*1 4, 1992, modified; Argued Appeals and submitted November decision of Court of judgment of circuit court reversed and case remanded to circuit court for new trial May March reconsideration denied OREGON, OF STATE Review, Petitioner on BOOTS, CHRISTOPHER BLAINE Respondent on Review.
(CC S39368) 10-86-07965; A67325; CA SC
Timothy Sylwester, General, Salem, A. Assistant Attorney the cause for on review. With him argued petitioner on the Crookham, were petition General, Charles S. Attorney L. Linder, General, Solicitor Salem. Virginia Alessi, L. Defender, Salem, Diane Public Deputy argued the cause for on review. With her on the respondent response Avera, Defender, L. Public Salem. Sally
PETERSON, J. Unis, J., Carson, and filed an in which dissented opinion J., J., C. and Fadeley, joined.
573-b *4 PETERSON, J.
We consider this murder case for the time second on question presented whether, review. The first is in the express appellate court, absence of an court order from an a trial may, remand, on order a limited retrial on the existence of an element the offense murder. If a limited permissible, question presented retrial was the second by instructing whether the trial court erred that the proved beyond trial, state, in the first had a reasonable doubt Degree Robbery. that defendant committed First We hold proper, that the trial court order of a limited retrial was that but jury. in its instruction to the the court erred charged in a one-count indictment Defendant aggravated murder, theories of ORS 163.095 alternative (1985), episode. same criminal The indictment based alleged victim in the course of that defendant killed the degree, robbery committing in the first ORS the crime of 163.095(2)(d), identity of the and in an effort to conceal 163.095(2)(e).1 perpetrators The trial crime, ORS of that unanimously agree jury that it need not instructed the agreed long jurors theories, as all of those as on either aggravated murder. The returned defendant committed (1985) part provided: ORS 163.095 “ which is ‘[Aggravated murder as defined in ORS 163.115 murder’ means following under, by, any accompanied circumstances: of the committed or
<<* * * * * “(2)(d) 163.115(l)(b), personally and Notwithstanding the defendant ORS in ORS intentionally the circumstances set forth the homicide under committed 163.115(l)(b). “(e) of a to conceal the commission was committed in an'effort The murder identity perpetrator crime, crime.” of the of a conceal the or to 163.115(l)(b) (1985) part provided: 163.125, consti- provided criminal homicide “Except in ORS 163.118 and as tutes murder when: person other than one any person «* “(b) [*] * * It is committed following [*] committing crimes and by person attempting participants: in the course of * ** who commits or commit, and in furtherance * * * causes attempts to commit the death of of the crime íí* “(G) [*] * * * Robbery in the first degree * *
575 general finding guilty aggravated verdict of murder. Appeals
The Court of
affirmed defendant’s con-
(1989).
App
Boots,
713,
State v.
viction.
94 Or
found
its
verdict on the
guilty
murder count that defendant was
of murder under
163.115,
ORS
and that the instructional error did not affect
implicit finding.
Consequently,
that
reversed the
aggravated murder conviction and remanded with this instruction: remand,
“On the state may choose whether to reduce the defendant’s conviction and sentence to murder under ORS Id. retry 163.115 or to the charge aggravated of murder.” 381.2 retry aggravated remand,
On the state elected to charge, pursuing only theory murder the murder-to-conceal 163.095(2)(e). under ORS trial The state moved to limit the new “only to the determination of whether or not the defen- guilty Aggravated dant is of the enhanced crime of Murder.” granted The trial court At motion. the conclusion of the evidence, the trial court instructed that defendant murdering robbing had been convicted of victim jury’s that the sole function was to determine whether the identity murder was committed in an effort to conceal the perpetrators robbery. returned a verdict of aggravated to the crime of murder. Defendant was imprisonment 20-year sentenced life with a minimum.3 again raising appealed, Defendant various claims of reaching assignments error. Without defendant’s other 2 (1990) (where Brown, See P2d there was State v. Or 163.115, to convict defendant for murder under ORS but sufficient evidence charge aggravated there was reversible error at trial as to the 163.095, retry appellate state to choose whether to court remanded case for the charge murder to one for intentional or to reduce the conviction offense). and to defendant for the latter sentence the simple longer imposed is a minimum than could have been for a This sentence under the law in at the time the offense. See ORS murder conviction effect (1985). 163.105, 163.115 Appeals error, the Court of on reversed remanded ground limiting jury’s that, in sole existence of the consideration
aggravating factor,
the trial court violated
App
Boots,
this court’s remand
order. State
Or
(1992).
By
argues
contrast,
“clear intention of
defendant
the
complete
Supreme
require a
Court” was to
retrial.
has,
occasion,
on
remanded criminal cases
This court
example,
specified
expressly
in
for consideration of
issues. For
Wagner,
P2d
cert
498 US
93,
v.
309 Or
den
State
(1990),
(1990),
P2d 111
this
Moen,
v.
309 Or
State
affirmed the defendants’ convictions for
court
express purpose
cases
of
murder but remanded the
imposed.
conducting
proceedings
penalty
on
to be
further
(1975),
Green,
271 Or
That is not what in was done this court this case. This court’s remand order required neither expressly court trial defendant on of an retry every element aggra- charge, vated murder expressly nor limited the trial court to a the existence of an factor. The order aggravating read nonetheless can be a limited permit Therefore, retrial. whether, consider question we in the absence of an order from this court retrial express limiting the to the factor, existence of the the trial this case aggravating erred retrial limited to whether defendant ordering murdered the victim in order conceal defendant’s identity as the of a perpetrator crime.
There is no question
defendant,
in his original
trial, was tried
found
the lesser-included
guilty of
offense
Boots,
ORS 163.115. State v.
308 Or at
supra,
381.
This court’s
decisions
State v.
and State
Wagner,
supra,
Green,
are
affirmations of
that an error-
principle
free conviction of a criminal offense need not be retried even
though an appellate court has ordered a retrial of a greater
offense which the lesser
is a
offense
lesser-included offense.
*7
(1992)
Ferrell,
213,
See also State
224,
v.
315 Or
P2d 939
843
—
(where the
for
defendants’ convictions
offenses
underlying
manufacture,
of a controlled sub
possession,
delivery
—
stance
were
error,
free from
the Court of
erred in
Appeals
reversing
convictions;
entire
court
remanded
cases to
entry
the trial courts for
of judgments of conviction on those
underlying offenses and for
If all
resentencing).
elements
lesser-included offense
fully
fairly alleged
have been
an
proved,
order a
limited
appellate
may
retrial
element
establishing
greater offense. Under the direc
given
court,
tions
this court to the
the trial court in
by
trial
is,
same,
this case could do
order a
that
retrial
limited to
those issues that
reverse defen
caused
court to
appellate
dant’s conviction on
offense.
greater
Defendant
the limited
violated
argues that
retrial
to be
rights
put
his state and federal constitutional
not
in
for
twice
the same offense.5 Defendant
is incorrect.
jeopardy
that,
appeals
It is well
where a defendant
a conviction
settled
court,
and error
is found
retrial on the
by
appellate
for which the defendant was convicted does
original charge
not violate the state or federal
double
prohibition against
See,
Nelson,
33,
Lockhart v.
