State v. Wille

• Citation: 858 P.2d 128,317 Or. 487
• Parties: STATE of Oregon, Respondent on Review/Petitioner on Review, v. Michael Paul WILLE, Petitioner on Review/Respondent on Review. CC C890382CR; CA A62688; SC S39650, S39844.
• Decision Date: 02 September 1993
• Court: Supreme Court of Oregon

Page 128

858 P.2d 128

317 Or. 487

STATE of Oregon, Respondent on Review/Petitioner on Review, v. Michael Paul WILLE, Petitioner on Review/Respondent on Review.

CC C890382CR; CA A62688; SC S39650, S39844.

Supreme Court of Oregon In Banc.

Argued and Submitted March 3, 1993.

Decided Sept. 2, 1993.

Appeal from Washington County Circuit Court, Donald C. Ashmanskas, Judge. 115 Or.App. 47, 839 P.2d 712 (1992).

[317 Or. 488-A] Eric R. Johansen, Deputy Public Defender, Salem, argued the cause for petitioner on review/respondent on review Wille. Also on the petition was Sally Avera, Public Defender, Salem.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause for respondent on review/petitioner on review State of Oregon. With her on the petition were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. Also on the response were Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Brenda J. Peterson, Janet A. Klapstein, and Diane S. Lefkow, Asst. Attys. Gen., Salem.

CARSON, Chief Justice.

Defendant was convicted of the aggravated murder of his estranged wife. He was sentenced to life imprisonment without possibility of parole, as provided in ORS 163.105(1)(b). On appeal, the Court of Appeals affirmed that conviction, vacated convictions for lesser-included offenses related to the underlying felonies, ¹ and remanded the case to the circuit court for resentencing to life imprisonment rather than life imprisonment without possibility of parole. State v. Wille, 115 Or.App. 47, 839 P.2d 712 (1992). Both defendant and the state petitioned for review. We allowed defendant's petition to consider issues related to the affirmative defense of extreme emotional disturbance. We allowed the state's petition to consider sentencing issues. On review, we affirm the decision of the Court of Appeals, in part on different grounds.

The facts as summarized by the Court of Appeals are not disputed:

"Defendant was very upset that his wife had filed for a dissolution. She was living with her mother and had obtained a temporary restraining order preventing him from entering her residence. After she filed the dissolution action, defendant told a number of people that he wanted to kill her. On February 23, 1989, he told an acquaintance from work that he should have done to his wife what he had planned to do in the first place, and he made a stabbing motion. Early that evening, defendant called his wife, who told him that she did not want to talk and hung up. He returned to work and, from there, called a friend and said that he wanted to go kill his wife. Defendant left work about 9:00 p.m. and went to his wife's residence. He kicked the door in, went in and said, 'This is it.' He then grabbed her and pulled her out of the house.

"About 9:30 p.m., a neighbor heard a loud noise on his deck. Defendant and his wife, both covered with blood, burst through his back door. The neighbor attempted to push them out, but defendant stabbed his wife a couple of times before the neighbor managed to push him out the door and shut it. The neighbor then called 911. Another neighbor heard the commotion, came over and saw defendant slumped against a tree with deep cuts on his wrist. Defendant told him, 'Don't worry about me * * * go check on my wife * * * I have just stabbed my wife * * * I have just killed my wife.' The sheriff arrived, saw defendant, then entered the house and found defendant's wife dead. The medical examiner determined that she had died from a stab wound to her heart.

"Defendant was charged with three counts of aggravated murder, with underlying crimes of one count of kidnapping in the second degree and two counts of burglary in the first degree. His entire defense to the murder charge was that he lacked the requisite mental state to support a conviction for murder. He filed a notice of intent to rely on EED as a partial defense. ORS 163.118(1)(b); ORS 163.135(1).[ ² He pled not guilty and was tried by a jury. The trial court advised the jury that the EED defense could reduce the crime of intentional murder to manslaughter in the first degree but that the defense did not apply to the felony murder or aggravated murder charges. Defendant was found guilty of all offenses charged in the indictment." State v. Wille, supra, 115 OrApp at 49-50, 839 P.2d 712.

We first examine the issues raised by defendant's petition for review.

DEFENSE OF EXTREME EMOTIONAL DISTURBANCE

Defendant contends that the trial court improperly instructed the jury about the affirmative defense of extreme emotional disturbance (EED) ³ and erroneously excluded testimony by defendant's expert witness related to EED.

