State v. Smith, 5732

• Decision Date: 05 May 1975
• Docket Number: No. 5732,5732
• Citation: 21 Or.App. 270,75 Adv.Sh. 1620,534 P.2d 1180
• Parties: STATE of Oregon, Respondent, v. Gerald Duane SMITH, Appellant.
• Court: Oregon Court of Appeals

Page 1180

534 P.2d 1180

21 Or.App. 270

STATE of Oregon, Respondent, v. Gerald Duane SMITH, Appellant.

No. 5732.

Court of Appeals of Oregon.

Argued and Submitted March 20, 1975.

Decided May 5, 1975.

John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

Timothy Wood, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen. and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

FOLEY, Judge.

Defendant appeals from convictions, after a jury trial, on charges of attempted murder and assault in the second degree. ORS 163.115, 163.175. Defendant was granted a judgment of acquittal by the court on charges of criminal activity in drugs, ORS 167.207, and was found not guilty of an additional charge of attempted murder. Defendant was sentenced to a term of imprisonment not to exceed 10 years on the attempted murder conviction and not to exceed five years on the assault conviction, the terms to run concurrently.

On June 24, 1974, Pendleton police officers were dispatched to the scene of a 'possible injury accident.' A Volkswagen automobile which belonged to defendant was on its side, partially on the street and partially on the sidewalk. There was nobody in the vehicle. Shortly before police arrived Daniel Swanson, a friend of defendant, had come upon the accident scene and saw defendant crawling out of the vehicle. Defendant, who appeared 'pretty shook up' and did not recognize Swanson, headed toward defendant's nearby home. Swanson had followed defendant, urging him not to leave the scene of an accident. He opened defendant's door and saw defendant holding a pistol. A shot was fired, but Swanson did not see where the shot went and could not recall whether the shot occurred before or after he closed the door. Swanson ran back to the scene of the accident where he related the preceding events to police officers who had arrived at the scene.

At about this time, defendant came out, and, in the words of one police officer, 'fired a shot and was waving his arms and hollering about come and get him, and, 'Shoot me,' and things like this.' Another officer, Sgt. John Christensen, crouched in a defensive position behind his police car about 230 feet away from defendant. Several more shots were fired by defendant; it appears that two were fired in the air, one struck Sgt. Christensen's vehicle, and two struck a trailer house which was about 560 feet away but was in the same direction from defendant as Sgt. Christensen's vehicle. Defendant continued to shout as these shots were fired.

Defendant soon dropped the pistol, which still had two unfired .22 caliber cartridges in it, but he continued to fend off officers with a knife. Deputy Cadet Frederick Eastlick managed to grab defendant when defendant's attention was districted by another officer. As Cadet Eastlick and defendant fell to the ground, Eastlick was slashed in the leg with the knife. As Eastlick described the scene:

'I could feel him going down, he was jerking (the knife), and then we hit the ground, and I would feel his arms moving, and he was making stabs at my leg.'

Defendant's conviction for assault was based on the stabbing of Cadet Eastlick; the conviction for attempted murder was based on the alleged attempt to cause the death of Sgt. Christensen.

Defendant first assigns as error the giving of a jury instruction which stated, Inter alia, that defendant could be found guilty if the jury found

'* * * that the defendant did intentionally Attempt to cause the death of John P. Christensen, Or that the defendant did intentionally engage in conduct which recklessly placed the life of John P. Christensen in danger under circumstances manifesting an extreme indifference to the value of human life.' (Emphasis supplied.)

Defendant excepted to the giving of the foregoing instruction. Although the state contends that the defendant did not preserve the issue for appeal because he did not inform the court of his reasons for excepting to the instruction, we note that defendant also excepted, at the same time, to the failure to give His requested instruction on attempted murder, which was limited to an attempt to commit an intentional murder. While somewhat ambiguous, we hold that this sufficiently apprised the court of the defendant's position.