488 US
S Ct
jeopardy.
e.g.,
(1988) (the
285, 102
against
L Ed 2d 265
general prohibition
in the
successive
found
Double
Clause
prosecutions
Jeopardy
of the Fifth Amendment
the Constitution of the United
States does not
from
government
retrying
prevent
aside,
whose first
on the defen
defendant
conviction
set
Verdine,
error);
553,
dant’s
due to trial
State v.
290 Or
appeal,
(1981) (for
560-61,
P2d
that
same reasons
trial,
not
does
Fifth Amendment does
bar a second
neither
Constitution).
Article
of the
See also
I,
Oregon
section
131.525(l)(a)
is not a bar to a
prosecution
ORS
(previous,
appealed
where the defendant has
subsequent prosecution
former).
from
resulting
conviction
judgment
Here,
mur-
defendant was convicted of
der,
for that offense was set
ORS 163.095. His conviction
error,
his
conviction for
although
underlying
aside due to trial
Boots,
163.115,
affirmed. State
aggra-
retried for
subsequently
Defendant was
Defendant jury.6 his to trial right by trial court violated ordered it is true Although unpersuasive. This also is argument Constitution, provides part “[n]o I, Oregon in section Article [sic].” Fifth Amend put jeopardy same offence person in twice for the shall be person part provides “[n]o shall the United States ment to the Constitution of ** * jeopardy putin of life or limb.” subject [sic] tobe twice the same offence 136.001(1) provides: OES public right to prosecutions shall have the criminal in all “The impartial jury.”
triad an Constitution, provides part: Oregon Article section right public shall have prosecutions, the accused criminal “In all jury[.]” impartial provides part: States of the United the Constitution The Sixth Amendment *8 speedy enjoy right to a shall prosecutions, the accused “In criminal all trial, by impartial jury[.]” public defendant is entitled to have the state prove to a all jury elements of the offenses of which he is accused, he has received that protection here. This court held in State v. Boots, supra, 308 Or at that the jury defendant’s first had properly found him crime of ORS 163.115. In trial, his second a jury found him guilty of aggravated murder, ORS 163.095. Defendant’s right to trial jury on all elements of the offenses of which he has been convicted has not been violated.
Neither has defendant’s right
to be presumed inno
cent of the crime with which he is charged been violated.7 We
repeat, once again,
that defendant was convicted, without
error,
his first trial of the crime of murder, ORS 163.115.
Boots,
State v.
Or at 381. On that conviction,
lost the benefit of the
presumption
his innocence
as to that crime. See Priest v. Pearce,
For the reasons, above-stated we hold that the trial court did not err in ordering a retrial limited to whether defendant murdered the victim in order to conceal defen- dant’s identity as the perpetrator a crime.
Defendant that, next argues in his trial, second trial court erred in instructing * * * “the state proved beyond a reasonable doubt' that the * * *
Defendant committed the crime Robbery in the First Degree [the during victim] the same incident in which [the ** was shot and victim] killed *.
“The try selected to this case is to take these as estab- lished they facts and are not questioned to be or re-examined. They are considered true for all purposes of this case.”
In trial, defendant’s first the court instructed the jury that the state must prove beyond reasonable doubt provides part: ORS 136.415 presumed “A defendant in a criminal action is to be innocent until
contrary proved.” intentionally [the the Defendant caused the death of “That *9 victim], being, committing in the of another human course Degree, or in an Robbery the crime of the First effort the the identity perpetrators conceal the of of crime.” agreed jurors at one of these Because all least theo- jury necessarily robbery ries, that a had been the found jury necessarily question becomes, The did the committed. find that robbery? committed the defendant argues that, trial, the The state first defendant’s only robbery-murder He to the was alibi. did not defense question was that the victim killed the robber or robbers in robbery. contends, Therefore, a the the course of the state capable of no inter- evidence from the first trial was other pretation whoever killed the victim did so the but that robbing identity per- or to the course of him conceal the of argues petrator robbery. that, The its verdict, of the state jury implicitly rejected defendant’s alibi defense thus robbery. must found that defendant committed have did The returned in first trial not disclose verdict causing guilty of the death of whether defendant was found Robbery” committing another “in the of the crime of course identity perpetrators of the or “to conceal the of the crime.” again from the first trial. Under We have examined record circumstantial, evidence, of all the much which was jury possible killed that the could have found that defendant identity of robber other than victim to conceal the theory aggravated murder Based on the second of himself. (the identity killing of was effort conceal the “an crime”), part jury perpetrators have could believed rationally testimony found defendant’s and nonetheless of that defendant committed murder identity to conceal the of robbery. person that had committed the Under another who aggravated been of defendant would have scenario, robbery. having Therefore, committed murder without necessarily did not establish verdict in the first trial robbery and the trial court erred committed defendant instructing jury had committed first that defendant robbery. degree retrial, state In the
This error was harmless. theory aggravated prove sole under the chose to identity victim in order conceal killed the defendant The told perpetrator robbery. erroneously committed the The have robbery. might defendant been more to believe that defendant likely committed the murder to conceal his own than to identity conceal another’s Therefore, had identity. jury instruction First Degree Robbery committed him and is prejudiced reversible error. the defendant’s conviction Accordingly, must be reversed. again
The decision the Court of Appeals is modified. judgment the circuit reversed. This case is remanded the circuit court for new trial. On remand the state may choose whether to reduce the con- defendant’s viction and sentence to murder under ORS 163.115 or to retry charge aggravated murder. If the state chooses to retry charge may *10 limited to determination of whether defendant is of guilty enhanced crime of aggravated jury may and the be instructed that responsibility defendant’s for the inten- tional murder of the victim been has established.
The decision of the of Court is modified. The Appeals judgment of the reversed, circuit court and the case is to remanded the circuit court a for new trial.
UNIS, J., dissenting.
holds
a
majority
limited
retrial was
(1989)
prohibited
Boots,
Or
State
Because believe that a limited retrial was impermis- sible under this and in analysis court’s remand instructions Boots I, and also impermissible because it violates defen- dant’s and state and federal constitutional statutory rights fair
a and trial defendant’s and impartial jury, statutory against state and federal constitutional double protections and related to which other jeopardy, procedural guarantees I affirm entitled, defendant was would the decision of the but for reasons in addition to those Appeals, Court of I con- expressed by that court. would reverse defendant’s aggravated pro- viction for murder and remand further Boots I this ceedings opinion. not inconsistent with and precise legal In order understand the nature of the court, before this it is to review some important question in which case comes to us. detail the posture in a indictment charged single-count Defendant was 163.095, murder, ORS a aggravated with two theories of offense, ORS 163.105. One was that defendant theory capital killed victim in in furtherance of the course 163.095(2)(d). theory ORS The second committing robbery, identity was that defendant killed victim conceal robbery, accomplice perpetrator defendant or his as 163.095(2)(e). that, alleged indictment Specifically, defendant, Oregon, June Lane 7,1983, County, about “intentionally with another named together person, him in by shooting the death of cause[d] [victim] personally firearm,” that “the said killing [was] the head with of committing in the course of and furtherance committed in an effort conceal the Robbery Degree [or] in the First robbery].”1 identity [the perpetrators defendant was found Following by jury, life with a imprisonment murder and sentenced to *11 minimum, mandatory sentence under 20-year former Appeals The Court of ORS 163.105. Defendant appealed. [1] charged that both killed the victim in the course “The indictment defendant identity. perpetrator’s robbery in order to conceal the did so may prescribes use of governing crime be committed that when a statute means, may charge the in the means alternative. indictment different statute, reasonably may when an infer that In view of the reader 132.560. ‘or,’ charges means were used and of that both ‘and’ instead indictment uses proved. use of ‘and’ where ‘or’ is called The continued need to both habit, custom, existing the force power faith in forms over to the of
testifies
Carr,
416,
(1906);
White,
v.
