State v. Carson

640 P.2d 586, 292 Or. 451, 1982 Ore. LEXIS 713

• Court: Oregon Supreme Court
• Decided: February 3, 1982
• Docket: CA 17606, SC 27943
• Status: Published

Opinions

CAMPBELL, J.

Defendant was convicted of attempted manslaughter in the first degree under an indictment for attempted murder.¹ The issue for decision is whether the evidence of extreme emotional disturbance was sufficient to justify giving the state’s requested jury instruction on attempted manslaughter in an attempted murder prosecution. Defendant appealed to the Court of Appeals alleging the following assignments of error: The circuit court erred in giving instructions that were both contradictory and confusing; the instructions on Attempted Manslaughter were error in that the concept of extreme emotional disturbance applies only to consummated intentional homicides and in that there was insufficient evidence to establish the existence of extreme emotional disturbance. The Court of Appeals reversed and remanded for a new trial on the ground that there was no evidence of extreme emotional disturbance, therefore the jury instruction on attempted manslaughter was improper. 52 Or App 55, 627 P2d 514 (1981). Because of its result, the Court of Appeals did not reach defendant’s other assignments. We allowed the state’s petition for review.

Defendant lived in a trailer home beside a motel near Gates, Oregon. An Oregon State Policeman named Richard Tenderella moved into the motel to operate undercover. His task was to investigate recent burglaries in the area, specifically the theft of a .44 magnum handgun from the motel, and, to that end, to befriend defendant and his brother.

On August 23, 1979, defendant sat outside his trailer. With him were defendant’s brother, his brother’s wife, their two children, aged one and two, and defendant’s girlfriend. Tenderella walked by with a .38 handgun and a sixpack of beer. Defendant asked for and received a beer from Tenderella. Tenderella went into the woods and fired the .38 handgun until told to stop by the motel manager. Tenderella put the .38 handgun in his car, visited with the group outside defendant’s trailer until the beer had been consumed, and then volunteered to go to town for more beer. He returned with a case of beer, which the party completely consumed. Various topics were discussed by defendant and Tenderella, among them was the subject of a gun trade for Tenderella’s .38 handgun. Tenderella was hoping that defendant would mention the possibility of a trade for the stolen .44 magnum handgun. During the course of the conversation, Tenderella got the .38 out of the trunk of his car, simultaneously concealing a .45 handgun in the small of his back under his shirt. He gave the .38 to defendant and defendant fired two shots in the air. Defendant’s testimony showed that Tenderella was behaving in a drunken manner by this point in the interaction. At one point Tenderella fell off the bench he was sitting on. There was testimony to the effect that Tenderella’s speech was slurred and that he was “slobbering.” Tenderella said that the .38 was a “hot gun,” meaning stolen, but that the owner was dead and that defendant should not be concerned about possible tracing of the gun. He also mentioned that there were warrants out for his arrest in Portland. At one point Tenderella picked up a knife from the table and threw it into a nearby tree. Defendant testified that he was sufficiently alarmed by Tenderella’s behavior that, when Tenderella went out behind the trailer to relieve himself, defendant took the .38 into his trailer and concealed it in a drawer. After a while, Tenderella noticed the absence of the .38 and requested its return. Defendant told Tenderella that the gun was in a safe place. Tenderella became belligerent and demanded the return of the .38 several times. Finally, Tenderella jumped up, called defendant an obscene name and pulled out the concealed .45 handgun. He began waving it wildly in the air, pointing it at defendant. Defendant retreated into the trailer. Defendant’s girlfriend rushed up to Tenderella and attempted to get him to put the .45 away. Tenderella hit her, pushed her away, and pointed the gun at her, all the while addressing obscenities to her. She was screaming “He’s got a gun, Frank.” Tenderella also pointed the gun at defendant’s brother, cautioning him not to move or “I’ll blow you away.” Defendant saw and heard all this from his position inside the trailer. Tenderella fired the first shot, wildly demanding the return of his .38. Defendant threw the .38 out the trailer door, loaded his shotgun with buckshot and shot into the ground to frighten Tenderella into leaving. Tenderella returned fire at defendant whereupon defendant fired into the truck in front of Tenderella, about 15 feet from the trailer. More shots were fired, none of which hit anyone.

