Lead Opinion
This сase is before us on automatic and direct review of defendant’s convictions for eight counts of aggravated murder and sentence of death. Defendant challenges trial court rulings in the pretrial, guilt, and penalty phases of his trial, seeking reversal of his convictions or, in the alternative, vacation of his sentence of death and remand for resentencing. For the reasons set out below, we affirm the convictions for aggravated murder and the sentence of death.
I. FACTS
Because the jury found defendant guilty, we review the evidence in the light most favorable to the state. State v. Thompson,
The victim disappeared on August 27, 1996. Her family told police that defendant might have information about her whereabouts because the victim had been planning to meet with defendant to ask him to make some jewelry for her upcoming wedding. On September 2,1996, the Tualatin police interviewed defendant, who stated that he had not seen the victim for three weeks. Later that evening, a Milwaukie police officer, who had no knowledge of the Tualatin police’s questioning of defendant regarding the victim’s disappearance, stopped defendant because the license plate light on his van was not working. Defendant’s license check revealed no reason to detain him, but the police determined that defendant’s passenger, Johnston, had an outstanding warrant for his arrest for a parole violation. The police arrested Johnston.
During the traffic stop and investigation of Johnston, one of the police officers saw defendant and Johnston moving a duffel bag inside the van as if to conceal it. The officer asked defendant for consent to look into the bag, and defendant consented. The police found, among other things, a replica of a Colt .45, a stun gun, a dart gun, a large knife, a lock-pick set, a pair of scissors, and a roll of duct tape. The police inventoried the items and returned them to defendant, but did not detain him further.
On September 9, 1996, the victim’s badly decomposed body was found in Champoeg Park. In a subsequent interview with defendant, the Tualatin police learned of Johnston’s September 2,1996, arrest. They listened to tapes of Johnston’s telephone conversations with defendant from jail and learned that defendant might have been involved in the victim’s disappearance.
Meanwhile, as a result of the continuing investigation of the victim’s death, the state charged Johnston with one count of aggravated murder. Johnston pleaded guilty to aggravated murder, and, in exchange for his cooperation and testimony, the state agreed not to seek the death penalty.
Defendant was ultimately charged with eight counts of aggravated murder. At trial, both defendant and Johnston testified. Johnston testified that, while he was staying with defendant at defendant’s apartment, defendant said that he had a date with the victim, left the apartment, and brought the victim back with him later that evening.
Defendant argued at trial that Johnston had lied in his testimony to avoid the death penalty. Defendant testified that Johnston had killed the victim while defendant was away from the apartment. According to defendant, he had not learned of the victim’s murder until the following day. He testified that he had helped Johnston cover up the murder because he had been afraid of being implicated in the murder because it had occurred in his apartment.
The jury convicted defendant of all eight counts of aggravated murder. In a separate sentencing proceeding, the jury dеtermined that defendant had acted deliberately, that defendant posed a continuing risk to society, and that defendant should receive a death sentence. The trial judge then entered a sentence of death. After defendant’s conviction, the court sentenced Johnston to life without the possibility of parole.
Defendant now raises 43 assignments of error. We have examined each of those assignments of error, and we reject each one. Three of the assignments of error merit discussion, and we now turn to them.
II. GUILT-PHASE JURY INSTRUCTIONS
A. Preliminary Discussion
Defendant assigns as error the trial court’s “accomplice-witness” instructions and, in particular, the instruction that stated that, “as a matter of law,” Johnston was “an accomplice witness in the commission of the crimes charged in this indictment.”
“You are instructed that as a matter of law, Willford Nathaniel Johnston, III, is an accomplice witness in the commission of the crimes charged in this indictment.” (The accomplice-witness-as-a-matter-of-law instruction.)
“You should view an accomplice witness’s testimony with distrust.” (The credibility instruction.)
