State v. Hessel , 117 Or. App. 113 ( 1992 )

De MUNIZ, J.,

dissenting.

A prosecutor is permitted to argue as zealously and as forcefully as necessary to persuade the jury to find a defendant guilty. Pointing out the weakness of the defense presented by an accused is a necessary and expected prosecutorial tactic. However, a criminal defendant has an absolute constitutional right not to testify and the failure to do so cannot in any way be used against the defendant. Or Const, Art I, § 12; State v. Wederski, 230 Or 57, 368 P2d 393 (1962). Because of that constitutional right, a prosecutor’s attack on the defense case cannot include any reference, no matter how veiled or fleeting, to the defendant’s failure to testify.

Although the majority concludes that “the more reasonable” interpretation of the prosecutor’s comments in closing argument is that they related to defense counsel’s argument and defense witnesses, it recognizes that the “statement could have been interpreted to mean the defendant ‘didn’t want to talk about the crimes.’ ” 117 Or App at 122. (Emphasis in original.) Given the context of the statement, that is the only reasonable interpretation. The prosecutor made the comments immediately after he had read extensively and in detail from defendant’s statements that had been recorded on the body wire. Those statements gave a graphic account of the sexual encounter that preceded the victim’s death and her death. In that context, the jury could only have understood the prosecutor to be arguing that the defense that had been presented was not credible, because defendant, the only witness to the victim’s death and the events leading to it, did not take the stand and explain or rebut that evidence.

A prosecutor has the responsibility to ensure that a criminal prosecution, while vigorous, is also fair. State v. Jones, 279 Or 55, 63, 566 P2d 867 (1977). The prosecutor’s statements violated defendant’s constitutional right not to testify and denied him a fair trial. I would reverse.

Furthermore, I do not agree that we should reach the issue of whether the affirmative defense of extreme emotional distress (EED) applies to a charge of aggravated murder. Neither do I agree with the majority’s analysis of that issue.

Defendant was charged with eight counts of aggravated murder and six counts of murder. The jury was instructed that the defense of EED did not apply to aggravated murder. However, it was also instructed on the elements of EED and that the defense could reduce intentional murder to manslaughter. The jury found defendant guilty on six counts of murder and two counts of aggravated murder.¹

All of the counts arose from the same facts. Even if the jury had been instructed that EED applies to aggravated murder, it could not have rejected the defense in convicting defendant of intentional murder charges and have accepted it on the charges of aggravated murder. Because the jury clearly rejected the defense, I would hold that any error in the instructions is harmless.

Assuming that the error was somehow not harmless, I disagree with the majority’s analysis that the legislature’s failure to state specifically that EED is a defense to aggravated murder means that the defense is not applicable to aggravated murder.

ORS 163.005(2) provides that “ ‘[cjriminal homicide’ is murder, manslaughter or criminally negligent homicide.” Aggravated murder is not specifically listed as “criminal homicide.” That is because aggravated murder is one type of “murder.” ORS 163.095 provides that aggravated murder is “murder as defined in ORS 163.115” and is committed under, or accompanied by, a number of different circumstances. Two aggravating circumstances in ORS 163.095(2) include:

“(d) Notwithstanding ORS 163.115(l)(b), the defendant personally and intentionally committed the homicide under the circumstances set forth in ORS 163.115(l)(b) [i.e., felony murder].

‘ ‘ (e) The murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime.”

The error of the majority’s reasoning is most easily illustrated by looking at aggravated murder under the circumstances described in subsection (e). That is the theory that supports defendant’s conviction for aggravated murder in count 6 of the indictment. Under that theory, the state had to prove that defendant committed murder “as defined in ORS 163.115” and that “the murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime.” “The murder” can only be the type that is defined in ORS 163.115(l)(a):

“[CJriminal homicide constitutes murder:

“ (a) When it is committed intentionally, except that it is an affirmative defense that, at the time of the homicide, the defendant was under the influence of an extreme emotional disturbance[.]”

