State v. Burns

• Decision Date: 10 December 1973
• Citation: 15 Or.App. 552,98 Adv.Sh. 261,516 P.2d 748
• Parties: STATE of Oregon, Respondent, v. John Leon BURNS, Appellant.
• Court: Oregon Court of Appeals

Page 748

516 P.2d 748

15 Or.App. 552

STATE of Oregon, Respondent, v. John Leon BURNS, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Oct. 31, 1973.

Decided Dec. 10, 1973.

John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and THORNTON and TANZER, JJ.

TANZER, Judge.

Defendant was convicted of murder, ORS 163.115, and sentenced to life imprisonment. He assigns as error the failure of the trial court to submit upon timely request the issue of self-defense to the jury. Defendant is entitled to such an instruction if there is evidence from which the jury could infer that defendant's conduct was legally justified under the existing law of self-defense. State v. Anderson, 207 Or. 675, 695, 298 [15 Or.App. 554] P.2d 195 (1956); State v. Nodine, 198 Or. 679, 717, 259 P.2d 1056 (1953).

The testimony given by the only two living eye-witnesses to the killing, defendant and his wife, was essentially identical. Defendant's two minor daughters did not see the killing or the events immediately preceding it, but they did testify as to what they heard from upstairs, and their recollection of the incident was consistent with that of their parents.

The evidence shows that the deceased, Robert McCoy, had been living with defendant and defendant's wife in their home prior to the killing. The three individuals had been drinking at various establishments on the night of February 28, 1973, and returned home at approximately 1:30 the following morning. Defendant and his wife both testified that McCoy had been acting in an obnoxious fashion throughout the evening, despite their efforts to quiet him. When they arrived at home, McCoy had fallen asleep in the car and defendant and his wife decided to leave McCoy in the car to sleep.

Shortly after defendant and his wife went to bed, McCoy came in the house and, indicating that he was cold, began kicking and cursing the heater saying that he wanted the heater turned on. At that, defendant's wife got out of bed and told McCoy that he would have to either stop cursing and go to bed, or else leave the house because she did not want her children (who were upstairs) to hear his foul language. McCoy complied with her request momentarily, but soon began to curse and kick the heater again. This time defendant came out of the bedroom with his wife and told McCoy to leave the house and sleep in the car. McCoy responded that defendant was not man enough to make him leave, and that he was not going to leave because it was too cold outside. Defendant replied, 'If I get my gun, you'll get out,' and went back into the bedroom. Defendant proceeded to get a .22 caliber rifle out of a closet and load it. While defendant was loading the rifle, defendant's wife continued to plead with McCoy to leave the house, but McCoy refused.

Defendant emerged from the bedroom holding the rifle and again told McCoy to leave, informing him that he would shoot him if he did not leave. McCoy replied that defendant did not have the 'guts' to shoot him and moved toward defendant, grabbing at the rifle. While he was reaching for the rifle, McCoy told defendant that if he were successful in getting it away from defendant he would beat defendant over the head with it. As McCoy grabbed at the gun, defendant raised the rifle and backed away from McCoy, waving the gun from side to side to keep McCoy from grabbing it. Neither defendant nor his wife could testify whether McCoy actually touched the gun. Finally, defendant backed into a television set, and as he did so, the gun discharged. Defendant testified that he did not think he pulled the trigger, and that he did not intend to pull the trigger. ¹ As McCoy looked down at his wound, defendant's wife testified that defendant said 'Yes, you're shot, you damn right you're shot, and I will shoot you again if you don't get out of my house.' ² McCoy told defendant that he thought he was bleeding internally, and that defendant and his wife should call an ambulance. They did so, but McCoy died before the ambulance arrived.

The fact that defendant claimed accident by testifying that he did not intend to kill McCoy does not deprive him of the right to an instruction on self-defense if there is also evidence in the record from which the jury could have inferred that defendant was acting in self-defense. While ordinarily a defendant is not entitled to the benefit of mutually exclusive defenses, the rush of events may be such that the memory is clouded and the testimony inconclusive as between them. Where the evidence can support the defense it is better to give the instruction and allow the jury to determine the truth from among conflicting available inferences. Cf. State v. Anderson, 207 Or. 675, 298 P.2d 195 (1956), where the court stated that a defendant who denies the homicide is still entitled to an instruction on self-defense if the evidence in the record supports it.