“The testimony of an accomplice in and of itself is not sufficient tо support a conviction. There must be, in addition, some other evidence, however slight or circumstantial, other than the testimony of an accomplice that tends to connect the defendant with the commission of the crime. This other evidence or corroboration need not be sufficient by itself to support a conviction, but it must tend to show something more than just that a crime was committed. It must also connect or tend to connect the defendant with the commission of the crime.” (The corroboration instruction.)4
As noted, at trial, Johnston had testified that he and defendant had committed the crimes together. Defendant testified that Johnston had committed the crimes alone, admitting his own culpability only as to helping to dispose of some of the victim’s property, cleaning up his apartment to remove evidence of the victim’s murder, and related conduct after the victim had been killed.
As authority for his arguments, defendant relies on State v. Simson,
“By instructing the jury that the witnesses were accomplices in the crime as a matter of law, the trial court effectively instructed the jury that the crime was in fact committed. This deprived defendant of his right to a jury trial on all elements of the charge. Normally, the accomplice-as-a-matter-of-law instruction presents no problem, because the instruction is requested by the defendant. A defendant will risk the implication that a crime was committed in order to cast doubt on the veracity of his accusers. But, in this case, it could serve to cast doubt only on the veracity of those whose testimony favored him. Defendant received no tradeoff.”
Id. at 109-10.
“We think that, as a general rule, these instructions ought not to be given unless requested by the defendant.”
Id. at 110 n 10. Defendant points to that “general rule,” arguing that the trial court should have followed it in his case. When the trial court gave the accomplice-witness instructions over defendant’s objection, defendant contends, the trial court committed reversible error in the three respects described above.
Before addressing defendant’s arguments, it is helpful to discuss the reason for giving the accomplice-witness-as-a-mattеr-of-law instruction and the appropriate situations in which to give it. The testimony of accomplices long has been viewed with suspicion, both because of concern about the veracity of a witness who, by his or her own admission, has committed a crime, and because of concern that an accomplice might be induced to testify falsely against the person with whom he or she committed the crime by promises of leniency or immunity.
To make the credibility and corroboration instructions meaningful, a trial court ordinarily also instructs a jury regarding who is an accomplice witness, so that the jury will understand whose tеstimony is to be viewed with distrust and must be corroborated in order to convict a defendant. Subsection (2) of ORS 136.440 provides that an “accomplice” is “a witness in a criminal action who, according to the evidence adduced in the action, is criminally liable for the conduct of the defendant under ORS 161.155 and 161.165.”
Having discussed the statutory grounds for credibility and corroboration instructions and the definition of “accomplice” for purposes of determining when such instructions should be given, we next consider the appropriate roles of the judge and jury in deciding whether a witness is an accomplice witness. If there is no dispute regarding whether a witness is an accomplice witness — that is, sufficient evidence exists to charge, but not necessarily to convict, the witness of the crimes with which the defendant is charged — then the trial court may determine, as a matter of law, that the witness is an accomplice. Hull,
Turning to defendant’s arguments, we first address his argument that the trial court directed, in effect, a verdict of guilty. According to the state, Simson expressly rejected the same argument that defendant makes here. We agree. In Simson, this' court rejected the defendant’s argument that the accomplice-witness-as-a-matter-of-law instruction amounted to a directed verdict:
“We believe that the jury would understand that the determination of defendant’s guilt was its to make and we doubt that the jury would have understood the instruction to be an order to find the defendant guilty, given the instructions as a whole. See generally State v. Hull [,286 Or 511 ].”
Simson,
That reasoning applies here as well. Viewing the instructions as a whole, it is apparent that the trial judge did not instruct the jury that it should find that defendant had committed the crimes. The trial court instructed the jury as to the elements of each crime alleged in the indictment and the relevant definitions of legal terms. It instructed the jury that the state had the burden of proving all elements of the crimes; that the jury was not to take out of context or place undue emphasis on any one instruction; that, as to each count, the jury could find defendant guilty of the offense charged, guilty of a lesser-included offense, or not guilty; and that defendant was innocent until proven guilty beyond a reasonable doubt. It went on to tell the jury, “You have the sole responsibility to determine what testimony or portions of testimony you will or will not rely upon in reaching your verdict.” No reasonable juror could have understood the accomplice-witness instructions to mean that the jury was required to find that defendant was guilty.
