STATE OF OREGON, Rеspondent, v. JAMES LEONARD McCOY (No. 73-41-C), Appellant.
No. 73-41-C
Court of Appeals of Oregon
Argued February 21, affirmed April 15, 1974
reconsideration denied May 22, petition for review allowed July 30, 1974
521 P2d 1074 | 17 Or App 155
Timothy Wood, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and W. Michael Gillette, Solicitor General, Salem.
LANGTRY, J.
Defendant appeals from conviction in a jury trial of murder.
The essential facts, viewed from the standpoint of what the jury could infer from the evidence, are that defendant was estranged from his wife and knew that she was keeping company with a friend of theirs, James Stewart. Defendant came from Woodland, California to Merrill, near where his wife was staying, stopped at a bar and asked for directions to where Stewart was living. He went outside and got in his vehicle, at which time he saw his wife and Stewart pass in a pickup. He followed them for five miles, and when they stopped by an auto court, he came to the side of the pickup and with a pistol shot Stewart seven times. He went to his vehicle, reloaded the pistol, and returned and shot Stewart in the head eight more times. He then gave money and some personal items to his wife, told witnesses to notify police he was on the way to turn himself in and then did just that. When he arrived at the police station, he told what had happened; and the interrogating officer testified that :“[h]e was rather calm, and talkative, * * *” and that
Two psychiatrists testified for the defense and one for the state. All corroborated defendant‘s testimony that he had “flipped out.” The state‘s psychiatrist felt that even so defendant did know what he was doing when he shot Stewart. The other psychiatrists disagreed. Some of the evidence produced by the state, which is summarized above, could fairly raise the inference that defendant had not “flipped out” at all prior to firing 15 shots into Stewart.
“(1) Except as provided in
ORS 163.125 , criminal homicide constitutes murder when:“(a) It is committed intentionally * * *
“* * * * * ”
ORS 163.115 .“(1) Criminal homicide constitutes manslaughter when:
“* * * * *
“(b) A homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance, which disturbance is not the result of his own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation * * *
“* * * * *.”
ORS 163.125 .
In State v. Siens, 12 Or App 97, 504 P2d 1056, Sup Ct review denied (1973), we stated:
“* * * There is no provision saying that the
defense of ‘extreme emotional disturbance’ under ORS 163.125 is an affirmative defense. Therefore, under * * *ORS 161.055 , it is a ‘defense’ and the state has the burden of disproving it beyond a reasonable doubt * * *” 12 Or App at 101-2.
We went further in Siens to say:
“* * * [T]he state has the burden of proving beyond a reasonable doubt that the defendant was not under an extreme emotional disturbance as defined in
ORS 163.125 * * *.” 12 Or App at 104.1
The state here contends that the language in Siens was dicta in that case; dicta that the state contends is erroneous. The state argues that, since the legislature failed to enumerate extreme emotional disturbance as either a defense or an affirmative defense, the provisions of
The arguments must be considered in light of what is meant by “burden of proof.” “Burden of proof,” used loosely, encompasses two different concepts. One is the burden of producing evidence; the other is the
At commоn law the burden of producing evidence to establish an exception to a crime was on the defendant. State v. Rosasco, 103 Or 343, 356, 205 P 290 (1922). Wharton, Homicide 221, § 148 (Bowlby 3d ed 1907), states:
“* * * And, as a general rule, the burden of proving justification or mitigation of a homicide is regarded as resting with the accused, unless the proof already in the case sufficiently manifests it. The state in a prosecution for murder in the second degree is not called upon to prove affirmatively that there were no circumstances of justification or extenuation, to warrant a conviction * * *.” (Footnotes omitted.)
To establish a “defense,” the burden of producing evidence rests on thе defendant.
At common law the burden of persuasion to establish the defendant‘s guilt in face of his introduction of evidence that his conduct was within a statutory exception to the crime charged was on the state. In a case involving a statutory exсeption to the prohibition law our Supreme Court gave approval to the following instruction:
“In the case of defendant‘s claiming that he was intending to convert the liquor found in his possession * * * into vinegar for commercial purposes, I instruct you that the burden is on him to establish that intention. The state is not required to prove that he did not intend to make vinegar out of it. That claim is made as a justification or excuse for the possession of the liquor, and the burden is on him to establish it to your satisfaction. He is not, however, required to establish it to your satisfaction beyond a reasonable doubt, but it must satisfy your minds to the extent of the raising of a reasonable doubt in your minds of his guilt, and
unless he does so satisfy you of that intention, and you find the liquor was intoxicating liquor as defined to you, you should find the defendant guilty. “* * * * *
“‘The burden of proof, however, of establishing the lawful possession of such liquor rests upon the defendant, and not upon the state. The defendant, however, is not required to establish that fact by evidence which satisfies your minds beyond a reasonable doubt of its existence. It is sufficient if his evidence in that particular creates in your minds a reasonable doubt of the defendant‘s guilt so far as that particular liquor is concerned.‘” (Emphasis supplied.) State v. Rosasco, supra, 103 Or at 359.