The issue, then, is whether the court properly instructed on 'attempted reckless murder,' i.e., whether one can 'attempt' to commit reckless murder. Criminal homicide, ORS 163.005, constitutes murder when it is committed intentionally, when it is committed as part of the commission of certain felonies, and when it 'is committed recklessly under circumstances manifesting extreme indifference to the value of human life * * *.' (Hereafter referred to as 'reckless murder.') ORS 163.115. When it is committed recklessly, but not under circumstances manifesting extreme indifference to the value of human life, criminal homicide constitutes manslaughter. ORS 163.125.

ORS 161.085(9) defines 'recklessly':

"Recklessly,' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.'

ORS 161.405(1) defines 'attempt':

'A person is guilty of an attempt to commit a crime when he intentionally engages in conduct which constitutes a substantial step toward commission of the crime.'

Further, ORS 161.085(7) defines 'intentionally':

"Intentionally' or 'with intent,' when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.'

The state argues that defendant could attempt reckless murder so long as he intended to engage in reckless Conduct manifesting an extreme indifference to the value of human life.

We need not, however, decide upon the general application of the attempt statute for there is ample legislative history to assist us in determining the narrower question of whether one can 'attempt' a crime involving an element of recklessness.

ORS 163.195 provides:

'(1) A person commits the crime of recklessly endangering another person if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.

'(2) Recklessly endangering another person is a Class A misdemeanor.'

We quote at length from the Commentary to this provision of the Criminal Law Revision Commission (Commission) because it is in point:

'This section creates a new offense known as recklessly endangering another person. This offense is designed to prohibit reckless conduct which places another person in danger of serious bodily harm. The statute covers potential risks as well as cases where a specific person is within the zone of danger.

'In the area of offenses involving danger to the person, there are three areas where reckless conduct is made criminal:

'(1) If it causes death it is manslaughter.

'(2) If it causes injury it is assault.

'(3) If it causes neither death nor injury it is recklessly endangering another person.

'This may be illustrated by the following example: X, without any specific intent to injure or kill recklessly, shoots into a crowd. If death results, the crime is murder; ¹ if injury results, the crime is assault; if neither death nor injury results, the crime is recklessly endangering another person.

'An unsuccessful attempt to cause intended physical injury is an attempted assault. Reckless conduct which is likely to cause physical injury, but does not do so, does not constitute attempted assault for One cannot attempt to act recklessly. There must be intent or knowledge before there can be an attempt. As an example, if X recklessly throws a rock through the window of a house without knowing or caring whether anyone is within, he is guilty of assault if anyone is injured, but if no one is injured, he is not guilty of attempted assault but he is guilty of recklessly endangering another person.' (Emphasis supplied.) Commentary, Proposed Oregon Criminal Code (hereinafter 'Commentary') 97 (1970).

The state argues that the 'recklessly endangering' statute, and the Commentary thereon, includes only situations which, if death results, would constitute manslaughter. The state concludes that 'the legislature did not intend the more serious conduct to go unpunished but intended the conduct to be included within the statutory concept of attempt.'

We do not agree. First, the state apparently overlooks the Comment, above, that '(i)f death results' from shooting in a crowd, 'the crime is murder.' Additionally, the entire statutory scheme must be considered. The revisions to the criminal code provide for three degrees of assault offenses. ORS 163.165, 163.175, 163.185. ² When the assault statutes are read along with the murder, manslaughter, and recklessly endangering statutes, ORS 163.115, 163.125, 163.195, as well as various other statutes dealing with offenses against persons in ORS ch. 163, ³ it is evident that three considerations are often present: the type of culpable mental state, ⁴ the means used by the offender, and the injury which results.

In the Commentary to the murder statute, ORS 163.115, the Commission clearly considered that a reckless shooting, where death resulted, could constitute either murder or manslaughter. Referring to a reckless killing, the Commission notes:

'* * * The draft section is meant to cover situations such as one shooting into a crowd or an occupied house or automobile. Where a jury...