STATE OF OREGON, Petitioner on Review, v. DANIEL STEVEN ZOLOTOFF, Respondent on Review.
CC 09C42126; CA A145303; SC S061003
In the Supreme Court of the State of Oregon
January 30, 2014
320 P.3d 561 | 354 Or. 711
Argued and submitted September 19, 2013, decision of Court of Appeals affirmed; judgment of circuit court reversed, and case remanded to circuit court for further proceedings January 30, 2014
Daniel C. Bennett, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With him on the brief was Peter Gartlan, Chief Defender.
WALTERS, J.
WALTERS, J.
In this case, the jury unanimously found defendant guilty of the charged offense of possession of a weapon by an inmate,
The uncontested facts establish that defendant was an inmate when deputies found a broken plastic spoon in his cell. The state acknowledges that a jury could have found from the evidence presented either that the spoon was a weapon at the time that the deputies found it or that defendant was in the process of making the spoon into a weapon and had not succeeded in that effort, so that the spoon was not yet a weapon. Consequently, the state acknowledges that, on this record, the jury could have convicted defendant either of the charged offense of possession of a weapon or of the lesser-included offense of attempted possession of a weapon. The state also concedes that the trial court erred in declining defendant‘s request for an instruction on the latter offense. The state contends, however, that the error was harmless. Whether the error requires reversal is the sole issue before this court.
In rejecting the state‘s harmless error argument, the Court of Appeals relied on this court‘s decision in State v. Naylor, 291 Or 191, 629 P2d 1308 (1981). In that case, the defendant was charged with first-degree burglary, and
the trial court denied the defendant‘s request for an instruction on the lesser-included offense of second-degree criminal trespass. The jury found the defendant guilty of the charged offense, and, on appeal, the Court of Appeals held that the trial court had erred in not instructing on the lesser-included offense. The Court of Appeals also decided, however, that the error was harmless because, in its view, the verdict demonstrated that the jurors did not believe the defendant‘s exculpatory version of the event. State v. Naylor, 49 Or App 57, 61, 618 P2d 1311 (1980).
This court reversed. 291 Or at 199. In doing so, this court explained, first, that Oregon law requires that the trial court, on request, instruct the jury on relevant lesser-included offenses. Id. at 195 (citing
On that issue, the court in Naylor reasoned that the trial court‘s failure to give the instruction “resulted in the case being submitted to the jury without the complete statement of the law necessary for the jury to properly exercise its function in the trial of [the] defendant.” 291 Or at 197-98. The court reversed because it was “unable to say what the verdict would have been had the theory of the defense been properly presented to the jury.” Id. at 198. In reaching that conclusion, the court noted that
In the Naylor court‘s view, one of the apparent reasons for that statutory policy was to “avoid placing the jury
in the position of making an all-or-nothing choice as between guilt and innocence where there is evidence which would justify a verdict of guilty of a lesser offense.” Id. The jury, the court observed, may believe a defendant to be guilty of “some apparent violation of the criminal code but not of the crime charged” and then be “confronted with the choice of finding innocent a defendant it believes has been guilty of wrongdoing or finding a defendant guilty of a crime greater than that which the jury believes he has committed.” Id. at 198-99. The result, the court noted, could “in one case redound to the benefit of the defendant, and, in another, to the benefit of the prosecution, assuming that an unjustified conviction can ever be found to be to the benefit of the people.” Id. at 199 (internal quotation marks omitted).
The state argues that the court‘s reasoning in Naylor no longer is persuasive, because the legislature has since enacted
“The jury shall first consider the charged offense. Only if the jury finds the defendant not guilty of the charged offense may the jury consider a lesser included offense. If there is more than one lesser included offense, the jury shall consider the lesser included offenses in order of seriousness. The jury may consider a less serious lesser included offense only after finding the defendant not guilty of any more serious lesser included offenses.”
(Emphases added.) The state argues that, had the trial court given the lesser-included offense instruction that defendant requested, it also would have given an instruction in accordance with
reached in this case.
