State v. Ott

686 P.2d 1001 (1984)

297 Or. 375

STATE of Oregon, Respondent On Review,

v.

Calvin Roy OTT, Petitioner On Review.

No. TC 80-522-C, CA A23254, SC 29428.

Supreme Court of Oregon, In Banc.

Argued and Submitted August 2, 1983.

Decided July 10, 1984.

LENT, Justice.

The primary issue is how a jury is to be instructed on "extreme emotional disturbance" for the purpose of determining whether a criminal homicide is murder or manslaughter. The defendant was charged with murder for killing his wife in April, 1980. It is undisputed that the defendant killed her intentionally; the dispute is whether he was under the influence of extreme emotional disturbance. If he was, he would be guilty of manslaughter rather than murder.

At that time ORS 163.115 provided:

(1) * * * [C]riminal homicide constitutes murder when:

(a) It is committed intentionally by a person who is not under the influence of an extreme emotional disturbance.

* * *

(2) For the purposes of paragraph (a) of subsection (1) of this section, a homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation. The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor's situation under the circumstances as the actor reasonably believes them to be.

…

The defendant was convicted of murdering his wife. At trial he did not contest the accusation that he killed her intentionally. Instead, he adduced evidence to mitigate the charge of murder to that of manslaughter by showing that he was under the influence of an extreme emotional disturbance during the killing.

The Evidence

A description of the evidence and the facts which could be found therefrom as perceived by the defendant is relevant to the question of whether he could have been found by the jury to be under the influence of extreme emotional disturbance when he committed the criminal homicide, thereby necessitating an instruction on extreme emotional disturbance. There was evidence of the following:

The defendant exhibited instability after his discharge from the Air Force in 1972. He "drifted in various parts of the United States" and put "very little order to his life." In 1975 he returned to his mother's home in Grants Pass and stayed there intermittently.

At some point after his return to Grants Pass, he began to cohabit with a woman who had three children. This lasted for a little over a year. The woman then asked the defendant to move out because of his drinking and unannounced disappearances. She was three months' pregnant by him at the time.

The defendant then enrolled at Rogue Community College at Grants Pass. There he met the now deceased Stephanie Elaine Brinkley, whom he married three weeks after their initial meeting. Some months after their marriage, they had a fight over "money matters" and separated. ...

Defendant attempted to return to his wife; however, she had begun seeing someone else. Defendant attempted to fight Stephanie's new lover. Stephanie intervened, sent her new lover away and promised that her conduct would not be repeated.

There were other separations, and the defendant, upon his return from each separation and his learning of more infidelities, became progressively more upset. This was especially so after the birth of their first child. …

He had been warned by the "authorities" to stay away from Stephanie. She apparently caused him to be placed under a judicial restraining order; however, despite her obtaining the order, Stephanie telephoned him regarding their divorce. They engaged in an apparently protracted series of arguments on the telephone over child custody, which eventuated in the defendant's arrest and jailing for harassment. Even though they engaged in arguments and fights, they continued to associate. Defendant could not stay away from Stephanie and Stephanie did not always discourage his attentions.

In 1980 Stephanie began to live with another man. This conduct affected the defendant, as before, with tension and "stress." The defendant's reaction was even more intense than before, and he threatened to kill Stephanie on several occasions.

In early April, 1980, Stephanie's son, Jonathan (defendant's stepson), broke his arm and was in the hospital. The defendant and Stephanie met each other at the hospital in order to visit with the child on three occasions. It was arranged that on the third occasion the defendant was to drive Stephanie home after hospital visiting hours were over. Defendant had the impression from their first two meetings at the hospital that the relationship was improving. He was thus angered and disappointed when his wife's new lover appeared at the hospital on their third meeting to take her home. Defendant left the hospital in a state of agitation. He retrieved a .22 rifle that he had stored at the home of a friend, caught up with his wife and her lover, ran their truck off the road and shot his wife three times. ...

History of Mitigating Factor

Before addressing how a jury should be charged in a case where the influence of extreme emotional disturbance may reduce an intentional criminal homicide from murder to manslaughter, we pause to examine the history of the mitigating factor.

