State v. Blair

Citations: 214 P.3d 47; 230 Or. App. 36; 2009 Ore. App. LEXIS 1046Docket: 042431, A130455

Court: Court of Appeals of Oregon; July 29, 2009; Oregon; State Appellate Court

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Defendant Michael James Blair appeals his felony murder conviction under ORS 163.115(1)(b), contesting the trial court's denial of his demurrer and refusal to provide a special jury instruction regarding the necessary culpable mental state for the victim's death. Defendant argues that the law requires proof of at least criminal negligence concerning the victim's death. The appellate court, however, determines that the felony murder statute does not necessitate the state to prove any specific mental state concerning the victim's death. Instead, the commission or attempted commission of the underlying felony is sufficient to establish the required mens rea. The facts indicate that on the night of April 3 or the morning of April 4, 2004, defendant broke into the victim's home, stole items, and attempted to rape her. The victim was found dead the following evening, with her death attributed to chronic obstructive pulmonary disease exacerbated by the defendant's actions. The indictment charged defendant with felony murder, asserting he unlawfully and intentionally committed first-degree burglary, resulting in the victim's death. The court affirmed the conviction, concluding that the indictment's allegations met the necessary legal standards without requiring a specific culpable mental state.

Defendant argued that a conviction for felony murder under ORS 163.115(1)(b) requires proof of a "criminal homicide," defined under ORS 163.005(1) as causing the death of another with at least criminal negligence. He claimed the indictment was insufficient because, while it alleged intentional burglary, it did not state that he caused the victim's death with a culpable mental state. The state countered that the felony murder statute only requires proving a culpable mental state related to the underlying felony, not the death itself. The trial court denied the defendant's demurrer, explaining that felony murder occurs during certain crimes, including burglary, and does not necessitate dual allegations of intent regarding both the felony and the homicide. Following the state’s case, the defendant moved for acquittal on the grounds of insufficient evidence of a culpable mental state concerning the victim's death, which the court also denied. The defendant requested a special jury instruction requiring the jury to find that he acted with a culpable mental state in causing the death, but the court refused, stating the jury only needed to find that he caused the death. The jury convicted the defendant of felony murder. On appeal, he contested the trial court's decisions regarding his demurrer and the jury instructions. Historical context revealed that Oregon’s felony murder rule has been codified since 1864, but the "criminal homicide" definition was newly established in the 1971 revisions of the criminal code, which introduced no prior legal framework for it in Oregon law.

In 1864, the first-degree murder statute in Oregon defined murder as the deliberate and premeditated killing of another person, particularly during the commission of certain felonies like rape, arson, robbery, or burglary. The second-degree murder statute covered killings that were purposeful and malicious but lacked premeditation, occurring during the commission of other felonies. In 1879, the Supreme Court of Oregon ruled in State of Oregon v. Brown that the felony murder provision did not require the defendant to have a purposeful intent to kill if the killing occurred during the commission of a specified felony. The court found that intent to kill was implied by the defendant's involvement in the felony that led to the victim's death. In the case, the defendant, after robbing a pawnshop and firing a shot during an escape, unintentionally killed a child. The defendant challenged the indictment for not requiring proof of purposeful intent to kill. However, the Supreme Court upheld the trial court's decisions, stating that for first-degree murder in the context of a felony, the indictment need not allege intent to kill or premeditated malice. The court clarified that as long as the killing occurred during the commission of a robbery, proving the felony sufficed to establish the necessary elements of murder in the first degree. Following this ruling, Oregon courts consistently interpreted the felony murder rule as lacking a separate mens rea requirement regarding the victim's death.

A malignant purpose can be established through evidence of a defendant's other felony, as seen in State v. Dorland. It is not required for an indictment to assert or for the state to demonstrate that a killing was committed purposely or with premeditated malice; it suffices to prove the killing occurred during the commission or attempt of a felony. If the state shows that the defendant committed larceny, for instance, intent to kill is implied, consistent with the felony murder rule's intent to alleviate the burden of proving premeditation or malice when a death results from the commission of a felony. Even accidental deaths caused during the commission of a felony are treated as murder under this rule, as exemplified in State v. Wilson. 

