Defendant appealed his conviction of aggravated murder, asserting four assignments of error in the Court of Appeals. That court affirmed the conviction. State v. Boots, 94 Or.App. 713, 767 P.2d 450 (1989). We allowed review limited to the propriety of the trial court's instruction that the jury need not agree on the factual circumstance that made the homicide aggravated murder as distinct from simple murder.
An intentional homicide, or a homicide committed in connection with one of nine felonies listed in ORS 163.115(1), constitutes the crime of murder under that section. It is not disputed that the jury agreed that defendant committed murder. Murder carries a sentence of life imprisonment with a minimum of at least ten years without parole and potentially a longer minimum term. ORS 163.115(3).
"Aggravated murder" is a murder that includes one or more of a variety of additional facts. ORS 163.095. That section requires proof beyond a reasonable doubt of at least one of the 17 different facts, two of which were charged here.
Aggravated murder is a capital offense. ORS 163.105. We must therefore decide this case in light of the command not only of ORS 136.450 but also of Article I, section 11, of the Oregon Constitution that
The indictment charged two theories of aggravated murder. One theory was that the homicide was committed "in the course of and in furtherance of committing Robbery in the First Degree," which is one of the felonies listed in ORS 163.115 that are incorporated in ORS 163.095(2)(d) when the defendant personally and intentionally committed the homicide. The second theory was that defendant committed the homicide in order to conceal the identity of the perpetrators of the robbery, ORS 163.095(2)(e).
The propriety of the instruction must, of course, be judged for all potential cases charging multiple alternative theories under ORS 163.095. It does not depend on the evidence in the particular case, assuming that there is sufficient evidence to submit each factual allegation to the jury, as there was here.
The factual finding required for conviction under subsection (2)(d) of ORS 163.095 differs from the finding required under subsection (2)(e). A defendant may have killed a victim in order to conceal the commission of a robbery or of the identity of the robber, whether or not the defendant participated in the robbery. Or the defendant may have personally killed a person in the course of a first degree robbery without having any thought of concealing the identity of the robber, which may be known to numerous witnesses. The challenged instruction explicitly tells jurors to return a verdict of aggravated murder even if some of them doubt that the defendant was a participant in the robbery but believe that he meant to conceal it and others believe that defendant was a robber but not that concealing the crime played a role in the killing.
The implications go further. In another case, there could be several charges under different subsections of ORS 163.095 in addition to a robbery and an intent to conceal, for instance, that the defendant was paid to commit the murder, that the victim was a police officer, and that the death
The Court of Appeals nevertheless approved the instruction, relying on its prior decisions in State v. Hazelett, 8 Or.App. 44, 492 P.2d 501 (1972), and State v. Bruno, 42 Or.App. 539, 600 P.2d 948 (1979), which involved alternate theories of premeditated and felony murder. The court quoted the following passage from Hazelett:
State v. Boots, supra, 94 Or. App. at 718, 767 P.2d 450. The Hazelett court stated that this court had decided the issue against defendant in State v. Reyes, 209 Or. 595, 303 P.2d 519 (1957). 8 Or. App. at 48, 492 P.2d 501.
That was erroneous, as the Court of Appeals in the present case recognized. The point decided in Reyes was that under the indictment in that case the prosecutor did not have to elect between premeditated and felony murder, and if there was evidence of either theory, the state was entitled to have the jury instructed on both theories. 209 Or. at 621, 303 P.2d 519. Reyes did not hold that the jury need not be unanimous, that it sufficed if half of them believed that there was a felony but no premeditation and the other half believed that there was premeditation but no felony. The Court of Appeals therefore correctly noted that this court has yet to decide the question. 94 Or. App. at 718 n. 6, 600 P.2d 948. In fact we allowed review in State v. Bruno, supra, but that decision ultimately was affirmed by an evenly divided court. State v. Bruno, 290 Or. 159, 619 P.2d 648 (1980).
Apart from lacking support, on its merits the quoted passage from Hazelett is insupportable. There is no basis for distinguishing between jury agreement on the act required for criminal liability and on the mental element that makes the act culpable. The act and the culpable mental state are equally essential for any crime that requires a culpable mental state. ORS 161.095.
The need for unanimity is obvious when a charge under ORS 163.095(2)(d) of intentional killing in furtherance of first degree robbery stands alone. It is obvious when a charge under ORS 163.095(2)(e) of killing in order to conceal the crime or the perpetrator stands alone. It should be no less
The challenged instruction therefore is wrong in principle. The state, however, cites a number of decisions around the country to the contrary. We have examined the cited decisions. Some of these support the state's position in broad terms, although the statutes differ.
