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State v. Lotches12/29/2000
indictment, we have reviewed the jury instructions that the trial court gave. Those instructions do not appear to clarify any of the matters that we have discussed.
That is, although the three aggravated murder counts were based on three underlying felonies, the instructions did not identify for the jury the victim or attendant circumstances applicable to each of those underlying felonies or in any other way ensure jury unanimity concerning those issues.
The foregoing discovery concerning the jury instructions led this court to pose supplemental questions to, and ask for additional briefing from, the parties. The questions were:
"1. Did the jury instructions given in the present case meet the specificity requirements for such instructions established inState v. Boots, 308 Or 371, 780 P2d 725 (1989)? More specifically, was it necessary for the instructions concerning each of the counts of aggravated murder to require the jury to agree as to the identity of the victim of the alleged underlying felony and, if so, did the instructions meet that requirement?
"2. Assuming that the instructions in question were not sufficiently specific, did defendant object to the error? If not, was the error apparent on the face of the record under the rationale ofState v. Brown, 310 Or 347, 800 P2d 259 (1990)?"
Although the parties' briefs in answer to our questions vary widely with respect to what consequences, if any, should flow from the procedural facts, both sides appear to agree that: (1) the instructions in question did not identify the victim of the alleged underlying felony with respect to any of the three counts of aggravated murder; and (2) defendant did not make any contemporaneous objection concerning those omissions. We turn to the parties' arguments concerning the legal effect of those procedural facts.
The state argues that this court should not address the matter for three reasons. First, the state argues that the failure of the instructions to specify the victim of the underlying felony is notplainerror, because this court never has held that that sort of specificity is required and, therefore, there was no violation of a firmly established legal principle. Second, the state argues that any error was harmless, because there was no actual dispute or confusion at trial as to the identity of the victims of the underlying felonies. Third, the state asserts that the trial court's instructions were adequate in any event.
We address the last point first because, if the instructions given were adequate, the other arguments are irrelevant. For the reasons that follow, we conclude that the instructions were not adequate.
The starting point for our inquiry in this respect begins (and ends) withBoots. In that case, the defendant was charged with aggravated murder based on two separate aggravating factors,viz., the murder was committed in the course of a robbery, and the murder was committed to conceal the identity of the robbers. 308 Or at 374. The trial court specifically instructed the jurors that they were not required to agree unanimously on any particular theory, so long as some combination of the 12 jurors agreed that one or the other (or both) of the alleged aggravating factors had been proven. This court held that that instruction was erroneous because, in order to convict a defendant of aggravated murder, the jury must agree unanimously on all the facts required by a particular subsection of the aggravated murder statute, ORS 163.095.Id.at 377. In reaching that conclusion, the court stated:
"Of course[,] jurors cannot convict a defendant if they unanimously agree that he intended to kill a person but onl
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