State v. Ott
| Decision Date | 10 July 1984 |
| Docket Number | No. TC,TC |
| Citation | 297 Or. 375,686 P.2d 1001 |
| Parties | STATE of Oregon, Respondent on Review, v. Calvin Roy OTT, Petitioner on Review. 80-522-C, CA A23254, SC 29428. . * |
| Court | Oregon Supreme Court |
[297 Or. 376-A] Donald H. Coulter, Myrick, Coulter, Seagraves, Myrick & Adams, Grants Pass, argued the cause and filed briefs, for petitioner on review.
Christine L. Dickey, Asst. Atty. Gen., argued the cause, for respondent on review. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.
The primary issue is how a jury is to be instructed on "extreme emotional disturbance" for the purpose of determining whether a criminal homicide 1 is murder or manslaughter. The defendant was charged with murder for killing his wife in April, 1980. It is undisputed that the defendant killed her intentionally; the dispute is whether he was under the influence of extreme emotional disturbance. If he was, he would be guilty of manslaughter rather than murder. 2
At that time 3 ORS 163.115 provided:
At the time of this homicide the state, in order to convict a killer of murder, had to prove beyond a reasonable doubt that the defendant was not under the influence of extreme emotional disturbance.
The defendant was convicted of murdering his wife. At trial he did not contest the accusation that he killed her intentionally. Instead, he adduced evidence to mitigate the charge of murder to that of manslaughter by showing that he was under the influence of an extreme emotional disturbance during the killing.
A description of the evidence and the facts which could be found therefrom as perceived by the defendant is relevant to the question of whether he could have been found by the jury to be under the influence of extreme emotional disturbance when he committed the criminal homicide, thereby necessitating an instruction on extreme emotional disturbance. There was evidence of the following:
The defendant exhibited instability after his discharge from the Air Force in 1972. He "drifted in various parts of the United States" and put "very little order to his life." In 1975 he returned to his mother's home in Grants Pass and stayed there intermittently.
At some point after his return to Grants Pass, he began to cohabit with a woman who had three children. This lasted for a little over a year. The woman then asked the defendant to move out because of his drinking and unannounced disappearances. She was three months' pregnant by him at the time.
The defendant then enrolled at Rogue Community College at Grants Pass. There he met the now deceased Stephanie Elaine Brinkley, whom he married three weeks after their initial meeting. Some months after their marriage, they had a fight over "money matters" and separated. They were soon together again; however, not long thereafter welfare authorities threatened to cut off Stephanie's assistance unless they separated. The defendant moved out, joined a mining operation and made a small amount of money.
Defendant attempted to return to his wife; however, she had begun seeing someone else. Defendant attempted to fight Stephanie's new lover. Stephanie intervened, sent her new lover away and promised that her conduct would not be repeated.
There were other separations, and the defendant, upon his return from each separation and his learning of more infidelities, became progressively more upset. This was especially so after the birth of their first child.
At one point, upon Stephanie's invitation to resume living together, the defendant returned home to find his wife engaged in sex with another man. A fight ensued. The police were called, and the defendant was arrested for the crime of menacing. Upon arraignment, the court in that case observed that defendant appeared to be emotionally disturbed.
After his conviction in that case, the court ordered a presentence report. The report contained a psychological evaluation which indicated the possibility that defendant could exhibit psychotic behavior under stress and recommended that the defendant be treated with therapy and medication. Defendant was given a three-year suspended sentence and was released from jail subject to the condition that he receive counseling from the county mental health department. Although he received counseling, he never received any medication.
He had been warned by the "authorities" to stay away from Stephanie. She apparently caused him to be placed under a judicial restraining order; however, despite her obtaining the order, Stephanie telephoned him regarding their divorce. They engaged in an apparently protracted series of arguments on the telephone over child custody, which eventuated in the defendant's arrest and jailing for harassment. Even though they engaged in arguments and fights, they continued to associate. Defendant could not stay away from Stephanie and Stephanie did not always discourage his attentions.
In 1980 Stephanie began to live with another man. This conduct affected the defendant, as before, with tension and "stress." The defendant's reaction was even more intense than before, and he threatened to kill Stephanie on several occasions.
In early April, 1980, Stephanie's son, Jonathan (defendant's stepson), broke his arm and was in the hospital. The defendant and Stephanie met each other at the hospital in order to visit with the child on three occasions. It was arranged that on the third occasion the defendant was to drive Stephanie home after hospital visiting hours were over. Defendant had the impression from their first two meetings at the hospital that the relationship was improving. He was thus angered and disappointed when his wife's new lover appeared at the hospital on their third meeting to take her home. Defendant left the hospital in a state of agitation. He retrieved a .22 rifle that he had stored at the home of a friend, caught up with his wife and her lover, ran their truck off the road and shot his wife three times.