As of the 1971 criminal code's adoption, Oregon's felony murder rule imposed liability for homicides occurring during the perpetration of a felony without needing to demonstrate the defendant's mental state regarding the homicide. Instead, committing the underlying felony establishes the requisite mens rea for the victim's death. Legislative history from 1971 does not indicate an intention to alter this aspect of the felony murder rule, and for nearly four decades, Oregon courts have maintained that no separate mens rea for causation of death is required. The statute necessitates intent to commit the felony but does not impose a mens rea requirement for the resulting death. The concept of implied malice in felony murder is recognized as a valid means of establishing culpable mental state for homicide. The key question on appeal is whether the 1971 criminal code altered Oregon's felony murder rule to require proof of distinct mens rea regarding the victim's death, which hinges on interpreting ORS 163.115(1)(b) and its relationship with other homicide provisions in ORS 163.005.

Statutory construction principles from *State v. Gaines* are applied, starting with the text in context. Even in the absence of ambiguity, legislative history may be consulted when relevant. The defendant argues that the 1971 revision of the felony murder rule requires the state to prove the defendant acted with a mens rea distinct from that of the underlying felony. This argument is based on two features of the 1971 legislation: 

1. ORS 163.005, which defines criminal homicide and allows for intentional, knowing, reckless, or negligent actions causing death.
2. ORS 163.115, which includes felony murder in its definition of murder, stating that criminal homicide occurs when a death is caused during the commission or attempted commission of a felony.

The defendant claims that felony murder is a subset of criminal homicide requiring at least criminal negligence regarding the victim's death. In contrast, the state asserts that the 1971 legislature intended to maintain Oregon's traditional felony murder framework, emphasizing that ORS 163.115(1)(b) does not specify a distinct mens rea requirement for the victim's death. The state also points out that a defendant can be liable for felony murder even if not directly causing the victim's death. Furthermore, the state argues that ORS 163.005(1) does not limit the means of committing criminal homicide, as the definitions in subsection (2) encompass various forms of murder, including those covered by ORS 163.115(1), without necessitating a particular mental state regarding the victim's death.

Both parties present plausible interpretations of the relevant statutes, reflecting a low threshold for statutory ambiguity. The definition of "plausibility" requires that an opposing construction not be "wholly implausible." The defendant argues that felony murder qualifies as "murder" and that murder requires a culpable mental state, implying that a defendant must possess such intent to be guilty of felony murder. Conversely, the state’s interpretation, grounded in the historical application of the felony murder rule in Oregon, suggests that the lack of an explicit mens rea requirement in ORS 163.115(1)(b) may indicate that such intent is inferred from the commission of the underlying felony.

The legislative history surrounding ORS 163.005 and ORS 163.115, enacted during the 1971 comprehensive revision of Oregon's criminal code, is critical to the analysis. This revision was informed by the Criminal Law Revision Commission, which produced draft codes and commentaries. The commentary for ORS 163.005 indicates that subsection (1) defines the limits of homicide provisions, establishing that only actions amounting to criminal negligence can fall under criminal homicide, while ORS 163.005(2) categorizes criminal homicide into murder, manslaughter, and criminally negligent homicide. This history supports the defendant's interpretation regarding the interplay between the two subsections.

Subsection (1) defines the essential elements common to all forms of criminal homicide, including felony murder, while subsection (2) does not serve as an alternative definition. The primary focus is on the impact of ORS 163.005 on the felony murder rule outlined in ORS 163.115(1)(b). Legislative history indicates that the legislature did not intend to eliminate the imputed mens rea aspect of Oregon's felony murder rule. The commentary from the final draft of ORS 163.115(1)(b) reveals the legislature's intent to maintain the felony-murder doctrine while implementing specific changes: abolishing murder degrees, limiting felony murder liability to certain felonies, and introducing an affirmative defense inspired by New York's felony murder statute. The Commission chose this approach over the more radical Model Penal Code revisions, which required a recklessness standard for establishing homicide liability, thereby effectively discarding felony murder as a distinct legal basis. New York's statute, conversely, preserved the imputed mens rea concept while allowing an affirmative defense for defendants in specific circumstances, particularly when a co-felon caused the death. This change was aimed at addressing potential unfairness in applying felony murder liability to all participants in a felony. The Commission's adoption of New York's model represented a significant shift in Oregon law, ensuring that while the imputed intent principle remained, it was modified by the availability of a defense under ORS 163.115(3), reflecting a modern move away from the traditional felony-murder rule. Professor George M. Platt articulated that the draft favored New York's approach over the Model Penal Code's stance.

