or 541, 558, 591 P2d 1381 (1979).

¶30It is a distinctly unpleasant task for a member of an appellate court who has both respect and affection for each of his brethren to write such dissenting and concurring opinions. Nevertheless, as stated in Classen (285 Or at 242), as one who has long been concerned with the problem *417of delays on appeal to the Oregon Supreme Court,19 I believe that my primary duty is to this court as an institution dedicated to the prompt, as well as the proper, administration of justice, in recognition of the trite, but true, proposition that "justice delayed is justice denied.” Indeed, a comprehensive national survey of public attitude toward courts by the National Center for State Courts found that the public’s most serious indictment is that litigation not only costs too much, but takes too long.20

¶31I find myself both frustrated and saddened by the failure of this court to take effective action toward a solution of what has become a problem of such a magnitude as to result in what I believe to be a partial paralysis of the effective functioning of this court as a court of justice in the sense that "justice delayed is justice denied.” Despite comments to the effect that in 1979 the court was "in a period of transition”21 and predictions by other members of the court in 1979 that it was making progress in becoming current in its work,22 the record of the court in 1980, as previously set forth, speaks for itself.23

¶32For all of these reasons, I have reluctantly come to the conclusion that the only effective means of making it clear to members of this court that the people of Oregon expect it to adopt and pursue a sense of real urgency in the disposition of its work is for the Oregon Legislature to enact a statute requiring appellate judges, as well as trial court judges, to sign "Certificates of Compliance” as a condition of payment of their monthly salary, to the effect *418that each appellate judge has had no case assigned to him for more than 90 days upon which he has not written and submitted to the court a proposed opinion.24

¶33It may be that the adoption of such a statute would not of itself provide a complete solution to the problem and would not of itself have provided a solution to the problem of the delay in the decision of this case. It is also true that such a requirement will not insure that all cases will be decided by the court within 90 days, so as to satisfy the "standard” of the American Bar Association. This is because even after the preparation and submission by a member of the court of a proposed opinion, there may in some cases be a prolonged period of disagreement among members of the court during which dissenting or concurring opinions may be written.25

¶34The problem, however, is of such a nature as to be reminiscent of the story of the farmer with a team of stubborn mules who, at the beginning of each day of work, hit each mule on the head with a club. When asked whether that did any good, his response was that "it got their attention.” In other words, the mules then knew that the farmer "meant business” in his orders to them in the performance of their work each day on his farm.

¶35The task of solving the problem of delays on appeals to the Oregon Supreme Court is not one which is subject to simple solutions. The ultimate solution will *419require, among other things, a change in the priorities, work habits and attitudes of members of the court. It may be said by other members of the court, and in complete good faith, that because this court is now a "law announcing” court, rather than a "case deciding” court, it would be "impossible” for them to either write many more "law making” opinions of high quality each year and equally "impossible” to do so within 90 days.

¶36This is again reminiscent of the problems of delay on appeals to this court in the 1950’s when most members of this court wrote less than 20 opinions per year, including many lengthy and elaborate opinions, and when this court was far behind in its docket. Yet during the 1960’s members of this court were able to change their work habits in such a manner and to such a degree as to make it possible for this court to substantially increase the number of opinions written by members of the court each year and so as also to make it possible for the court to achieve and maintain a reasonably current docket.

¶37One of the incentives for that drastic change was a report of the Legislative Interim Committee on Judicial Administration. Included in that report was the following comment about work habits and lengthy opinions:

"Methods of work and habits of mind once established are difficult for anyone to change, harder still for those whose efficiency of action is not subject to constant review by clients, judges, partners, colleagues or employers. Evidence of this fact can, in the final analysis, come only from the court, but the fact itself is widely believed by observers among the Bar and elsewhere.

…

"The function of the court is drawn in question by another frequently voiced criticism, that of the length of the court’s opinions. … The matter is one on which there is an honest, reasonable and important difference of opinion. But in the light of the present docket problems, the view that elaborate opinions are a proper and desirable function of the court must yield to the more pressing need to decide cases as rapidly as possible. The primary function of the court is to decide cases. The function of exploring *420and synthesizing the law, while at times helpful, is, in the final analysis, an incidental one.”26

¶38Also, as previously noted, of the 123 cases decided by this court in 1980, only 24 of such cases were rated as "Difficult” and only 1 as "Super-difficult,” while 89 cases were rated as "Average” and 9 as "Easy.” These statistics may be somewhat misleading, as also previously noted. Nevertheless, I am of the firm opinion that while the function of "exploring and synthesizing the law” is now a more important function of the court, the need for "elaborate” or "scholarly” opinions to "explore and synthesize the law” must at least be balanced against the need for the court to decide with reasonable promptness those cases which it chooses to accept for decision if this court is to discharge what I believe to be its duty to the people of Oregon.