Defendant’s family and girlfriend testified at length to their fright during the exchange of gunfire and as a of Tenderella’s conduct, particularly for the small — circumstantial evidence to decide this case since there was no direct evidence of extreme emotional disturbance at the time of the shooting.²

According to defendant’s evidence, Tenderella did not identify himself as a police officer at any point in the confrontation. Defendant learned that Tenderella was a police officer only after his girlfriend went to the motel office to call the police about the “maniac” creating a disturbance in the area. At that point she was restrained by Tenderella, who told her he was a police officer. She then shouted to defendant that Tenderella was an officer. Defendant, his brother and his girlfriend were arrested for attempted murder. The latter two charges were later dropped. Defendant was also charged with being an exconvict in possession of a firearm.³

At trial, the jury was instructed on attempted murder, former ORS 163.115, and also on attempted manslaughter based on extreme emotional disturbance, ORS 163.118(1)(b), and attempted assault, ORS 163.185. Defendant objected to the instructions on attempted murder and attempted manslaughter.⁴ On defendant’s appeal from his conviction for attempted manslaughter in the first degree the Court of Appeals reversed, finding insufficient evidence of extreme emotional disturbance to justify the attempted manslaughter instruction. We reverse the Court of Appeals decision, effectively reinstating defendant’s conviction for attempted manslaughter.

As originally enacted in the Oregon Criminal Code of 1971, the statutes describing murder and manslaughter provided:

ORS 163.115:

“(1) Except as provided in ORS 163.125, criminal homicide constitutes murder when:

“(a) It is committed intentionally;”

ORS 163.125:

“(1) Criminal homicide constitutes manslaughter when:

“(b) A homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance, which disturbance is not the result of his own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation;”

The Oregon Criminal Code sections treating criminal homicide are versions of the Model Penal Code § 210.1-.3. The comments to the Model Penal Code sections clearly illustrate the distinctions between the common law doctrine of heat of passion and the doctrine of extreme emotional disturbance. Model Penal Code and Commentary § 210.3, Commentary at 49 (1980). A major departure from prior common law was intended by the adoption of the doctrine of extreme emotional disturbance, specifically by the change in language from requiring a “heat of passion” upon “adequate provocation” to “under the influence of extreme emotional disturbance” for which there is a “reasonable explanation or excuse.”⁵ The explanation of reasonableness injected a subjective element into the jury’s determination. Such reasonableness is to be determined from the viewpoint of a person in the actor’s situation under the circumstances as the actor believes them to be. After the Model Penal Code went into effect, more cases could be found to be manslaughter, since the jury could now view the actor’s “situation” and the circumstances “as the actor believed them to be.” The drafters of the Oregon Criminal Code adopted this view, and discussed some of the circumstances which could give rise to a jury finding of extreme emotional disturbance. The Oregon Code drafters pointed out that more than the classic provocation case, i.e., adultery or the infliction of serious injury, would be covered by the extreme emotional disturbance doctrine. The addition of a subjective element allows application of the doctrine where the provocative circumstance is one calculated to arouse extreme emotional disturbance in the particular defendant. Words alone can now be sufficient to invoke the doctrine, although they were not at common law. See Proposed Oregon Criminal Code § 89 at 89 (1970).

“Extreme emotional disturbance” has been defined as:

“. . . the emotional state of an individual who: (a) has no mental disease or defect (that rises to the level established by statute defining lack of criminal responsibility); (b) is exposed “to an extremely unusual and overwhelming stress; and (c) has an extreme emotional reaction to it, as a result of which there is a loss of self-control and reason is overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions...” People v. Ford, 423 NYS 2d 402, 404, 102 Misc. 2d 160 (1979). (Parentheticals added.)

Viewing defendant’s situation at the time of the shooting, it is not difficult to put oneself in defendant’s shoes and empathize with his protective instincts regarding his brother’s wife and babies, as well as his girlfriend. Although it cannot definitively be said that Tenderella was the “aggressor” in the shooting, it also cannot be said that defendant instigated it. In a situation such as this, where both parties are engaged in combat, and where close relatives are in the immediate vicinity of the shooting, we cannot say as a matter of law that the circumstances render the application of the doctrine of extreme emotional disturbance improper either in the view of the Oregon Criminal Code drafters or under the definition quoted, supra, assuming there is sufficient evidence in the record to justify submission of the issue to the jury.

In 1975, the legislature amended the sections on criminal homicide as follows in pertinent part:

“ORS 163.115(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder when: (a) It is committed intentionally by a person who is not under the influence of an extreme emotional disturbance; * * *.

“(2) For the purpose of paragraph (a) of subsection (1) of this section, a homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person’s own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation. The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor’s situation under the circumstances as the actor reasonably believes them to be.

