State v. Carson, CA

CourtSupreme Court of Oregon
Citation640 P.2d 586,292 Or. 451
Docket NumberNo. CA,CA
PartiesSTATE of Oregon, Petitioner on Review, v. Frank Wesley CARSON, Respondent on Review. 17606; SC 27943.
Decision Date03 February 1982

Page 586

640 P.2d 586
292 Or. 451
STATE of Oregon, Petitioner on Review,
Frank Wesley CARSON, Respondent on Review.
No. CA 17606; SC 27943.
Supreme Court of Oregon, In Banc.
Argued and Submitted Oct. 5, 1981.
Decided Feb. 3, 1982.

[292 Or. 452] James E. Mountain, Deputy Sol. Gen., Salem, argued the cause for petitioner. With him on the brief was Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Page 587

James L. Susee, Salem, argued the cause for respondent. With him on the brief was Allen, Stortz, Barlow, Fox & Susee, Salem.

[292 Or. 453] CAMPBELL, Justice.

Defendant was convicted of attempted manslaughter in the first degree under an indictment for attempted murder. 1 The issue for decision is whether the evidence of extreme emotional disturbance was sufficient to justify giving the state's requested jury instruction on attempted manslaughter in an attempted murder prosecution. Defendant appealed to the Court of Appeals alleging the following assignments of error: The circuit court erred in giving instructions that were both contradictory and confusing; the instructions on Attempted Manslaughter were error in that the concept of extreme emotional disturbance applies only to consummated intentional homicides and in that there was insufficient evidence to establish the existence of extreme emotional disturbance. The Court of Appeals reversed and remanded for a new trial on the ground that there was no evidence of extreme emotional disturbance, therefore the jury instruction on attempted manslaughter was improper. 52 Or.App. 55, 627 P.2d 514. Because of its result, the Court of Appeals did not reach defendant's other assignments. We allowed the state's petition for review.

[292 Or. 454] Defendant lived in a trailer home beside a motel near Gates, Oregon. An Oregon State Policeman named Richard Tenderella moved into the motel to operate undercover. His task was to investigate recent burglaries in the area, specifically the theft of a .44 magnum handgun from the motel, and, to that end, to befriend defendant and his brother.

On August 23, 1979, defendant sat outside his trailer. With him were defendant's brother, his brother's wife, their two children, aged one and two, and defendant's girlfriend. Tenderella walked by with a .38 handgun and a sixpack of beer. Defendant asked for and received a beer from Tenderella. Tenderella went into the woods and fired the .38 handgun until told to stop by the motel manager. Tenderella put the .38 handgun in his car, visited with the group outside defendant's trailer until the beer had been consumed, and then volunteered to go to town for more beer. He returned with a case of beer, which the party completely consumed. Various topics were discussed by defendant and Tenderella, among them was the subject of a gun trade for

Page 588

Tenderella's .38 handgun. Tenderella was hoping that defendant would mention the possibility of a trade for the stolen .44 magnum handgun. During the course of the conversation, Tenderella got the .38 out of the trunk of his car, simultaneously concealing a .45 handgun [292 Or. 455] in the small of his back under his shirt. He gave the .38 to defendant and defendant fired two shots in the air. Defendant's testimony showed that Tenderella was behaving in a drunken manner by this point in the interaction. At one point Tenderella fell off the bench he was sitting on. There was testimony to the effect that Tenderella's speech was slurred and that he was "slobbering." Tenderella said that the .38 was a "hot gun," meaning stolen, but that the owner was dead and that defendant should not be concerned about possible tracing of the gun. He also mentioned that there were warrants out for his arrest in Portland. At one point Tenderella picked up a knife from the table and threw it into a nearby tree. Defendant testified that he was sufficiently alarmed by Tenderella's behavior that, when Tenderella went out behind the trailer to relieve himself, defendant took the .38 into his trailer and concealed it in a drawer. After a while, Tenderella noticed the absence of the .38 and requested its return. Defendant told Tenderella that the gun was in a safe place. Tenderella became belligerent and demanded the return of the .38 several times. Finally, Tenderella jumped up, called defendant an obscene name and pulled out the concealed .45 handgun. He began waving it wildly in the air, pointing it at defendant. Defendant retreated into the trailer. Defendant's girlfriend rushed up to Tenderella and attempted to get him to put the .45 away. Tenderella hit her, pushed her away, and pointed the gun at her, all the while addressing obscenities to her. She was screaming "He's got a gun, Frank." Tenderella also pointed the gun at defendant's brother, cautioning him not to move or "I'll blow you away." Defendant saw and heard all this from his position inside the trailer. Tenderella fired the first shot, wildly demanding the return of his .38. Defendant threw the .38 out the trailer door, loaded his shotgun with buckshot and shot into the ground to frighten Tenderella into leaving. Tenderella returned fire at defendant whereupon defendant fired into the truck in front of Tenderella, about 15 feet from the trailer. More shots were fired, none of which hit anyone.

