State v. Cornell

WARDEN, P. J.

The state appeals orders dismissing charges of aggravated murder against each defendant. We affirm.

Defendants were each charged with one count of aggravated murder, ORS 163.095(1)(e), and two counts of felony murder, ORS 163.115(1)(b), all related to the killing of the same victim. Both defendants moved for dismissal of the aggravated murder counts, and in substantially identical pretrial orders the trial court granted the motions,¹ holding that ORS 163.095(1) (e) is unconstitutionally vague under Article I, sections 20 and 21, of the Oregon Constitution and the Fourteenth Amendment. The statute elevates murder to aggravated murder when it is committed “in the course of or as a result of the intentional * * * torture of the victim.” The legislature has not provided a statutory definition of “torture,” and the court reasoned that, in the absence of a definition, courts and juries are powerless to define and apply the term to the facts of a given case.

A statute which defines criminal conduct offends the Privileges and Immunities Clause, Article I, section 20, of the Oregon Constitution² if it “gives unbridled discretion to judges and jurors to decide what is prohibited in a given case.” State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985); see State v. Blair, 287 Or 519, 523, 601 P2d 766 (1979). A criminal statute violates the principle against ex post facto laws embodied in Article I, section 21, of the Oregon Constitution³ if it allows “a judge or jury to exercise uncontrolled discretion in punishing defendants.” State v. Graves, supra, 299 Or at 195. A criminal statute “must be sufficiently explicit to inform those who are subject to what conduct on their part will render them liable to its penalties.” State v. Hodges, 254 Or 21, 27, 457 P2d 491 (1979); ORS 161.025(1)(c).⁴ A statute is not required to define an offense so precisely that in every case a person can determine the specific conduct that will fall within the statute’s reach, but a reasonable degree of certainty is required by Article I, sections 20 and 21. State v. Graves, supra, 299 Or at 195.

The state essentially contends that “torture” is a common word within ordinary powers of comprehension and that, therefore, it is not impermissibly vague. We first address that contention.

Oregon law provides no statutory definition of “torture.” Our review of the legislative history also fails to enlighten us concerning what conduct the legislature intended would constitute “torture.” Although the word “torture” may be commonly understood, as the state and the dissent argue, that is not the test. See State v. Hodges, supra, 254 Or at 27-28. Commonly understood terms are often susceptible to varying interpretations, and “torture” is such a term. Black’s Law Dictionary (5th ed 1979) defines it as the “infliction of] intense pain to body or mind for purposes of punishment, or to extract a confession or information, or for sadistic pleasure.” Webster’s Third New International Dictionary (1976) provides several definitions, including:

“The infliction of intense pain (as from burning, crushing, wounding) to punish or coerce someone * * *.

“To punish or coerce by inflicting excruciating pain * * *.

“To cause intense suffering * *

California defines “torture” to require “proof of infliction of extreme physical pain no matter how long its duration.” Cal Penal Code § 190.2(a)(18). In other jurisdictions courts have provided varying definitions. See Givens v. Housewright, 786 F2d 1378 (9th Cir 1986) (applying Nevada law); State v. Brock, 101 Ariz 168, 416 P2d 601 (1966); Townsend v. People, 107 Colo 258, 111 P2d 236 (1941); State v. McKenzie, 186 Mont 481, 608 P2d 428 (1980); State v. Bentford, 39 NM 293, 46 P2d 658 (1935); see, generally, Annot, 83 ALR3d 1222 (1978).

Although each of those definitions is commonly understood to be “torture,” the variations among them give rise to several questions concerning the Oregon legislature’s intent: Would only the infliction of physical pain be considered “torture,” or would only proof of mental suffering be sufficient under the statute; would the state be required to prove that the pain or suffering was inflicted for some particular purpose (such as to coerce, to punish or for sadistic pleasure), or would proof of the infliction of pain itself be sufficient; and would the state have to show a prolonged period of suffering, or would the infliction of pain no matter how short its duration be adequate. These questions lead us to conclude that an allegation of murder by torture under ORS 163.095(l)(e) cannot be submitted constitutionally to a jury without a definition of the term “torture,” because otherwise the jury would be allowed impermissibly to determine a defendant’s guilt in an ad hoc manner, unregulated by legislative standards. State v. Graves, supra. Additionally, without a legislatively articulated standard for the term, a trial court would have no standard for submitting one case to a jury and refusing to submit another case with a different set of facts. State v. Hodges, supra, 254 Or at 27.

The state, however, cites several cases from other jurisdictions (some of which are cited above) in which courts have judicially defined the term “torture” in statutes similar to ORS 163.095, apparently suggesting that we likewise judically supply a definition for the term. Oregon law sometimes permits a vague statute to be saved by a judicial interpretation that gives it the required definiteness. State v. Graves, supra, 299 Or at 197. We are convinced, however, that the term “torture” in ORS 163.095 cannot be saved in that manner, because any construction that we might render “cannot be attributable to the legislature with reasonable fidelity to the legislature’s words and apparent intent.” State v. Robertson, 293 Or 402, 411, 649 P2d 569 (1982).

We hold that the term “torture” in ORS 163.095(l)(e) is unconstitutionally vague under Article I, section 20, because it creates a serious danger of unequal application of that statute. We also hold that the statute violates Article I, section 21, because the judge and the jury are permitted to exercise uncontrolled discretion.⁵ The trial court did not err in dismissing the aggravated murder counts.

Affirmed.

1 The appeals were consolidated. Trials on the felony murder counts have been stayed pending the determination of this appeal.

2 Article I, section 20, provides:

“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”

3 Article I, section 21, provides, in part:

“No ex post facto law * * * shall ever be passed, nor shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution * *

4 As Judge Tanzer said: “[I]t is doubtful that many offenders check Oregon Revised Statutes before deciding to do questionably nefarious deeds.” State v. Sanderson, 33 Or App 173, 176, 575 P2d 1025 (1978).

5 Because we hold that the term “torture” in ORS 163.095(1) (e) is unconstitutionally vague under the Oregon Constitution, we need not decide whether it is impermissibly vague under the Fourteenth Amendment.