Thus, аt common law an “exception” to a crime was the equivalent of the present statutory concept of a “defense.”
The apparent legislative intent in enacting
“* * * We have to admit that the legislature probably never considered our present problem in adopting the language of the statute. However, if it had considered the problem, we suspect it would have chosen not to impose * * *”
All that we read in the commentary to the criminal code and in the legislative minutes indicates the legis-
The placing of the burden of persuasion beyond a reasonable doubt upon the state in a criminal case has due process connotаtions, but it is a policy consideration based upon reducing the risks of convictions resting on factual error. In Re Winship, 397 US 358, 90 S Ct 1068, 25 L Ed 2d 368 (1970). In shifting this burden as to certain “affirmative defenses,” the legislature was expressing a different policy consideration. The project director for the code revision, Donald Paillette, informed the Senate Criminal Law & Procedure Committee:
“* * * In many cases where we feel it would be unfair or unjust for the state to disprove certain aspects of certain kinds of conduct, we have characterized these things as ‘affirmative defenses.’ * * *” Senate Criminal Law & Procedure Committee Minutes, February 2, 1971, Exhibit A, p 9.
In coming to our conclusion we cannot overlook
“When it appеars that the defendant has committed a crime of which there are two or more degrees and there is a reasonable doubt as to the degree of which he is guilty, he can be convicted of the lowest of those degrees only.”
While the legislature did not specifically divide criminal homicide into separate “degrees,” it is apparent from the statutory scheme that murder (
If the trier of fact has any reasonable doubt as to whether the defendant is guilty of a crime, that doubt should be resolved in favor of the defendant. Where the doubt is in relаtion to whether defendant is guilty of manslaughter rather than murder, it should be resolved in favor of finding defendant guilty of the lesser crime.
The refusal to give the instruction for which exception was taken was not error because the instructions taken as a whole adequately informed the jury that, if it had a reasonable doubt as to defendant‘s guilt of murder, it should not find him guilty thereof.5
Defendant also assigns as error the receipt in evidence of two letters (obviously the originals) written by defendant—one to his wife and one to his father-in-law—while he wаs in jail awaiting trial. It is not clear from the record how they came into the prosecutor‘s possession; however, their existence became known to the prosecutor because the jail authorities had read and copied them. The letters were relevant with reference to the defendant‘s state of mind at the time of the homicide, and also as rebuttal about
“* * * I know that I have to do some time in prison now for what I done. But I still feel I was right in doing what I did * * * ”
And in the other he said:
“* * * I‘m beginning to think I was wrong * * * to kill over a womеn [sic] * * *. I‘ve never regreted [sic] killing Stewart * * *. I‘m still not sorry I did it because any man stupid enough to fool around with a married women [sic] deserves it. * * * I‘ll kill this whole world for Chris [their child] and no son of a bitch is going to raise my kid * * *. Maybe by the time I get out I‘ll be out of the killing mood. But no promises to anyone. I hope you realize I‘ll be out in 7 yrs. at the very most * * *. I‘ll be 36 when I get out if I get life and if I have to do it again I‘ll be 49 when I get out again. Plenty of time to enjoy * * * no matter where you go I‘ll hunt you down like a [sic] animal and show no mercy * * *.”
The jail officials had the authority to inspect the outgoing letters. Brooks v. Cupp, 6 Or App 539, 488 P2d 804, 47 ALR3d 1188, Sup Ct review denied (1971). Having seen such assertions as were made in them it can hardly be expected that the officials would say nothing about them. They were quite relevant and quite damaging to defendant. He wrote and sent them to people who, were obvious state‘s witnesses, and by doing so set their contents at large.6 He is in no position to complain if they were used against him.
Affirmed.
While both the majority and the specially concurring opinion of Judge TANZER reach the same result in the case at bar, I concur in the majority opinion because it places the burden of proof on the emotional disturbance issue, once it has been injected into the сase by competent evidence, on the state.