Or
murder. Id. at 377-79. Because the returned general verdict, in Boots I record did not show whether jurors agreed aggravating all 12 had on one or both alleged factors in the indictment. disputed I, that,
It was not however, in Boots rendering guilty aggravated its murder, verdict of implicitly agreed unanimously that defendant had committed at In murder. Id. 373. Boots there was sufficient “simple” evidence sustain conviction for at id. implicit 375, and the instructional error did not affect that finding. Consequently, con- court reversed defendant’s aggravated viction for murder and stated: remand, may “On state choose whether to reduce the defendant’s conviction and sentence to murder under ORS retry charge aggravated 163.115 or to Id. murder.” 381.
This court then ordered:
“The decision of the Court of is Appeals reversed. The aggravated circuit court’s judgment conviction of and the is remanded reversed case to the circuit court for Id. proceedings.” further nominally retry
On remand, the state elected to charge However, defendant on state murder. (the retrial) moved to limit the second to a determination of “whether or not defendant *12 of Murder.” The trial court’s Aggravated enhanced crime order stated:
“THIS the Court on motion of the State to CAMEbefore Supreme from limit the retrial of this case remand the only to a of whether the defendant is Court determination Murder, guilt of guilty Aggravated of the crime as his of necessarily the crime of Murder was established the least arguments Both submitted written original parties verdict. motion, and against agreed and authorities for the and be decided the Court on the basis of written could record.
CC* * [*] ‡ [*] “IT IS HEREBY ORDERED that State’s motion is retrial, evidence will be limited to the granted. Upon ‘* * * killed the victim of whether the defendant issues Degree in the First committing Robbery of furtherance perpetrators of effort conceal the identities ” said crime.’ trial evidence, of any Before the introduction the jury: court instructed legal trial in a rather unusual “This comes here for case * ** In was [djefendant a posture. previous found In trial the State bya the crime Murder. this jury of of One, that the following: doubt the
proved beyond reasonable [victim]; two, the death [djefendant intentionally caused of accomplice] [an committed [djefendant during [victim] First Robbery Degree crime of of shot and killed and that incident in which [victim] same 7,1983 store located at June ata 7-Eleven this event occurred Oregon. Lane County, Street in Springfield, 7095Main as case is to take these try “The selected to this are not to they questioned established facts all this They purposes considered true re-examined. are case. given instruction an error made in an “Because of Oregon Supreme Court has sent during the first trial you The issue very limited issue. case back for retrial of [victim] or not the deciding whether will be [victim] was done robbery during the course [djefendant accomplice or the identity conceal » * * * added.) (Emphasis evidence, At the close of the the trial court further instructed the jury: of Aggravated
“To establish crime Murder the State prove beyond following must reasonable doubt each of the *13 First, committed County, elements. the was that act in Lane Second, Oregon. that the act was committed on or about [djefendant Three, June intentionally 1983. the caused the death of another being human to effort identity the conceal of the of a perpetrator crime. previously you, “As I instructed certain these elements of
or previously have you been established and are to not facts question them. The you limited issue are to decide whether or not the [victim] [djefendant the the during of robbery course [victim] was done conceal the to of of identity [djefendant an accomplice. you of find If doubt, State has proven this element beyond reasonable [djefendant then the guilty Aggravated Murder. of you “All twelve of must vote in of favor such a verdict. you the State has not this proven element “If find beyond doubt, [djefendant reasonable then the is not guilty but, Aggravated indicated, Murder as previously is guilty of added.) Murder.” (Emphasis of The trial court submitted the form following verdict jury: “We, jury, duly empaneled try the above-entitled action, find our verdict as follows:
“_ of Guilty Aggravated The Murder. State has
proven beyond a reasonable doubt that the murder identity was done to conceal of Defendant or an accomplice robbery [victim]. of All (12) jurors agree upon twelve must this verdict. “_ guilty of Aggravated Not Murder. The has State proven beyond a reasonable doubt that
murder was identity done conceal the Defendant or an in the of accomplice robbery (10) At jurors agree [victim]. least ten must upon this verdict.”
Thus, the trial court submitted case to the on the jury only issue of whether defendant committed the murder to conceal crime. identity perpetrator argued appropriate times,
allAt that the retrial, instructions, limited the trial court’s the verdict form jury, procedure employed to the and the submitted trial in the retrial violated this court’s remand order in statutory Boots his and state and federal constitutional statutory rights impartial jury, fair his to a against protections state double and federal constitutional procedural jeopardy, guarantees, and other related which are discussed infra. aggravated verdict of returned a imprisonment was with
murder. Defendant
sentenced
life
20-year
again
mandatory
appealed,
minimum. Defendant
objections
asserting
that he had made
the trial court.
Appeals
claims
error. The Court of
He also raised other
reversed and remanded
“proceedings
not inconsistent
** *
[BootsJ]
decision,”
Boots, 112
Or
State
(1992),
option
App
holding
“[t]he
29,
I. VIOLATED THIS THE LIMITED RETRIAL I REMAND IN COURT’S ORDER BOOTS majority its entire The foundation on which rests analysis support limited retrial did to its conclusion seriously I this order in Boots is not violate court’s remand majority flawed. The reasons: expressly order Boots neither court’s remand [in “This I\ every on element retry to defendant
required the trial court nor limited the charge, expressly aggravated of an aggravating factor. of an trial court to a trial on existence a retrial. permit can read to limited The order nonetheless whether, in the absence Therefore, the question we consider limiting the retrial to from this court of an order express factor, the trial court in this case aggravating existence of the defendant retrial limited whether ordering a erred
587 murdered the victim in order conceal identity defendant’s as the of a perpetrator crime.
“* * * original trial, his was tried and [I]n [defendant] found of the lesser-included offense Boots, v. supra, 163.115. State Or at 381.” Or at 315 577 original). (emphasis in on this court’s decisions in v.
