State v. Boots

• Decision Date: 25 May 1993
• Citation: 848 P.2d 76,315 Or. 572
• Parties: STATE of Oregon, Petitioner on Review, v. Christopher Blaine BOOTS, Respondent on Review. CC 10-86-07965; CA A67325; SC S39368.
• Court: Oregon Supreme Court

Page 76

848 P.2d 76

315 Or. 572

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

CC 10-86-07965; CA A67325; SC S39368.

Supreme Court of Oregon In Banc.

Argued and Submitted Nov. 4, 1992.

Decided March 25, 1993.

Reconsideration Denied May 25, 1993.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for respondent on review. With her on the response was Sally L. Avera, Public Defender, Salem.

PETERSON, Justice.

We consider this murder case for the second time on review. The first question presented is whether, in the absence of an express order from an appellate court, a trial court may, on remand, order a limited retrial on the existence of an element of the offense of aggravated murder. If a limited retrial was permissible, the second question presented is whether the trial court erred by instructing the jury that the state, in the first trial, had proved beyond a reasonable doubt that defendant committed First Degree Robbery. We hold that the trial court order of a limited retrial was proper, but that the court erred in its instruction to the jury.

Defendant was charged in a one-count indictment with alternative theories of aggravated murder, ORS 163.095 (1985), based on the same criminal episode. The indictment alleged that defendant killed the victim in the course of committing the crime of robbery in the first degree, ORS 163.095(2)(d), and in an effort to conceal the identity of the perpetrators of that crime, ORS 163.095(2)(e). ¹ The trial court instructed the jury that it need not agree unanimously on either of those theories, as long as all 12 jurors agreed that defendant committed aggravated murder. The jury The Court of Appeals affirmed defendant's conviction. State v. Boots, 94 Or.App. 713, 767 P.2d 450 (1989). This court reversed, holding that the instruction that the jury need not unanimously agree on either theory of aggravated murder was reversible error. State v. Boots, 308 Or. 371, 780 P.2d 725 (1989). This court also concluded that the jury necessarily found by its general verdict on the aggravated murder count that defendant was guilty of murder under ORS 163.115, and that the instructional error did not affect that implicit finding. 308 Or at 381. Consequently, this court reversed the aggravated murder conviction and remanded with this instruction:

returned [315 Or. 575] a general verdict finding defendant guilty of aggravated murder.

"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." Id. at 381, 780 P.2d 725. ²

On remand, the state elected to retry the aggravated murder charge, pursuing only the murder-to-conceal theory under ORS 163.095(2)(e). The state moved to limit the new trial "only to the determination of whether or not the defendant is guilty of the enhanced crime of Aggravated Murder." The trial court granted the motion. At the conclusion of the evidence, the trial court instructed the jury that defendant had been convicted of murdering and robbing the victim and that the jury's sole function was to determine whether the murder was committed in an effort to conceal the identity of the perpetrators of the robbery. The jury returned a verdict of guilty to the crime of aggravated murder. Defendant was sentenced to life imprisonment with a 20-year minimum. ³

Defendant again appealed, raising various claims of error. Without reaching defendant's other assignments of error, the Court of Appeals reversed and remanded on the sole ground that, in limiting the jury's consideration to the existence of the aggravating factor, the trial court violated this court's remand order. State v. Boots, 112 Or.App. 25, 29, 826 P.2d 1049 (1992).

The state petitioned for review, asserting:

"The trial court in this case correctly construed this court's remand order to permit a limited retrial on just the aggravating factor. Nothing in this court's opinion in Boots I expressly required a complete retrial of all elements [of] the aggravated-murder charge, and the remand order itself did not preclude the trial court from ordering that only the aggravating factor needed to be retried. Thus, [the] approach taken by the trial court on remand fully comported with this court's order."

By contrast, defendant argues that the "clear intention of the Supreme Court" was to require a complete retrial.