Whether defendant's evidence entitled him to a jury instruction on the issue of self-defense is governed by ORS 161.219 and ORS 161.225(2), which limit a person's right to use deadly physical force in defense of his person or premises.

ORS 161.219 ³ provides, in pertinent part, that a person is not justified in using deadly physical force in defense of his person unless he reasonably believes that the other person is either (1) committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person, or (2) using or about to use unlawful deadly physical force against a person.

ORS 161.225(2), ⁴ dealing with the defense of premises, provides that in order to justify the use of deadly physical force, there must be an actual or attempted criminal trespass (which defendant's evidence indicated to have occurred here), ⁵ plus one of the following circumstances: Either the actor must be acting in defense of a person as provided in ORS 161.219, or he must reasonably believe that deadly physical force is necessary to prevent the commission of arson or 'a felony by force and violence' by the trespasser. ORS 161.225(2)(b).

The self-defense sections of the 1971 Oregon Criminal Code are 'basically a codification of Oregon case law doctrines,' designed to 'formulate statutory quidelines to be followed in determining when and to what degree a person is justified in using physical force against another in self-defense.' Commentary at 23--24. It is therefore necessary to look to the cases which have articulated the principles in this area.

The first Oregon case dealing with justifiable homicide is Goodall v. State, 1 Or. 333, 80 Am.Dec. 396 (1861), in which the court stated that the jury should have been instruected that if they believed that there was 'reasonable ground for (the defendant therein) to believe his life in danger, or that he was in danger of great bodily harm from the deceased, and that such danger was imminent, and he did so believe, and acting on such belief killed the deceased, he was excusable; and that it was not necessary that he should wait until an assault was actually committed.' 1 Or. at 337.

These basic principles have been restated in numerous subsequent self-defense cases, including the leading Oregon cases of State v. Rader, 94 Or. 432, 186 P. 79 (1919), and State v. Gray, 43 Or. 446, 74 P. 927 (1904). Because of the similarities of those cases to the case at bar, and also because of the Criminal Law Revision Commission's express reliance upon them in formulating the statutory standards (See, Commentary at 24--25), we consider the facts of those cases at some length.

In Gray, the defendants were walking down a road past the decedent's premises when a conversation started between defendants and the decedent. The decedent became angry, leaped the fence, and walked toward one of the defendants in a threatening manner. One of the defendants drew a pistol and warned the decedent to withdraw. The decedent disregarded, to withdraw. The decedent disregarded the warning and continued to advance toward the defendant, threatening to take the gun from defendant and 'beat his brains out with it.' When decedent came within reach of defendant, he seized the gun, and attempted to take it away from defendant. During the ensuing struggle, the decedent was shot and killed. The trial court instructed the jury that taking the decedent's life could only be justified if defendant were threatened with 'great bodily harm' and that danger of battery was not sufficient. In so doing, it refused to give an instruction that the killing was justified if defendant 'had reason to believe, and did believe, that he was in imminent danger of death or great bodily harm at the hands of the deceased.' The Oregon Supreme Court held that the refused instruction should have been given:

'* * * Where * * * the assault is attended with such demonstration (of imminent danger to life or great bodily injury, real or apparent), and the present ability to execute it, whether the assailant is armed with a deadly weapon or not, as to indicate that he is in imminent danger of being beaten and maltreated, and probably disfigured or maimed, or his life imperiled, he has a right to withstand the assault, even to the taking of the life of the aggressor.' 43 Or. at 455, 74 P. at 930.

The Gray court concluded that '(t)he present was manifestly a proper case to be submitted to the jury * * * as to whether the defendant, at the time he fired at the deceased, acting from the standpoint of a reasonable man, had reason to believe that he was in imminent peril of great bodily harm or of losing his life.' 43 Or. at 455--456, 74 P. at 930.

The facts of the Rader case were substantially similar. Defenda...