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State v. Lotches12/29/2000
s to the requirement, which this court announced inState v. Boots, 308 Or 371, 780 P2d 725 (1989), that jurors unanimously must agree on a specific theory of the factual circumstances that elevate a murder to aggravated murder.
As one illustration of the problem, defendant points to Count 3 of the indictment, which alleges aggravated murder committed to conceal the identity of the perpetrator of attempted murder. Defendant argues:
"On the basis of the evidence presented by the state at trial, the attempted murder victim could have been Anissa Calderon, Valencia Edwards, William Hall, James Riley or Kim Keaton's young grandson as he ran to the car toward where Mr. Hall was shot. Because the indictment is vague as to this material fact, the trial court was unconstitutionally forced to guess on the factual and legal theory found by the grand jury."
The state responds that an indictment is not required to be as specific as defendant contends, and cites various cases in which this court has held that persons' names, although relevant, need not be pleaded specifically in an indictment.See, e.g.,State v. Rood, 234 Or 196, 380 P2d 806 (1963) (charging instrument need not specify names of purchasers of lottery tickets in prosecution for sale of lottery tickets);State v. Nussbaum, 261 Or 87, 94, 491 P2d 1013 (1971) (indictment for crime of rioting need not include names of co-rioters). In addition, the state notes that defendant did not attempt to clarify the matter for the jury by requesting special instructions regarding the aggravated murder counts, nor did he except to the instructions given.
The indictment itself indicates that defendant was alleged to have committed more than one attempted robbery and more than one attempted murder. Moreover, the facts as proved at trial would support more than one charge of kidnaping. Under those circumstances, we agree that defendant would have been entitled to require the state to specify which particular facts and circumstances made up the underlying crimes on which the charges of aggravated murder were based. But that fact alone does not justify overturning the indictment at this stage of the proceeding.
Defendant did not demur or otherwise object to the indictment. This court often has held that objections to the sufficiency of an indictment not timely raised are waived.See,e.g,State v. Montez, 309 Or 564, 597, 789 P2d 1352 (1990) (objection to indictment at end of trial was untimely);State v. Holland, 202 Or 656, 667, 277 P2d 386 (1954) (defendant who fails to demur at time of arraignment waives objection to indictment). Defendant argues that this court should exercise its discretion to consider his arguments as to the indictment's alleged deficiencies, despite the failure to demur, either on the ground that those deficiencies constitute error apparent on the face of the record, ORAP 5.45(2), or on the ground that the indictment's alleged deficiencies constitute a jurisdictional problem and, therefore, may be raised at any time.
Error is apparent on the face of the record only when "the legal point is obvious, not reasonably in dispute."State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). Given that this court repeatedly has held that an indictment that tracks the wording of the statute is sufficient, we do not think that defendant's legal point is so obvious that it can be said to merit reversal, notwithstanding defendant's failure to object. Defendant's jurisdictional argument also is not well taken.
Our disposition of defendant's arguments concerning the indictment does not end the matter, however. In the course of examining the record in this case concerning defendant's challenge to the
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