Relying Wagner, State 5, 93, 309 Or 786 P2d cert Oregon denied 498 US Wagner, 212, 112 L (1990), S Ct Ed 2d Green, State v. 271 Or P2d 245 (1975), that “an majority states error-free conviction a criminal offense need not be retried even court has though appellate ordered a retrial of a which greater offense of offense is a lesser lesser-included offense.” 315 Or 577. “If all elements of a lesser-included offense fairly have been fully alleged and proved,” “an holds, majority appellate court order a retrial may limited to the element establishing greater offense.” Id. The “[ujnder majority that, concludes given by directions this court I\, to the trial court the trial [in Boots court this case same, is, could do the order retrial limited to those issues that caused court to appellate reverse defendant’s conviction the greater offense.” Id.
Boots I the state the gave option have judgment of conviction entered “or to against retry the charge murder.” Boots Or at aggravated added). Thus, case is about this (emphasis this what intended retry “or phrase charge murder” in I Determining the Boots remand what this order. its court intended Boots I remand order is a responsibility court, Yet, of this the trial to the according major- court. ity, because remand be read order “can limited permit err in retrial,” the trial court did not the limited ordering retrial. expressing Instead of what court intended *15 murder,” “or to phrase retry charge aggravated allows the court majority implicitly trial to determine what that, this court if intended. This the directions in a suggests remand this subject order of court are to more than one construction, a for permissible petition reconsideration and trial will not err necessary, court if its action is consistent with of the That any permissible interpretations. implication unsatisfactory why and demonstrates this I what the Boots
court, court, not the trial must determine means. remand order order,
In a court the task is to determine construing evi- issued the order. The best the intent of court intent is the text of the order itself. Stated dence of judicial no more evidence of the pur- there is differently, persuasive than the words used the court of a court order pose intent, therefore, into judicial its wishes. The inquiry express the court order examination of the words of with an begins be given in a court order are to usage itself. Words of common natural, ordinary meaning. and plain, their determining principles those Applying “retry” plain, in Boots the word has court’s intent means “[t]o The word natural, ordinary meaning. “try” method controversy, by investigate legal examine and issues it determining ‘trial,’ purpose called for the (6th “to 1990), ed or Black’s Law involves,” Dictionary cause; determine as a judicially, examine and determine (a innocence of Random person),” judicially guilt (unabridged Language Dictionary English House law). 1987) (definition “Re” means 5 for field of 2d ed “ ** * “Retry” Id. at 1605. repetition.” to indicate ‘again’ Third New International Webster’s try again.” “to means 1976). in the as used “Retry,” Dictionary (unabridged that, transmuted into order, is a verb when Boots I remand trial of an which means “a new noun, “retrial,” becomes Black’s Law tried,” been once already action which has * * trial, *: a second 1317, or “a second at Dictionary, supra (as Webster’s, person),” of an accused judicial 1940. must, intended, as it always
This court natural, plain, I be its given in Boots remand order — mean- That is the meaning. its sensible ordinary meaning option that “[t]he of Appeals, Court ing given by retry was ‘to order] I remand the Boots given [by state was of it.”2 murder,’ only part not to retry charge and sentence option conviction Giving “to reduce the defendant’s the state the authority of Article the final clauses under with this court’s to murder” is consistent Constitution, provides: VII, Oregon which section changed, “[I]f, judgment appealed from should be any respect, judgment should opinion that it can determine what
supreme shall be of
589 “if And, Or at 28. as stated App by Appeals, Court Court in Boots had intended to allow Supreme [the 7] the state retry alone, elements we think it aggravating would have limited its expressly remand to those it elements; in would have charade of engaged pointless giving state a choice some but not all of the prove elements of the when crime, a limited remand would have had that effect state.” Id. without the need for a choice in (emphasis This court original). allowed the unambiguously state to retry charge, choose not to one reconsider issue. The trial wrong court was to conclude that this had “sent this ’’3 case back for retrial of very issue, limited and the majority is wrong to the trial approve court’s limited retrial. v. Wagner,
The majority’s reliance on State supra, Green, and State v. v. supra, misplaced. State Wagner State Green v. involved different circumstances and different orders; remand are irrelevant in they what determining Boots I remand order means. In Wagner, State v. supra, court remanded “for only is, for a deter- resentencing,” mination of whether the defendant be would sentenced to but (i.e., to the conviction death, did with nothing respect in toto the defendant’s guilt trial), phase affirming murder. State conviction for Wagner, supra, Green, State v. at In Or 20. 271 Or at defendant conceded “that [the] defendant was of either guilty Green, or State v. murder in manslaughter.” only issue to the defendant’s according lawyer, was whether the crime Id. or manslaughter. the defendant Because Green State v. conceded the commission of the two homicides, this court limited the be issues to retried on the expressly below, judgment have been entered in the court it shall direct such to be entered equity
in the same manner and like effect now as decrees are entered appeal Provided, nothing supreme cases to the court. this section shall supreme be construed to authorize the court to find the defendant in a criminal greater guilty penalty provided case of an offense which a than which the accused was in the lower convicted court.” implication language Supreme clause] [final “The clear of this is that the Court is authorized to find the of a lesser that of accused offense than which he was Lusk, VII, jury.” Forty-Five convicted verdict of a Years Article Section (1955). Oregon, L Rev Constitution 35 Or stating, By implicitly recognizing proceeding so the trial court was that the charge. retrial of a was not a question
remand of the defendant’s conviction “to the killing girls, whether the time of the two acted disturbance,’ or under ‘extreme mental emotional so as guilty manslaughter, rather than of murder.” Or at 176. present expressly case,
In the defendant neither nor impliedly committed he the victim admitted that murdered lawyer, robbery. Neither did he or his conduct or statements, allow to be assumed that those elements of *17 disputed. aggravated crime of murder were not Defendant’s plea beyond guilty4 proving of not cast on the state the burden every
a doubt element of the reasonable essential Wagner aggravated and crime of murder. State v. State difficulty in that this court has no defin Green demonstrate ing articulating it when that is what and limited remands in I. not order a limited remand Boots intends. This court did so or Moreover, order should be construed a court produce the intent to an unlawful as ascribe to a court differently, logical is more Stated unconstitutional result. remedy a that would that this court fashioned assume by statutory protected law and accommodate values infra, I Sec- As demonstrate and federal constitutions. state less in which III, retrial, i.e., a limited retrial tions II and tried, in are than all ofthe elements statutory and the state of this case offends the circumstances protections on which defendant and federal constitutional relies. permits majority, effect, the trial court meaning give it not the I remand order to
rewrite
Boots
supported
and not
this court at
time
intended
meaning
unambiguous
plain
order,
and a
words of
statutory
protec-
constitutional
that denies defendant
tions. For the
foregoing
I
the action
reasons, would hold that
comport
did not
trial court on remand
taken
* **
“[chose]
Unless the state
court’s Boots 1 remand order.