Defendant’s reliance on Simson is misplaced for a more fundamental reason: The “accomplice” testimony in that case exculpated, rather than incriminated, the defendant. The accomрlice-witness instructions in Simson, in other words, were erroneous because they directed the jury to view with distrust testimony that was favorable to the defendant, i.e., that the defendant was not involved in the crimes alleged in the indictment. “Instructing the jury that they cannot convict defendant upon uncorroborated accomplice testimony makes no sense when the ‘accomplice’ testimony itself does not implicate defendant in the crime.” Simson,
For the foregoing reasons, we hold that the accomplice-witness-as-a-matter-of-law instruction did not amount to a directed verdict of guilty in defendant’s case.
C. Defendant’s Argument That the Instruction Told the Jury That a Crime Had Been Committed
Defendant’s second argument — that the accomplice-witness-as-a-matter-of-law instruction “effectively instructed the jury that the crime was in fact committed” — is based on this court’s holding in Simson that the instruction deprived the defendant in that case of his right to a jury trial on each element alleged in the indictment. The state argues that Simson is distinguishable because, here, defendant’s own testimony, while denying responsibility for the crimes, confirmed that the crimes had occurred. Thus, according to the state, because defendant concedes that a crime was in fact committed, the instruction did not improperly deprive defendant of his right to a jury trial on that issue.
D. Defendant’s Argument That the Instruction Undermined His Defense
Defendant’s third argument is that, even if the accomplice-witness instructions did not amount to a directed verdict, by instructing the jury that Johnston was an “accomplice witness as a matter of law,” the trial court, in effect, told the jury that Johnston had solicited, commanded, aided, or abetted someone in the commission of aggravated murder, and the only other possible participant, based on the evidence at trial, was defendant. Defendant’s theory of the case, however, was that Johnston had committed the crimes alone. According to defendant, the trial court’s accomplice-witness-as-a-matter-of-law instruction was, therefore, error, because it undermined that theory.
Several of this court’s cases discuss the circumstances in which it may be error to instruct the jury that a witness is an “accomplice” or an “accomplice witness” as a matter of law, and we now turn to those cases. As noted above, in Simson, this court held that, based on the facts of that case, it was error to give accomplice-witness instructions, including the accomplice-witness-as-a-matter-of-law instruction, and stated in a footnote the “general rule” that accomplice-witness instructions should not be given unless requested by a defendant.
In Hull, this court discussed the respective roles of the judge and jury in determining whether a witness is an accomplice witness whose testimony must be corroborated. As noted above, the standard set out in Hull is not whether there is sufficient evidence to convict the witness of being an accomplice of the defendant, but “whether there is probable cause to charge the witness with the offense for which [the] defendant is on trial[.]”
In this case, however, the characteristics that made the instruction in Gibson erroneous are not present. In contrast to the explicit instruction that Wright was “an accomplice of the defendant Monte Gibson,” the instruction in this case was that Johnston was an “accomplice witness in the commission of the crimes charged in this indictment.” Thus, the instructions here focused on the kind of witness Johnston was, for purposes of the corroboration and credibility instructions, rather than on the relationship between Johnston and defendant. Moreover, unlike the Gibson instruction, the instruction here did not refer to defendant by name or even as “defendant,” but referred to only the crimes alleged in the indictment — crimes to which Johnston had pleaded guilty. The instruction in this case does not suffer from the explicit statement that the witness and the defendant were accomplices in the commission of the crimes that made the Gibson instruction erroneous.
Having concluded that the instruction here was not error for any of the reasons described in Simson, Hull, or Gibson, we turn to defendant’s argument that the instruction nonetheless imprоperly intruded on the jury’s factfinding role because, by calling Johnston an “accomplice witness,” the instruction suggested that Johnston was in fact an “accomplice” and, therefore, it implied that defendant was culpable, as well. As noted in our discussion of Gibson, the instruction here stated that Johnston was an “accomplice witness” as a matter of law, rather than an “accomplice,” and the instruction, unlike the instruction in Gibson, did not mention defendant. However, defendant is correct in asserting that the facts regarding whether Johnston acted alone in murdering the victim or acted together with defendant as an “accomplice” were disputed at trial. Because those facts were disputed, defendant argues, the trial court’s statement that, as a matter of law, Johnston was an “accomplice witness in the commission of the crimes charged in the indictment” was error, because it told the jury that it must conclude that Johnston and defendant had acted together. For the reasons that follow, we reject defendant’s argument.