¶39In effect, at least, the ABA "standard” for appellate courts of an average of 60 days from oral argument to decision, with a maximum of 90 days except in cases of "extraordinary complexity,” represents such a "balance.” As previously noted, the average number of days from oral arguments to decisions by this court during 1980 was 113 days.27 Based upon my experience as a member of this court for over eleven years, I am convinced that the members of this court have the ability to achieve that "standard.” I am also convinced, based upon my experience, that it would impose no undue hardship upon the members of this court to require that they at least write proposed opinions in all cases within 90 days after oral argument on such cases.

¶40*421The old adage that "justice delayed is justice denied” is more than trite rhetoric. These words have graphic meaning to every person who, whether willingly or unwillingly, becomes a litigant in a case on appeal to this court. These include not only persons who appeal from convictions of crimes and injured persons who have been successful in obtaining money judgments to pay for lost wages, doctor and hospital bills, and who must wait for payment until appeals are exhausted by defendants, but all persons, corporations, cities, counties and agencies of state government whose rights and ability to act have become subject to litigation and to delays on appeals to this court.

¶41Repeated writing of dissenting and concurring opinions by a lone member of this court, calling this problem to the attention of members of the court over a period of two years, has produced no substantial results. If, however, the people of Oregon, through their legislature, adopt a statute requiring "Certificates of Compliance” by appellate judges, as well as by trial judges, as a condition of the payment of their monthly salaries, the adoption of such a statute should be sufficient, in my opinion, to "get their attention.” The adoption of such a statute should also be sufficient to "get the message” to the members of this court that the people of Oregon agree with the people of other states in their indictment of the courts for the operation of a system of justice that takes too long, and that they expect *422this court to "get moving again” to regain its previous and hard-won, but easily lost, reputation as one of the most efficient and productive of all state supreme courts, in keeping with Oregon’s long tradition of leadership in matters of government.

¶81specially concurring.

¶82Although I concur with the opinion in this case, I feel compelled to comment on part II of the court’s opinion.

¶83Article I, section 11, of the Oregon Constitution, provides:

"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury …

¶84This constitutional right exists for the protection of every person in Oregon, and no statute which limits the right to a jury trial is enforceable. The right of jury trial as to every element of a criminal prosecution is an important right — in some persons’ lives, it is their most important right.

¶85Oregon’s death penalty statutes are very similar to the death penalty statutes of Texas (which were upheld in Jurek v. Texas, 428 US 262, 96 S Ct 2950, 49 L Ed 2d 929 (1976)), and the drafters of our death penalty statutes probably drafted the initiative with the Texas law in mind. However, the Texas law differs from the Oregon death penalty law in one very substantial particular: In Texas, after the jury finds the defendant guilty of capital murder, the trial court must conduct a separate sentencing proceeding before the same jury that tried the issue of guilt. Dining the separate sentencing proceeding, the jury is required to answer two questions: (1) Whether the evidence established beyond a reasonable doubt that the murder of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result, and (2) whether the evidence established beyond a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.1 These questions are virtually identical to those set forth in ORS *423163.116(2)(a) and (b). However, under the initiative enacted by the people of Oregon in 1978, these two questions are answered by the judge, not the jury.

¶86The opinion herein states (at 405):

"We have upheld other enhanced penalty statutes even though they required additional post-trial findings by the court as a basis for a greater sentence. In particular, we have upheld the former Habitual Criminal Act and sexually dangerous offender statutes over challenges that the procedures violated the right to trial by jury of the facts upon which enhanced punishment was to be based. The difference between those statutes and ORS 163.116(2)(b), however, is found in the simple principle that the facts which constitute the crime are for the jury and those which characterize the defendant are for the sentencing court.”2

¶87I was troubled, however, by the fact that the highest courts of at least five states, Nebraska, Arizona, Florida, Alabama and Ohio, and possibly the Supreme Court of the United States as well, have rejected assertions that the imposition of the death penalty by the judge, in the bifurcated post-verdict hearing, violates the defendant’s right to a jury trial. After studying the decisions from those jurisdictions, I conclude that they were all decided on a basis other than the limited issue upon which the court’s opinion in this case rests. In each of the five jurisdictions mentioned above, the jury, in their verdict, had found deliberateness or premeditation as part of their verdict, and the post-verdict hearing conducted by the court did not involve that element of the crime.

