630 796, 291 153 v. 1981 796 630 796 291 153 State v. Shumway
| Decision Date | 23 June 1981 |
| Docket Number | No. 7,7 |
| Citation | 291 Or. 153,630 P.2d 796 |
| Parties | Page 796 630 P.2d 796 291 Or. 153 STATE of Oregon, Respondent, v. Douglas Linn SHUMWAY, Petitioner |
| Court | Oregon Supreme Court |
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Stephen Kanter, Cooperating Atty., Oregon American Civil Liberties Union, Portland, filed a brief amicus curiae.
The defendant was convicted of intentional murder and sentenced to life imprisonment. He appealed to the Court of Appeals, contending both that error occurred during his trial and the statute pursuant to which he was sentenced was invalid. The Court of Appeals affirmed. 44 Or.App. 657, 607 P.2d 191 (1980). We granted review.
The defendant contends the instruction on self-defense was erroneous.
The trial court instructed the jury on the affirmative defense of self-defense and the defendant excepted to a portion which implied that the defendant was under a duty to escape and avoid the affray. The Court of Appeals concluded that it was compelled to affirm the conviction due to certain cases decided by this court prior to the enactment of ORS 161.205(4), 161.209 and 161.219, which specify when deadly force may be used in defense of persons. The instruction does not appear to conform to those statutes. We conclude that the error, if any, was harmless because the issue of self-defense was not presented by the evidence.
The defendant and the victim shared an apartment. The defendant killed the victim with the second of two pistol shots. The state's evidence was that the defendant first shot the victim as the victim, unarmed, was approaching the defendant in a threatening manner. Two state's witnesses testified that the defendant then walked to the victim's body as it lay on the floor and fired a second bullet into the victim's head. The defendant confessed that he fired the second round as the victim was going down from the first. The defendant testified in his defense that he fired the first shot in fear but that the second shot was accidental. He testified that the victim was knocked back on the couch by the first shot, but that he rose and walked to the hall where he fell to the floor. Defendant approached the still body and stood over it with his gun hanging down. Just then the victim's arm swung around, catching defendant's leg, and defendant fired the second shot accidentally. He testified on cross-examination that he did not know if he shot intentionally or not and that he did not know if he intended to kill the victim or not.
The affirmative defense of self-defense was clearly raised regarding the first shot, but not the second shot, which was the homicidal act. According to the State's evidence, the second shot was fired deliberately after any necessity for self-defense had ceased. According to the defendant's evidence, the second shot was not self-defense. Rather, the defense was accident; i. e., lack of assaultive intent. In these circumstances, the self-defense instruction was superfluous and was more to the benefit of the defendant than to his prejudice.
The defendant's assignments of error regarding questioning prospective jurors are no longer relevant because they concerned the possibility of the imposition of a death sentence.
The defendant was convicted pursuant to ORS 163.115. This statute was amended by an initiative in 1978. The chief effect of the amendments was to provide that the death sentence could be imposed if the trial court found that certain facts existed and if the death sentence was not imposed and the sentence imposed was life imprisonment the defendant would be required to serve not less than 25 years before becoming eligible for parole.
Subsequent to the initial oral argument in this case, we decided in State v. Quinn, 290 Or. 383, 407, 623 P.2d 630 (1981), that the provisions of the initiative regarding the death penalty were invalid as being in violation of Art. I, § 11 of the Oregon Constitution which provides for the right of trial by jury of all facts constituting the crime.
Because of State v. Quinn, supra, the issue now arises whether the portion of the initiative providing that in the event the judge imposes a life sentence, 25 years of this sentence must be served before the defendant is eligible for parole, is severable from the portion concerning imposition of the death penalty or is the entire initiative invalid?
We asked for further briefs on this issue and for reargument.
We have announced the following principles in deciding the question of severability:
" 'If * * * the constitutional and the unconstitutional portions are so dependent on each other as to warrant the belief that the legislature intended them to take effect in their entirety, it follows that if the whole cannot be carried into effect, it will be presumed that the legislature would not have passed the residue independently, and accordingly, the entire statute is invalid.' 11 Am.Jur., Constitutional Law, 842, § 155.
Fullerton v. Lamm, 177 Or. 655, 697, 163 P.2d 941, 165 P.2d 63 (1946).
In voting favorably on the initiative, the electorate were voting for greater penalties for murder than were presently in the statutes. If the death penalty were not imposed, the voters favored requiring that when the required life sentence was imposed the defendant serve a long period of time before being eligible for parole. There is no suggestion that if the death penalty were found invalid the voters would not have favored retaining the requirement that the defendant sentenced to life must serve at least 25 years.
We hold the statute requiring the 25 year service before parole is severable from the portion concerning the death penalty.
The defendant contends that the amended ORS 163.115, the statute amended by the initiative, is contrary to the equal protection and due process clauses of the Fourteenth Amendment and that portion of Art. I, § 16 of the Oregon Constitution which provides that " * * * all penalties shall be proportioned to the offense." Defendant contends it is contrary to these provisions because "one convicted of a more serious offense (aggravated murder) is now exposed to a lesser sentence than one convicted of 'regular' murder."
In 1971 the legislature adopted a new criminal code. What is now a part of ORS 163.115 was part of that code. ORS 163.115 provides:
It also provides: "(5) * * * a person convicted of murder shall be punished by imprisonment for life * * *."
In 1977 the legislature created the crime of "aggravated murder." ORS 163.095 provides:
ORS 163.105 provides:
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