In determining whether it was error to give a particular instruction, the instructions are read as a whole to determine whether they accurately state the law. State v. Barnes,
The accomplice-witness-as-a-matter-of-law instruction consisted of less than four lines out of the 40 pages of the trial transcript devoted to instructions and the verdict form. It was followed immediately by the credibility and corroboration instructions. Both literally and in context, the accomplice-witness-as-a-matter-of-law instruction told the jury only that Johnston was the kind of witness who was to be viewed with distrust and whose testimony must be corroborated. It did not tell the jury that the jury must conclude that Johnston and defendant had acted together. Moreover, although the jury was given standard instructions on aiding and abetting, it was not instructed on the definition of “accomplice,” and it was not required to make any particular decision based on the meaning or application of that term. Finally, and immediately after the accomplice-witness instructions, the trial court instructed the jury that defendant was prеsumed innocent unless and until proved guilty beyond a reasonable doubt.
Considered as a whole, as they must be, the trial court’s instructions fairly apprised the jury of its role in determining whether the state had met its burden of proving that defendant was guilty of the crimes alleged in the indictment. The jury could not reasonably have understood the instructions to remove from its consideration the question whether defendant and Johnston had acted together. Instead, the jury would have understood, from the instructions as a whole, that, depending upon its evaluation of all the evidence, it could accept defendant’s theory that Johnston had acted alone or it could accept the state’s theory that Johnston and defendant had acted together.
III. SUFFICIENCY OF THE INDICTMENT
In two assignments of error, defendant asserts that the trial court did not constitutionally impose a death sentence because the indictment did not allege an offense that made him eligible for the death penalty. Before discussing defendant’s argument, it will be helpful first to examine Oregon’s death-penalty sentencing scheme. ORS 163.105 provides that a person who is convicted of aggravated murder “shall be sentenced, pursuant to ORS 163.150, to death, life imprisonment without the possibility of release or parole [,] or life imprisonment.” ORS
Defendant argues that, because he cannot receive a death sentence unless the jury determines that he acted deliberately, deliberateness is an element of the crime of аggravated murder when the state seeks a death sentence. As such, he maintains, it must be pleaded in the indictment and proved beyond a reasonable doubt to a jury.
Defendant’s argument is based on Apprendi v. New Jersey,
Defendant relies upon Apprendi for the proposition that any fact that increases the maximum penalty for a crime is a functional element of that crime if the state seeks the increased penalty. In Apprendi,
Defendant concedes that this court rejected his argument under Apprendi, summarized above, in State v. Terry,
There is no reason to address the issue whether allowing the jury to decide the unalleged issue of deliberateness is error “apparent on the face of the record” without first determining whether it was error at all. We therefore turn to the merits of defendant’s argument.
Ring concerned a defendant who had been found guilty of felony murder occurring in the course of an armed robbery; the jury, however, deadlocked on the charge of premeditated murder. Under the applicable sentencing statutes, a person convicted of first-degree murder could not be sentenced to death unless the trial court made additional findings of at least one of certain statutory aggravating factors. Following a sentencing hearing in which new evidence was introduced, including testimony that the defendant had been the person who had shot the victim, the trial court made those additional findings and sentenced the defendant to death. The Arizona Supreme Court affirmed. The United States Supreme Court reversed, holding that the defendant’s death sentence violated the Sixth Amendment’s jury trial guarantee because the maximum punishment that the defendant could have received based on the jury’s verdict was life imprisonment; the judge alone found the aggravating factors that made the defendant eligible for the death penalty. Ring,
Defendant admits that, under Oregon law, the jury, not the court, determines whether the aggravating factors are present that make an aggravated murder defendant eligible for the death penalty. For that reason, the specific holding in Ring that the death sentence violated the defendant’s right to a jury trial is inapposite here. Nonetheless, defеndant argues that the Supreme Court’s determination on a preliminary issue in Ring undermines the analysis that this court used in Terry to distinguish Apprendi and requires that deliberateness be considered an element of aggravated murder punishable by death that must be charged in the indictment.