We emphasize that the foregoing paragraphs are not findings of fact by this court; they are a set of facts which could be found from the evidence. There was other evidence, which was in some respects contradictory.
Before addressing how a jury should be charged in a case where the influence of extreme emotional disturbance may reduce an intentional criminal homicide from murder to manslaughter, we pause to examine the history of the mitigating factor.
The defense of extreme emotional disturbance is a modification of the defense of provocation or heat of passion. The provocation defense is very old. The distinction between a slaying in cold blood and one in the heat of passion existed in Anglo-Saxon criminal law and survived the Norman conquest of 1066. 4 The "Doctrine of Provocation" became firmly established in the law in 1628 when Coke adopted the distinction between homicide committed after deliberation and homicide committed in the course of a sudden quarrel. 5 Coke defined murder as necessitating "malice aforethought," as distinguished from manslaughter, which he understood occurs "upon a sudden occasion" and was, therefore, called "chance-medley." 6 Then, as now, manslaughter, understood as chance-medley, depended on the presence of heat of passion caused by adequate provocation.
As originally conceived, the only adequate provocation for heat of passion was mutual combat. Hence, heat of passion was difficult to distinguish from self defense. Other provocations were gradually recognized as legally adequate, including assault and adultery. In some jurisdictions, illegal arrest, injuries to third parties, and words conveying information of the occurrence of a legally sufficient ground have also been recognized. 7
In the mid-nineteenth century, the judgment as to whether a provocation was adequate for the heat of passion defense was made by the judge as a determination of law; 8 however, judges gradually began to leave borderline cases to the jury. The reasonable man standard of review for provocation was devised as a manner of instructing the jury on marginal cases. It was also a device for enabling the jury to serve as community conscience or standard of measure for reasonable behavior.
The reasonable man test for provocation contained four elements: (1) there had to be a provocation that would arouse a reasonable man to the heat of passion; (2) the defendant must actually have been aroused to the heat of passion; (3) a reasonable man would not have cooled off; and (4) the defendant did not, in fact, cool off. 9 This has been said to be an objective test, meaning that neither the mental nor physical peculiarities of the accused are evaluated in determining whether his loss of self-control was reasonable. 10
As originally developed, the provocation defense represented the concept that the mental state of the accused was the test for moral culpability; however, the objective test does not focus on the individual's mental state. The anomaly has been noted by several scholars.
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Defining Extreme Emotional Disturbance
...41 N.J. 342, 196, A.2d 786, 792 (1964). Accord Taylor v. State, 542 So.2d 441, 449 (Miss. 1984). 23. State v. Ott, 297 Ore. 375, 686 P.2d 1001, (1984). 24. J. Turner, Russell ON Crime 535 (12th ed. 1964). 25. See generally Commission to Revise the Criminal Statutes, Commentary on Title 53a,......
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§ 31.10 Criminal Homicide: Model Penal Code
...greatest degree of intensity away from the normal for that individual." State v. Elliott, 411 A.2d 3, 8 (Conn. 1979).[299] State v. Ott, 686 P.2d 1001, 1011 (Or. 1984) (interpreting state statute based on the Model Penal Code).[300] Id.; State v. Dumlao, 715 P.2d 822, 828 (Haw. 1986); Smith......
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§ 31.10 CRIMINAL HOMICIDE: MODEL PENAL CODE
...degree of intensity away from the normal for that individual." State v. Elliott, 411 A.2d 3, 8 (Conn. 1979).[297] . State v. Ott, 686 P.2d 1001, 1011 (Or. 1984) (interpreting state statute based on the Model Penal Code).[298] . Zd.; State v. Dumlao, 715 P.2d 822, 828 (Haw. 1986); Smith v. P......
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TABLE OF CASES
...(Ct. App. 1989), 103, 105 Olivo, People v., 420 N.E.2d 40 (N.Y. 1981), 527 Otis, People v., 139 N.E. 562 (N.Y. 1923), 529 Ott, State v., 686 P.2d 1001 (Or. 1984), 516 Otto, State v., 629 P.2d 646 (Idaho 1981), 371 Oviedo, United States v., 525 F.2d 881 (5th Cir. 1976), 361, 378 Oxendine v. ......