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State v. Lotches12/29/2000
y half believe that he did so. No more can they convict if they unanimously agree that a defendant's act caused a person's death but only half believed that he acted intentionally. The same is true if jurors agree that a defendant's act caused a person's death but do not agree that the defendant committed a felony, or vice versa." Id.
In addition, the court quoted with approval fromUnited States v. Gipson, 553 F2d 453 (5th Cir 1977), a case in which a defendant was charged with being a person who "receives, conceals, stores, barters, sells, or disposes of" a stolen vehicle in interstate commerce. In that case, the trial court had instructed the jury that they need not agree on which of those acts the defendant had done. The federal court ruled that that instruction was erroneous, stating:
"Like the 'reasonable doubt' standard, which was found to be an indispensable element in all criminal trials * * *, the unanimous jury requirement 'impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts at issue. * * *The unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged.Requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless this prerequisite of jury consensus as to the defendant's course of action is also required." Gipson, 553 F2d at 455-56 (citations and footnote omitted; emphasis added), quoted inBoots, 308 Or at 380.
It is plain from the foregoing that the jury in the present case properly could not have convicted defendant of aggravated murder, for example, based on murder committed to conceal one's identity as the perpetrator of attempted murder, if half the jurors thought that defendant had attempted to murder Riley and half thought that he had attempted to murder Edwards. As in the passage fromGipsonthat this court quoted with approval inBoots, the unanimity rule requires that the jury agree as to "just what defendant did" to bring himself within the purview of the particular subsection of the aggravated murder statute under which he was charged.
It is true that Boots is distinguishable factually, because the trial court in the present case did not instruct the jurors expressly that they could convict defendant in the absence of unanimity respecting which underlying felonies defendant had committed. However, because the aggravated murder instructions that were given did not either limit the jury's consideration to a specified underlying felony or require jury unanimity concerning a choice among alternative felonies, each instruction carried the same danger that this court had condemned inBoots. We can perceive of no reasonable basis for refusing to apply the rule ofBootsto the present case. As a legal matter, the jury instructions were erroneous.
We turn next to the state's argument that any errors that may have been committed in the jury instructions were harmless.
At the outset, we note that that argument is based, at least in part, on the fact that, in the state's view, the prosecutor ensured jury unanimity by clarifying the matter for the jury, in that he made clear in his closing argument that counts 1 and 2 were based on defendant's robbery and attempted kidnaping of Keaton and that count 3 was based on defendant's attempted murder of Edwards. This court previously has rejected the notion that counsel may fill in the blanks to redeem an erroneous jury instruction. InBrown, 310 Or at 356, this court stated that
"neither the sufficiency of the evidence nor the compl
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