¶88The Nebraska court, in State v. Simants, 197 Neb 549, 250 NW2d 881 (1977), cert den, 434 US 878, reh den, 434 US 961 (1978), held that it was constitutionally permissible for the judge to impose the death penalty following a jury verdict of guilty. But the jury was required to first find that the defendant killed another person "purposely and with deliberate and premeditated malice.” Section 28-303, *424R. R. S. (1943). Under the Nebraska law, the court then weighed eight possible aggravating circumstances and seven possible mitigating circumstances before imposition of the penalty of death.3 Regarding the claim that this procedure violated state and federal jury trial constitutional protections, the court held:

"Before we consider the procedures further, we turn to defendant’s contention that the lack of jury involvement in *425the sentencing procedure is contrary to the due process clause of the Fourteenth Amendment to the United States Constitution as well as Article I, section 3, of the Bill of Rights, of the Constitution of the State of Nebraska. The United States Supreme Court, in Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed.2d 913 (1976), has held that jury sentencing in a capital case is not constitutionally required. In that case the Court stated in upholding the Florida procedure: The basic difference between the Florida system and the Georgia system is that in Florida the sentence is determined by the trial judge rather than by the jury. This (the United States Supreme) Court has pointed out that jury sentencing in a capital case can perform an important societal function, Witherspoon v. Illinois, 391 U. S. 510, 519 n. 15, 88 S. Ct. 1770, 1775, 20 L. Ed.2d 776, but it has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.’

"Inferentially, Nebraska has met this contention in the application of its habitual criminal law. We have repeatedly sustained the constitutionality of that law. In Nebraska the increased punishment for a subsequent felony is a court determination and not one for a jury. See State v. Losieau, 184 Neb. 178, 166 N. W.2d 406 (1969).

"As we understand the federal and the state constitutional provisions, they do not require or even suggest that jury sentencing is constitutionally required. Whatever the relative merits of sentencing by a judge or jury may be, we need not consider them. Our concern is the constitutionality of the Nebraska system, under the federal and state Constitutions. The relative merits of the one or the other is for legislative and not judicial determination. We find the sentencing procedure provided by the Nebraska statute does not violate either the Nebraska or the federal Constitution.” 250 NW2d at 887-888.

¶89The Ohio Supreme Court, in State v. Weind, 50 Ohio St 2d 224, 364 NE2d 224 (1977), vacated 438 US 911, 98 S Ct 3137, 57 L Ed 2d 1156 (1978), reached the same *426conclusion.4 In Ohio, however, the indictment must list the aggravating circumstances and the jury verdict must "separately state whether the accused is found guilty … of each specification ….”5 If the accused is found guilty of one or more of the specifications, then and then only can the judge impose a sentence of death. Ohio Rev Code Anno 2929.03. Moreover, the indictment charged the defendant with "purposely and with prior calculation and design” causing the death of another. In Ohio, the jury was first required to make the findings which the defendant in the case at bar claims should have been made by the jury instead of the court.

¶90In State v. Watson, 120 Ariz 441, 586 P2d 1253 (1978) cert den 440 US 924 (1979); Jacobs v. State, 361 So 2d 640 (Ala 1978); and Proffitt v. State, 315 So 2d 461 (Fla 1975) aff’d in Proffitt v. Florida, 428 US 242, 96 S Ct 2960, 49 L Ed 2d 913 (1976), reh den 429 US 875 (1976), the courts also rejected the defendant’s claim that his constitutional right to trial by jury had been violated. In all of these cases, however, the jury had already found, by their verdict, that the homicide had been deliberate or premeditated.6

¶91*428I am convinced that the ORS 163.116 element of deliberateness is one of "the facts which constitute the crime,” and therefore the defendant is entitled to a jury. But while it is easy to state "the simple principle,” I fear that future cases will arise which make the application of the "simple principle” difficult.7