The affirmative defense of EED specifically refers to that type of murder. See also ORS 163.118 and ORS 163.135.

Count 8, the other aggravated murder count on which defendant was convicted, involves the “felony murder” theory of aggravated murder,² which involves a “murder as defined in ORS 163.115” in which the defendant “personally and intentionally committed the homicide under the circumstances set forth in ORS 163.115(l)(b).” ORS 163.095(2)(d). Ignoring the redundancies, that means that, if a person personally commits intentional murder under circumstances constituting felony murder, he is guilty of aggravated murder. We recognized that in State v. Atkinson, 80 Or App 54, 58, 722 P2d 9, rev den 302 Or 36 (1986):

“Defendant’s contention that intentional murder is a lesser-included offense of aggravated felony murder is premised on the fact that, because intent is an element of aggravated felony murder, all of the elements of intentional murder are necessarily included in the commission of the aggravated offense. With that contention we have no quarrel. See State v. Coutier, 286 Or 579, 596 P2d 1278 (1979); Riley v. Cupp, 56 Or App 467, 472 n 6, 642 P2d 333, rev den 293 Or 146 (1982). Therefore, the state’s failure to prove all of the elements necessary to convict an accused of intentional murder precludes a conviction for aggravated felony murder. It does not, however, preclude a conviction for felony murder, which is also a lesser-included offense of aggravated murder and for which extreme emotional disturbance is no defense. See State v. Reams [47 Or App 907, 616 P2d 498 (1980), aff'd 292 Or 1, 636 P2d 913 (1981)]. Therefore, if extreme emotional disturbance maybe asserted as an affirmative defense to aggravated felony murder, because intentional murder is a lesser-included offense of that crime, then a defendant who successfully asserts the defense would be guilty of felony murder only, not aggravated felony murder. ’ ’ (Footnote omitted.)³

However, in Atkinson, the defendant’s only argument was that he was entitled to a jury instruction that told the jury that it could use EED to reduce aggravated felony murder directly to manslaughter. That is wrong.

Whether intentional murder is described, as in Atkinson, as a lesser included offense of aggravated felony murder, or is described as making up a set of elements of aggravated felony murder, a person cannot be convicted of aggravated felony murder unless he has committed intentional murder, as defined in ORS 163.115(l)(a). The affirmative defense of EED applies to intentional murder.

Defendant was entitled to have the jury instructed that EED applies to intentional murder and, to the extent that the state must prove intentional murder in order to prove all of the elements of aggravated murder, EED could be considered by the jury.⁴ Consequently, I would hold that EED can reduce aggravated murder to murder and, in some cases, to manslaughter.

Joseph, C. J., and Buttler and Durham, JJ., join in this dissent.

1 The jury found defendant guilty on five alternative theories of intentional murder, one theory of felony murder, one theory of aggravated murder (concealing perpetrator identity) and one theory of aggravated murder (felony murder plus intentional murder).

2 The court merged count 8 with count 6, but the judgment order is curious. It reads, “IT IS ADJUDGED that counts 1,2,3,4,5, 7 and 8 be merged for purposes of sentencing, with counts 1,2,3,4,5,7 and 8 merging into count 6.” Defendant makes no argument that his only aggravated murder conviction is based on an intentional murder to conceal his identity.

3 The footnote omitted is the passage quoted in the majority opinion, which points out that EED is not expressly mentioned in connection with aggravated murder.

4 Properly instructed, a jury that accepted defendant’s EED defense to count 6 (murder committed in an effort to conceal his identity) could have found that aggravated murder was not proven, because he had not committed murder but had committed manslaughter in the first degree. On count 8 (felony murder plus intentional murder), a jury could have found that defendant had not committed aggravated murder, because he had not committed an intentional murder. However, it could find defendant guilty of felony murder as a separate crime or as a lesser included offense of aggravated murder. State v. Atkinson, supra.