This court has, on occasion, remanded criminal cases expressly for consideration of specified issues. For example, in 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. Moen, 309 Or. 45, 786 P.2d 111 (1990), this court affirmed the defendants' convictions for aggravated murder but remanded the cases for the express purpose of conducting further proceedings on the penalty to be imposed. In State v. Green, 271 Or. 153, 531 P.2d 245 (1975), this court remanded the case to the trial court for the express purpose of determining whether the defendant killed the victim under extreme mental or emotional disturbance; whether the defendant killed the victim in the first place was That is not what was done by this court in this case. This court's remand order neither expressly required the trial court to retry defendant on every element of an aggravated murder charge, nor expressly limited the trial court to a trial on the existence of an aggravating factor. The order nonetheless can be read to permit a limited retrial. Therefore, we consider the question whether, in the absence of an express order from this court limiting the retrial to the existence of the aggravating factor, the trial court in this case erred in ordering a retrial limited to whether defendant murdered the victim in order to conceal defendant's identity as the perpetrator of a crime.

not relitigated. ⁴ [315 Or. 577] Wagner, Moen, and Green demonstrate the power of this court expressly to limit issues to be considered on remand in a criminal case in which a lesser-included offense was proved without error at trial.

There is no question that defendant, in his original trial, was tried and found guilty of the lesser-included offense of murder, ORS 163.115. State v. Boots, supra, 308 Or. at 381, 780 P.2d 725. This court's decisions in State v. Wagner, supra, and State v. Green, supra, are affirmations of the principle that an error-free conviction of a criminal offense need not be retried even though an appellate court has ordered a retrial of a greater offense of which the lesser offense is a lesser-included offense. See also State v. Ferrell, 315 Or. 213, 224, 843 P.2d 939 (1992) (where the defendants' convictions for underlying offenses--manufacture, possession, or delivery of a controlled substance--were free from error, the Court of Appeals erred in reversing entire convictions; this court remanded the cases to the trial courts for entry of judgments of conviction on those underlying offenses and for resentencing). If all elements of a lesser-included offense have been fully and fairly alleged and proved, an appellate court may order a retrial limited to the element establishing the greater offense. Under the directions given by this court to the trial court, the trial court in this case could do the same, that is, order a retrial limited to those issues that caused the appellate court to reverse defendant's conviction on the greater offense.

Defendant argues that the limited retrial violated his state and federal constitutional rights not to be put in jeopardy twice for the same offense. ⁵ Defendant is incorrect. It is well settled that, where a defendant appeals a conviction and error is found by the appellate court, retrial on the original charge for which the defendant was convicted does not violate the state or federal prohibition against double jeopardy. See, e.g., Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (the general prohibition against successive prosecutions found in the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States does not prevent the government from retrying a defendant whose first conviction is set aside, on the defendant's appeal, due to trial error); Here, defendant was convicted of aggravated murder, ORS 163.095. His conviction for that offense was set aside due to trial error, although his underlying conviction for murder, ORS 163.115, was affirmed. State v. Boots, supra, 308 Or. at 381, 780 P.2d 725. Defendant was subsequently retried for aggravated murder. Defendant's state and federal constitutional rights not to be placed in jeopardy twice for the same offense were not violated.

State v. Verdine, 290 Or. 553, 560-61, 624 P.2d 580 (1981) (for the same reasons that the Fifth Amendment does not bar a second trial, neither does Article I, section 12, of the Oregon Constitution). See also ORS 131.525(1)(a) (previous prosecution is not a bar to a subsequent prosecution where the defendant has appealed a judgment of conviction resulting from the former).

Defendant next argues that the limited retrial ordered by the trial court violated his right to trial by jury. ⁶ This argument also is unpersuasive. Although it is true that defendant is entitled to have the state prove to a jury all elements of the offenses of which he is accused, he has received that protection here. This court held in State v. Boots, supra, 308 Or. at 381, 780 P.2d 725, that the jury in defendant's first trial properly had found him guilty of the crime of murder, ORS 163.115. In his second trial, a jury found him guilty of aggravated murder, ORS 163.095. Defendant's right to trial by jury on all elements of the offenses of which he has been convicted...