I find no substantial evidence that the legislature as distinguished from the Criminal Law Revision Commission ever considered the burden-of-proof issue.
I discern from an amalgam of the murder statute, the manslaughter statute and the proceedings of the Criminal Law Revision Commission that the Commission, although it dropped the phrase “with malice” from its definition of murder, nevertheless intended that one of the essential elements of murder be an intent formed in “cool blood” rather than in the “heat of passion,” which latter condition it deemed it could more accurately describe as “extreme emotional disturbance.” It follows that the Commission would not have labeled “extreme emotional disturbance” as either a defense or an affirmative defense, because evidence which goes to an essential element of a crime by its very nature need not be labeled for the purpose of allocating the burden of proof. For example, we customarily describe alibi evidence as defense evidence, but alibi evidence is not the kind of evidence that the Commission or the legislature labeled as either a defense or an affirmative defense. Understandably so. Alibi evidence, if believed, negates an essential element of the criminal charge. Likewise, I believe the Commission‘s judgment was that “extreme emotional disturbance” would negate that quality of
TANZER, J., specially concurring.
While I concur in the result, I must respectfully disagree with the reasoning of the majority. I believe that the quotation from State v. Welch, 264 Or 388, 505 P2d 910 (1973), is controlling. There the Supreme Court acknowledged that the legislature had appаrently not considered the problem at bar in its drafting of the statute and, instead of indulging in the customary fictions of assessing legislative intent in the absence of legislative intent, it construed the statute in the manner in which it concluded that the legislature would have acted had it considered the problem.
In this case, the majority escapes the duty of filling in the legislative omission by concluding that the legislature did indeed consider the issue of burden of proof regarding extreme emotional disturbance. It is on this point, and upon the conclusions that logically follow from it, that I must disagree. I think the legislative history is quite clear that burden of proof of extreme emotional disturbance was not considered and that, had it been, the legislature would have allocated the burden of proof in the same manner as it did for other defenses based upon mental impairment.
When the Senate Committee on Criminal Law and Procedure considered the subject of the insanity defense, now
“Mental disease or defect excluding responsibility under
ORS 161.295 or partial responsibility underORS 161.300 is an affirmative defense.”
There was some explanatory mention during the committee‘s consideration of partial responsibility that any defense which is not designated as affirmative would have to be disproved by the state once evidence of it was introduced. This does not demonstrate that they considered the issue anew when they later came to the homicide sections. It is upon this fact that the majority errs. “Extreme emotional disturbance” was not considered when defenses were considered and was not thought of as a defense.7 The question of whether
The committee considered the “extreme emotional disturbance” clause of the manslaughter statute after it had completed its work on the responsibility sections and had moved on to the homicide sections. There was no mention whatever of the problem of burden of proof. The only objection was to the relaxation of the objective standard of the prior “heat of passion” test to the subjective standard of the new test.8 The language of the draft section 89 (1) (b) was changed for the sole purpose of making the test more objective and less subjective. The language change did not deal with burden of proof.9 The discussion of this section related to the
I therefore see no foundation for the assertion of the majority that its reading of the commentary and the legislative minutes “tends to indicate” that burden of proof of extreme emotional disturbance was considered and that the legislature intended that it be an ordinary defense.
Had the legislature considered the issue of burden of proof of extreme emotional disturbance, I think it would have allocated the burden in the same manner which it did for those most analogous defenses which also deal with impaired mental ability, i.e., insanity and partial responsibility, rather than like dissimilar defenses, e.g., self-defense or entrapment. Regarding insanity, the legislature was satisfied with the proposed allocation of prоof to the defendant by a preponderance. Regarding partial responsibility, the legislature was dissatisfied with the omission of the proposed code
Allocation to the defendant makes good trial sense. Proof of mental state is a matter peculiarly within the power of the defendant to produce, particularly now that the courts cаnnot compel a defendant to cooperate with a psychiatric examiner, see Shepard v. Bowe, 250 Or 288, 442 P2d 238 (1968).
Furthermore, evidence of all degrees of mental impairment is likely to be presented by the same witnesses, just as in this case the same psychiatrists testified both to mental disease and defect and to extreme emotional disturbance. It would cause confusion at trial to no good end to divide the order of proof between the defenses of insanity and partial responsibility and that of extreme emotional disturbance.
