State v. Simson ( 1988 )

BUTTLER, P. J.,

specially concurring.

I agree with Joseph, C. J., that the accomplice instruction given requires reversal. However, because the case will be retried, I would go further and hold that, under the circumstances of this case, no accomplice instruction should be given on retrial.

As I understand the law, the need for an accomplice instruction arises when a witness testifies that he or she committed the crime with the aid of the defendant. ORS 136.440 provides that a conviction cannot be had solely on that testimony; it must be corroborated by other evidence that tends to connect the defendant with the commission of the crime. It is apparent that the legislature has decided that one who is an accomplice with the defendant is not very trustworthy and that the jury, “on all proper occasions,” is to be instructed that “the testimony of an accomplice ought to be viewed with distrust.” ORS 10.095(4). So far, that makes sense.

However, when the alleged accomplice denies that the defendant had anything to do with the crime, obviously his testimony is not going to convict the defendant. It would appear, therefore, that ORS 136.440 is not implicated and that there is not only no justification for giving the ORS 10.095(4) instruction, but it makes no sense to give it. If it is given, the process is turned on its head, because, in order for the jury to decide whether the witness is an accomplice of the defendant, ORS 136.440, it would first have to decide that the defendant is guilty; therefore, the witness is an accomplice whose testimony should be viewed with caution. Obviously, by the time the jury gets that far, it matters not that the accomplice’s testimony should be so viewed.

That is the situation here. The three “accomplice witnesses” were, it is true, accomplices among themselves as a matter of law, because they had been convicted of the crime with which defendant is charged. So what? They did not implicate defendant in the crime; therefore, their testimony need not be corroborated to convict defendant, because it cannot convict him by itself. Because ORS 136.440 is not implicated, there is no occasion to give the ORS 10.095(4) instruction, which, by the terms of the statute, is to be given only “on proper occasions,” of which this is not one. That is not to say that those witnesses may not be impeached by showing their convictions for felonies. OEC 609.

I do not view State v. Lewis, 10 Or App 154, 499 P2d 343 (1972), as approving an accomplice instruction in this case. There, the alleged accomplice’s testimony did implicate the defendant to some extent, and that witness’ out-of-court statement directly implicated the defendant in the burglary with which he was charged. That is not this case.

In my opinion, there is no basis for any accomplice instruction in this case, and it would be error to give one on remand.