ORS
murder under
conviction to
to reduce defendant’s
any
required
be a
retrial
161.115,”
remand order
aggravated murder
complete
of all elements
retrial
* * *
charge.
to reduce
did not “choose
Because
state
guilty.”
upon plea
136.010.
of not
ORS
“An
fact arises
issue of
defendant’s conviction to murder under
161.115,”
aggra-
defendant is entitled to have an entire new trial for
vated murder. Boots
Compounding
concerning
its error
the Boots I
majority,
remanding
order,
remand
this case for
prejudicial
another retrial because of a
error,
instructional
expressly authorizes a limited retrial on the existence of the
alleged aggravating factor that makes homicide murder. See
majority
II. A LIMITED RETRIAL DENIES DEFENDANT A FAIR TRIAL BYJURY AND OTHER RELATED STATUTORY AND CONSTITUTIONAL RIGHTS AND PROCEDURAL
GUARANTEES TO WHICH HE WAS ENTITLED by jury
Trial in criminal cases is fundamental to the system justice. recognized American “Since it was first Magna by jury prized against Carta, trial has been a shield * * oppression States, Glasser v. United 60, 84, 315 US *18 (1942) (also S Ct stating 457, “[o]ur 86 L Ed 680 that privilege right Constitution transforms that into a in criminal court”). proceedings in federal ORS 136.001,6 I, Article sec Oregon tion 11, of the Constitution,7 and the Sixth Amend ment to the Constitution of the States,8 United made 5 agree majority, 580-81, I with jury the Or at that in the “retrial” the 315 erroneously by instructed the trial Degree court that defendant committed First Robbery prejudiced and that that instruction defendant.
6 136.001(1) provides: ORS prosecutions “The defendant in all right public criminal shall have the to ’’ by impartial jury. trial an 7 I, 11, Oregon provides, Article part: section Constitution in prosecutions, “In all right criminal public the accused shall have the to trial * * by impartial jury an 8 The Sixth Amendment provides, to the Constitution of the United States part: * * * prosecutions, “In enjoy right all criminal the accused shall the to a * * trial,
public by impartial jury *.” to the Due the applicable states the Process Clause of through Louisiana, Duncan v. Amendment, 145, Fourteenth 391 US L 156, (1968), S Ct 2d 491 1444, Ed transform into a trials. criminal privilege right jury between the accused and his accuser interposes “[T]he judgment of are less than a laymen perhaps the who tutored time less judge panel judges, or of but who the same are appear to as but another arm of the likely function proceeded against has him.” Government Baldwin York, 66, 72, Ct 26 L Ed New 399 US 90 S 2d (1970). The to a trial includes the to a right jury right jury by to crime determination on factual element essential the every (the See, e.g., ORS 136.320 of fact that arise issues charged. all a not “shall the by jury, on be decided plea the it”); I, Article section evidence thereon addressed to (“[i]n whatever, criminal cases the Constitution all Oregon * * * to facts under the have the determine the jury right shall Law”). to to a Thus, as right direction of Court each that must be found every trial extends to fact by jury be to the crime and trial charged, to constitute present any such may right by telling jury intrude on or otherwise. facts are established evidence a trial for a also includes right felony to by jury (“in [felony] See ORS 136.210 to a jury. right 12-person of 12 cases trial shall consist unless persons number”). Moreover, the right parties less[er] consent to right for murder includes aggravated a trial by I, Or Art unanimous verdict. Const guüty only found Article section § 11. conjunction Read to a means that Constitution, right 136.210 Oregon both the right murder includes by jury same factual element every have determine jurors and unani- require charged right essential to crime for a verdict jurors those same mous agreement guilty. in a criminal case role jury’s
The importance any must take not to intrude care trial court that a *19 constitutionally statutorily' is jury function that See, this court. been.emphasized by has perform entitled to (1983) (“[t]he Bashaw, 48 v. 50, 52, 672 296 Or P2d State e.g.,
593
should refrain from issuing any instruction
diminishes
jury’s]
[the
responsibility
weigh
[to
and evalu-
ate the
of all
or
credibility
witnesses]
promotes
judicial
in
traditionally
intervention
an area
reserved
for the
jury”).
maynot,
Atrial court
direct a
or
example,
verdict
verdict
a defendant
partial
against
case,
a criminal
of how
regardless
evidence
overwhelmingly
may point
State v.
See
459, 465,
in that direction.
298
Rainey,
Or
693
(1985) (“the
P2d 635
trial court may not direct the
to
jury
crime,
find a fact
is
element of the
even in the
rebutting evidence”);
absence of
Article
16,
section
(quoted Oregon
592);
Constitution
315 Or
2
Wright,
§
Federal Practice and
2d
Procedure: Criminal
(1982) (“[i]t
461 at 637
is
clear that a court
not
quite
may
direct a verdict of
either
or in
whole
To
guilty,
part.
this would
permit
invade defendant’s
constitutionally
pro-
’’ (Footnotes
tected
to trial
omitted)); Jackson
right
jury.
Virginia,
443
n
2781,
US
99 S Ct
L Ed
2d
(1979) (to
say
“there
can be no
from a
appeal
judgment
even if
acquittal,
guilt
evidence of
over-
means, as a
whelming,”
“logical corollary,” that the
jury
to
permitted
evidence);
acquit against
LaFave and
(1984)9 (“a
Israel, 2
700, §
Criminal Procedure
21.1
a criminal case has the
even where its
power
acquit
findings
facts,
as to the
if
to the law
literally applied
as
stated
would have
judge,
resulted in a conviction.
This is because a
jury verdict
not
guilty is
subject
whatsoever”).
reversal or to review in any manner
Numerous
other
procedural
guarantees
are
have
designed to
the effect of preventing
intrusion
judicial
into the
jury process
ensuring
accused
absolute
right
to a jury determination
on all essential elements of
See,
the crime charged.
e.g.,
E,
ORCP
59 made
applicable
136.330(1)
(“[t]he
criminal
trials
shall not
judge
instruct with
to matters
nor
respect
fact,
comment
(“[i]n
thereon”); OEC 201(g)(2)
case,
a criminal
the court
but is
shall instruct
may,
not required
to,
jury’s prerogative
against
acquit
the evidence is sometimes referred to
nullification,”
“jury
Israel,
(1984),
§
LaFave and
2 Criminal Procedure
21.1
jury’s
Westen,
power,”
Jeopardy:
The Three Faces Double
“veto
Reflections
Sentences,
(1980).
Appeals
1001,1015
Government
Criminal
L
n
78 Mich Rev
*20
fact10
any [adjudicative]
judicially
as conclusive
accept
11
added);
and
prosecution”)
(emphasis
noticed
favor
309(1) (“[t]he
jury
is not authorized to direct the
judge
OEC
accused”).
presumed
against
to find a
fact
An
also
entitled to a
of inno
accused
is
presumption
unless
is
acquitted
guilt
cence and is entitled to be
his or her
10.095(6);
a
doubt. ORS
beyond
established
reasonable
v.
Williams,
State
19,
Or
prohibits the use of
explains
Commentary
201(g)(2)
to OEC
a criminal offense. The
an element of
for that rule:
rationale
‘
[by
judicially
in favor of the
mandatory
the court
a fact
noticed
‘A
instruction on
jury’s
Judicial notice
consideration.
prosecution]
issue from the
removes the
contrary to the
prima
would thus be
prosecution’s
facie case
an element of the
Oregon
Kirkpatrick,
right
jury trial.”
to a
Amendment
defendant’s Sixth
1989).