The defense of extreme emotional disturbance is a modification of the defense of provocation or heat of passion. The provocation defense is very old. The distinction between a slaying in cold blood and one in the heat of passion existed in Anglo-Saxon criminal law and survived the Norman conquest of 1066. The "Doctrine of Provocation" became firmly established in the law in 1628 when Coke adopted the distinction between homicide committed after deliberation and homicide committed in the course of a sudden quarrel… Then, as now, manslaughter … depended on the presence of heat of passion caused by adequate provocation. …

In the mid-nineteenth century, the judgment as to whether a provocation was adequate for the heat of passion defense was made by the judge as a determination of law; however, judges gradually began to leave borderline cases to the jury. The reasonable man standard of review for provocation was devised as a manner of instructing the jury on marginal cases. It was also a device for enabling the jury to serve as community conscience or standard of measure for reasonable behavior. …

This has been said to be an objective test, meaning that neither the mental nor physical peculiarities of the accused are evaluated in determining whether his loss of self-control was reasonable. …

The common law heat of passion or provocation defense placed the jury in the conceptually awkward (to put it kindly) position of having to determine when it is reasonable for a reasonable man to act unreasonably. (Granville Williams, Provocation and the Reasonable Man, 1954 Crim.L.Rev. 740, 742).

Another writer comments that: "Abandonment of the reasonable man standard would simplify the jury's task because the inquiry into the accused's own mental state is more concretely grounded in reality than are conjectures about a mythical reasonable man."

The Model Penal Code [adopted by Oregon in 1970]

The drafters of the Model Penal Code were aware of the anomaly and pointed out that harsh and unjust results were obtained from applying the objective test for provocation. They cited State v. Gounagias, 88 Wash. 304, 153 P. 9 (1915), as a model of an unjust result achieved through application of the objective test for provocation. …

[That case involved a defendant who, humiliated after being raped by a man in his community, asked him not to tell others about the incident. The assailant persisted in spreading the story, which resulted in defendant’s being shamed and isolated from his community. After an angry confrontation with the assailant, defendant went home, got a gun and returned to kill the assailant. The court denied defendant’s request for mitigation from murder to manslaughter, finding Gounagias has waited too long after the original incident for provocation to be invoked.]

The drafters of the Model Penal Code found it "shocking" to disregard that the passage of time served only to increase rather than diminish Gounagias' outrage as the story became known. Model Penal Code Tentative draft No. 9 § 201.3 at 48. They said:

"…in such a situation as Gounagias, where lapse of time increased rather than diminished the extent of the outrage perpetrated on the actor, as he became aware that his disgrace was known, it was shocking in our view to hold this vital fact to be irrelevant. …"

[in 1971, Oregon revised its homicide law along the lines of the Model Penal Code, to provide: "a homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation. The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor's situation under the circumstances as the actor reasonably believes them to be." (italics added)]

The Trial Court's Instruction

[At the close of the trial, the court instructed the jury using the above statutory language. As is common practice, it provided additional instructions, which included the following]:

"I instruct you that the concept of extreme emotional disturbance involves several issues, all of which must be considered by you. One, the homicidal act must have been committed under the influence of an extreme emotional disturbance, and two, the extreme emotional disturbance must not be the result of the Defendant's own intentional, knowing, reckless or criminally negligent act. Thus, a person may not form an intent to commit murder and later because of that intent become extremely emotionally disturbed, and three, the extreme disturbance must be an extreme emotional disturbance. You are instructed that there are varying degrees of emotional disturbance. Not every disturbance is an extreme emotional disturbance in the law. In determining what the term extreme means with reference to extreme emotional disturbance I instruct you that the term means the outermost or furthest, most remote in any direction, final or last, and four, there must be a reasonable explanation to the extreme emotional disturbance and its resulting homicidal act.” [italics added]

Both in the trial court and on appeal the defendant has argued that the term "extreme emotional disturbance" is made up of words of ordinary meaning, not given any special definition by the legislature and, therefore, there is no reason or need for a trial court to enlarge upon them for the benefit of the jury. …

We agree with the defendant that the jury should be instructed on the meaning of the whole term rather than singling out the word "extreme" for amplification. The point of the extreme emotional disturbance defense is to provide a basis for mitigation that differs from a finding of mental defect or disease to such an extent as altogether to preclude criminal responsibility.

