Tarwater v. Cupp

• Decision Date: 06 January 1988
• Citation: 304 Or. 639,748 P.2d 125
• Parties: Ronald TARWATER, Respondent on Review, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Petitioner on Review. TC 144,280, CA A37898, SC S33884.
• Court: Oregon Supreme Court

Page 125

748 P.2d 125

304 Or. 639

Ronald TARWATER, Respondent on Review, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary Petitioner on Review.

TC 144,280, CA A37898, SC S33884.

Supreme Court of Oregon In Banc.

Argued and Submitted Sept. 3, 1987.

Decided Jan. 6, 1988.

Terry Ann Leggert, Asst. Atty. Gen., Salem, argued the cause and filed the briefs for petitioner on review. With her on the briefs were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Stephen H. Gorham, Salem, argued the cause and filed the briefs for respondent on review.

CAMPBELL, Justice.

This is a post-conviction case. The issues are whether the jury instructions on lesser included offenses were "acquittal first" instructions in violation of the Allen-Ogden rule ¹ and, if so, did Tarwater receive inadequate assistance of counsel because his trial counsel requested the instructions. We answer both issues in the affirmative. We affirm the Court of Appeals which reversed the post-conviction court in part. 84 Or.App. 233, 733 P.2d 912 (1987).

In 1978 the petitioner Tarwater was found guilty by a jury of two counts of KIDNAPPING IN THE SECOND DEGREE, two counts of RAPE IN THE FIRST DEGREE, and three counts of SODOMY IN THE FIRST DEGREE. He was sentenced to a term of imprisonment in the Oregon State Penitentiary. His appeal to the Court of Appeals was affirmed from the bench. State v. Tarwater, 43 Or.App. 473, 604 P.2d 459 (1979).

In November 1984 Tarwater filed his "THIRD AMENDED PETITION FOR POST CONVICTION RELIEF" in this case which in relevant part alleged:

"Petitioner believes his imprisonment was, and is, illegal and the illegality thereof consists of the following:

" * * *.

"E) Petitioner was denied the assistance of effective counsel under the Sixth and Fourteenth Amendments of the Constitution of the United States and under Article One, Section XI [sic] of the Constitution of Oregon in that:

" * * *

"c) Counsel requested that improper jury instructions be read to the jury on lesser included crimes which were coercive and illegal and therefore denied Petitioner a fair trial and due process of law."

Tarwater is complaining about five lesser included offense jury instructions which his counsel requested and the trial court gave in the rape and sodomy counts. The instruction given in one of the separate counts demonstrates Tarwater's concern:

"Now, with reference to the crime charged in Count III of the Indictment, although the defendant is charged in that Count with the crime of Rape in the First Degree, you have the right to determine in that Count that the defendant has committed a crime of lesser degree, provided that you are not satisfied beyond a reasonable doubt that he has committed the crime as charged, but you are satisfied beyond a reasonable doubt that he has committed a crime of lesser degree. I instruct you that as a matter of law, under the facts in this case, Rape in the Third Degree is a crime of lesser degree to Rape in the First Degree." (Emphasis added.)

The other four instructions in question vary only as to the crime charged and the lesser included crime--the basic language of all five instructions is the same.

Tarwater contends that the emphasized language in the above quoted instruction makes it an "acquittal first" type of instruction which is prohibited by State v. Allen, 301 Or. 35, 717 P.2d 1178 (1986) and State v. Ogden, 35 Or.App. 91, 580 P.2d 1049 (1978).

The post-conviction court dismissed Tarwater's petition. Under the heading of "FINDINGS OF FACT" it stated that Tarwater had failed to sustain his burden of proof "in proving ineffective assistance of counsel" and that the jury instructions in question "are distinguished from the instruction forbidden by State v. Ogden, 35 Or.App. 91, 580 P.2d 1049, 1978, and were not prejudicial" to Tarwater. ² It entered a conclusion of law that "the representation by counsel was reasonable under the circumstances."

Tarwater appealed to the Court of Appeals and claimed among other things that the post-conviction court was in error in holding that the instructions in question were distinguishable from the Ogden type instructions.

The defendant Superintendent of the Penitentiary (Superintendent) argued in his brief in the Court of Appeals:

"The instruction below did not require the jury to first acquit petitioner of the charged offense. It allowed consideration of the lesser offense if the jury 'were not satisfied beyond a reasonable doubt that [petitioner] committed the crime as charged.' Thus, the jury could consider the lesser charge either where it 'acquitted' on the first charge or if the jury was simply undecided on that charge. This satisfies the test of State v. Ogden.

