STATE v. BOOTS

LINDE, Justice.

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.1 We hold that this instruction should not have been given.

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.2

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 capital ("first degree") murder requires a unanimous verdict.

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).3 The trial court instructed the jury:

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 resulted from defendant's intent to maim the victim. The instruction would tell jurors to return a verdict of aggravated murder, although some do not believe that the officer was present in an official capacity and others do not believe that defendant was paid, or intended to maim, or that there was a robbery or an intent to conceal it. In short, the instruction relieves the jury from seriously confronting the question whether they agree that any factual requirement of aggravated murder has been proved beyond a reasonable doubt, so long as each juror is willing to pick one theory or another.

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 161.095.4 Of course jurors cannot convict a defendant if they unanimously agree that he intended to kill a person but only half believe that he did so. No more can they convict if they unanimously agree that a defendant's act caused a person's death but only half believe that he acted intentionally. The same is true if jurors agree that a defendant's act caused a person's death but do not agree that the defendant committed a felony, or vice versa.

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 obvious when the state charges a defendant both under ORS 163.095(2)(d) and under ORS 163.095(2)(e). In order to convict, the jury must unanimously agree on the facts required by either subsection. Indeed, they may agree on both, if both are proved beyond a reasonable doubt.

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.5 Many of them involve issues different from the present case and are not in point.6 Some are decisions of intermediate courts which, of course, may control the practice in those states but may prove to be erroneous when the state's highest court addresses the issue.7 The weakness of such citations appears from the fact that the Hazelett opinion of our own Court of Appeals, which we find to have been wrong, was cited as authority in opinions from other states that now are cited to us. See, e.g., State v. Wilson, 220 Kan. 341, 552 P.2d 931, 936 (1976); James v. State, 637 P.2d 862, 866 (Okl.Crim.App. 1981). The result may be summarized as showing that the problem has proved difficult and that this court must itself analyze it under the applicable statutes and constitutional guarantees.

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 guilty defendant to escape accountability under the law because jurors could not unanimously choose beyond a reasonable doubt which of several alternate ways the defendant actually participated, even though all agree that he was, in fact, a participant." 280 N.W.2d at 293. The quotation is not persuasive. It seems questionable to characterize a person as "the guilty defendant" who will "escape accountability" when the issue for the jury is whether every element of the person's guilt has been proved. And "accountability under the law" is provided when a person is prosecuted; if a jury does not convict, one would not refer to a "guilty defendant" who "escape[s] accountability." Nor is the question whether a jury could "choose" between different ways in which a defendant participated in the crime. It is not a matter of "choosing" but of factfinding. If more than one way is charged and proved to the jury's unanimous satisfaction, the jury need not "choose" and there is no difficulty. The problem arises precisely when none of the alternative ways has been proved to the satisfaction of all jurors, when one or more jurors is in doubt about each of the alternatives charged. We are not speaking here of factual details, such as whether a gun was a revolver or a pistol and whether it was held in the right or the left hand. We deal with facts that the law (or the indictment) has made essential to a crime.

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.8

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 457-58.9 The Gipson opinion comes closer to the present case than do cases like Holland under statutes defining who besides the primary actor is a principal. Nothing in ORS 163.095 or in ORS 136.450 requires or supports an instruction that, as Gipson notes, creates serious constitutional doubts.

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.