State v. Reams

• Decision Date: 24 November 1981
• Docket Number: 113303,Nos. 112276,s. 112276
• Citation: 292 Or. 1,636 P.2d 913
• Parties: STATE of Oregon, Respondent on Review, v. Gerald Robert REAMS, Petitioner on Review. ; CA 16280; SC 27303.
• Court: Oregon Supreme Court

Page 913

636 P.2d 913

292 Or. 1

STATE of Oregon, Respondent on Review, v. Gerald Robert REAMS, Petitioner on Review.

Nos. 112276, 113303; CA 16280; SC 27303.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 8, 1981.

Decided Nov. 24, 1981.

Paul J. De Muniz, Salem, argued the cause for petitioner on review. With him on the briefs was Garrett, Seideman, Hemann, Robertson & De Muniz, P. C., Salem.

Thomas H. Denney, Asst. Atty. Gen., argued the cause for respondent on review. On the briefs were James M. Brown, Atty. Gen., Walter L. Barrie, Sol. Gen., and Robert C. Cannon, Asst. Atty. Gen., Salem.

TONGUE, Justice.

Defendant was indicted for felony murder (ORS 163.115(1)(b)) for shooting the father of his estranged wife during the commission of the crime of burglary. He was also indicted for burglary in the first degree for unlawfully entering the home of his father-in-law with the intent to commit the crime of assault (ORS 164.225), as well as for intentional murder for the same killing (ORS 163.115). ¹ Defendant was acquitted by the jury of intentional murder, but was convicted of felony murder and burglary. ² He appealed from those convictions to the Court of Appeals, 47 Or.App. 907, 616 P.2d 498, which affirmed them.

Defendant's petition for review was allowed by this court because of its concern whether a defendant can be properly indicted and convicted for felony murder when the underlying felony is a burglary in which the crime which defendant is alleged to have intended to commit after his unlawful entry was the crime of assault.

The Facts

The defendant and his wife had a stormy marriage, during which his wife had previously left him for a time and he had attempted or threatened suicide. On April 18, 1979, defendant returned from work to find that the furniture of the house had been "cleaned out." Without telling the defendant, his wife had secretly rented another house and had arranged with a "mover" to move the furniture there. Defendant then called his father-in-law, Mr. Gibbons, and asked where he could find his wife. Mr. Gibbons said that he did not know.

Defendant then obtained a pistol from either his parents' home or his place of employment. After considering and rejecting suicide, he decided to try to find his wife. He then went to the home of his wife's parents, wearing a holster with the pistol. After ringing the doorbell, with no response, defendant opened the door with a key to the house which, according to Mrs. Gibbons, had been given to his wife, but which he was not authorized to use. After going into his wife's "old room," he went into Mr. Gibbons' room, took a second pistol from the night stand there, and waited for Mr. and Mrs. Gibbons to return.

Defendant testified that he did not intend to kill his wife, but to scare her with the guns and that when he entered the house he did not intend to kill Mr. Gibbons.

Mr. and Mrs. Gibbons returned, after visiting their daughter, while defendant was in the house. Defendant did not inform them that he was in the house, apparently hoping to learn why his wife had left him and where he might find her. Mrs. Gibbons went into the bedroom. Mr. Gibbons went into the living room, sat down on the davenport and began to read a newspaper.

Defendant then suddenly appeared and, without speaking a word, shot Mr. Gibbons in the back of the head with both pistols. He then turned and shot Mrs. Gibbons as she entered the room, wounding her.

Defendant next told Mrs. Gibbons that she must take him to his wife. When she said, "You want to kill her," he replied "Well, after what I've done here, what difference does it make." He then took Mrs. Gibbons from the house and began walking toward his van. Eventually, Mrs. Gibbons escaped, the police arrived and arrested defendant.

From this testimony, the jury could properly find that when defendant unlawfully entered the house of Mr. and Mrs. Gibbons he did so with the intent to assault his wife, but not to either assault or kill either of her parents, and that there was evidence sufficient to find that defendant was guilty of burglary in the first degree, as well as felony murder, under the provisions of the statutes, which will next be discussed.

The statutes: their legislative history, and previous Oregon court decisions.

