State v. Cornell

• Citation: 732 P.2d 922,83 Or.App. 559
• Parties: STATE of Oregon, Appellant, v. Donald Edward CORNELL, Respondent. STATE of Oregon, Appellant, v. Mark Allen PINNELL, Respondent. 85-1106; 85-1107; CA A38557 (Control); CA A39036.
• Decision Date: 11 February 1987
• Court: Court of Appeals of Oregon

Page 922

732 P.2d 922

83 Or.App. 559

STATE of Oregon, Appellant, v. Donald Edward CORNELL, Respondent.

STATE of Oregon, Appellant, v. Mark Allen PINNELL, Respondent.

85-1106; 85-1107; CA A38557 (Control); CA A39036.

Court of Appeals of Oregon.

Argued and Submitted Oct. 27, 1986.

Decided Feb. 11, 1987.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for respondents. With him on brief was Gary D. Babcock, Public Defender, Salem.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

WARDEN, Presiding Judge.

The state appeals orders dismissing charges of aggravated murder against each defendant. We affirm.

Defendants were each charged with one count of aggravated murder, ORS 163.095(1)(e), and two counts of felony murder, ORS 163.115(1)(b), all related to the killing of the same victim. Both defendants moved for dismissal of the aggravated murder counts, and in substantially identical pretrial orders the trial court granted the motions, ¹ holding that ORS 163.095(1)(e) is unconstitutionally vague under Article I, sections 20 and 21, of the Oregon Constitution and the Fourteenth Amendment. The statute elevates murder to aggravated murder when it is committed "in the course of or as a result of the intentional * * * torture of the victim." The legislature has not provided a statutory definition of "torture," and the court reasoned that, in the absence of a definition, courts and juries are powerless to define and apply the term to the facts of a given case.

A statute which defines criminal conduct offends the Privileges and Immunities Clause, Article I, section 20, of the Oregon Constitution ² if it "gives unbridled discretion to judges and jurors to decide what is prohibited in a given case." State v. Graves, 299 Or. 189, 195, 700 P.2d 244 (1985); see State v. Blair, 287 Or. 519, 523, 601 P.2d 766 (1979). A criminal statute violates the principle against ex post facto laws embodied in Article I, section 21, of the Oregon Constitution ³ if it allows "a judge or jury to exercise uncontrolled discretion in punishing defendants." State v. Graves, supra, 299 Or. at 195, 700 P.2d 244. A criminal statute "must be sufficiently explicit to inform those who are subject to what conduct on their part will render them liable to its penalties." State v. Hodges, 254 Or. 21, 27, 457 P.2d 491 (1969); ORS 161.025(1)(c). ⁴ A statute is not required to define an offense so precisely that in every case a person can determine the specific conduct that will fall within the statute's reach, but a reasonable degree of certainty is required by Article I, sections 20 and 21. State v. Graves, supra, 299 Or. at 195, 700 P.2d 244.

The state essentially contends that "torture" is a common word within ordinary powers of comprehension and that, therefore, it is not impermissibly vague. We first address that contention.

Oregon law provides no statutory definition of "torture." Our review of the legislative history also fails to enlighten us concerning what conduct the legislature intended would constitute "torture." Although the word "torture" may be commonly understood, as the state and the dissent argue, that is not the test. See State v. Hodges, supra, 254 Or. at 27-28, 457 P.2d 491. Commonly understood terms are often susceptible to varying interpretations, and "torture" is such a term. Black's Law Dictionary (5th ed 1979) defines it as the "inflict[ion of] intense pain to body or mind for purposes of punishment, or to extract a confession or information, or for sadistic pleasure." Webster's Third New International Dictionary (1976) provides several definitions, including:

"The infliction of intense pain (as from burning, crushing, wounding) to punish or coerce someone * * *.

"To punish or coerce by inflicting excruciating pain * * *.

"To cause intense suffering * * *."

California defines "torture" to require "proof of infliction of extreme physical pain no matter how long its duration." Cal Penal Code § 190.2(a)(18). In other jurisdictions courts have provided varying definitions. See Givens v. Housewright, 786 F.2d 1378 (9th Cir.1986) (applying Nevada law); State v. Brock, 101 Ariz. 168, 416 P.2d 601 (1966); Townsend v. People, 107 Colo. 258, 111 P.2d 236 (1941); State v. McKenzie, 186 Mont. 481, 608 P.2d 428 (1980); State v. Bentford, 39 N.M. 293, 46 P.2d 658 (1935); see, generally, Annot, 83 ALR3d 1222 (1978).