(2d
Evidence 60
ed
fundamentally
by jury
Thus,
201(g)(2),
right to
has been
under OEC
jury,
no matter
offense from
infringed
element of the
court takes one
if the trial
infra, note 15.
indisputable
is. See
that element
how
All of the above-mentioned
statutory
constitu
course,
tional
procedural guarantees,
make
provisions
it
difficult
state
more
for the
to rebut and
finally overcome
of innocence that attaches
presumption
every criminal
Nonetheless,
provisions
defendant.
those
and guarantees
play
justice.
a vital role in the
They
administration
are
based on
it
the notion that
solemn
for a society
matter
convict one of its members of a
crime and that
is far worse to
convict an innocent
than to let a
person
guilty person go free.
dissenting)
Williams,
See State
(Unis,
J.,
The majority’s holdings apparently assume that the I Boots was “retrial” in this retrial, case not a following really but was in some a way proceeding continuation same on trial; limited issues not decided without in the error first otherwise, double involved with two jeopardy problems sepa- rate prosecutions, III, in signifi- discussed Section are infra if, cantly fact, But in magnified. proceeding simply in of a trial which continuation had reached an interim jury determination victim, unanimous that defendant killed the it then instruct would clearly be that impermissible to that jury they are bound that interim determination as contin- they ued on the issue of whether there were deliberating aggrava- ting factors. Jurors are discuss and persuade to free disagree throughout process until reach a they ultimately verdict or must are they unanimous announce unable A do so. This is the nature of had jury juror deliberations. who concluded at one that defendant had committed murder point may change his or her mind deliberations about during the murder was in order to whether committed conceal a crime and conclude identity perpetrator not committed murder at It is inap- had all. their during minds delibera- propriate jurors change tions; verdicts on it. many likely depend unanimous
To the be absurd that a contrary, suggest would aby in a criminal case be bound determina- juror preliminary — absurd, tion made midst of the deliberations so jury’s fact, system any criminal does not justice permit our jury form of as to determinations inquiry preliminary If full to the final verdict. reaches gives only jury credence defendant murdered interim unanimous determination that victim, are they could not be instructed that jury determination deliberating bound further If the were later unable factors. presence aggravating on a verdict unanimously agree because of a hung jury, a mistrial would declared over. would start completely and any subsequent prosecution it is today And decides that majority permis- yet, never who have themselves jurors, sible to allow new a reasonable decided, unanimously beyond much less agreed victim, to be so murdered doubt, that defendant By committed. to decide how that murder was instructed and one his to have denies defendant majority right so doing, (the same) element determine each factual 12-person *22 and denies defen- charge to the murder aggravated essential alleged of the crime to have each element right dant the the differently, majority Stated decided unanimously.12 one completed by his to have his trial defendant right denies guilt- a bifurcated permits The majority tribunal. particular differ- determined juries separate 12-person trial. Two phase charge. A bifurcation aggravated ent elements of his trial denies defendant of defendant’s of the guilt phase 12 12- extreme, analysis a majority’s would allow different to Taken its that, long as each a allow as of crime and would person jury to decide each element particular unanimously against jury defendant on that 12-person decided isolated respect agree other element, they not with that did it would not matter Thus, infra, Or 597-99. expressly See I forbids that. Boots elements. single juror that all believes analysis where not a majority a conviction allows a crime have been established. elements of unanimous verdict to be a found one right guilty only by (the same) for 12-person jury any particular alleged crime. with a bifurcated with
Proceeding phase two guilt juries flawed, is because the is 12-person logically new jury asked to answer is being question inextricably con- to the question they nected are told cannot they answer. is, it is That to answer impossible question whether defendant killed the victim in an conceal effort to the identity perpetrator of the of a crime first unless one believes that killed defendant the victim. Where the two only choices are (1) that defendant killed the victim to conceal the of identity (2) of a crime or that defendant killed the perpetrator victim, but not to conceal identity perpetrator of crime,13 a does person who believe defendant killed answer, cannot much way victim the same that a person has who never taken a drink question cannot answer the you “have with stopped drinking yet” excess or a “yes” Moreover, the form in “no.” verdict the limited retrial in this Or at supra, case, quoted asked the to determine jury whether “the murder was done to conceal identity * * defendant or an robbery Thus, *.” accomplice would allow majority be convicted if murder even the jury, by on the verdict form that indicating ‘ ‘the murder was done to conceal the identity the defendant has concluded that an accomplice in the robbery,” entirely person committed the murder to conceal the different identity defendant. awith bifurcated
Proceeding guilt phase two juries also violates the this court’s 12-person analysis Boots I. After a discussion awhy opinion “quoted v,] Hazelett[, [State from passage Or P2d 501 App insupportable,” Boots (1972),] 308 Or at this stated: jury “There is no distinguishing agreement basis between for act criminal on the mental required liability act culpable. culpable element makes the The act only option agree unanimously other that the about how fails to committed, resulting hung jury, the murder was in a mistrial because of a but even say agree result forces the that “we as to how defendant cannot murder,” leaving juror who not believe that defendant committed does response. committed the murder with no accurate *23 any equally requires state are essential for crime that
mental jurors a mental state. ORS 161.095. course culpable Of they unanimously agree a that he cannot convict if defendant person only to kill a but believe that he did so. intended half they they unanimously agree No can convict if that a more but person’s only defendant’s act caused a death half believe jurors intentionally. agree The same is if that he acted true person’s a but do not that defendant’s act caused death a agree felony, the defendant committed a vice versa. unanimity charge is when under “The need for obvious a 163.095(2)(d) killing of intentional in furtherance of charge It robbery first alone. obvious when a degree stands 163.095(2)(e) killing in to conceal the under ORS order It should be no less crime or stands alone. perpetrator state a defendant both under ORS charges obvious when the 163.095(2)(d) 163.095(2)(e). In and under ORS order to convict, on the unanimously agree must facts (emphasis at subsection.” Id. 376-77 required added) (footnote either omitted). I that the
This in Boots made clear analysis court’s element of the every on each and jury must unanimous if a they cannot convict defendant crime. Just as “jurors kill but only that he intended to a unanimously person agree convict a so,” 377, jurors at cannot half believe that he did id. unanimously they agree for murder if a identity perpetrator he intended to conceal the to do so. Yet person half believe that he killed crime but only What this court what allows. majority is precisely scenario that precise I applies stated Boots explicitly when need for is obvious unanimity] now confront: “[The we 163.095(2)(e) in order killing under ORS charge Id. The stands alone.” perpetrator the crime or the conceal for the crime required find the mental state jurors must same identity intent to conceal the (here, intent to kill and crime) for the required find the act of a which perpetrator victim). plainly court stated it (here, This killing crime no for between distinguishing I basis Boots that “[t]here liability criminal and on the act agreement required at id. culpable,” makes the act mental on the element such distinction permits majority today and yet error of “simple I to the referred in Boots This court this case. of any convinced who are jurors adding those counting element,” yet id. statutory distinct one majority simply commits same error. This court stated that the focus “for each proper element on the jurors [is] who element,” not be convinced of that may id., yet *24 majority prevents inquiry by allowing entirely different jurors to decide different elements of the crime.