Finally, it would confuse the jury, again to no good end, to instruct it (1) that the defendant has the burden of going forward with proof and the burden of persuasion by a preponderance of the evidence regarding mental disease or defect, (2) that the defendant only has the burden of going forward with evidence of extreme emotional disturbance and the state has the burden of disproving it beyond a reasonable doubt, and (3) that the defendant has the burden of going forward with the proof and the burden of persuasion by a preponderance of the evidence regarding partial responsibility, when most commonly all three defenses are proved by the same witnesses.
I must cоnclude that the legislature, had it considered the issue, would have opted for consistency
Because I agree with the majority on the other ground of appeal and because the instructions given were more favorable to the defеndant than those to which he would have been entitled under this theory of the case, I disagree with the majority and specially concur in the result.
Notes
“(1) When a ‘defense,’ other than an ‘affirmative defense’ as defined in subsection (2) of this section, is raised at a trial, the state has the burden of disproving the defense beyond a reasonable doubt.
“(2) When a defense, declared to be an ‘affirmative defense’ by chapter 743, Oregon Laws 1971 [which is the entire Oregon Criminal Code of 1971], is raised at a trial, the defendant has the burden of proving the defense by a preponderance of the evidence.
“(3) The state is not required tо negate a defense as defined in subsection (1) of this section unless it is raised by the defendant. ‘Raised by the defendant’ means either notice in writing to the state before commencement of trial or affirmative evidence by a defense witness in the defendant‘s case in chief.”
It is our view that “extreme emotional disturbance” is only an element of the crime of manslaughter when this issue is raised by the evidence in a murder prosecution. Where the crime charged is manslaughter, “extreme emotional disturbance” is irrelevant. The only issue then is whether the defendant recklessly committed criminal homicide. We note that in the New York adoption of the Model Penal Code the legislature specifically enunciated this factor.
We add to this footnote an observation from McCormick:
“In the first edition of this text, Dean McCormick stated:
“‘In the writer‘s view [the burden of producing evidence] has far more influence upon the final outcome of cases than does the burden of persuasion, which has become very largely a matter of the technique of the wording of instructions to juries. This wording may be chosen in the particular case as a handle for reversal, but will seldom have been a factor in the jury‘s decision.’ § 307, at 634 n. 2.” (Brackets theirs.) McCormick, Evidence 783, 784, n 6, § 336 (hornbook series, 2d ed 1972).
“Oregon Law provides: A person committs [sic] the crime of murder if, without justification or excuse, he intentionally causes the death of another human being.
“When a homicide which would other wise [sic] be murder is committed under the influence of extreme emotional disturbance, which disturbance is not the result of his own intentional, knowing, reckless, or criminally negligent act, and for which disturbance there is a reasonable explanation, then it constitutes manslaughter.
“* * * * *
“In order to establish the crime of murder, it is necessary to prove beyond a reasonable doubt every material allegation of the Indictment as follows:
“* * * * *
“3. That the defendant, James Leonard McCoy, intentionally and unlawfully caused the death of James Leroy Stewart, another human being, by shooting him with a gun.
“The material elements of the crime of manslaughter are:
“* * * * *
“3. The defendant, James Leonard McCoy, did intentionally, unlawfully and feloniously shoot James Leroy Stewart with a .22 caliber pistol;
“4. That the said shooting did cause the death of James Leroy Stewart;
“5. That the defendant, James Leonard McCoy, was acting under the influence of an extreme emotional disturbance.
“An extreme emotional disturbance, to be considered by you, must be one which was not the result of the defendant‘s act of shooting James Leroy Stewart, if you find that he did shoot James Leroy Stewart, and the disturbance must be one for which there is a reasonable explanation, the reasonableness of the explanation for the disturbance shall be determined from the stand point [sic] of an ordinary person in the defendant‘s situation under the circumstances as the defendant reasonably believed them to be.
“The burden is upon the State to prove the guilt of the defendant beyond a reasonable doubt, that is, the State must prove every element of the crime charged, beyond a reasonable doubt.
“Reasonable doubt means * * *.
“Even though you may not be satisfied of the defendant[‘]s innocence, never the less [sic], if you have a reasonable doubt as to his guilt, you should return a verdict of not guilty.
“* * * * *”
“In any prosecution for an offense, justification, as defined in
See also
“A homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanatiоn and excuse shall be determined from the standpoint of a person in the actor‘s situation under the circumstances as he believes them to be * * *”
After amendments and deletions,
“* * * * *
“(b) A homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance, which disturbance is not the result of his own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation * * *
“* * * * *
“(2) For the purposes of paragraph (b) of subsection (1) of this section, the reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor‘s situation under the circumstances as the actor reasonably believes them to be.
“* * * * *”