State v. Hessel

Citation117 Or.App. 113,844 P.2d 209
PartiesSTATE of Oregon, Respondent, v. Brian Douglas HESSEL, Appellant. C 89-11-36474; CA A68097. Court of Appeals of Oregon, In banc
Decision Date17 March 1993
CourtOregon Court of Appeals

Noel Grefenson, Salem, argued the cause and filed the brief for appellant.

Brenda J Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., Virginia L. Linder, Sol. Gen., Janet A. Metcalf, Asst. Atty. Gen., and Robert B. Rocklin, Asst. Atty. Gen., Salem.

DEITS, Judge.

Defendant appeals his convictions on six counts of murder and two counts of aggravated murder. He assigns error to the trial court's jury instruction that the affirmative defense of extreme emotional disturbance (EED) does not apply to aggravated murder; to its denial of his motions for acquittal, in which he objected to the prosecution's failure to present sufficient evidence to corroborate his confessions; to the prosecution's alleged comments on his failure to testify; and to the court's failure to merge his murder convictions. We affirm.

In October, 1989, the victim drove to Portland from her home in Albany with plans to spend the night there. She met her ex-boyfriend, Amell, at a mutual friend's houseboat on Hayden Island. She and Amell went out to dinner. While in the parking lot of a lounge at about 1:30 or 2:00 a.m., they had a fight, during which Amell threw her against a wall and put his hands around her neck. She returned to the houseboat and collected her belongings. When she left the houseboat, she told a friend that she and Amell had quarrelled and that someone was waiting for her in the parking lot. The victim then met defendant and drove to Portland, bought some cocaine and went to his house to smoke it. He asked her to spend the night, but she declined. As he was driving the victim back to her car, he turned right instead of left, which would have taken them to her car. He then stopped his car and asked her to "give him some head." She complied but, when she tried to raise her head, he pushed it back down and she then bit his penis. He hit her on the head and then pulled her out of the car and into bushes, where he killed her by strangling her with his belt and hitting her repeatedly with a rock.

The next day defendant told a friend that he had killed the "girl at Hayden Island." The friend contacted the police and had another conversation with defendant while wearing a body wire. Defendant told the friend that he had hit the victim after becoming angry that she had bit him and that he had panicked because he believed that she had bitten off his penis. He also said that he had killed her to cover up his actions.

Defendant was charged with eight counts of aggravated murder. In the jury trial, he was convicted on six counts of the lesser included crime of intentional murder and on two counts of aggravated murder. The two counts of aggravated murder on which he was convicted were under ORS 163.095(2)(d) for personally and intentionally committing a homicide in the course and furtherance of a felony and under ORS 163.095(2)(e) for committing a murder in an effort to conceal the identity of the perpetrator of a crime. 1

Defendant first assigns error to the jury instruction that EED is available as a partial defense to intentional murder but not to aggravated murder. 2 He argues that EED, which is expressly made a defense to intentional murder under ORS 163.115(1)(a), is also a defense to felony murder under ORS 163.115(1)(b) and to aggravated murder under ORS 163.095(2). He contends that, because EED is available as a defense to intentional murder, it applies to any form of aggravated murder that includes intentional murder as a lesser included offense.

In construing a statute, we first examine the language of the statute itself. ORS 174.010; State ex rel. Juv. Dept. v. Ashley, 312 Or. 169, 174, 818 P.2d 1270 (1991). The language of the pertinent statutes here does not support defendant's argument. The crime of "murder" is defined in ORS 163.115(1) to include acts that are commonly referred to as "intentional murder" and "felony murder."

"Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder:

"(a) When it is committed intentionally, except that it is an affirmative defense that, at the time of the homicide, the defendant was under the influence of an extreme emotional disturbance;

"(b) When it is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit any of the following crimes and in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom, the person, or another participant if there be any, causes the death of a person other than one of the participants:

" * * * * *

"(F) Kidnapping in the first degree as defined in ORS 163.235."

Notably, the statute specifically provides that EED is a defense to intentional murder, but not to felony murder.

In addition, ORS 163.135(1), which governs the EED defense, provides that it is available only as a partial defense to intentional murder under ORS 163.115(1)(a):

"It is an affirmative defense to murder for purposes of ORS 163.115(1)(a) [intentional murder] that the homicide was committed under the influence of extreme emotional disturbance * * *." (Emphasis supplied.)