Contrary to the explicit teachings of this court
State v.
465,
298 Or at
Rainey, supra,
majority permits
the trial court to direct a
verdict
partial
against defendant on
essential elements of the aggravated murder
As
charge.
previ-
stated, the
ously
trial court instructed the jury:
“To
Aggravated
establish the crime of
Murder the State
must
prove beyond reasonable doubt each
following
of the
First,
elements.
that the act was committed in Lane County,
Oregon. Second, that the act was committed on or about
[djefendant
Three,
June
1983.
that the
intentionally
caused the death of another
being
human
in an effort to
conceal the identity of the perpetrator of a crime.”
The trial court had already instructed the
that it
jury
* * *
* * *
was “to take
as established facts
not to be ques
* * *
tioned or re-examined
[and] considered true for all
of this case” that
purposes
defendant murdered and robbed
the victim and that
those
7, 1983,
acts occurred on June
Lane County,
Thus,
the trial court
Oregon.14
directed a
defendant,
i.e.,
verdict
partial
against
was told that it
jury
must
find all elements of the aggravated murder charge,
factor.
except
aggravating
The trial court’s instructions
verdict form
and the
to the
took
given
jury
otherwise disput
able elements
the offense from the
In
jury.
so doing,
defendant was also denied the
to which he was
protections
entitled
E,
under ORCP 59
OEC
and OEC
201(g)(2),15
By
Constitution,
Oregon
virtue of Article
section
venue is a
allegation
proven beyond
material
indictment
must
a reasonable doubt.
(1965).
Cooksey,
250, 251,
State v.
242 Or
309(1), which each of I have discussed For the same supra. reasons, the limited retrial the majority expressly authorizes on remand in this case violates defendant’s right a fair and the related by jury statutory other constitutional discussed rights procedural guarantees supra.
III. A LIMITED RETRIAL VIOLATES DEFENDANT’S
STATUTORY AND STATE AND FEDERAL CONSTITUTIONAL PROTECTIONS AGAINST
DOUBLE JEOPARDY In of his claim that his protections against support violated, double were cited ORS jeopardy *25 131.515,16 I, Constitution,17 of Oregon Article section States Constitu- Fifth Amendment United tion,18 the Fourteenth applicable as made states 784, 787, US 89 S Ct Amendment, Benton v. Maryland, (1969). 2056, 23 2d 707 L Ed Chapter and in use Oregon in ORS ORS 813.200 Revised Statutes Legislative jeopardy” jeopardy,” and the phrase in lieu of “double “former chapter adopted phrase for in ORS has section and titles Council Committee that however, opinion, throughout Chapter 131 and elsewhere. For convenience jeopardy” phrase is “double used. 131.515, that, exceptions case in provides not relevant to this with certain
ORS 131.525 and ORS 131.535: “(1) prosecuted same person shall twice for the offense. No be <<$**** “(3) consisting degrees, prosecuted of person for an different offense If a prosecution for acquittal resulting to a later therefrom is a bar
the conviction or offense, attempt offense, any degree for an to commit for inferior same necessarily finding A included therein. the offense or for offense of although greater offense, acquittal inclusive lesser is an included offense (Emphasis judgment subsequently reversed or set aside.” conviction is added). provides: Oregon Constitution Article section * * put jeopardy for the same offence person “No shall be in twice provides: United Constitution The Fifth Amendment to the States “* * * put subject in any person for offence to be twice he the same nor shall ** jeopardy limb of life or 356, 375, Rogers,
In State v.
313 Or
602 i.e., cases, here, no court would as is true in civil Ashehad beenconvictedat if presumably trial, then hold he that first thereby litigating issue foreclosedfrom identification
at the Id. at 464-65 secondtrial.” J., (Burger, dissenting) C. (footnote (some added) omitted). emphasis Simpson Florida, 384, 386, 403 S Ct In v. US 91 (1971), noting court, L Ed 2d 549 that “mutu- 29 ality” ingredient rule, an Ashe held is not that (reversed appeal defendant’s conviction at his first trial on offense) jury on did failure to instruct the a lesser included claiming estop prove not identity him from his that state failed Simpson supra, sug- Florida, at the second trial. gests Supreme agreed that the Court with the observation of estoppel Burger Ashe, i.e., cannot Chief Justice collateral against prior A be used an accused in a criminal case.21 adjudication respect subsequently- a an element of prohibition binding tried on the The offense not accused. estoppel against accused in a criminal case collateral applies an already prior jury facts has found even where enjoyed accused, to the even where a defendant adverse enjoy jury, right witnesses, confront or to to be heard guarantees procedural his trial. suggests prohibition
One commentator using against against estoppel in a an accused collateral ‘ by removing certain criminal case is ‘based on notion estoppel jury’s consideration, blinds issues from a the collateral picture’ of a defendant’s conduct to the ‘whole on which to basis thus exercise informational denies power.” Faces Double Westen, The Three its veto Appeals Jeopardy: Criminal on Government Reflections (1980). jury’s n 1001, 1015 L Rev Sentences, 78 Mich against prerogative acquit his “has solid the evidence supra, at 700. See Israel, LaFave and credentials.” torical (issue estoppel preclusion) applies in recognized has that collateral This court (1992) (noting Rogers, P2d 1308 See State v. Or criminal cases. (1956), 496, 504-08, held Dewey, this court “[i]n 206 Or P2d State v. genesis 43.160, preclusion its that has which a rule of issue states cases”). court, however, squarely law, has never applies in This criminal common against in a applies a defendant question preclusion whether issue addressed the stated, however, preclusion in of issue that the rule This court has criminal case. Oregon component the Due essentially estoppel as the collateral the same Rogers, supra, at 375. 313 Or State v. of the federal constitution. Process Clause
603 (to say US at 317 n 10 supra, Jackson v. 443 Virginia, a of even if appeal judgment acquittal, “there can be no from means, as overwhelming,” “logical evidence of is a guilt is jury acquit against corollary,” permitted evidence). in a criminal case has the power acquit “[A] facts, if to the literally even when its as to the findings applied have resulted in a con- judge, law as stated would a verdict of not is not viction. This is because guilty in subject any to reversal or to review manner whatsoever.” Israel, supra, LaFave and at 700. limited is
To reach its conclusion that retrial of the majority ignores inapplicability permissible, in a criminal estoppel collateral doctrine an accused against holds, in effect, case. The that an adverse factual majority in trial can an accused in determination a criminal prior estop a criminal case from an essential element of an relitigating in That offense a charged subsequent prosecution. holding wrong.
There is another
flaw in the majority’s reasoning.
