State v. Boots

• Decision Date: 26 September 1989
• Citation: 780 P.2d 725,308 Or. 371
• Parties: STATE of Oregon, Respondent on Review, v. Christopher Blaine BOOTS, Petitioner on Review. CC 10-86-07965; CA A44019; SC S36000.
• Court: Oregon Supreme Court

Page 725

780 P.2d 725

308 Or. 371

STATE of Oregon, Respondent on Review, v. Christopher Blaine BOOTS, Petitioner on Review.

CC 10-86-07965; CA A44019; SC S36000.

Supreme Court of Oregon In Banc.

Argued and Submitted June 15, 1989.

Decided Sept. 26, 1989.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for petitioner on review. With her on the petition was Gary D. Babcock, Public Defender, Salem.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

LINDE, Justice.

Defendant appealed his conviction of aggravated murder, asserting four assignments of error in the Court of Appeals. That court affirmed the conviction. State v. Boots, 94 Or.App. 713, 767 P.2d 450 (1989). We allowed review limited to the propriety of the trial court's instruction that the jury need not agree on the factual circumstance that made the homicide aggravated murder as distinct from simple murder. ¹ We hold that this instruction should not have been given.

An intentional homicide, or a homicide committed in connection with one of nine felonies listed in ORS 163.115(1), constitutes the crime of murder under that section. It is not disputed that the jury agreed that defendant committed murder. Murder carries a sentence of life imprisonment with a minimum of at least ten years without parole and potentially a longer minimum term. ORS 163.115(3).

"Aggravated murder" is a murder that includes one or more of a variety of additional facts. ORS 163.095. That section requires proof beyond a reasonable doubt of at least one of the 17 different facts, two of which were charged here. ² Aggravated murder is a capital offense. ORS 163.105. We must therefore decide this case in light of the command not only of ORS 136.450 but also of Article I, section 11, of the Oregon Constitution that capital ("first degree") murder requires a unanimous verdict.

The indictment charged two theories of aggravated murder. One theory was that the homicide was committed "in the course of and in furtherance of committing Robbery in the First Degree," which is one of the felonies listed in ORS 163.115 that are incorporated in ORS 163.095(2)(d) when the defendant personally and intentionally committed the homicide. The second theory was that defendant committed the homicide in order to conceal the identity of the perpetrators of the robbery, ORS 163.095(2)(e). ³ The trial court instructed the jury:

"With regard to this charge, it is not necessary for all jurors to agree on the manner in which Aggravated Murder was committed. That is, some jurors may find that it was committed during the course of and in furtherance of Robbery in the First Degree, and others may find it was committed to conceal a crime or its perpetrator. Any combination of twelve jurors agreeing that one or the other or both occurs is sufficient to establish this offense."

The propriety of the instruction must, of course, be judged for all potential cases charging multiple alternative theories under ORS 163.095. It does not depend on the evidence in the particular case, assuming that there is sufficient evidence to submit each factual allegation to the jury, as there was here.

The factual finding required for conviction under subsection (2)(d) of ORS 163.095 differs from the finding required under subsection (2)(e). A defendant may have killed a victim in order to conceal the commission of a robbery or of the identity of the robber, whether or not the defendant participated in the robbery. Or the defendant may have personally killed a person in the course of a first degree robbery without having any thought of concealing the identity of the robber, which may be known to numerous witnesses. The challenged instruction explicitly tells jurors to return a verdict of aggravated murder even if some of them doubt that the defendant was a participant in the robbery but believe that he meant to conceal it and others believe that defendant was a robber but not that concealing the crime played a role in the killing.

The implications go further. In another case, there could be several charges under different subsections of ORS 163.095 in addition to a robbery and an intent to conceal, for instance, that the defendant was paid to commit the murder, that the victim was a police officer, and that the death resulted from defendant's intent to maim the victim. The instruction would tell jurors to return a verdict of aggravated murder, although some do not believe that the officer was present in an official capacity and others do not believe that defendant was paid, or intended to maim, or that there was a robbery or an intent to conceal it. In short, the instruction relieves the jury from seriously confronting the question whether they agree that any factual requirement of aggravated murder has been proved beyond a reasonable doubt, so long as each juror is willing to pick one theory or another.