A. Jury Instructions.

Defendant's first challenge is to the trial court's jury instructions concerning the EED defense. The trial court instructed the jury that defendant had raised the defense of extreme emotional disturbance and that the EED defense, if proved by a preponderance of the evidence, would reduce an intentional homicide that otherwise would constitute murder to manslaughter in the first degree. The court further instructed the jury that the EED defense applied only to the lesser-included offense of intentional murder, but not to the charge of aggravated felony murder or to the lesser-included offense of felony murder. Defendant excepted to those instructions, arguing that EED is a defense to aggravated felony murder.

1. Aggravated Murder.

The Court of Appeals concluded that, because the jury determined by special verdict that defendant had not made out the affirmative defense, the court did not need to reach the question whether EED can be asserted as a defense to a charge of aggravated murder. 115 Or.App. at 51-52, 839 P.2d 712. The Court of Appeals later answered the question that it left open in this case. In State v. Hessel, 117 Or.App. 113, 119, 844 P.2d 209 (1992), ⁴ that court held that EED is not a defense to aggravated murder.

If, as defendant argues, the trial court committed prejudicial error in limiting expert testimony about his asserted EED defense and in instructing the jury on that defense, then the jury's special verdict rejecting the EED defense would not resolve the claim of error. For that reason, and because this issue already has recurred and been addressed in Hessel, we address the ultimate question: Was defendant entitled to present an EED defense to the crime of aggravated felony murder?

The legislature has answered that question plainly. EED is a defense to the crime of intentional murder, and to no other crime:

"It is an affirmative defense to murder for purposes of ORS 163.115(1)(a) that the homicide was committed under the influence of extreme emotional disturbance * * *. Extreme emotional disturbance does not constitute a defense to a prosecution for, or preclude a conviction of, * * * any other crime." ORS 163.135(1). (Emphasis added.)

Aggravated felony murder is a different crime than intentional murder; therefore, under ORS 163.135(1), extreme emotional disturbance is not a defense to aggravated felony murder. The trial court correctly instructed the jury that EED is not a defense to aggravated felony murder.

2. Intentional Murder.

The trial court also was correct in instructing the jury that EED is a defense to the lesser-included offense of intentional murder, because intentional murder is a lesser-included offense of aggravated murder and EED is a defense to intentional murder. ORS 163.115(1) defines murder as criminal homicide:

"(a) When it is committed intentionally, except that it is an affirmative defense that, at the time of the homicide, the defendant was under the influence of an extreme emotional disturbance;

"(b) When it is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit any of the following crimes and in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom, the person, or another participant if there be any, causes the death of a person other than one of the participants:

"(A) Arson in the first degree * * *;

"(B) Criminal mischief in the first degree by means of an explosive * * *;

"(C) Burglary in the first degree * * *;

"(D) Escape in the first degree * * *;

"(E) Kidnapping in the second degree * * *;

"(F) Kidnapping in the first degree * * *;

"(G) Robbery in the first degree * * *;

"(H) Any felony sexual offense in the first degree * * *; or

"(I) Compelling prostitution * * *; or

"(c) [Murder by abuse of a child under 14 years of age]."

When we use the term "intentional murder," we refer to the crime defined in ORS 163.115(1)(a). We refer to ORS 163.115(1)(b) as "felony murder."

Aggravated murder is defined in ORS 163.095 as "murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances." The statute goes on to list 17 separate aggravating circumstances. A conviction must be based on jury findings of murder, ORS 163.115, plus all the elements of an aggravating circumstance. State v. Boots, 308 Or. 371, 780 P.2d 725 (1989).

Defendant was charged under ORS 163.095(2)(d), ⁵ a category commonly called "aggravated felony murder." The 16 other possible aggravating circumstances relate specifically to aggravation of an underlying crime of intentional murder, as defined by ORS 163.115(1)(a). In contrast, the underlying crime of aggravated felony murder is felony murder, as defined by ORS 163.115(1)(b), but, the aggravating circumstance is that a defendant committed the homicide "personally and intentionally." ORS 163.095(2)(d). (Emphasis added.)

The legislature has defined the term "intentionally" in the criminal code to mean "with a conscious objective to cause the result or to engage in the conduct" described by a statute defining an offense. ORS 161.085(7). Because there is no special definition of "intentionally" in either ...