There is also nothing in the language of the aggravated murder statute itself, ORS 163.095, see n. 1, supra, that makes EED available as a defense to aggravated murder.

We held in State v. Reams, 47 Or.App. 907, 913, 616 P.2d 498 (1980), aff'd 292 Or. 1, 636 P.2d 913 (1981), that the defense is available only in intentional murder cases:

"On its face, ORS 163.115(2), [ 3] * * * appears to allow the consideration of extreme emotional disturbance in mitigation only in cases of intentional murder under ORS 163.115(1)(a)."

In State v. Atkinson, 80 Or.App. 54, 58 n. 3, 722 P.2d 9, rev. den. 302 Or. 36, 726 P.2d 935 (1986), we commented that,

"although the legislature has expressly provided that defendants charged with intentional murder under ORS 163.115(1)(a) may assert the affirmative defense, it has not so provided for defendants charged with aggravated murder."

Defendant appears to recognize that the language of the statutes does not support his argument, but asserts that an inconsistency is created by ORS 163.118, the manslaughter statute, which provides, in part:

"(1) Criminal homicide constitutes manslaughter in the first degree when:

" * * * * *

"(b) It is committed intentionally by a defendant under the influence of extreme emotional disturbance as provided in ORS 163.135. The fact that the homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing the homicide which would otherwise be murder to manslaughter in the first degree and need not be proved in any prosecution." (Emphasis supplied.)

Defendant reasons that, because ORS 163.115 expressly excepts homicides that come within ORS 163.118 from constituting murder, EED is a defense to all murder charges. We do not find his argument persuasive. ORS 163.118 concerns the defense as provided in ORS 163.135, which expressly limits its application to murder under ORS 163.115(1)(a).

Relying on legislative history, defendant argues alternatively that, when the legislature made EED an affirmative defense to intentional murder in 1981, it unintentionally failed to specify that it was also applicable to aggravated murder. We are not at liberty to fill in perceived legislative omissions. ORS 174.010; Portland Adventist Medical Center v. Sheffield, 303 Or. 197, 200, 735 P.2d 371 (1987). Moreover, the inclusion of a specific matter suggests a legislative intent to exclude related matters that are not mentioned. ORS 174.010; Roseburg Forest Products v. Wilson, 110 Or.App. 72, 76, 821 P.2d 426 (1991). In view of the legislature's failure to include language in ORS 163.095 making EED available and the language of ORS 163.135 that specifically provides that it is available as an affirmative defense to murder for purposes of ORS 163.115(1)(a), we conclude that EED is not a defense to aggravated murder.

Defendant also assigns error to the denial of his motion for acquittal on count 6, which charged that he killed the victim in an effort to conceal his identity as the perpetrator of assault in the fourth degree, and on count 8, which charged that he killed the victim in the course of a kidnapping in the first degree and in immediate flight from previous crimes. He contends that the state failed to present any evidence corroborating his confession that he had kidnapped the victim or that he had assaulted her other than during the act that resulted in her death.

ORS 136.425 provides that a confession or admission is not, by itself,

"sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed."

In State v. Lerch, 296 Or. 377, 393, 677 P.2d 678 (1984), the Supreme Court held that "some other proof" means that "there is enough evidence from which the jury may draw an inference that tends to establish or prove that a crime has been committed."

There was corroborating evidence that defendant committed assault in the fourth degree. ORS 163.160(1) provides:

"A person commits the crime of assault in the fourth degree if the person:

"(a) Intentionally, knowingly or recklessly causes physical injury to another; or

"(b) With criminal negligence causes physical injury to another by means of a deadly weapon."

The medical examiner testified that the victim had suffered blows to her face that probably were caused by a fist and that she had received injuries to the neck such as would occur from a "forearm or leg or something with...

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    ...petitioner's position that his current argument could not reasonably have been asserted on direct appeal is that, in State v. Hessel, 117 Or.App. 113, 844 P.2d 209 (1992), rev. den., 318 Or. 26, 862 P.2d 1305 (1993), we had rejected an identical argument. Hessel, like this case, involved mu......
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