The Commission's proposed approach, adopted by the legislature, maintains the existing 'imputed mens rea' framework, allowing for a limited affirmative defense that requires the defendant to prove five cumulative elements. Legislative history for the 1971 criminal code, particularly ORS 163.005(1) and ORS 163.115(1)(b), indicates that it was not intended to require a separate mens rea regarding the causation of death for felony murder. Instead, both provisions should be harmonized: (1) under ORS 163.005(1), all forms of 'criminal homicide' necessitate a culpable mens rea concerning the victim's death; and (2) for 'felony murder,' the necessary mens rea is established by the defendant's commission or attempted commission of the underlying felony. Consequently, the trial court correctly denied the defendant's demurrer to the felony murder charge and rejected the proposed jury instruction. The defendant faced multiple charges, including first-degree robbery and first-degree burglary, among others, related to a series of criminal acts, including the alleged burning of a stolen vehicle and possession of methamphetamine. The 2007 amendment to ORS 163.005(2) added 'aggravated vehicular homicide,' but this did not impact the current analysis. The defendant did not challenge the trial court's denial of a motion for acquittal. The requested jury instruction outlined the necessary elements for establishing felony murder in the context of a first-degree burglary.

Oregon law defines felony murder as occurring when an individual, alone or with others, commits or attempts to commit first-degree burglary, and during this act or immediate flight from it, causes the death of a non-participant. To establish felony murder, the State must prove: 1) the act occurred in Lincoln County, Oregon; 2) it occurred on or about April 4, 2004; 3) the defendant committed or attempted to commit first-degree burglary; and 4) the defendant caused the death of a victim not involved in the crime. The jury convicted the defendant on all charges except one count of delivering a controlled substance, where they could not reach a verdict. Historical context is provided on the felony murder statutes, noting that they were codified in various forms before being revised in 1971, with some amendments in 1951 and 1953. Oregon law holds individuals liable for felony murder even if they did not personally cause the death, as long as it was caused by an accomplice during the commission of the felony. This liability is supported by case law illustrating that a shared criminal intent between participants suffices for felony murder charges. Additionally, an affirmative defense exists under specific circumstances where the death is caused by a co-perpetrator's actions.

A defendant can be held liable for felony murder even if the victim's death is caused by an accomplice, according to ORS 163.115(1)(b). The key issue is whether either the defendant or their accomplice must possess an independent mens rea in causing the victim's death. The defendant argues that ORS 163.005(1) outlines the necessary elements of "criminal homicide," while subsection (2) categorizes this into specific types, such as murder and manslaughter, which fulfill the definitions outlined in subsection (1). Although legislative ambiguity is not a prerequisite for considering legislative history, the statutes in question are deemed ambiguous. Subsection (2) was amended in 2007 to include aggravated vehicular homicide. The 1971 affirmative defense under ORS 163.115(3) remains applicable, allowing a defendant to argue against felony murder charges if they were not the sole participant in the crime, did not commit the homicide, were unarmed, and had no reason to believe others were armed or intended to cause death. Additionally, references to the Model Penal Code and the New York Revised Penal Law illustrate similar principles regarding culpability and the presumption of recklessness in specific felony contexts.

An individual is not liable for homicide if they did not engage in any acts related to the commission of the homicide, such as soliciting or aiding it, were not armed with a deadly weapon or something capable of causing serious injury that is not typically carried by law-abiding citizens, had no reasonable belief that other participants were armed, and had no reasonable belief that others intended to engage in conduct likely to cause death or serious injury. This is subject to the affirmative defense outlined in ORS 163.115(3). New Jersey's homicide and felony murder laws are akin to those in Oregon, establishing a general definition of criminal homicide with a minimum mens rea of "recklessly." New Jersey's felony murder statute does not require a separate mens rea for the death caused, only the intent to commit the underlying felony. However, a legal scholar argues that this approach may render the no-culpability defense for felony murder unnecessary, a view that contrasts with New Jersey court interpretations.