As noted, in Terry, this court rejected the argument that “deliberateness” is an element of capital aggravated murder that must be charged in the indictment. The court distinguished Apprendi by noting that the defendant in Terry had received a sentence within the statutory range of punishments for the crime while, in Apprendi, the defendant had been sentenced to a term of imprisonment greater than the statutory maximum for the crime. Terry,
“This argument overlooks ApprendVs instruction that' ‘the relevant inquiry is one not of form, but of effect.’ In effect, ‘the required finding [of an aggravated circumstance] expose [d] [Ring] to a greater punishment than that authorized by the jury’s guilty verdict.’ The Arizona first-degree murder statute ‘authorizes a maximum penalty of death only in a formal sense,’ for it explicitly cross-references the statutory provision requiring the finding of an aggravating circumstance before imposition of the death penalty. If Arizona prevailed on its opening argument, Apprendi would be reduced to a ‘meaningless and formalistic’ rule of statutory drafting.”
Ring,
Based on that passage from Ring, defendant argues that “deliberateness” should have been charged in his indictment because a finding of deliberateness exposed him to a greater punishment than the punishment that could have been imposed based on the guilty verdict alone. Because “deliberateness”
We reject defendant’s argument. Ring does not require that “deliberateness” be charged specifically in the indictment before the question of deliberateness can be submitted to a jury. The Supreme Court did not discuss in Ring the proposition on which defendant now relies, and the Court specifically noted that “[the defendant] does not contend that his indictment was constitutionally defective.” Ring,
In summary, in this case, unlike in Ring, the trial court did not impose on defendant any punishment that the jury’s answers in the special verdict in the penalty phase did not require. Neither does Ring support defendаnt’s argument that the indictment was defective. Contrary to defendant’s assertion, Ring does not require revision of this court’s analysis of Apprendi that is set out in State v. Terry. Defendant’s sentence of death, therefore, does not violate defendant’s due process or jury trial rights.
IV. CONCLUSION
Based on our review of the three assignments of error discussed above and of each of defendant’s other assignments of error not discussed in this opinion, we conclude that there was no reversible error in the guilt or penalty phases of defendant’s trial.
The judgment of conviction and sentence of death are affirmed.
Notes
The police suspected that Johnston and defendant were using a code to discuss plans to dispose of the victim’s property. For example, the two men discussed their desire to dispose of “camping stuff’ and the possibility of having a “garage sale.” Police were familiar with that type of code, which they suspected that defendant and Johnston had learned while in prison together for previous offenses.
Defendant had vacated the premises, and his former landlord had consented to the search.
Defendant’s objection is to a group of three instructions to which we refer, collectively, as the “accomplice-witness” instructions.
Those instructions were based on the Uniform Criminal Jury Instructions currently numbered as 1057(2), 1056, and 1055, respectively.
Simson referred to the instruction at issue in that case as the “accomplice-as-a-matter-of-law” instruction. We note, however, that the instruction at issue in that case was the same as the one at issue here, which we refer to as the “accomplice-witness-as-a-matter-of-law” instruction. See Simson,
The origins of the common-law rules and the statutes regarding the testimony of accomplice witnesses and the early Oregon cases are discussed in Note, 17 Or L Rev 118 (1938).
ORS 136.440 provides:
“(1) A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances of the commission.
“(2) As used in this section, an ‘accomplice’ means a witness in a criminal action who, according to the evidence adduced in the action, is criminally liable for the conduct of the defendant under ORS 161.155 and 161.165 * * *."
ORS 10.095 provides, in part:
“The jury, subject to the control of the court, in the cases specified by statute, are the judges of thе effect or value of evidence addressed to them, except when it is thereby declared to be conclusive. They are, however, to be instructed by the court on all proper occasions:
"* * * * *
“(4) That the testimony of an accomplice ought to be viewed with distrust.”
ORS 161.165 relates to victims of crimes and persons whose conduct is necessarily incidental to crimes and, thus, is inapplicable to the issue discussed here. ORS 161.155 provides, in part:
“A person is criminally liable for the conduct of another person constituting a crime if:
"*****
“(2) With the intent to promote or facilitate the commission of the crime the person:
“(a) Solicits or commands such other person to commit the crime; or “(b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime; or
“(c) Having a legal duty to prevent the commission of the crime, fails to make an effort the person is legally required to make.”
