State v. Reams

JurisdictionOregon
PartiesSTATE of Oregon, Respondent, v. Gerald Robert REAMS, Appellant. ; CA 16280,; CA 16281 and; CA 17551.
Citation616 P.2d 498,47 Or.App. 907
Docket NumberNo. 112,276,No. 113,304,No. 113,303,112,276,113,303,113,304
CourtOregon Court of Appeals
Decision Date07 October 1980

Paul J. De Muniz, Salem, argued the cause for appellant. With him on the briefs were Garrett, Seideman, Hemann, Robertson & De Muniz, Salem.

Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the briefs were James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before JOSEPH, P. J., and WARDEN and WARREN, JJ.

JOSEPH, Presiding Judge.

Defendant appeals from his convictions for felony murder, burglary and attempted murder. We consider the seven assignments of error seriatim.

Defendant had had a tumultuous relationship with his wife. Their eight years of marriage were marked by separations and, on at least two occasions, suicide threats by defendant. There were two children. In April, 1979, defendant's wife decided to leave him. While he was away from home, she had the household furniture moved without informing him. He returned to find an empty house. Defendant drove to his parents' house and obtained their pistol, without their knowledge. Then he drove toward his wife's parents' house and parked several blocks away. No one was home. He let himself in with a key he had obtained from his wife but which he had not been authorized by her parents to use. Inside, he obtained a second gun from his father-in-law's night table. He loaded it, kept it with him and remained in the house.

When his in-laws returned home, defendant did not announce his presence but moved to the living room, where he could overhear them talking in the adjoining room. They had just returned from helping their daughter move into a new place. The father-in-law was sitting reading a newspaper when, without warning, defendant came into the room and shot him from behind with both guns, killing him instantly. Defendant then fired a shot at his mother-in-law wounding her in the side. He tried to shoot her again, but the gun misfired. Defendant then forced his mother-in-law out of the house to take him to his wife. Outside, his mother-in-law managed to get someone to call the police, who apprehended defendant.

Defendant was indicted separately for murder, 1 felony murder, 2 burglary 3 and attempted murder. 4 The first three indictments related to the killing of the father; the last to the shooting of the mother. Defendant went to trial with the objective, as stated by his counsel on appeal, that the homicide might be reduced to manslaughter by the jury, based on his claim of extreme emotional disturbance. The jury, by separate verdicts, convicted defendant of felony murder and burglary. Defendant then pled guilty to attempted murder. The trial court merged the burglary into the felony murder and imposed a sentence of life imprisonment (25 years of which to be served without possibility of parole) for the felony murder and 20 years for the attempted murder, consecutive to the murder sentence.

Defendant first assigns as error the overruling of his demurrer to the felony murder indictment for failure to negative a statutory exception. ORS 163.115(1)(b) 5 provides in felony murder cases that the death must be of a person other than one of the participants in the felony. Defendant contends that the indictment was required to include the statement that the victim was not a participant in the crime. We held in State v. Keys, 25 Or.App. 15, 22, 548 P.2d 205, 209-10, rev. den. (1976), that extreme emotional disturbance is not required to be negated in a murder indictment, despite its being a statutory exception. We stated:

"The rules governing the sufficiency of indictments are statutory. ORS 132.510. The only relevant statute, ORS 132.550 provides:

" 'The indictment shall contain substantially the following:

" '* * *

" '(7) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended * * *.'

"In recent years, the trend in Oregon courts has been to require substantially less specificity in indictments. The rationale in the cases has been that, although the defendant has a constitutional right to notice, this need not be accomplished solely by the indictment. Notice can be based on the indictment plus the language of the relevant statute. Notice can be based on the indictment plus the relatively new criminal discovery statutes. And the ultimate form of notice is the prosecution's evidence; we have held that if the defendant is genuinely surprised thereby, he is entitled to a continuance."

In State v. Fish, 282 Or. 53, 57, n.5, 577 P.2d 500 (1978), the Supreme Court noted prior cases holding that felony murder need not be pled separately from intentional murder. See, e. g., State v. Earp, 250 Or. 19, 26-27, 440 P.2d 214, cert. den. 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170 (1968). The state here did more than it was required to do by indicting defendant by a specific felony murder indictment. Even though that indictment also contained terms relating to intentional homicide, it was sufficient to direct attention to the felony murder statute and thus to notify defendant fully of the charge against him. The indictment was not defective. See also, State v. Taylor, 13 Or.App. 192, 193, 509 P.2d 50 (1973) (no requirement to negative lack of justification or excuse in murder indictment); State v. Alexander, 6 Or.App. 526, 532-533, 487 P.2d 1151 (1971) (unnecessary to negative exceptions in indictment for unlawful possession of drugs).