In making that argument, the state does not ask us to overrule or otherwise disavow Naylor. It asks only that we consider the result in Naylor in context and conclude that Naylor‘s reasoning no longer is applicable. The state explains that, when this court decided Naylor, no statute required an “acquittal first” instruction, and the Court of Appeals had held that a trial court had committed reversible error by giving such an instruction. State v. Ogden, 35 Or App 91, 95-96, 580 P2d 1049 (1978). This court later reached the same conclusion, observing that an “acquittal first” instruction “exacerbates the risk of coerced decisions.” State v. Allen, 301 Or 35, 40, 717 P2d 1178 (1986). Thus, the state explains, in the period before the enactment of
The state is correct that the legislature now requires that jurors follow a procedure—acquittal of the charged offense before consideration of a lesser-included offense—that Ogden and Allen prohibited because of its perceived coercive effect on jury deliberations. Because the result in Naylor rested, at least in part, on a similar concern, we agree that
We turn, therefore, to a second ground for this court‘s decision in Naylor and the extent to which
The legislative history of
of the legislation was to change the “order of deliberations” and that the proposed statute would inform juries that they must acquit of the more serious charge before they could move on to lesser charges. Testimony, House Committee on Judiciary, Subcommittee on Criminal Law, SB 613, May 27, 1997, Tape 128, Side A (statement of Multnomah County Deputy District Attorney Chuck French). The third testified that the bill would alleviate a concern that jurors might think that they had to reach a verdict or the defendant would be set free, and therefore jurors might be excessively willing to compromise. Testimony, House Committee on Judiciary, Subcommittee on Criminal Law, SB 613, May 27, 1997, Tape 128, Side A (statement of Marion County District Attorney Dale Penn). No witness or legislator took the position that the bill precluded jurors from learning of or thinking about the differences in the applicable charges and weighing those differences before they “considered” the charges in the order required.
What we take from our review of the text, context, and legislative history of
With the enactment of
even if it also had received instruction on the lesser-included offense. In other words, in many instances, a trial court‘s failure to give a lesser-included instruction, although error, may be harmless error.
Bowen, a case cited by the state, provides but one example. In Bowen, the defendant was charged with both aggravated murder and intentional murder, and the trial court declined the defendant‘s request for an instruction that manslaughter was a lesser-included offense of aggravated murder, but gave an instruction that manslaughter was a lesser-included offense of intentional murder. The court also instructed the jury on the elements of all three offenses. This court held that the trial court had erred, but that its error was harmless. The court explained that “the case was submitted to the jury with complete and correct statements of the law necessary for it to properly determine whether the state had proved [the] defendant‘s guilt on the crimes charged beyond a reasonable doubt.” Id.
On the other hand, an error in failing to instruct on a lesser-included offense will not always be harmless. There may be circumstances in which the elements of the charged crime are clearer when they are viewed in contrast with the elements of a lesser-included offense. So, for instance, an instruction on the elements of a lesser-included offense may disclose a legal distinction that is not otherwise patent and that would be particularly helpful to the jury in deciding whether the defendant is in fact guilty of the charged offense. In determining whether an error in failing to instruct on a lesser-included
In this case, the state contends, we should reach precisely that conclusion. The state argues that the elements of the charged offense were easily understood and the jury was able to determine whether the spoon was a weapon from the instructions that it received without further instruction on the offense of attempted possession of a weapon. Given the particular evidence and the charges involved in this
case, however, we disagree. The trial court instructed the jury that a weapon “includes, but is not limited to, a sharp instrument; it can be any instrument or device that can be used offensively or defensively to gain an advantage.” Had the trial court further instructed the jury on attempted possession of a weapon, it would have informed the jury that an attempt occurs when a defendant “intentionally engages in conduct that constitutes a substantial step toward the commission of that crime.”
The legislature has made a policy decision that both the state and a defendant are entitled, on request and when the evidence supports it, to an instruction on relevant lesser-included offenses.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.