(Boots
that,
I),
in
trial
defen-
majority
original
states
his
(convicted)
dant
of the
guilty
was found
lesser-included
577,
offense of
323, 329, S Ct L Ed 2d 300 but charged convicted of lesser included offense manslaughter not be retried impliedly acquitted may murder); 521, 110 US S Grady Corbin, Ct (“the (1990) 2084, 109 L Double Ed 2d 548 Clause Jeopardy Fifth United Amendment States [of Constitution] bars which the any subsequent prosecution government, *28 in establish an element of an offense charged essential will conduct constitutes prosecution, prove which the been already an offense for defendant has prosecuted.”).23
But
of the lesser
defendant was not convicted
that,
It
of murder
in Boots I.
is true
in
included offense
23
2084, 109
(1990),
Grady Corbin,
508, 521, 110
In
495 US
S Ct
L Ed 2d 548
v.
that,
Supreme
previously prosecuted
States
if conduct
the
Court of the United
held
prosecution,
beingused to
an “essential element” in the second
the Double
establish
Jeopardy Clause of
Fifth
to the Constitution of the United States
the
Amendment
prosecution. Grady
the second
v. Corbin involved defendant who had driven
bars
two-way highway
oncoming
automobile
median line of
and struck an
his
automobile,
across the
occupants.
charged
killing
defendant with
one of the
The state
the
median,
right
driving
failing
keep
of the
and the
while intoxicated and
to
later,
pleaded guilty
two
Two
the
defendant
to those
traffic violations.
months
state
charges arising
the
prosecuted the
on homicide and assault
from accident.
prosecution
argued
rights
his
the double
Defendant
that the latter
violated
under
decision,
recognized
previous holdings
jeopardy
its
that the
clause. In its
the court
299, 304, 52
States,
(from Blockburger v.
Blockburger
United
284 US
traditional
test
(1932))
180,
jeopardy
subsequent
governing
L Ed
double
claims bars a
S Ct
76
306
495
prosecution if
is a
included
of the other.
US
one of the two offenses
lesser
offense
Ohio,
6, 97
2221, 53
(citing Brown
161, 166-67 n
L Ed 2d
432 US
S
at 519-20
v.
Ct
682-83,
2912,
(1977);
(1977)).
Oklahoma,
682,
Ct
L Ed 2d 1054
v.
US
97 S
Harris
Grady
Although
in
v.
not techni
offenses involved
Corbin were
the traffic
Supreme
charges,
cally
and assault
the
lesser included
of the homicide
offenses
previously
(1980).
analogized
in Illinois
case to the situation it had
confronted
v.
Court
Corbin,
Ct 2260, 65
supra,
Vitale,
410, 100
Grady
L
447 US
Ed 2d 228
v.
S
at 520-21.
US
Vitale,
sought
prosecute
supra,
the state
to
In Illinois v.
447 US at
Supreme
involuntary manslaughter
Court
a car accident. The
defendant for
after
dicta,
rely
stated,
that,
necessary
previous conviction
found
on a
in
if the state
it
charge,
Jeopardy
manslaughter
speed
Double
to sustain
for failure
reduce
Despite
might protect
the fact that neither
defendant. See id. at 420-21.
Clause
other,
Supreme Court
technically
a lesser included offense
offense
circumstance,
that,
might be viewed as
to slow offense
the failure
observed
such a
Corbin,
Grady
supra,
US
In
“species
Id. at 420.
of lesser-included offense.”
as
sought
rely
previous
served
the two
traffic offenses which
the state
presenting
charges,
and assault
for convictions to sustain
homicide
basis
concluding
speculated in Illinois
In
court had
v. Vitale.
situation about which the
subsequent prosecutions for homicide
Jeopardy
Double
Clause barred the
that the
assault,
adopted
suggestion
previously
had made
Supreme
Court
Id. at
in dictum Illinois v. Vitale.
521.
I,
Boots
this court allowed the state to “choose whether
reduce the defendant’s conviction
sentence to murder
of aggravated
under ORS 163.115 or to retry
charge
I,
that,
murder.” In Boots
this court
return-
acknowledged
murder,
a verdict of
ing
aggravated
“[i]t [was]
that defendant
committed
disputed
jury agreed
murder,”
defendant was
supra,
Boots
308 Or at
but
of murder in the
trial.
not convicted
first
mur-
Rather, defendant was convicted of aggravated
trial,
der in
a conviction which was
Boots
the first
reversed
order,
The first choice allowed
the Boots I remand
I.
defendant’s
conviction and
for mur-
reducing
sentencing
der,24 was
because murder
is a lesser included
permissible
murder of which defendant was con-
aggravated
offense of
victed, and
error found in
I
affected the
only
greater
Boots
offense. See
note 2.
defendant’s conviction to
Reducing
murder would have had the same effect of a
convicting
—
defendant of murder
it would serve as an implicit acquittal
offense of
murder.
greater
aggravated
The second choice allowed
the Boots I remand
order,
was also
retrying
charge
*29
the
because
Double
Clause is not
permissible
Jeopardy
absolute bar to successive trials. The
rule is that
the
general
Clause does not bar
of the defendant whose
re-prosecution
Jorn,
conviction is overturned on
United States v.
appeal.
(1971)
L
2d 543
United
470, 484, 91 S
547, 27
(citing
US
Ct
Ed
(1896)).
Ball,
662, 16
1192,
the terminated circumstances: “(b) termination, by judgment The trial court finds other than acquittal, necessary is because:
<f* * [*] [*] [*] But the state requested, allowed, trial court and now this court sanctions the combining, state rather than between, choosing the two that this court options permitted I the Boots in remand order. majority allows trial court to reduce defendant’s conviction in Boots I to murder and to elements in retry remaining mur- aggravated der Either charge. majority is this considering limited retrial a continuation simply for previous murder, aggravated absurdity which is demonstrated 595-98, supra, considering 315 Or at or the majority is retrial to be a trial for murder. If separate aggravated is to be a trial for this majority considering aggra- separate allowing vated majority simultaneously what in Boots I be a previous considers to conviction separate the lesser included offense of murder to serve as the basis for present charge proof reasons statutory case. For stated constitu- tional with this are insurmountable. problems approach
TV.
CONCLUSION system The central of our criminal justice purpose free the innocent. Herrera v. convict and to 853, 859, 122 L Ed 2d 203 Collins,_US_,__, S Ct (1993). the trial is the state criminal proceedings[,] “[I]n or innocence of event for determining guilt paramount Id. any dispute There should not be the defendant.” at 869. statutory valued a defendant a criminal case has that must be rights guarantees constitutional and procedural limited retrial permitted at trial. The accommodated Boots remand order here violates its own majority trial by jury, and impartial to fair right defendant’s ignores protections and constitutional statutory defendant’s ignores other related certain ignores jeopardy, double against guaran rights and procedural and constitutional statutory supra.26 tees, identified any “(B) proceeding would make legal in the There is defect *30 * * law matter of reversible as a
judgment upon verdict entered new trial for an entire is entitled to have I believe that Because assignments of necessary other discuss defendant’s error. futility The case at demonstrates hand efficiency statutory attempting to substitute and constitu- Surely goal judicial economy requirements. tional easily by accomplished protecting would have been far more statutory rights in defendant’s and constitutional the first place. rippling majority’s I effect from fear that far-reaching. decision could be respectfully
I dissent. Fadeley, join dissenting Carson, J., J., C. opinion.