“ORS 163.118(1) Criminal homicide constitutes manslaughter in the first degree when:

“(b) It is committed intentionally under circumstances not constituting murder.”

The significance of the 1975 amendments lies in their exposition of legislative intent as to the quality of extreme emotional disturbance. By amending ORS 163.115(1) to require the absence of extreme emotional disturbance, the legislature expressed its view that the absence of extreme emotional disturbance is an integral component of the offense of murder, to be proved beyond a reasonable doubt once raised.

Where the state must rely on circumstantial evidence to prove an essential fact for conviction, the test is “whether a reasonable person, based upon all the evidence adduced in the case, would be warranted in finding beyond a reasonable doubt that the defendant committed the offense charged.” State v. Zauner, 250 Or 105, 110, 441 P2d 85 (1968). The evidence of extreme emotional disturbance in this case is circumstantial. We find that this test applies to the absence of extreme emotional disturbance, which must be found beyond a reasonable doubt once raised.

The state requested the instruction on attempted manslaughter in the first degree. There was substantial circumstantial evidence, most of which was controverted, which supported the jury’s finding of extreme emotional disturbance. Tenderella was the instigator of the shooting. Tenderella assaulted defendant’s girlfriend. Defendant’s relatives and girlfriend testified to extreme fright as a result of Tenderella’s erratic behavior, and to concern for the infants in the immediate area of the shooting. We find as a matter of law that the jury would be warranted in not finding the absence of extreme emotional disturbance to have been proved beyond a reasonable doubt as is required for an attempted murder conviction. Therefore, the instruction on attempted manslaughter in the first degree was proper. See State v. Krause, 251 Or 318, 445 P2d 500 (1968); State v. Rawls, 247 Or 328, 429 P2d 574 (1967); State v. Nodine, 198 Or 679, 259 P2d 1056 (1953); State v. Wilson, 182 Or 681, 189 P2d 403 (1948). See also State v. Flygare, 18 Or App 292, 525 P2d 181, rev den (1974).

The dissent criticizes us for failing to endorse the trial court’s instruction of the definition of “extreme” as applied to emotional distress. The trial court adapted an instruction from State v. Abridge, 23 Or App 633, 543 P2d 1073 rev den (1975). The defendant did not assign the giving of the instruction as error and therefore there was no need for this court to discuss it. The dissent comments that “the evidence discussed by the majority indicates that the defendant kept his head when all about him were losing theirs and did not lose his self-control.” To reach this conclusion the dissent was required to assume the role of a factfinder. The jury could have just as easily drawn the opposite inference from the circumstantial evidence and found that the defendant’s reason was overborne resulting in his loss of self-control.

The Court of Appeals opinion, 52 Or App 55, 627 P2d 514 (1981), seems to hold that there is not enough direct evidence in this case to prove extreme emotional disturbance. It ignores the circumstantial evidence. The dissent refers only to direct evidence as to the defendant’s emotional state. It confines that evidence to testimony of witnesses that the defendant was “scared, amazed, taken aback, startled, shocked and/or stunned and (was) aware that his dear ones (were) very frightened.” The jury cannot look inside the defendant’s head and is entitled to consider the chain of circumstances that include but are not limited to: (1) Tenderella jumping up, calling the defendant an obscene name and pulling out a concealed handgun, (2) Tenderella hitting the defendant’s girlfriend, pointing a gun at her, and calling her obscene names, and (3) Tenderella pointing a gun at defendant’s brother and telling him not to move or “I’ll blow you away.” It is the jury’s duty to determine whether or not the defendant was suffering from extreme emotional disturbance from all the evidence in the case under proper instructions from the trial court. This is a stronger fact pattern than that which this court approved under the “heat of passion” doctrine in State v. Jones, 241 Or 142, 405 P2d 514 (1965) (see footnote 5).

Because of the result we reach in this case, we must proceed to consider defendant’s other assignments of error before the Court of Appeals. Defendant’s assignment that the circuit court erred in giving jury instructions which were both contradictory and confusing, in that the verdict forms given the jury were only guilty of attempted murder, guilty of attempted manslaughter, guilty of attempted assault and not guilty of attempted murder is without merit.