"Since the instruction was adequate and non-prejudicial, it follows counsel need not have objected to it at trial." ³ (Emphasis in original.)

The Court of Appeals reversed the post-conviction court and in effect held that the instructions were improper because they were "acquittal first" instructions in violation of State v. Ogden, supra, and that the trial counsel's request of them was ineffective assistance of counsel. The Court of Appeals quoted one of the instructions and then said:

"It told the jurors that they should consider the lesser-included offense only if they did not find petitioner guilty of the first degree offenses beyond a reasonable doubt. The court erred in giving that instruction, because it required the jury to reach a verdict on the offenses charged before considering any lesser included offenses. State v. Martin, 64 Or App 469, 471, 668 P2d 479 (1983); State v. Ogden, supra. (Emphasis in original)."

84 Or.App. at 235, 733 P.2d 912.

We allowed the Superintendent's petition for review. In this court the Superintendent has shifted from his position in the Court of Appeals. He continues to argue that the instructions were not improper under the previous Court of Appeals decisions and this court's decision in State v. Allen, supra, but if the instructions were improper the errors were inconsequential under Krummacher v. Gierloff, 290 Or. 867, 627 P.2d 458 (1981) and harmless under Oregon Constitution Article VII (Amended), section 3, because the lesser included instructions should never have been submitted to the jury in the first place under State v. Washington, 273 Or. 829, 543 P.2d 1058 (1975). In other words, the Superintendent is arguing that Tarwater received more than he was entitled to in the trial court and therefore his counsel's submission of the instructions could not be ineffective or inadequate assistance. ⁴

This case was briefed and argued in the Court of Appeals on the simple head-to-head issue of whether the instructions in question were "acquittal first" instructions in violation of State v. Allen, supra, and State v. Ogden, supra. ⁵ The Superintendent specifically referred to the instructions as "adequate" and "non-prejudicial." Nowhere in the limited record before us did the Superintendent argue otherwise prior to his petition for review in this court.

The Superintendent cannot at this stage of the proceedings shift his position and claim that the instructions were inconsequential or harmless because it was improper to give them in the first place. Appellate courts do not ordinarily allow issues to be raised for the first time on appeal. See State v. Hickmann, 273 Or. 358, 360, 540 P.2d 1406 (1975); Top Service Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 582 P.2d 1365 (1978); Kubik v. J & R Foods of Oregon, Inc., 282 Or. 179, 577 P.2d 518 (1978); Leiser v. Sparkman, 281 Or. 119, 573 P.2d 1247 (1978).

Our review in this case is limited to whether the lesser included jury instructions requested by Tarwater's trial counsel were "acquittal first" instructions prohibited by State v. Allen, supra, and State v. Ogden, supra. We hold that the instructions were improper. They told the jury that it could consider the lesser offenses only after it was not satisfied beyond a reasonable doubt that Tarwater had committed the crime charged. In other words, if the jury acquitted Tarwater of the crime charged then, and only then, could it consider the lesser included crimes.

Our review in the context of this case is also based upon the premise that it was proper for Tarwater to request the trial court to give lesser included instructions if they did not violate the Allen-Ogden rule.

In State v. Allen, supra, we held that the giving of an "acquittal first" instruction had a coercive effect on the jury. 301 Or. at 41, 717 P.2d 1178. That being true, it follows that Tarwater was prejudiced and did not have a fair trial because of the inadequate assistance of the counsel who requested the instructions. Krummacher v. Gierloff, supra. Oregon Constitution, Article I, section 11.

We affirm the decision of the Court of Appeals which "reversed and remanded with instructions to order new trial on rape and sodomy counts only; minimum sentence vacated; ⁶ [and] otherwise affirmed" the post-conviction court. 84 Or.App. at 236, 733 P.2d 912.

GILLETTE, Justice, concurring.

On the merits of this case, the disagreement among members of the court is over whether the instructions given required acquittal first. If they did, all would agree they were erroneous. The dissent does not so read them. I do. I therefore join the majority. I write separately only to point out an issue likely to arise as a consequence of our decision today and to voice my own view as to how that issue should be resolved.

The present Uniform Criminal Jury Instruction on the problem we address today, UCrJI No. 1009 (revised December, 1986), provides:

"When you deliberate you should first consider the charged offense and, if you find the defendant not guilty on the charged offense, or if you cannot agree on a verdict on the charged offense, you should then consider the lesser included offense." (Emphasis supplied.

While the phrase in the...