State v. Lotches12/29/2000
cases made and provided and against the peace and dignity of the State of Oregon,
"Count 2 "AGGRAVATED MURDER
"The said defendant, on or about August 22, 1992, in the County of Multnomah, State of Oregon, did unlawfully and intentionally attempt to commit the crime of Kidnaping in the Second Degree and in the course of and in the furtherance of and in the immediate flight from said crime which the said defendant was attempting to commit, the said defendant personally and intentionally did cause the death of another human being, to-wit: William Hall, a person who was not a participant in the crime, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon,
"Count 3 "AGGRAVATED MURDER
"The said defendant, on or about August 22, 1992, in the County of Multnomah, State of Oregon, did unlawfully and intentionally, in an effort to conceal the identity of the perpetrator of the crime of Attempted Murder, cause the death of another human being, to-wit: William Hall, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon[.]"
The state and federal constitutions give defendant the right to be informed of the particular charges against him. Specifically, Article I, Section 11, of the Oregon Constitution, provides that, " n all criminal prosecutions, the accused shall have the right to * * * demand the nature and cause of the accusation against him, and to have a copy thereof." The Sixth Amendment to the United States Constitution provides that, " n all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation * * *." In addition, ORS 132.550 requires indictments to contain " statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended."
Defendant argues that the aggravated murder charges in the indictment in the first three counts fail to meet the foregoing statutory and constitutional standards, because they fail to state the particular elements and circumstances that make up the offenses charged. That is so, according to defendant, because, in each case, the aggravated murder count fails to name the victim or circumstances of the underlying felony.
Although defendant concedes that an indictment usually is sufficient if it tracks the wording of the statute on which it is based(as the indictment in the present case does), he argues that, in this case, more is required because the three aggravated murder counts do not inform him of how or against whom the attempted robbery, attempted second-degree kidnaping, and attempted murder were alleged to have been perpetrated. In support of that proposition, defendant citesState v. Sanders, 280 Or 685, 688-90, 572 P2d 1307 (1977), in which this court observed that there are occasions when an indictment must state, directly and with certainty, the particular circumstances of a crime in order to bring a defendant within the condemnation of a statute.
Additionally, defendant argues that the vagueness of the indictment impermissibly would permit the state to shift theories of the case after indictment. Defendant derives that argument from the general rule that variance between the indictment and the proof presented at trial is fatal if it misleads a defendant in making a defense or exposes a defendant to the risk of being put in jeopardy twice for the same offense.SeeState v. Anderson, 241 Or 18, 21, 403 P2d 778 (1965) (stating rule). Defendant also asserts that the principle is analogou
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