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State v. Lotches12/29/2000
charged separately with two counts of attempted murder -- one involving Edwards and the other involving Riley. The state asserts that the attempted murder referred to in the third aggravated murder count was the Edwards crime. The only way in which that notion was conveyed to the jury, however, was in the prosecutor's statement to the jury. As the court concluded inBrown, that statement was not a substitute for the sufficiency of the instructions.Brown, 310 Or at 356. Because nothing in the instructions respecting the third count required the jury unanimously to decide whether defendant was attempting to conceal his identity as the perpetrator of the attempted murder of Edwards or of Riley, the instructions also were erroneous respecting that count.
Unlike the errors respecting the instructions on the first two counts, however, we agree with the state that the error in the instructions respecting the third count was harmless. The jury acquitted defendant of the attempted murder of Riley (10-2), but it unanimously convicted him of the attempted murder of Edwards. Because that conviction proves that all 12 jurors agreed that defendant attempted to murder Edwards, that conviction provides the predicate for defendant's conviction on the third count of aggravated murder.
Having concluded that there was error in the instructions concerning all three counts of aggravated murder and that the errors respecting the first two of those counts were not harmless, we turn to whether the errors respecting the first two counts of aggravated murder were "apparent on the face of the record."
We hold that they were. The elements of "error apparent on the face of the record" are that: (1) the error is one of law; (2) the point of law is obvious,i.e., is not reasonably in dispute; and (3) the error is not one respecting which the court must go outside the record or select among competing inferences.Brown, 310 Or at 355. The first and third elements are not really at issue; the question of what must be included in a jury instruction is a question of law, and what was or was not included is determined readily by examining the instructions that were given. Therefore, the only issue is whether the errors were "obvious."
We conclude that they were. It has been clear in Oregon, at least sinceBoots, that a jury must be instructed concerning the necessity of agreement on all material elements of a charge in order to convict. The factual distinctions between the present case andBootsare not such that a court reasonably could doubt what its duties respecting jury instructions would be.
In summary, we hold that the trial court erred in failing to instruct the jury fully respecting the three counts of aggravated murder. We further hold that, with respect to the first two of those counts, the error was not harmless. We hold that the error was harmless with respect to the third count. Finally, we hold that, although defendant did not object at the time, the errors respecting the first and second counts were apparent on the face of the record. Defendant's convictions for aggravated murder respecting the first two counts must be reversed and the case remanded to the trial court for further proceedings. However, because we do not reverse defendant's conviction for aggravated murder on the third count, we proceed to examine defendant's other assignments of error.
IV. JURY SELECTION
Defendant raises three assignments of error arising out of the jury selection process. First, defendant contends that the trial court erred in rejecting his for-cause challenge to one juror, Nunez, who had expressed his personal views in favor of the death penalty. Second, defendant conte
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