Of course, if the trial court determines, as a matter of law, that a witness is not an accomplice, then the defendant may be convicted solely on the basis of the testimony of that witness, and none of the accomplice-witness instructions shоuld be given. A number of this court’s accomplice-witness cases involve the defendant’s assertion that the trial court erred in concluding that a witness was not an accomplice, thus allowing the defendant to be convicted even in the absence of corroborating evidence. See, e.g., State v. Coffey,
The reason for placing that burden on the defendant is obvious: If the witness is an accomplice, then the defendant receives the benefit of the statutory requirement that the state present evidence that corroborates the testimony of the accomplice, as well as the benefit of the credibility instruction.
We note that Simson appears to be the only case in which an Oregon court ever has reversed a conviction because the trial court erroneously gave an accomplice-witness-as-a-matter-of-law instruction. Simson involved the situation — not present in this case — of testimony of an alleged accomplice of the defendant that was introduced by the prosecution, but was highly favorable to the defendant.
The potential mischief that arises from the use of the word “accomplice” in any formulation of the accomplice-witness instructions can be avoided. If the trial court determines that a witness is an accomplice witness as a matter of law, then it may instruct the jury that the testimony of that witness must be viewed with distrust and must be corroborated, without telling the jury that the witness is an “accomplice witness” as a matter of law.
The dissent asserts that the trial court’s instructions “required the jury to accept the court’s factual determination * * * that [Johnston] was an accomplice and, consequently, had not acted alone,”
In defendant’s indictment for aggravated murder, counts one through four charged defendant with “personally and intentionally” causing the death of the victim. In counts five through eight, the indictment charged defendant with “unlawfully and intentionally” causing the death of the victim.
Dissenting Opinion
dissenting.
I dissent from the majoritys analysis and conclusion respecting the accomplice-witness instruction that the trial court gave to the jury.
A statute, ORS 10.095(4), requires a trial court, “on all proper occasions,” to give an instruction that requires the jury to “view[ ] with distrust” the testimony of an accomplice.
“The jury, subject to the control of the court, in the cases specified by statute, are the judges of the effect or value of evidence addressed to them, except when it is thereby declared to be conclusive. They are, however, to be instructed by the court on all proper occasions:
"* * * * *
“(4) That the testimony of an accomplice ought to be viewed with distrust * * *[.]”
This court has admonished trial courts to refrain from giving an instruction under ORS 10.095(4) “unless requested by the defendant.” State v. Simson,
In State v. Gibson, 252 Or 241, 243-44,
As the parties agree, and as the majority observes, the record of the guilt phase in defendant’s trial presents a sharp factual dispute about Johnston’s role in the victim’s murder. The state introduced evidence that, if believed, would establish that Johnston and defendant had acted together in killing the victim. Defendant introduced evidence that, if believed, would establish that Johnston had acted alone in killing the victim.
When the parties rested, the court delivered the following jury instructions that related to the testimony of an accomplice:
“You are instructed that as a matter of law, Willford Nathaniel Johnston, the 3rd, is an accomplice witness in the commission of the crimes charged in this indictment. You should view an accomplice witness’s testimony with distrust. The testimony of an accomplice in and of itself is not sufficient to support a conviction. There must be, in addition, some other evidence, however slight or circumstantial, other than the testimony of an accomplice that tends to connect the defendant with the commission of the crime. This other evidence or corroboration need not be sufficient by itself to support a conviction, but it must tend to show something more than just that a crime was committed. It must also connect or tend to connect the defendant with the commission of the crime.”
(Emphasis added.)
Defendant objected to the addendum embodied in the first sentence of those instructions, emphasized above, asserting that thаt instruction “cut the heart out of the defense” by defeating the defense theory that “Mr. Johnston did this crime alone and so he [Johnston] would not have been Mr. Oatney’s accomplice.” It is clear that the challenged instruction identified Johnston, as a matter of law, as an accomplice witness in the commission of the crimes charged in the indictment against defendant. Defendant argued that the instruction “assisted the State in proving that Mr. Oatney was, in fact, at the scene of the crime and helping out.”
