State v. Draves

• Decision Date: 15 October 1974
• Citation: 99 Adv.Sh. 958,18 Or.App. 248,524 P.2d 1225
• Parties: STATE of Oregon, Respondent, v. Ronald Kenneth DRAVES, Sr., Appellant.
• Court: Oregon Court of Appeals

Page 1225

524 P.2d 1225

18 Or.App. 248

STATE of Oregon, Respondent, v. Ronald Kenneth DRAVES, Sr., Appellant.

Court of Appeals of Oregon.

Argued and Submitted June 27, 1974.

Decided July 29, 1974.

Rehearing Denied Sept. 4, 1974.

Review Denied Oct. 15, 1974.

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

Thomas H. Denney, 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 FOLEY and FORT, JJ.

SCHWAB, Chief Judge.

Defendant was convicted of murder and on appeal asserts that the trial court should have instructed the jury on the effect of circumstantial evidence in the specific terms defendant requested, and that the trial court should not have instructed the jury on both the elements of intentional murder, ORS 163.115(1) (a), and reckless murder, ORS 163.115(1)(b).

The facts developed during defendant's lengthy trial are rather complex. The events that culminated in the homicide occurred around a house in Springfield owned by the victim, George Puls. Leonard Nicola, Puls's brother-in-law, lived with Puls.

The evening of August 15, 1973, defendant took Nicola's motorcycle which was parked in front of Puls's house, rolled it down the street and around the corner. The state argued at trial that defendant intended to steal the motorcycle. Defendant testified he intended to make it appear that somebody else had stolen the motorcycle, then pretend to help find and return it, thereby earning Nicola's trust and making it easier to steal the motorcycle after it received needed repairs.

Nicola and Puls, noticing the motorcycle was gone, ran outside. They saw Ray Kessel and, assuming he was involved in the theft, assaulted him. Defendant heard the commotion from around the corner where he had taken the motorcycle and came to Kessel's defense with a drawn knife. Defendant's knife-wielding resulted in cutting Nicola's knuckle and Puls's back.

Nicola ran into Puls's house to get a gun. Puls, Kessel and defendant calmed down a little; they stopped fighting, but tension remained high as words were exchanged about who was responsible for the motorcycle theft, the various wounds, etc. This acrimonious conversation continued as those three went briefly to a neighbor's house.

Puls, Kessel and defendant then left the neighbor's house and walked toward Puls's pickup truck parked nearby. Just after they reached the truck, Nicola came out of Puls's house onto the front porch with a rifle he had found and loaded. There is conflicting evidence as to what then ensued. It is sufficient to note that the jury could reasonably have concluded that defendant attempted to take Puls's pickup, possibly to consummate the theft of Nicola's motorcycle parked around the corner; that Puls attempted to stop him; and that defendant then stabbed Puls first in the chest and then in the neck. Puls died the next day.

The medical testimony was that either the chest or neck wound could have been fatal, and that death was most likely caused by the neck wound. The doctors did not regard several other knife wounds Puls had suffered, including the back wound defendant admitted he inflicted at the beginning of the altercation, as being potentially fatal.

Specifically, regarding the two more serious wounds, Nicola testified that when he came out of Puls's house after getting the rifle he saw Puls holding his hand over his chest, heard Puls say something to defendant in a pleading voice, and then saw defendant stab Puls in the neck. Kessel, who was standing nearby when this occurred, testified that he saw defendant and Puls wrestling, and then Puls run away bleeding profusely.

Defendant first assigns as error the failure of the trial court to give Uniform Jury Instruction No. 202.05 which he requested. It reads:

'There are two types of evidence in this case upon which the State may rely. One is direct evidence--such as the testimony of an eyewitness. The other is circumstantial evidence--the proof of a chain of circumstances pointing to the commission of the offense. The proof may be by either type, or a combination of both.

'When circumstantial evidence is relied upon for conviction, it must not only coincide with, render probable and be consistent with the guilt of the accused, but it must be inconsistent with any reasonable theory of his innocence and incapable of explanation upon any other reasonable basis than that of guilt.'

