State v. Carson, 115,743

• Decision Date: 04 May 1981
• Docket Number: No. 115,743,115,743
• Parties: STATE of Oregon, Respondent, v. Frank Wesley CARSON, Appellant. ; CA 17606.
• Court: Oregon Court of Appeals

Page 514

627 P.2d 514

52 Or.App. 55

STATE of Oregon, Respondent, v. Frank Wesley CARSON, Appellant.

No. 115,743; CA 17606.

Court of Appeals of Oregon.

Argued and Submitted Jan. 26, 1981.

Decided May 4, 1981.

James J. Susee, Salem, argued the cause and filed the brief for appellant.

Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.

ROBERTS, Judge.

Defendant was convicted by jury verdict of attempted manslaughter in the first degree and ex-convict in possession of a firearm. In this appeal defendant seeks reversal of the attempted manslaughter conviction. ¹ We reverse.

The facts are as follows: Defendant, while living in Gates, Oregon, became acquainted with a man whom he knew as Dick Colletti, who had moved into the motel/trailer park where defendant was living. "Colletti" was actually an Oregon State Police Officer named Richard Tenderella, working in an undercover capacity to investigate burglaries in which defendant and his brother Russell were apparently suspects. On the day in question, Tenderella, the Carson brothers, Russell's wife and another woman were sitting outside defendant's trailer drinking beer and talking. Tenderella had earlier been shooting a .38 caliber handgun in the nearby woods, and talked turned to trading for the .38. Tenderella went to his car for the gun and unloaded it, placing some shells in his pocket. In the small of his back, under his shirt, he placed a loaded .45 automatic handgun. Returning to the group, he handed the .38 to defendant, who fired it twice. Then, according to defendant's story, because he was afraid of the officer's "drunken behavior," defendant slipped into his trailer when Tenderella was not looking and hid the gun in a drawer.

As talk of the gun trade progressed, defendant took the officer into the trailer and showed him shotguns. Tenderella refused a trade for the shotguns, saying he wanted a handgun. The two then went back outside and rejoined the others. Tenderella demanded the return of his gun. After repeated demands, according to defendant, Tenderella jumped up, pulled out the .45 caliber gun and fired two shots. Defendant ran into the trailer. He said he looked out and saw Tenderella holding Russell at gunpoint. At some point early in the confrontation, and after Tenderella drew his gun, defendant claimed he threw the .38 out the door. Tenderella did not leave. Inside the trailer, defendant loaded one of the shotguns and fired a shot, which he said he hoped would frighten Tenderella, who had threatened all their lives, into leaving. The two men exchanged several shots. Tenderella alleged one of defendant's shots missed his head by about 18 inches. No one was injured.

At trial, defendant objected to the following instruction given by the court:

"As to the charge of Attempted Murder, you are to consider this summary in light of all the other instructions given you: If you find from the evidence and beyond a reasonable doubt that (1) the defendant Frank Wesley Carson, (2) on or about the 23rd day of August, 1979, (3) within Marion County, Oregon, (4) did unlawfully and intentionally attempt to cause the death of a human being, Richard W. Tenderella, by shooting at him with a shotgun, (5) while not under the influence of an extreme emotional disturbance, then the Defendant is guilty of the crime of Attempted Murder, and you should return a verdict of 'guilty' against him for that crime." ²

The court then went on to instruct the jury on the crime of attempted manslaughter in the first degree, the crime of which defendant was convicted:

"If you do not find from the evidence and beyond a reasonable doubt that the defendant committed all of the elements of the crime of Attempted Murder, but you do find beyond a reasonable doubt that: (1) the defendant Frank Wesley Carson, (2) on or about the 23rd day of August, 1979, (3) within Marion County, Oregon, (4) unlawfully and intentionally attempted to cause the death of a human being, Richard W. Tenderalla, by shooting at him with a shotgun, (5) at the time of the commission of the crime the defendant was under extreme emotional disturbance; and that the emotional disturbance was not caused by an intentional, knowing, reckless, or criminally negligent act of the defendant; and there was a reasonable explanation for the extreme emotional disturbance. Then if you find all of the elements, the defendant is guilty of the crime of Attempted Manslaughter in the First Degree, and you should return a verdict of 'guilty' against him for that crime."

Defendant objected to the instruction on attempted manslaughter because he contended that "extreme emotional disturbance" is intended only to serve as a mitigating factor in sentencing for murder and not as an element of any crime. ³ We decided extreme emotional disturbance is an element of manslaughter in State v. Keys, 25 Or.App. 15, 548 P.2d 205 (1976):

"We deduce from the legislative history that the new first-degree manslaughter offense ("intentionally under circumstances not...