State v. Hazelett

• Decision Date: 29 February 1972
• Citation: 8 Or.App. 44,492 P.2d 501
• Parties: STATE of Oregon, Respondent, v. Aaron Roger HAZELETT, Appellant.
• Court: Oregon Court of Appeals

Page 501

492 P.2d 501

8 Or.App. 44

STATE of Oregon, Respondent, v. Aaron Roger HAZELETT, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Oct. 29, 1971.

Decided Jan. 6, 1972.

Rehearing Denied Jan. 26, 1972.

Review Denied Feb. 29, 1972.

Francis F. Yunker, Portland, argued the cause for appellant. With him on the briefs was Darrell E. Bewley, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

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

FOLEY, Judge.

Defendant was convicted of first degree murder, sentenced to life imprisonment and appeals. He assigns as error the refusal of the court to remove from the jury's consideration felony murder as a basis for the first degree murder conviction and he claims the court erred in submitting to the jury two separate theories: (1) felony murder, and (2) premeditated murder, instructing them that it was not necessary that they all concur as to whether the defendant committed felony murder or premeditated murder so long as they unanimously concurred that defendant was guilty beyond a reasonable doubt of first degree murder.

The defendant was indicted for premeditated first degree murder. At the time of trial evidence was also produced of felony murder in an attempt to commit rape. From statements made by defendant ¹ there was evidence that defendant accompanied the victim outside the home where she was staying, ostensibly they were to obtain a cigarette from an individual asleep in a car in the driveway. Defendant and deceased had an altercation in which defendant struck deceased in the Adam's apple with his fist and then picked up a bumper jack and struck her on the head, knocking her to the ground. He then dragged her a short distance, removed her slacks and panties, spread her legs, dropped his pants and got on top of her. Thereafter, he got up and pulled up his pants. A car then came by and he was frightened. The victim was twitching and he struck her again with the jack and then left. The defendant stated he did not get an erection nor try to make entry though '* * * he thought about it.' Deceased's bloody body was discovered a few hours later in the driveway.

Defendant's first assignment claims there was insufficient evidence that he had any intent to rape or had committed any overt act fairly designed to effectuate a rape. We disagree. The evidence recited above was more than adequate to support the submission to the jury of the instruction on felony murder, the gist of the instruction being that if the defendant killed the victim in the commission of or attempt to commit forcible rape, that is the equivalent of finding deliberate and premeditated malice and is first degree murder.

Defendant's second assignment of error urges the court should not have instructed that the jury need not unanimously agree whether the killing was premeditated or felony murder, as long as they unanimously agreed defendant was guilty of first degree murder. Defendant urges that under this instruction half of the jury could agree that the killing took place in an attempted rape and half could agree instead that it was a case of premeditated murder and thus it would not be the verdict of the 12.

In some cases it would be error to permit a jury to convict based on part of their number finding one set of facts to be true and part believing another set of facts to be true. For example, in State v. Ewing, 174 Or. 487, 149 P.2d 765 (1944), a sodomy prosecution in which the state's case included evidence of numerous acts of sodomy, the court said:

'* * * We are of the opinion that error was committed in the failure of the court to require a specific election at some time prior to the final rebuttal argument of the prosecution and that the instructions of the court erroneously failed to impose the necessary limitations upon the jury and did, in fact, permit them to consider any of the alleged prohibited acts as being the act charged in the indictment. As a result, it is entirely possible that some of the jurors may have found the defendant guilty of one of the prohibited acts, while others relied upon some other and different alleged act.' 174 Or. at 496, 149 P.2d at 769.

This is not such a case. Here, there was only one act charged and proved--the act of taking the life of the victim. Whether this was done with premeditation or while attempting rape related to the defendant's mental state, and did not relate in any way to the act charged. Since the legal effect of committing the act is the same whether done with premeditation or while attempting rape, there is no reason to require the jury to unanimously agree on which of the two possible mental states, both equally culpable, defendant possessed at the time of the murder charged.

This issue was decided adversely to defendant in State v. Reyes, 209 Or. 595, 621--622, 303 P.2d 519, 304 P.2d 446, 308 P.2d 182, 189 (1957), where the court said:

'The motion to elect was likewise devoid of merit. If under this indictment evidence could be received of a felony murder--the question next to be considered--, and, if such evidence was received as well as evidence which showed a premeditated...