State v. Pugh

637 P.2d 1325, 55 Or. App. 305, 1981 Ore. App. LEXIS 3905
CourtCourt of Appeals of Oregon
DecidedDecember 30, 1981
DocketNo. C 79-12-34526, CA 18364
StatusPublished
Cited by3 cases

This text of 637 P.2d 1325 (State v. Pugh) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pugh, 637 P.2d 1325, 55 Or. App. 305, 1981 Ore. App. LEXIS 3905 (Or. Ct. App. 1981).

Opinion

BUTTLER, P. J.

Defendant appeals from convictions, after jury trial, for felony murder, conspiracy to commit felony murder and hindering prosecution. He was sentenced concurrently to: life imprisonment, with a 25-year minimum, for felony murder; 20 years, with a 10-year minimum, for conspiracy; and 5 years, with a 2-1/2 year minimum, for hindering prosecution. Execution of the judgment of conviction for conspiracy was suspended with the provision that it be vacated when appeal time had lapsed or the felony murder conviction was affirmed.

Defendant assigns four errors: (1) his motion for a new trial should have been granted, because the jury verdicts for felony murder and conspiracy were logically inconsistent; (2) the convictions for felony murder and conspiracy should have been merged; (3) the conviction for hindering prosecution is unsupportable, and (4) the 25-year minimum sentence for felony murder was invalid. We affirm the conviction for felony murder, reverse the conviction for hindering prosecution and remand for resentencing on the felony murder conviction, with instructions to vacate the convictions and sentences for conspiracy and hindering prosecution.

FACTS

Defendant and his cousin, Tim Merrifield, were “friends” of Forrest Taylor, the victim. When Taylor turned 18, he received an inheritance, about which he boasted and with part of which he bought a car. On October 17, 1979, Taylor took defendant and Merrifield for a ride in his new car after the three had used marijuana and cocaine. During the ride, Merrifield showed Taylor a gun he said he wanted to sell. Taylor asked Merrifield to fire it for him. Soon after, as Taylor walked before Merrifield toward a nearby woods, Merrifield shot Taylor in the head. Merrifield ran. Defendant called him back after determining that Taylor was dead. Defendant took Taylor’s wallet and helped Merrifield roll up the body in a sleeping bag and put it in the car. They dumped the body over a bank, where it was found on November 19, 1979. The two men divided $80 found in the wallet. Merrifield took stereo speakers from the car and gave them to defendant, who gave them away later.

[308]*308There was evidence that before the fatal ride Merrifield talked to defendant about “getting” Taylor’s money and also about shooting Taylor for his money. There was conflicting evidence on whether defendant and Merrifield planned to rob and shoot Taylor, although defendant admitted he knew Merrifield might do so.

After Taylor’s body was found, police interviewed defendant several times after advising him of his Miranda1 rights. Defendant first denied having any information. He later said that he had seen the car two weeks after Taylor had disappeared but had been afraid to tell police, because he thought Taylor was buying drugs nearby. Still later, he was taken to State Police Headquarters, where he admitted being present when Merrifield shot Taylor. He was advised again of his rights, and police taped his statement. Thereafter he directed the officers to where the body had been dumped.

Merrifield was arrested, whereupon he and defendant talked with several police officers to clear up inconsistencies in the two suspects’ statements. Defendant was indicted and convicted on the three counts set forth above.2

INCONSISTENT VERDICTS

Defendant first contends that he is entitled to a new trial, because the unanimous jury verdict on felony murder and the 10 to 2 verdict on conspiracy were inconsistent. His argument is that any juror who found him guilty of felony murder must, under the state’s theory and evidence, have found that he and Merrifield engaged in the robbery together and necessarily conspired to accomplish the robbery and murder. Because two jurors did not find a conspiracy, defendant contends they could not logically have found him guilty of felony murder.

The conspiracy count alleged conspiracy to commit felony murder.3 Conspiracy is a crime complete on agree[309]*309ment; no further act is required. ORS 161.450.4 Felony murder requires no agreement. ORS 163.115(l)(b).5 At least one [310]*310basis for the two dissenters on the conspiracy count could have been that they did not believe the state’s evidence that defendant had agreed beforehand to help Merrifield, but did believe that he had intentionally aided and abetted Merrifield in carrying out the crime once it was begun. See ORS 161.155(1), (2)(b). The trial court instructed the jury on criminal liability for aiding and abetting. Those two jurors may have believed defendant’s denial of an agreement but still found that he aided and abetted. On that basis, the two dissenters could logically have found defendant guilty of felony murder. We need not inquire further. The verdicts are not logically inconsistent. There was no error in denying defendant’s motion for a new trial.

MERGER

Defendant’s second assignment of error is that the trial court had no authority to enter judgments of conviction and sentences for both felony murder and conspiracy to commit murder under ORS 161.485(3):

“(3) A person shall not be convicted on the basis of the same course of conduct of both the actual commission of an offense and an attempt to commit that offense or solicitation of that offense or conspiracy to commit that offense.”

Defendant did not make that contention in the trial court. Rather, he argued that the court should enter a judgment along the lines suggested in State v. Cloutier, 286 Or 579, 602-03, 596 P2d 1278 (1979), which would result in a judgment of conviction and a sentence on each count, but would provide that execution of sentence on the conspiracy count be suspended and that the judgment and sentence on that count be vacated when the appeal time had lapsed or the felony murder conviction had been affirmed on appeal. That is what the court did.

We need not decide whether the felony murder and conspiracy guilty verdicts must be merged before judgment of conviction is entered so that only one judgment of conviction exists. The trial court acceded to defendant’s requested form of judgment and, in light of our affirmance of the felony murder conviction, the conviction and sentence on the conspiracy count will be vacated by the terms of the judgment order. Defendant has no cause to complain.6

[311]*311HINDERING PROSECUTION

Under Count III of the indictment, defendant was charged with, and convicted of, hindering prosecution of Merrifield by attempting to conceal the victim’s body. Defendant argues that the charge and conviction were improper and that, even if they were proper, the sentence should be merged with that for murder. We need not reach that merger question, because we conclude that the charge was not supportable.

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Cite This Page — Counsel Stack

Bluebook (online)
637 P.2d 1325, 55 Or. App. 305, 1981 Ore. App. LEXIS 3905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pugh-orctapp-1981.