State v. Wille

• Decision Date: 22 January 1993
• Citation: 839 P.2d 712,115 Or.App. 47
• Parties: STATE of Oregon, Respondent, v. Michael Paul WILLE, Appellant. C890382CR; CA A62688.
• Court: Oregon Court of Appeals

Page 712

839 P.2d 712

115 Or.App. 47

STATE of Oregon, Respondent, v. Michael Paul WILLE, Appellant.

C890382CR; CA A62688.

Court of Appeals of Oregon.

Argued and Submitted April 26, 1991.

Decided Aug. 26, 1992.

Reconsideration Denied Dec. 21, 1992.

Review Allowed Jan. 22, 1993.

Eric R. Johansen, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Acting Public Defender.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., Brenda J. Peterson, Janet A. Klapstein, and Diane S. Lefkow, Asst. Attys. Gen., Salem.

Before RICHARDSON, P.J., JOSEPH, C.J., ^* and DEITS, J.

DEITS, Judge.

Defendant seeks reversal of his convictions for aggravated felony murder based on two counts of burglary in the first degree, ORS 163.095, ORS 164.225, kidnapping in the second degree, ORS 163.225. He assigns error to the exclusion of a psychiatrist's testimony regarding his emotional condition, to an instruction that the extreme emotional disturbance defense (EED) does not apply to aggravated murder, to the retroactive application of amendments to ORS 163.105 and ORS 163.150 relating to a sentence of life imprisonment without possibility of parole and to the entry of convictions on the felonies underlying the aggravated murder charges.

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). 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.

Defendant first argues that EED, which is a defense to intentional murder under ORS 163.115(1)(a), is also a defense to felony murder under ORS 163.115(1)(b) and to aggravated felony murder under ORS 163.095(2)(d) and that the trial court erred in instructing the jury that it was not a defense to those crimes. The court instructed the jury:

"Extreme emotional disturbance does not apply to aggravated murder nor to the lesser and [sic ] included offense of felony murder and it may not be used to reduce the responsibility of the defendant for either of these offenses. Extreme emotional disturbance only applies to the lesser and [sic] included offense of murder.

" * * * * *

"I instructed you earlier that extreme emotional disturbance does not apply to aggravated murder, nor to the lesser [and] included offense of felony murder and it may not be used to reduce the responsibility of the defendant for either of these offenses. Extreme emotional disturbance only applies to the lesser and [sic ] included offense of murder."

In State v. Atkinson, 80 Or.App. 54, 57, 722 P.2d 9, rev. den. 302 Or. 36, 726 P.2d 935 (1986), we explained the differences between the kinds of homicide. What is commonly called "intentional murder" is defined in ORS 163.095(1)(a) as criminal homicide committed intentionally. "Felony murder," defined in ORS 163.115(1)(b), is criminal homicide

"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:

" * * * * *

"(C) Burglary in the first degree as defined in ORS 164.225;

" * * * * * "(E) Kidnapping in the second degree as defined in ORS 163.225."

"Aggravated murder" is intentional or felony murder committed under, or accompanied by, circumstances that the legislature has determined warrant enhanced penalties. ORS 163.095. A felony murder under ORS 163.115(1)(b) is "aggravated felony murder" when the accused "personally and intentionally" commits the homicide. ORS 163.095(2)(d). Thus, aggravated murder always includes intentional murder, felony murder or both as lesser included crimes.

Defendant contends that the statutes conflict as to whether the EED defense is available for felony murder and for aggravated murder. He asserts that, because "defendant is entitled to the most beneficial interpretation" of the statutes and because the legislature so intended, we should construe the statutes to allow the EED defense to felony murder and to aggravated murder.

It is not necessary to address this issue, however, because, after giving general instructions on aggravated murder and EED, the trial court instructed the jury to give a special verdict as to whether defendant had proven an EED defense:

"I instructed you earlier that extreme emotional disturbance does not apply to aggravated murder, nor to the lesser and [sic] included offense of felony murder and it may not be used to reduce the responsibility of the defendant for either of these offenses. Extreme emotional disturbance only applies to the lesser and [sic] included offense of murder.

"Notwithstanding that instruction, I am submitting to you a special verdict form which asks you to answer the following question:

"If you find the defendant guilty of the charged crime of aggravated murder in any count * * *, did the defendant prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance?" Answer: There is a space for either 'yes' or 'no.'

"Please do not concern yourself as to my reason for submitting this question to you."

The jury specifically found that defendant had not proven the affirmative EED defense by a preponderance of the evidence. Defendant, therefore, could not have been harmed by the instruction that EED was not a defense to aggravated murder or felony murder. Defendant also argues that the court erred in not giving the EED defense instruction that he requested. However, the jury was properly instructed on EED under the intentional murder charge. For the reasons discussed above, even if defendant's instruction should have been given, failure to give it was harmless error.

Defendant next argues that, by excluding certain evidence, the trial court prevented him from presenting his EED defense and from otherwise showing that he lacked the requisite mental state to support a conviction of aggravated murder. He assigns error to the trial court's exclusion of part of the proposed testimony of Dr. Janzer, a psychiatrist, which defendant offered as relating to defendant's intent and state of mind at the time of the criminal episode.

Before the beginning of defendant's presentation of evidence, the state moved to exclude Janzer's testimony regarding his opinion about defendant's claim that he had amnesia related to the criminal episode and could not remember certain parts of it. The prosecutor told the court that he did not object to general testimony about amnesia or to testimony as to what defendant told the doctor. The prosecutor said:

"Apparently there is a significant omission on [defendant's] part regarding how the knife got into his hand and how [his wife] was stabbed. He couldn't apparently, according to the notes I received, couldn't tell Janzer what happened then. 'I don't know how the knife got in my hand and I don't know how she got stabbed.' Now, I think [Janzer] can certainly testify that [defendant] told him, 'I don't remember that stuff'; but, for that person to go further and say, 'I think this amnesia for that short period of time is undoubtedly due to a suppression of a painful memory,' ergo, 'he's not lying when he tells me he doesn't remember.' And that's what the jury will conclude from that. And I don't think that that should be allowed under State v. Milbradt, [305 Or. 621, 756 P.2d 620 (1988),] because it's an absolute comment on the credibility of the defendant by this person."

The trial court excluded Janzer's testimony assessing the reliability of defendan...