The defendant was indicted by separate indictments charging him with the crimes of Attempted Murder and Ex-Convict in Possession of a Firearm. The charges were consolidated for trial. The trial court instructed the jury as to the verdict forms on the charge of Attempted Murder as follows:

“On the other charge, Attempted Murder there are four verdict forms and you’ll bring back one of them also. Reading from one, We the jury in the above-entitled criminal action find the Defendant not guilty of Attempted Murder. Another reads, We the jury in the above-entitled criminal action find the Defendant guilty of Attempted Murder. Another reads, We the jury in the above-entitled criminal action find the Defendant guilty of Attempted Manslaughter in the First Degree and finally, We the jury in the above-entitled criminal action find the Defendant guilty of Attempted Assault in the First Degree, dated 21st day of December.

“Please keep in mind on this charge of Attempted Murder you will bring back only one of these verdict forms; in other words, if you find the Defendant not guilty of either Attempted Murder or Attempted Manslaughter I or Attempted Assault I then you will bring back the verdict form which reads the Defendant is not guilty of Attempted Murder. In other words, you cannot find him not guilty of Attempted Murder and then find him guilty of one of the lesser included offenses but if you just keep in mind for each charge you will bring back only one appropriate verdict form. I don’t think you’ll have any difficulty in following these instructions.”

The defendant argued in his brief in the Court of Appeals that the above instructions were confusing:

“* * * The jury was told to bring back only one appropriate verdict form for each charge. If the jury found the defendant guilty of Attempted Murder, then they were to sign the guilty form. The appropriate verdict form for Attempted Murder would appear to be the form headed Not guilty of Attempted Murder. However, the jury could not sign that form because they were told to sign the form only if the defendant is not guilty of Murder, not guilty of Manslaughter and not guilty of Assault. It is confusing to be told to sign the guilty form if guilty, but do not sign the not guilty form if not guilty, but do sign the guilty form if guilty of all three charges.” (Transcript references omitted).

In the trial court the defendant excepted to the instructions on the verdict forms for a different reason:

“I object also to the instruction about the verdict form which was given to the jury. I object to the instruction that says, ‘you are instructed if you do find from the evidence and beyond a reasonable doubt that the Defendant committed the crime of Attempted Murder or less degree of the crime of Manslaughter in the First Degree or Attempted Assault as I have defined these degrees for you then the Defendant is not guilty and you should return a verdict of not guilty on each of these charges’. However, the jury wasn’t given a not guilty form.

“THE COURT: I think you’ll find at that point I explained the verdict form was self-explanatory.

“MR MILLS: However, I believe the jury should have been given a verdict form that said not guilty for the crime of Attempted Manslaughter and a verdict form that said not guilty for the crime of Attempted Assault in the First Degree. Although his Honor did explain how it is, for them to return a verdict of not guilty on all charges I believe the fact they only have a guilty verdict form for two of the charges is prejudicial and they should have been given a not guilty verdict form for each of those also.”

This case was tried in December, 1979, and at that time former ORS 17.510 provided in part:

“No * * * instruction given to a jury in the circuit court shall be subject to review upon appeal unless its error, if any, was pointed out to the judge who gave it and unless a notation of an exception was made in the circuit court. sfc

sfc

The purpose of former ORS 17.510 was to point out any error that may have occurred in the instructions so that the trial court could be given an opportunity to correct it. Brigham v. Southern Pacific Co., 237 Or 120, 390 P2d 669 (1964). Here the defendant did not point out to the trial court the alleged error that he complained of in his assignment of error in the Court of Appeals. Given the opportunity the trial court could have reworded the instruction to meet the defendant’s objection set out in his assignment of error.

The dissent suggests that a simple “not guilty” verdict from should have been submitted to the jury under ORS 136.455:

“A general verdict upon a plea of not guilty is either ‘guilty,’ of an offense charged in the accusatory instrument, or ‘not guilty.’ ”

We disagree and are of the opinion that the trial court gave the jury the correct verdict forms as required by ORS 136.460:

“Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof.”

Defendant also assigned as error the court’s instruction on attempted manslaughter based on extreme emotional disturbance. Defendant claimed that extreme emotional disturbance applies only to consummated homicides. This contention is apparently grounded on the principle that one cannot attempt to commit a reckless act. Since the form of manslaughter in this case does not involve recklessness, we find no merit in defendant’s contention.

Reversed.

1 Murder was defined by former ORS 163.115:

“(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder when:

“(a) It is committed intentionally by a person who is not under the influence of an extreme emotional disturbance;

“(2) For the purpose of paragraph (a) of subsection (1) of this section, a homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person’s own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation. The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor’s situation under the circumstances as the actor reasonably believes them to be. * *

The 1981 Oregon Legislature amended ORS 163.115 to read:

“(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder when:

“(a) 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 extreme emotional disturbance; * * *.”