The state particularly relies on Holland v. State, 91 Wis.2d 134, 280 N.W.2d 288 (1979), cert. den. 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980). The state quotes a passage to the effect that a rule requiring unanimous jury agreement on "the manner in which the defendant participated in the crime" would "permit the
Moreover, the Wisconsin court's holding in Holland v. State, supra, stops well short of the state's position in the present case. Holland was charged with murder as a party to a sex crime that had fatal consequences, and the issue concerned instructions under a statute that defines a party to a crime as one who directly commits the crime, intentionally aids and abets its commission, or conspires, advises, hires, counsels or procures its commission. 280 N.W.2d at 290 n. 2. In other words, the statute makes one a principal if one personally commits the crime and also if one participates in a less direct role. That is closer to the situation we faced in State v. Mendez, 308 Or. 9, 774 P.2d 1082 (1989), than to this case. There a defendant was charged with felony murder based on an underlying felony which was charged as kidnapping in the first degree. The jury voted unanimously to convict the defendant of felony murder, but only 11-1 to convict him of kidnapping in the first degree, and the defendant appealed on grounds that the votes were inconsistent. We held that they were not inconsistent, because the juror who dissented from the guilty verdict on the first degree kidnapping charge might have been convinced that the defendant had committed the lesser included offense of kidnapping in the second degree, an offense that also would suffice for that juror's vote to convict the defendant of felony murder. 308 Or. at 14, 774 P.2d 1082. Regardless how we would decide the actual issue in Holland — conviction as a principal either by direct action or by less direct participation — no similar inclusion of lesser degrees of participation in statutory responsibility as a principal is involved in ORS 163.095(2)(d) and ORS 163.095(2)(e). Holland leaves open how the Wisconsin court would decide the present issue if it came before that court.
A decision which Holland described as the leading federal case on the broader question is United States v. Gipson, 553 F.2d 453 (5th Cir.1977). Gipson was charged not with a homicide but as a person who "receives, conceals, stores, barters, sells or disposes of" a stolen vehicle in interstate commerce. Id. at 455 n. 1. The trial judge told the jurors that they need not agree which of these acts Gipson had done. Id. at 455-56. In the opinion remanding the case for a new trial, Judge Wisdom wrote:
United States v. Gipson, supra, 553 F.2d at 457-58.
What led the Hazelett court astray was the simple error of counting and adding those jurors who are convinced of any one distinct statutory element rather than focusing, for each element, on the jurors who may not be convinced of that element, though they separately might convict on their own, equally nonunanimous, view of the decisive facts. Under the proper focus — the possible dissent of some jurors from any one factual finding — the principle of decision is evident. The instruction that the jury need not unanimously agree either on the charge under ORS 163.095(2)(d) or on the charge under ORS 163.095(2)(e) was error. On remand, the state may choose whether to reduce the defendant's conviction and sentence to murder under ORS 163.115 or to retry the charge of aggravated murder.
The decision of the Court of Appeals is reversed. The circuit court's judgment of conviction of aggravated murder is reversed and the case is remanded to the circuit court for further proceedings.
Several citations are not homicide cases. See State v. James, 698 P.2d 1161 (Alaska 1985) (first degree assault); Wells v. Commonwealth, 561 S.W.2d 85 (Ky. 1978) (same); Rice v. State, 311 Md. 116, 532 A.2d 1357 (1987) (theft).
In some of the cited cases, the court decided that the jury actually was unanimous upon one theory because all of the facts of that theory were subsumed within the alternative theory as well. State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984) (in alternative of robbery and attempted robbery, jury was unanimous that defendant at least attempted robbery); Tyler v. United States, 495 A.2d 1180 (D.C. 1985) (second degree burglary; all jurors must have thought defendant was guilty of aiding and abetting, although some may have also thought he was the principal).
In other cases, the court decided that the alternative factual details had no separate legal importance. State v. Flathers, 57 S.D. 320, 232 N.W. 51 (1930) (jury unanimity about whether the defendant intended to kill his victim or her companion was unnecessary where the culpability element could be shown by an intent to kill anyone); Gray v. United States, 544 A.2d 1255 (D.C. 1988) (jury unanimity about physical specifics of a sexual attack was unnecessary where the court decided that all the events described by the prosecution constituted one rape); State v. Souhrada, 122 Mont. 377, 204 P.2d 792 (1949) (in a conviction for vehicular manslaughter, the jury did not need to agree on what negligent or reckless act caused the death); State v. Giwosky, 109 Wis.2d 446, 326 N.W.2d 232 (1982) (injury by multiple blows occurring within a short continuous incident).