Riley v. Cupp, 114007
| Decision Date | 27 April 1982 |
| Docket Number | No. 114007,114007 |
| Citation | 642 P.2d 333,56 Or.App. 467 |
| Parties | Jerry Lynn RILEY, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent. ; CA A20438. |
| Court | Oregon Court of Appeals |
Ken L. Betterton, Salem, argued the cause for appellant. With him on the brief was Enfield & McConville, Salem.
Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Deputy Sol. Gen., Salem.
Before BUTTLER, P. J., and WARDEN and WARREN, JJ.
The question presented by this appeal is whether a conviction on stipulated facts, for intentional murder in a trial under an indictment charging aggravated felony murder, violates the due process guarantees of the federal and state constitutions. 1 We hold that it does not.
Petitioner was indicted for aggravated felony murder, ORS 163.095, on May 15, 1978, by the Multnomah County Grand Jury. The indictment specifically charged him with causing the death of Chan Van Mac by shooting him while attempting to rob him. Petitioner, through his lawyer and the district attorney's office, entered into a plea agreement pursuant to which petitioner waived his right to jury trial, stipulated to the facts on the murder charge and was found guilty of murder. 2 He understood that a sentence of life imprisonment would be imposed.
Trial was held on July 11, 1978, and the stipulated facts are summarized as follows: Petitioner had been drinking the evening of the murder. He went to an establishment where he could play foosball and there observed and decided to rob the victim. 3 He followed the victim from the establishment to a bus stop and ordered him to turn over his money. After the victim gestured in some unspecified manner, petitioner told him that his money was not worth his life, repeated the order and grabbed the victim, who responded with a defensive blow. Petitioner stepped back and, because of his brother's advice that "if you pull a gun you had better be ready to use it," shot the victim. He said that he did not know whether he shot because he did not want to get caught by the police or because he was afraid that the victim would hurt him. He did say that, as he ran away from the area, he had hoped that the victim would die. The victim died in surgery.
Immediately after the evidence had been read into the record, the court stated orally that in accordance with the plea agreement he found petitioner guilty of murder in that he had intentionally killed the victim. The trial order and the judgment simply recited that defendant was found guilty of murder. On July 28, 1978, petitioner was sentenced to life imprisonment on the murder conviction. He subsequently filed a petition for post-conviction relief, pursuant to ORS 138.510 to 138.680. A trial was held, and the post-conviction court denied the petition. Petitioner appeals.
Petitioner contends that it was improper to convict him of intentional murder because the indictment charged only aggravated felony murder. He acknowledges that a person can be convicted of a crime with which he has not been specifically charged if that crime is a lesser included offense of a crime with which he is charged. ORS 136.465. He argues, however, that intentional murder is not a lesser included offense of aggravated felony murder. 4
ORS 163.095 provides, in relevant part:
ORS 163.115 provides, in relevant part:
ORS 163.115(1)(b) is commonly referred to as "felony murder," and ORS 163.095(2)(d) is referred to as "aggravated felony murder."
An offense is included under the offense charged if the offense charged includes all of the statutory elements of the included offense, or if all elements of the included offense are set forth in the accusatory instrument. ORS 136.465. State v. Moroney, 289 Or. 597, 600, 616 P.2d 471 (1980). Homicide committed in the course of commission of a felony, ORS 163.115(1)(b), and homicide committed intentionally, ORS 163.115(1)(a), are alternate ways of committing murder. It has been held that an indictment for one, intentional murder, will support a conviction for the other, felony murder. State v. Bruno, 42 Or.App. 539, 541-542, 600 P.2d 948 (1979), aff'd 290 Or. 159, 619 P.2d 648 (1980); State v. Earp, 250 Or. 19, 27, 440 P.2d 214, cert. den., 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170 (1968); and State v. Reyes, 209 Or. 595, 621-626, 303 P.2d 519, 304 P.2d 446, 308 P.2d 182 (1957). 5 We think that holding controls ...
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State v. Atkinson
...offense. With that contention we have no quarrel. See State v. Cloutier, 286 Or. 579, 596 P.2d 1278 (1979); Riley v. Cupp, 56 Or.App. 467, 472 n. 6, 642 P.2d 333, rev. den. 293 Or. 146, 651 P.2d 143 (1982). Therefore, the state's failure to prove all of the elements necessary to convict an ......
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Haynes v. Cupp, 83-3863
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