At the outset, I wish to note that I agree with the majority’s stated view that a witness qualifies as an “accomplice,” as ORS 10.095(4) uses that term, if the evidence is sufficient to indict the witness for the crimes charged against the defendant. As the following discussion demonstrates, my concern centers on the fact that the court’s instruction failed to convey that distinctive legal meaning of “accomplice” to the jury and, thus, required the jury to rely on the materially different common meaning of that term. I also join the majority’s suggestion that trial courts can avoid the problem that arises from using the word “accomplice” in a jury instruction simply by informing the jury that the law requires the jury to view the witness’s testimony with distrust and that other evidence must сorroborate the witness’s testimony.
This court’s cases demonstrate that an accomplice-witness instruction can interfere with the jury’s responsibility to determine the pertinent facts relating to guilt or innocence. That is so because an accomplice-witness instruction can permit or require the jury to draw multiple inferences about the
“By instructing the jury that the witnesses were accomplices in the crime as a matter of law, the trial court effectively instructed the jury that the crime was in fact committed. This deprived defendant of his right to a jury trial on all elements of the charge. Normally, the accomplice-as-a-matter-of-law instruction presents no problem, because the instruction is requested by the defеndant. A defendant will risk the implication that a crime was committed in order to cast doubt on the veracity of his accusers. But, in this case, it could serve to cast doubt only on the veracity of those whose testimony favored him. Defendant received no trade-off.10
In Simson, this court interpreted the accomplice instruction in a commonsense fashion. Although the instruction did not state literally that the crime in fact had been committed, the court had no difficulty drawing that reasonable inference from the statement in the instruction that the witnesses were accomplices in the crime. Simson teaches that, when considering the propriety of accomplice instructions, the court takes into account not only the words of the instructions but also the reasonable inferences that the words convey.
In Gibson, as already noted, this court examined whether the trial, court erred in instructing the jury that defendant’s associate, Wright, “ ‘is an accomplice of the defendant Monte Gibson [ ]’” in Gibson’s trial for robbery.
The problem created by the addendum instruction in this case more closely resembles the problem addressed in Gibson than that in Simson. Unlike the facts in Simson, defendant conceded that a crime had occurred and, consequently, the accomplice-witness instruction gave the state no undue assistance in proving that aspect of its case.
Gibson lends support to defendant’s argument that, under the facts of this case, delivery of an addendum instruction identifying a purported accomplice witness as a matter of law constitutes legal error. As in Gibson, the instruction here bound the jury to accept that the state’s witness was an “accomplice” in the crime charged against defendant. The word “accomplice” has the following commonly understood definition that, we must assume, the jurors applied:
“[0]ne associated with another in wrongdoing : one that participates with another in a crime either as principal or accessory * *
Webster’s Third New Int’l Dictionary 12 (unabridged ed 1993). The factual inference that the addenda in Gibson and this case reasonably convеyed, in the context of the evidentiary record, was that the witness had participated in the crime with another actor and that the other joint actor had been the named defendant.
The majority attempts to distinguish Gibson by pointing out that, in Gibson, the challenged instruction expressly described Wright as an accomplice and linked Wright with the defendant Gibson by name, whereas the instruction here stated that Johnston was an accomplice witness and did not mention
Thе majority’s failure to acknowledge the full effect of labeling Johnston as an accomplice in this case operates to defeat rather than support the legislature’s purpose in enacting ORS 10.095(4).
The majority states several reasons for concluding that the delivery of the addendum instruction in this case was not an error. With respect, I do not accept those reasons. The majority acknowledges that the instruction, “viewed alone and as an abstract proposition, would allow a juror to conclude, from the description of Johnston’s status as an ‘accomplice witness,’ that the trial court was stating that another person necessarily had committed the crimes with Johnston.”
