State v. Boots

• Decision Date: 11 March 1992
• Citation: 826 P.2d 1049,112 Or.App. 25
• Parties: STATE of Oregon, Respondent, v. Christopher Blaine BOOTS, Appellant. 10-86-07965; CA A67325.
• Court: Oregon Court of Appeals

Page 1049

826 P.2d 1049

112 Or.App. 25

STATE of Oregon, Respondent, v. Christopher Blaine BOOTS, Appellant.

10-86-07965; CA A67325.

Court of Appeals of Oregon.

Argued and Submitted Jan. 31, 1992.

Decided March 11, 1992.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause, for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, P.J., and DEITS and DURHAM, JJ.

RICHARDSON, Presiding Judge.

Defendant appeals his conviction for aggravated murder. In State v. Boots, 308 Or. 371, 780 P.2d 725 (1989), the Supreme Court reversed and remanded his conviction for the same crime. It held that, because the state had proceeded on two separate theories on which the jury could find defendant guilty of aggravated murder, rather than murder, the trial court erred by instructing the jury that it could convict of the greater offense without agreeing unanimously on at least one of the particular theories of enhancement. Because there was no independent error that affected the jury's necessary finding that defendant had committed the included offense of murder, the Supreme Court directed that, on remand,

"the state may choose whether to reduce the defendant's conviction and sentence to murder under ORS 163.115 or to retry the charge of aggravated murder." 308 Or at 381.

See also State v. Brown, 310 Or. 347, 373-74, 800 P.2d 259 (1990). ¹

On remand, the state moved, and was allowed, to retry only the distinct aggravated murder issues, rather than also retrying all of the elements of murder. That procedure resulted in defendant's conviction. He contends on appeal that, under the Supreme Court's remand, the state had to choose either a reduced charge of murder or a plenary retrial of the aggravated murder charge, including proof of the murder elements. The state agrees that it and the trial court were required to follow the Supreme Court's instructions on remand, but it does not agree with defendant's understanding of those instructions. It argues:

"The case at bar does not present the issue of a trial court's duty to obey the terms of an appellate court's remand. The reason is that the Supreme Court's remand 'to retry the charge of aggravated murder' says nothing about the manner in which that retrial is to take place. There are at least two ways to comply with the Supreme Court's remand: 'Retry the aggravated murder charge' by retrying only the aggravating-element issue, or 'retry the aggravated murder charge' by retrying all the elements of aggravated murder. The remand does not mandate one approach or the other." (Emphasis the state's.)

We disagree. The option that the state was given was "to retry the charge of aggravated murder," not to retry only part of it. Moreover, if the court had intended to allow the state to retry the aggravating elements alone, we think that it would have expressly limited its remand to those elements; it would not have engaged in a pointless charade of giving the state a choice to prove some but not all of the elements of the crime, when a limited remand would have had that effect without the need for a choice by the state. Stated differently, the court did not limit its remand, and we do not construe the "choice" that it gave the state as an authorization to limit the remand de facto in a way that the court did not do de jure.

The state relies, inter alia, on State v. Wagner, 309 Or. 5, 786 P.2d 93, cert. den. 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990), and State v. Green, 271 Or. 153, 531 P.2d 245 (1975). In Wagner, the court remanded only for further proceedings on whether the defendant would be sentenced to death, but affirmed his conviction for aggravated murder. In G...