State v. Link, (CC 01FE0371AB.
Decision Date | 07 May 2009 |
Docket Number | (CC 01FE0371AB.,CA A123223;,SC S055516). |
Parties | STATE of Oregon, Respondent on Review, v. Justin Alan LINK, Petitioner on Review. |
Court | Oregon Supreme Court |
Susan F. Drake, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services, Legal Services Division.
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Defendant was a teenager when he and four friends stole a car belonging to one friend's mother, killed her to conceal the robbery, and drove to Canada. Although defendant took part in the preparations to commit the murder and encouraged and directed the others to shoot the victim, he was not physically present when, after three of his friends either refused or were unable to shoot her, the fourth fired the fatal shot. Defendant was charged with five counts of aggravated murder. Counts 1 through 3 charged defendant with aggravated felony murder—specifically, that defendant had committed first-degree robbery by three different means and that, in the course of committing each of those felonies, he had committed the murder of the victim "personally and intentionally." See ORS 163.095(2)(d) (1999) ( ).1 Counts 4 and 5 charged that defendant had killed the victim to conceal the commission of other crimes (Count 4) and the identity of the perpetrators of those crimes (Count 5). See ORS 163.095(2)(e) ( ). After a bench trial, the trial court convicted defendant of aggravated murder on all five counts.
On appeal to the Court of Appeals, defendant challenged his convictions on Counts 1 through 3, contending that the evidence adduced at trial was insufficient to establish that he had committed the murder "personally" and that the trial court therefore had erred in denying his motion for judgment of acquittal on those three counts. Defendant did not challenge his aggravated murder convictions on Counts 4 or 5. The Court of Appeals concluded that defendant would stand convicted of aggravated murder and receive the same sentence regardless of whether his convictions on Counts 1 through 3 were reversed. The court therefore declined to reach the issue of the sufficiency of the evidence on those counts. State v. Link, 214 Or.App. 100, 162 P.3d 1038 (2007).
We allowed defendant's petition for review and now hold that (1) the Court of Appeals should have reached the merits of defendant's challenge to the sufficiency of the evidence on Counts 1 through 3; and (2) the trial court erred in denying defendant's motion for judgment of acquittal on Counts 1 through 3.
Because the parties do not contest the accuracy of the statement of facts by the Court of Appeals, we take the facts from its opinion.
214 Or.App. at 102-04, 162 P.3d 1038.
Defendant and his cohorts were captured as they attempted to enter Canada. They were each indicted on 22 criminal counts, including the five counts of aggravated murder previously described and five counts of conspiracy to commit aggravated murder.2
Defendant was tried separately from the others and waived his right to a jury trial. At the close of the state's evidence, defendant moved for a judgment of acquittal on all counts. As to Counts 1 through 3, the three counts charging aggravated felony murder, defendant contended that there was no evidence from which a rational factfinder could conclude that he had "personally * * * committed" the murder, as is required by ORS 163.095(2)(d) ( ).3 Defendant asserted that, under that subsection of the statute, only the person who fired the fatal shot could be convicted.
The state disagreed. It contended that, under State v. Nefstad, 309 Or. 523, 789 P.2d 1326 (1990), the requirement that a defendant act "personally" could be met by other active involvement in the murder. The evidence, the state argued, was sufficient to permit a factfinder to conclude that defendant's actions constituted active involvement in the victim's murder.
The trial court agreed with the state, denied the motion for judgment of acquittal, and convicted defendant on all 22 counts.4 Conviction of aggravated murder requires one of three sentences: death, life imprisonment without the possibility of release or parole, or life imprisonment. ORS 163.105(1)(a). Defendant was not eligible for the death penalty by virtue of ORS 137.707(2) ( ). The trial court sentenced him to life imprisonment without the possibility of release or parole.
During the sentencing phase of the trial, defendant argued that the five aggravated murder counts (plus other counts) should be merged into a single conviction for aggravated murder. Defendant relied on this court's decision in State v. Barrett, 331 Or. 27, 10 P.3d 901 (2000). The state did not argue to the contrary. In fact, the state specifically "agree[d] that all five counts of Aggravated Murder [should] merge for sentencing purposes."
Because the exact nature of the "merger" that the law requires is relevant to our disposition here, we pause to consider Barrett and its application of the "anti-merger statute" in some detail. That statute, currently codified as ORS 161.067(1), but discussed in Barrett as also codified in former ORS 161.062(1) (1997), provides:
"When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations."5
In Barrett, the defendant had...
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Hale v. Belleque
...with petitioner that he has an interest in having the record reflect a correct resolution of the burglary charges. See State v. Link, 346 Or. 187, 199–200, 208 P.3d 936 (2009). Accordingly, we conclude that petitioner has established prejudice and is entitled to post-conviction relief on th......
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State v. Turnidge
...argument, the parties do not dispute the applicable law.74 Both parties rely extensively on this court's decision in State v. Link, 346 Or. 187, 208 P.3d 936 (2009), which considered the meaning of “personally” in the context of aggravated felony murder. 359 Or. 486 Because Link is central ......