Defendant's family and girlfriend testified at length to their fright during the exchange of gunfire and as a result of Tenderella's conduct, particularly for the small children in the immediate area of the firing. We focus on [292 Or. 456] circumstantial evidence to decide this case since there was no direct evidence of extreme emotional disturbance at the time of the shooting. 2

According to defendant's evidence, Tenderella did not identify himself as a police officer at any point in the confrontation. Defendant learned that Tenderella was a police officer only after his girlfriend went to the motel office to call the police about the "maniac" creating a disturbance in the

Page 589

area. At that point she was restrained by Tenderella, who told her he was a police officer. She then shouted to defendant that Tenderella was an officer. Defendant, his brother and his girlfriend were arrested for attempted murder. The latter two charges were later dropped. Defendant was also charged with being an exconvict in possession of a firearm. 3

At trial, the jury was instructed on attempted murder, former ORS 163.115, and also on attempted manslaughter based on extreme emotional disturbance, ORS 163.118(1)(b), and attempted assault, ORS 163.185. Defendant objected to the instructions on attempted [292 Or. 457] murder and attempted manslaughter. 4 On defendant's appeal from his conviction for attempted manslaughter in the first degree the Court of Appeals reversed, finding insufficient evidence of extreme emotional disturbance to justify the attempted manslaughter instruction. We reverse the Court of Appeals decision, effectively reinstating defendant's conviction for attempted manslaughter.

As originally enacted in the Oregon Criminal Code of 1971, the statutes describing murder and manslaughter provided:

ORS 163.115:

"(1) Except as provided in ORS 163.125, criminal homicide constitutes murder when:

"(a) It is committed intentionally;"

ORS 163.125:

"(1) Criminal homicide constitutes manslaughter when:

"(b) A homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance, which disturbance is not the result of his own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation;"

[292 Or. 458] The Oregon Criminal Code sections treating criminal homicide are versions of the Model Penal Code § 210.1-.3. The comments to the Model Penal Code sections clearly illustrate the distinctions between the common law doctrine of heat of passion and the doctrine of extreme emotional disturbance. Model Penal Code and Commentary § 210.3, Commentary at 49 (1980). A major departure from prior common law was intended by the adoption of the doctrine of extreme emotional disturbance, specifically by the change in language from requiring a "heat of passion" upon "adequate provocation" to "under the influence of extreme emotional disturbance" for which there is a "reasonable explanation or excuse." 5 The explanation of reasonableness

Page 590

injected a subjective element into the jury's determination. Such reasonableness is to be determined from the viewpoint of a person in the actor's situation under the circumstances as the actor believes them to be. After the Model Penal Code went into effect, more cases could be found to be manslaughter, since the jury could now view the actor's "situation" and the circumstances "as the actor believed them to be." The drafters of the Oregon Criminal Code adopted this view, and discussed some of the circumstances which could give rise to a jury finding of extreme emotional disturbance. The Oregon Code drafters pointed out that more than the classic provocation case, i.e., adultery or the infliction of serious injury, would be covered by the extreme emotional disturbance doctrine. The addition of a subjective element allows application of the doctrine where the provocative circumstance is one calculated to arouse extreme emotional disturbance in the particular defendant. Words alone can now be sufficient to invoke the doctrine, although they were not at common law. See Proposed Oregon Criminal Code § 89 at 89 (1970).

[292 Or. 459] "Extreme emotional disturbance" has been defined as:

"... the emotional state of an individual who: (a) has no mental disease or defect (that rises to the level established by statute defining lack of criminal responsibility); (b) is exposed to an extremely unusual and overwhelming stress; and (c) has an extreme emotional reaction to it, as a result of which there is a loss of self-control and reason is overborne by intense feelings, such as...

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  • State v. Reid
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    ...found similar factual patterns sufficient to sustain a guilty verdict of manslaughter in the first degree. See, e.g., State v. Carson, 292 Or. 451, 640 P.2d 586 (1981) (en banc) (defendant shot at victim after victim attacked defendant and defendant's [193 Conn. 669] There was also sufficie......
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