I agree that we must examine all the jury instructions together to determine whether they accurately state the law. The addendum instruction does convey the inference, as the majority observes, that Johnston did not act alone in committing the murder. Id. at 291. However, the addendum instruction required the jury to accept that inference about Johnston “as a matter of law.” It did not merely “allow” the jury to agree with that inference, and the majority errs in asserting that the addendum was only permissive in that regard.
None of the other jury instructions to which the majority refers effectively negated the addendum instruction. The most that we can say about those other instructions is
The majority’s assertion that the addendum instruction took up only four lines of the transcript is beside the point. Finally, I cannot agree with the majority’s assertion that the addendum instruction did not tell the jury that it must conclude that Johnston and defendant had acted together. As noted above, if Johnston indeed had been involved in the murder, then defendant was the only possible person with whom Johnston could have acted in murdering the victim. The majority disregards both the text of the addendum and the factual record in asserting that, notwithstanding the court’s contrary instruction as a matter of law, the jury still could have accepted “defendant’s theory that Johnston had acted alone * * *." Id. at 292.
I turn to the question whether the trial court’s error harmed defendant. The court does not presume that an instructional error is harmful to the defendant. The record must demonstrate that the error may have led the jury to convict defendant due to a misstatement of law regarding the jury’s discretion to accept or reject inculpatory testimony. See State v. Rawls,
In this case, as noted above, defendant testified that Johnston had acted alone in killing the victim. He did not concede that he took any action to aid Johnston until after Johnston had committed the murder. However, by identifying Johnston as an accomplice witness as a matter of law in the commission of the crimes charged, the addendum instruction restricted the jury’s authority to conclude, in conformance with defendant’s testimony, that Johnston had acted alone in murdering the victim. The court in Rawls acknowledged that there might he only a slight possibility of a different outcome from an instructional error that misstated the jury’s factfinding role, but nevertheless remanded for a new trial. The same result should obtain here.
In Gibson, as noted above, this court concluded that, on the facts of that case, the trial court had erred in delivering the addendum to the accomplice-witness instruction, but that the error was harmless. The court never disclosed its reasoning for that conclusion. However, I infer from the Gibson court’s discussion that the decisive facts were that the defendant conceded that he and Wright had been accomplices in the commission of the lesser charge of assault and battery, that the robbery had occurred during the assault and battery of the victim, that the addendum instruction had made no mention of the crime or crimes for which the defendant and Wright had been accomplices, and that the defendant had not objected to the form of the addendum instruction.
Those unique aspects of Gibson are not present here. The court’s identification of Johnston as an accomplice witness as a matter of law may have led the jury to conclude that, contrary to defendant’s testimony, Johnston did not act alone. See State v. Brown,
For the foregoing reasons, I respectfully dissent.
As the majority states, ORS 136.440 also prohibits conviction on the uncorroborated testimony of an accomplice. I do not separately analyze the effect of ORS 136.440 on this case.
In Gibson, the state prosecuted Gibson for robbery after Gibson and a drinking companion, Wright, beat and kicked the victim, Landa. One or both of the aggressors also took Landa’s billfold and money. Gibson and Wright accused each other of the robbery. Addressing an assignment that the trial court had erred by adding an explicit identification of the accomplice to the statutory accomplice witness instruction, this court stated:
“Since a part of the state’s evidence against Gibson had been supplied by the testimony of Wright, the court was required to instruct that the testimony of an accomplice was to be viewed with distrust. After giving the instruction in the words of the statute, the court then added, ‘and as a matter of law, I instruct you in this case that Larry Wright is an accomplice of the defendant Monte Gibson.’
“The defendant interprets the addendum to the instruction as an instruction to the jury that if they believed that Wright was guilty of the robbery then they must also find the defendant guilty.”
“10 We think that, as a general rule, these instructions ought not to be given unless requested by the defendant.”
The majority asserts that Johnston met the legal definition of an accomplice and that the addendum portrayed Johnston as an accomplice witness to a crime, not as defendant’s accomplice. In Simson, this court noted that the dissenting opinion in the Court of Appeals had relied on the same distinction, but ultimately rejected that dissenting opinion.
That concern arguably is more pronounced under the facts of this case than in Gibson. Here, unlike in Gibson, defendant admitted no involvement or cooperation with the state’s witness in carrying out the crimes charged in the indictment.