Oregon Laws 1981 ch 873 § 5.

Manslaughter in the first degree is defined by ORS 163.118(l)(b):

“(1) Criminal homicide constitutes manslaughter in the first degree when:

“(b) It is committed intentionally under circumstances not constituting murder.

<<* * * * *)>

Assault in the first degree is defined by ORS 163.185:

“(1) A person commits the crime of assault in the first degree if he intentionally causes serious physical injury to another by means of a deadly or dangerous weapon. * *

Attempt is defined by ORS 161.405:

“(1) A person is guilty of an attempt to commit a crime when he intentionally engages in conduct which constitutes a substantial step toward commission of the crime.

<<* * * *

2 The state claimed that there was some direct evidence of extreme emotional disturbance in this case, but we disagree. Defendant’s testimony on direct examination that he was “scared,” “amazed” and “taken aback” referred to a time after the shooting was over:

“Q: When did you first remember seeing Sharon Taylor (defendant’s girlfriend) after the shooting stopped?

“A: She told me that he had left and I seen her out the doorway of the trailer.

“Q: What did you do then?

“A: I asked Sharon if she would go over to the manager’s office and call the police because I didn’t know what was wrong with the dude.

“Q: Were you scared?

“A: Yes.

“Q: Were you amazed, were you taken aback?

“A: Oh yeah.” (Parenthetical added).

Analysis of this case has been made more difficult because although the state requested the instruction on attempted manslaughter in the first degree based on the presence of extreme emotional disturbance, neither party tried to prove the presence of extreme emotional disturbance. Defendant tried to prove his innocence of all offenses. The state tried to prove defendant’s guilt of the offense of attempted murder. There was, therefore, a studied attempt on the part of both parties to avoid any introduction of evidence of extreme emotional disturbance.

3 Defendant’s conviction for the offense of ex-convict in possession of a firearm is not in issue here.

4 Defendant’s objections to the jury instructions as they relate to the central issue in this case are as follows:

“I also object to the summary of the charge of Attempted Murder which was given which starts out as to the charge of Attempted Murder you are to consider this summary in light of all the previous instructions given and then you give the first four elements and I object to the fifth element which states, ‘While not under the influence of an extreme emotional disturbance’. I give the same reasons for this exception as I did the other Attempted Murder instruction and that is this is a defense that should be raised by the Defendant. There was no evidence presented on this and it should not be an instruction.

“I take exception to the instruction on Attempted Manslaughter. First of all, I’m not sure there is such a crime. I object to the fourth element you gave which said ‘Unlawfully and intentionally attempting to cause the death of another human being’. I believe that ‘recklessly’ should be added between intentionally and attempted. I believe that after the words, ‘by shooting him with a shotgun’ should be added, ‘under the circumstances, manifesting an extreme indifference to the value of human life’. I take exception to it because first of all, I don’t believe there is such a thing as Attempted Manslaughter. I also object to the fifth element which you gave which has to do with under the influence of extreme emotional disturbance in its entirety. I object to this element because here again it is a defense raised by the Defendant and there was no evidence of extreme emotional disturbance.”

5 Under the former version of ORS 163.118(1)(b), the killing of another intentionally without malice and deliberation “upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible” constituted voluntary manslaughter. ORS 163.040(1). In State v. Jones, 241 Or 142, 405 P2d 514 (1965), this court discussed the criteria for applying the doctrine of heat of passion. In that case, Jones and the victim were sitting at a lunch counter. An argument arose regarding some minor matter, and the victim hit Jones several times with his fist. Defendant stabbed the victim three times. Jones was convicted of second degree murder, and Jones appealed on the ground that there was no evidence of malice and therefore as a matter of law he could only be convicted of manslaughter. The court elaborated the requirements of the heat of passion doctrine as follows: the jury must weigh the variables of degree of provocation and the measures employed by the defendant in response to it to determine whether the passion was irresistible. An assault may or may not be sufficient provocation to invoke the doctrine. Some of the factors cited by the court for jury consideration are the size of the assailant, the manner in which he approached the defendant, the language used, the instrument employed by the defendant, defendant’s language and his size in relation to that of his assailant. The defendant’s conduct must be measured against the standards of the community by the jury. Thus, the test for heat of passion was an objective one to be made by the jury unless the court could find as a matter of law that the passion was or was not irresistible. The court found that the evidence raised a jury question as to heat of passion, but that the jury found against the defendant on that question and therefore affirmed the conviction.