… The notion of "extreme" provided for the jury … is consonant with an understanding of emotional disturbance that might preclude criminal responsibility. The words "outermost or furthest, most remote in any direction, final or last," as used by the court to define "extreme," would seem to require a state of mind so far from the norm as to be characteristic of a mental illness. The defense was meant to be understood in more relative terms as referring to a loss of self-control due to intense feelings.

…

We have still to determine how a jury is to determine whether there was a reasonable explanation for the emotional disturbance. This is a sensitive task because the Oregon statute requires that the "reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person," ORS 163.135(1). On the other hand, the statute requires that the reasonableness of the interpretation must be judged from the standpoint of "the actor's situation under the circumstances as the actor reasonably believes them to be." The juxtaposition of these two requirements for determining the adequacy of the explanation prevents the adequacy from being determined on either wholly objective or subjective grounds. The words "ordinary person" and "reasonableness of the explanation" recall the reasonable man standard of the heat of passion defense, which is an objective test, while the requirement of taking into account the actor's situation suggests a more subjective analysis…

Donovan and Wildman in their article, Is the Reasonable Man Obsolete? A Critical Perspective on Self-Defense and Provocation, hypothesize the following example:

An Asian-American man, Harold Sato, who had been interned in a detention camp for Japanese during World War II, faces repeated racial prejudice at his job. One day after repeated racial slurs from a co-worker he kills the co-worker. 14 Loyola L.Rev. 435, 438 (1981). 

The authors observe:

The anomaly of a purely objective standard of provocation is underlined by Mr. Sato's case. * * * A reasonable man, viewed in the abstract, is not likely to be roused to the heat of passion by a verbal insult. However, an Asian-American who had been interned in a concentration camp is likely to be roused to the heat of passion by racial slurs. To the extent that a jury is not allowed to consider Mr. Sato's racial background and previous experience of racial discrimination in determining his moral culpability, Mr. Sato is more likely to be convicted of murder * * * than of voluntary manslaughter. Id at 449.

By requiring the factfinder to focus on a person in the defendant's "situation," the drafters of the Model Penal Code sought to work change. One writer, relying upon the Model Penal Code commentary, has put it:

[I]t makes the test more, although not entirely, subjective, by requiring the jury to test the reasonableness of the actor's conduct, ‘from the viewpoint of a person in the actor's situation.’ Thus, the actor's sex, sexual preference, pregnancy, physical deformities, and similar characteristics are apt to be taken into consideration in evaluating the reasonableness of the defendant's behavior. (Footnotes omitted.) Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 Journal of Criminal Law and Criminology 421, 431 (1982).

…

Conclusion

Given the hybrid approach adopted by the legislature to the weight to be accorded to subjective and objective factors in the calculus involved in this kind of case, we do not believe that any court can state a suggested jury instruction that is completely impervious to criticism of its logic. We must leave the trial courts and juries where the statute places them. Making the best of this situation, we conclude that a trial court's charge must be constructed for any particular case along the following general lines.

First, the jury's attention must be drawn to the relevant statutory text.

Second, the jury must be instructed as to the burden of persuasion on the issue.

Third, the jury should be asked to consider whether the homicide was committed under the influence of extreme emotional disturbance. It was if the defendant was under the influence of an emotional disturbance to the extent that he lost the capacity to control himself and forego the homicide. The jury should be instructed that if it finds that the homicide was not committed under the influence of extreme emotional disturbance, the jury need not further consider the issue of mitigation of murder to manslaughter. If the jury finds that the homicide was committed under the influence of extreme emotional disturbance, it must then consider other issues.

Fourth, the jury must determine whether the extreme emotional disturbance was the result of the defendant's intentional, knowing, reckless or criminally negligent act, and the meaning of those adjectives must be explained. If the jury finds that this causal relationship existed, it need not further consider the mitigation issue. If the jury finds this causal relationship not to exist, it must then consider the reasonableness of the explanation for the disturbance.

Fifth, the jury must determine what was the defendant's situation in the circumstances which the defendant reasonably believed to exist. The jury must then determine whether an ordinary person in that situation and those circumstances would have experienced extreme emotional disturbance.

In the case at bar, the trial court erred in instructing the jury …. The error went to the heart of the case. The error was not harmless. Defendant is entitled to a new trial.

Reversed and remanded for a new trial.