Defendant next assigns as error the instruction that extreme emotional disturbance is not a defense to felony murder. On its face, ORS 163.115(2), supra n.5, appears to allow the consideration of extreme emotional disturbance in mitigation only in cases of intentional murder under ORS 163.115(1)(a). Furthermore, we held in State v. O'Berry, 11 Or.App. 552, 557, 503 P.2d 505 (1972), rev. den. (1973), overruled on other grounds in State v. Corbin, 15 Or.App. 536, 549-550, 576 P.2d 1314 (1973), rev. den. (1974), that extreme emotional disturbance is not an available defense in felony murder based on rape, which is not a crime involving premeditation. See also, State v. Jensen, 209 Or. 239, 271, 289 P.2d 687, 296 P.2d 618 (1957) (mental defectiveness short of insanity not an available defense to reduce felony murder based on robbery to manslaughter). It follows that extreme emotional disturbance is not available in felony murder cases based upon an underlying burglary.

The third assignment concerns the admission of three photographs of the victim after defendant offered to stipulate to facts regarding the circumstances of the death. One photograph, taken from several feet away, shows the victim more or less upright on a couch, a newspaper in his lap, some blood visible on the cheek and chin. The other two photographs are close-up views of the side and back of the head. The prosecutor argued to the trial court that the photographs would be helpful in understanding evidence concerning procedures followed for recovery of the bullets, and he also suggested that they would assist the jury, in ways not specified, in understanding defendant's possible defenses. The trial court admitted the exhibits after stating:

"They are not gruesome pictures, unless you want to argue that any picture of a dead body is gruesome.

"They are not autopsy pictures, there are not massive amounts of blood, and I think the are of very minimal offensiveness to the jury and with a minimum amount of prejudice.

"It's true, as * * * (the prosecutor) points out, in this kind of a case, the state must establish certain things. Perhaps these pictures would assist the jury in determining some of those factors."

The issue is whether the probative value of the evidence outweighed its possible prejudicial value. State v. McCready, 31 Or.App. 591, 595, 571 P.2d 160 (1977). Defendant contends that the photographs were not relevant for any purpose when admitted, particularly after the stipulation was offered. Defendant relies on State v. McKendall, 36 Or.App. 187, 198, 584 P.2d 316 (1978), for the proposition that photographs are improperly admitted where the only issue is that of intent after a stipulation is offered. There, however, the defendant was an accomplice, who stipulated that the victim was murdered. The only issue was her intent as an accomplice, that is, whether she intended that the victim be murdered by another. The court held that the photographs, taken during an autopsy, were improperly admitted when the manner of death was not a disputed issue. A primary issue in this case was the state of mind of the defendant who killed the victim. The circumstances of the manner of death were relevant to that inquiry. We noted in State v. Yost, 28 Or.App. 803, 805, 561 P.2d 657, rev. den. (1977), that mens rea can rarely be shown by direct evidence. The stipulation, an attempt in part to describe visual aspects of the death of the victim in words, 6 did not necessarily convey all the relevant circumstances.

In arguing that the photographs were not offered for any legitimate purpose and were prejudicial, defendant points out that the prosecution did not refer to or make use of them in any way once they were admitted, thereby in defendant's view confirming that they were offered only to show the victim's body to the jury. While it is true that photographs once admitted into evidence do not have to be referred to further to have an effect on the jury, which can review them during its deliberations, we are not persuaded that at time of admission the possible prejudice clearly outweighed the probative value of the photographs. They do have an emotional potential in that they...

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16 cases
  • State v. Jackson
    • United States
    • Oregon Court of Appeals
    • December 15, 1982
    ...by refusing to exclude the photographs from evidence. State v. Benfield, 53 Or.App. 355, 632 P.2d 26 (1981); State v. Reams, 47 Or.App. 907, 914-16, 616 P.2d 498 (1980), aff'd 292 Or. 1, 636 P.2d 913 Defendant's final assignment is that the court erred in imposing a minimum 25-year term of ......
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