The state requested a different instruction on circumstantial evidence. Both attorneys argued the merits of the alternative requested instructions at length. The trial court, generally following the state's requested instruction, told the jury:

'Now, there are two types of evidence in this case upon which the state may rely. One is direct evidence, such as the testimony of an eye witness. The other is circumstantial evidence. That is the proof of a chain of circumstances pointing to the commission of the offense. The proof may be by either type or a combination of both. In any event, you may not find the defendant guilty unless all the evidence taken together leaves you satisfied of his guilt beyond a reasonable doubt. ¹

This instruction substantially repeated the first paragraph of the uniform instruction defendant requested. It deviated from defendant's requested instruction, however, in not using the inconsistent-with-any-theory-of-innocence language in the second paragraph of the uniform instruction.

This language came into Oregon jurisprudence in State v. Dennis, 177 Or. 73, 77, 159 P.2d 838, 161 P.2d 670 (1945). More recently, the Oregon Supreme Court stated that the instruction based on Dennis 'should not be regarded as establishing a standard more severe than the usual concept of reasonable doubt.' State v. Krummacher, 99 Or.Adv.Sh. 559, 523 P.2d 1009 (1974), quoting from 1 Wharton's Criminal Evidence 18, § 12. In other words, an instruction based on the Dennis formulation is merely one way of telling a jury, perhaps in unnecessary detail, ² that it must find the defendant guilty beyond a reasonable doubt. See, State v. Wright, 12 Or.App. 73, 75, 504 P.2d 1065, Sup.Ct. review denied (1973). Any other instruction that accomplishes the same thing is equally acceptable. State v. Guse, 248 Or. 143, 432 P.2d 516 (1967). We hold the court's instructions in this case adequately informed the jury of the requirement of finding guilt beyond a reasonable doubt.

Moreover, when there is substantial direct evidence, it is generally not necessary to instruct the jury on the law of circumstantial evidence. State v. Thomson, 203 Or. 1, 278 P.2d 142 (1954); State v. Nortin, 170 Or. 296, 133 P.2d 252 (1943). In the case at bar we agree with the trial court's observation that 'this really isn't a * * * circumstantial evidence case' because there was substantial direct evidence of guilt, specifically, the testimony of the eyewitnesses Nicola and Kessel, summarized above. For this additional reason we find no error in this aspect of the court's instructions.

Defendant's second assignment of error is that the trial court should not have instructed the jury on the elements of reckless murder. The court instructed:

'Now, with regard to the charge of murder, Oregon law provides that a person commits murder if he intentionally causes the death of another human being or if he causes the death of another human being recklessly, under circumstances manifesting extreme indifference to the value of human life. And in order to establish murder in this case it is necessary for the state to prove beyond a reasonable doubt the following elements * * *. Third, that the defendant either intentionally caused the death of Stanley George Puls, Jr., or that the defendant caused the death of Stanley George Puls, Jr. recklessly under circumstances manifesting extreme indifference to the value of human life * * *.

'Now, intentionally means that a person acted with a conscious objective to cause a death. Recklessly means that a person was aware of and consciously disregarded a substantial and unjustifiable risk that the death would occur. The risk must be of some nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in this situation.'

Defendant's argument that the court should not have instructed on the elements of reckless murder presents three contentions: (1) stabbing a specific individual cannot, as a matter of law, be reckless murder; (2) the record in this case does not warrant a reckless murder instruction; and (3) since the indictment in this case charged only intentional murder, defendant was not on notice he would have to defend against a reckless murder theory.

(1) The relevant statute, ORS 163.115, provides in part:

'* * * (C)riminal homicide constitutes murder when:

'(a) It is committed intentionally; or

'(b) It is committed recklessly under circumstances manifesting extreme indifference to the value of human life * * *.'

Defendant interprets this statute as providing that a knife attack on a specific individual can only be intentional murder, if murder at all, and that reckless murder can only be committed by, for example, a person throwing a knife into a crowd or slashing his way through a crowd. To support this analysis, defendant relies on the following commentary by the draftsmen:

'* * * (ORS 163.115(1)(b)) is meant to cover situations such as one shooting into a crowd or an occupied house or automobile * * *.' Commentary, Proposed Oregon Criminal Code 87 (1970).

Defendant has been misled by these examples. The reckless murder statute was intended to be and is broader than just the examples suggest. This is apparent from additional comments by the draftsmen and the Commentary to § 210.2(1)(b) of the Model Penal Code, from...