Burglary in the first degree is defined in ORS 164.215 and 164.225 to include unlawful entry into a dwelling with intent "to commit a crime therein." ³ Assault is a crime. See ORS 163.160, 163.165, 163.175 and 163.185. The felony murder statute listing burglary as a felony which can support a conviction for first degree murder was first enacted in 1864 (Gen.Laws of Oregon 1845-1864, Crim.Code ch. 43 § 502 (1866)). That crime is now defined by ORS 163.115 to include a person who:

" * * * commits or attempts to commit arson in the first degree, burglary in the first degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree or sodomy in the first degree and in the course of and in furtherance of the crime he is committing or attempting to commit, or the immediate flight therefrom, he, or another participant if there be any, causes the death of a person other than one of the participants; * * *." (Emphasis added)

State v. Morris, 241 Or. 253, 405 P.2d 369 (1965), involved facts somewhat similar to those in this case. Defendant went with a gun to the house where his estranged wife was living with one Libby. After firing a bullet through the front door and wounding his wife, defendant entered the home unlawfully by forcing his way in and then killed Libby. Defendant assigned as error a felony-murder instruction that if the killing of Libby occurred in the commission of the crime of burglary, proof of the burglary would be equal to proof of premeditation and deliberation necessary to constitute the crime of murder in the first degree. Defendant denied the burglary and contended that the instruction denied him the benefit of his theory of defense that the killing was an act of passion, without premeditation. This court rejected that contention, holding (at 255, 405 P.2d 369) that:

"The jury was free to believe the defendant's story if it wanted to. If, however, it chose to believe the state's witnesses, there was ample evidence that a burglary was being committed. The burglary may have been incidental to the defendant's primary purpose, which was to kill his wife and her companion, but the state was not bound to ignore the burglary. The district attorney had the right to try to prove an objective fact, burglary, in addition to a subjective one, the state of the defendant's mind." ⁴

The next year this court in State v. Branch, 244 Or. 97, 415 P.2d 766 (1966) again considered the propriety of a felony murder instruction, but under different facts. Thus, in Branch there was no burglary, as in Morris, and the conviction was not for first degree murder, as in Morris. Instead, defendant shot one Tommy Poole as Poole was getting out of an automobile parked alongside defendant's automobile several days after Poole had inflicted a beating upon defendant. Defendant admitted the shooting, but claimed self-defense. In holding that the giving of a felony murder instruction in such a case was error, this court recognized (at 99-100, 415 P.2d 766) that:

"The purpose of the felony-murder rule is to relieve the state of the burden of proving premeditation or malice whenever the victim's death is caused by the killer while the killer is committing another felony. Since a malignant purpose is established by proof of the defendant's other felony, malice is redundant with reference to the killing." (Emphasis added)

but went on (at 100, 415 P.2d 766) to agree with holdings by other courts that:

" * * * where the only felony committed (apart from the murder itself) was the assault upon the victim which resulted in the death of the victim, the assault merged with the killing and could not be relied upon by the state as an ingredient of a 'felony murder.' "

Although the opinions in Branch and Morris were both written by Justice Goodwin, Morris was not referred to in Branch, much less overruled.

This court has not, until this case, again considered either the propriety of felony murder instructions or the sufficiency of the evidence to support a conviction for felony murder in such cases. In 1971, however, the Court of Appeals, in State v. Tremblay, 4 Or.App. 512, 479 P.2d 507, rev. den. (1971), considered the first of these questions under facts somewhat more similar to those of this case. Defendant, with her husband and another man, broke into the dwelling house of the victim. Following a fight with the victim, defendant's husband shot the victim with a gun which defendant had brought into the house. Defendant contended, as in this case, that she took a gun with her "only to scare" the victim. The trial court instructed that if the jury found that defendant or her accomplices caused the death while committing the crime of burglary in a dwelling, it was first degree murder. Defendant contended, as in this case, that the assault necessary to make up the burglary "merged" with the ultimate killing, citing Branch. The Court of Appeals rejected that contention, holding (at 517-19, 479 P.2d 507):

"In Branch the only other crime was the assault itself. Burglary consists of two things-one, breaking and entering a dwelling house; two, intent to commit a crime therein. The crime which a burglar usually intends to commit after he breaks into a dwelling is larceny. Defendant concedes her argument could not apply in that situation. We think her argument fails because it is obvious that the legislature intended to give added protection to persons who are within a dwelling place. This is borne out by the decision in State v. Morris, 241 Or. 253, 405 P.2d 369 (1965), which was decided nine months before State v. Branch, supra. There the facts were...