The Court of Appeals nevertheless approved the instruction, relying on its prior decisions in State v. Hazelett, 8 Or.App. 44, 492 P.2d 501 (1972), and State v. Bruno, 42 Or.App. 539, 600 P.2d 948 (1979), which involved alternate theories of premeditated and felony murder. The court quoted the following passage from Hazelett:

" ' * * * Here, there was only one act charged and proved--the act of taking the life of the victim. Whether this was done with premeditation or while attempting rape related to the defendant's mental state, and did not relate in any way to the act charged. Since the legal effect of committing the act is the same whether done with premeditation or while attempting rape, there is no reason to require the jury to unanimously agree on which of the two possible mental states, both equally culpable, defendant possessed at the time of the murder charged.' 8 Or.App. at 47 ."

State v. Boots, supra, 94 Or.App. at 718, 767 P.2d 450. The Hazelett court stated that this court had decided the issue against defendant in State v. Reyes, 209 Or. 595, 303 P.2d 519 (1957). 8 Or.App. at 48, 492 P.2d 501.

That was erroneous, as the Court of Appeals in the present case recognized. The point decided in Reyes was that under the indictment in that case the prosecutor did not have to elect between premeditated and felony murder, and if there was evidence of either theory, the state was entitled to have the jury instructed on both theories. 209 Or. at 621, 303 P.2d 519. Reyes did not hold that the jury need not be unanimous, that it sufficed if half of them believed that there was a felony but no premeditation and the other half believed that there was premeditation but no felony. The Court of Appeals therefore correctly noted that this court has yet to decide the question. 94 Or.App. at 718 n. 6, 600 P.2d 948. In fact we allowed review in State v. Bruno, supra, but that decision ultimately was affirmed by an evenly divided court. State v. Bruno, 290 Or. 159, 619 P.2d 648 (1980).

Apart from lacking support, on its merits the quoted passage from Hazelett is insupportable. There is no basis for distinguishing between jury agreement on the act required for criminal liability and on the mental element that makes the act culpable. The act and the culpable mental state are equally essential for any crime that requires a culpable mental state. ORS 161.095. ⁴ Of course jurors cannot convict a defendant if they unanimously agree that he intended to kill a person but only half believe that he did so. No more can they convict if they unanimously agree that a defendant's act caused a person's death but only half believe that he acted intentionally. The same is true if jurors agree that a defendant's act caused a person's death but do not agree that the defendant committed a felony, or vice versa.

The need for unanimity is obvious when a charge under ORS 163.095(2)(d) of intentional killing in furtherance of first degree robbery stands alone. It is obvious when a charge under ORS 163.095(2)(e) of killing in order to conceal the crime or the perpetrator stands alone. It should be no less obvious when the state charges a defendant both under ORS 163.095(2)(d) and under ORS 163.095(2)(e). In order to convict, the jury must unanimously agree on the facts required by either subsection. Indeed, they may agree on both, if both are proved beyond a reasonable doubt.

The challenged instruction therefore is wrong in principle. The state, however, cites a number of decisions around the country to the contrary. We have examined the cited decisions. Some of these support the state's position in broad terms, although the statutes differ. ⁵ Many of them involve issues different from the present case and are not in point. ⁶ Some are decisions of intermediate courts which, of course, may control the practice in those states but may prove to be erroneous when the state's highest court addresses the issue. ⁷ The weakness of such citations appears from the fact that the Hazelett opinion of our own Court of Appeals, which we find to have been wrong, was cited as authority in opinions from other states that now are cited to us. See, e.g., State v. Wilson, 220 Kan. 341, 552 P.2d 931, 936 (1976); James v. State, 637 P.2d 862, 866 (Okl.Crim.App.1981). The result may be summarized as showing that the problem has proved difficult and that this court must itself analyze it under the applicable statutes and constitutional guarantees.

The state particularly relies on Holland v. State, 91 Wis.2d 134, 280 N.W.2d 288 (1979), cert. den. 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980). The state quotes a passage to the effect that a rule requiring unanimous jury agreement on "the manner in which the defendant participated in the crime" would "permit the guilty defendant to escape accountability under the law because jurors could not unanimously choose beyond a reasonable doubt which of several alternate ways the defendant actually participated, even though all agree that he was, in fact, a...