Although each of those definitions is commonly understood to be "torture," the variations among them give rise to several questions concerning the Oregon legislature's intent: Would only the infliction of physical pain be considered "torture," or would only proof of mental suffering be sufficient under the statute; would the state be required to prove that the pain or suffering was inflicted for some particular purpose (such as to coerce, to punish or for sadistic pleasure), or would proof of the infliction of pain itself be sufficient; and would the state have to show a prolonged period of suffering, or would the infliction of pain no matter how short its duration be adequate. These questions lead us to conclude that an allegation of murder by torture under ORS 163.095(1)(e) cannot be submitted constitutionally to a jury without a definition of the term "torture," because otherwise the jury would be allowed impermissibly to determine a defendant's guilt in an ad hoc manner, unregulated by legislative standards. State v. Graves, supra. Additionally, without a legislatively articulated standard for the term, a trial court would have no standard for submitting one case to a jury and refusing to submit another case with a different set of facts. State v. Hodges, supra, 254 Or. at 27, 457 P.2d 491.

The state, however, cites several cases from other jurisdictions (some of which are cited above) in which courts have judicially defined the term "torture" in statutes similar to ORS 163.095, apparently suggesting that we likewise judicially supply a definition for the term. Oregon law sometimes permits a vague statute to be saved by a judicial interpretation that gives it the required definiteness. State v. Graves, supra, 299 Or. at 197, 700 P.2d 244. We are convinced, however, that the term "torture" in ORS 163.095 cannot be saved in that manner, because any construction that we might render "cannot be attributable to the legislature with reasonable fidelity to the legislature's words and apparent intent." State v. Robertson, 293 Or. 402, 411, 649 P.2d 569 (1982).

We hold that the term "torture" in ORS 163.095(1)(e) is unconstitutionally vague under Article I, section 20, because it creates a serious danger of unequal application of that statute. We also hold that the statute violates Article I, section 21, because the judge and the jury are permitted to exercise uncontrolled discretion. ⁵ The trial court did not err in dismissing the aggravated murder counts.

Affirmed.

VAN HOOMISSEN, J., dissents.

VAN HOOMISSEN, Judge dissenting.

I would hold that the trial court erred in allowing defendants' motion to dismiss. Therefore, I respectfully dissent.

Murder by torture is widely recognized as a particularly heinous form of murder, both in statutes that declare murder by torture to be murder in the first degree (e.g., Cal.Penal Code § 189; N.M.Stat.Ann. § 30-2-1) and in statutes that make torture of the victim one of the "aggravating" or "special" circumstances justifying imposition of the death penalty. See, e.g., Cal.Penal Code § 190.2(1)(18); Ga.Code Ann § 27-2534.1(b)(7); Va.Code § 19.2-264.2. Most murder by torture statutes do not include a definition of the word "torture." ¹ The absence of a statutory definition has not resulted in those statutes being held unconstitutionally vague. Courts in those states have recognized their duty to attempt to save a statute, where possible, by interpreting it in such a way that would give it the required definiteness. For example, the Michigan Court of Appeals concluded that the word "torture," when given a common dictionary definition, was sufficiently definite to avoid a vagueness challenge:

"Where a statutory term is not defined in the statute, it is to be given its ordinary meaning. An examination of the various dictionary definitions discloses that 'torture' refers to the intentional infliction of intense pain for various purposes such as sadistic pleasure, coercion, and punishment. We interpret the child torture statute as requiring a showing that the defendant intentionally inflicted extreme, intense, or severe pain or injury upon the victim. * * *

"We conclude that the term 'torture' does have a commonly understood meaning which gives a person of ordinary intelligence fair notice that his contemplated conduct is prohibited." People v. Webb, 128 Mich.App. 721, 727, 341 N.W.2d 191 (1983). (Footnotes and citations omitted.)

In State v. Fahy, 201 Kan. 366, 440 P.2d 566 (1968), the Kansas Supreme Court concluded that the use of the word "torture" in that state's child abuse statute did not render it unconstitutionally vague. The court concluded:

"The fact that the trial court sees fit to define the language used in a statute by governing case law or common dictionary meaning does not indicate indefiniteness. It is only required that the phrase used provides reasonably definite standards which one reading the statute can understand and contemplate. We hold that words like 'beat,' 'abuse,' 'torture,' 'cruelty' and 'traumatic' provide such standards." 201 Kan. at 370. (Citations omitted.)

Other courts have also supplied definitions for the word "torture," whether in answer to a vagueness challenge or to explain why specific conduct does or does not fit within the definition of the word. ² See State v. Brock, 101 Ariz. 168, 171, 416 P.2d 601 (1966); People v. Steger, 16 Cal.3d...