Jury Concurrence on Accomplice Liability - Or. S.Ct. grants review
by: Rjohnson • March 4, 2012 • no comments
The Oregon Supreme Court recently took review of my jury concurrence case, State v. Phillips. The court has also accepted review in a companion case, State v Pipkin. I am thrilled, because I didn't have anything else to do in the couple of weeks it will take me to write the brief, and also because maybe I can undo my ignominious loss in Phillips as well as a worse loss in State v. Burney
The issue in Phillips is whether the jury should have been instructed that they had to agree on whether the defendant acted as a principal or an accomplice. Because Mr. Phillips was convicted of assault in the third degree (causing injury to the victim while aided by another person actually present) the line between principal and accomplice is particularly blurry. See State v. Pine (holding that the "person actually present" is not guilty as an accomplice). The issue in Pipkin is whether the jury has to agree on whether a burglary defendant 'entered' or 'remained.'
The lead Oregon case on jury concurrence is State v. Boots. The case is so prominent that a jury instruction requiring jurors to agree on a theory is often called a "Boots instruction". In Boots, the defendant was charged with aggravated murder, which is murder accompanied by one of a list of statutory aggravating circumstances. Boots holds that the jury must agree on which circumstance elevates a murder to aggravated murder. More generally, Boots stands for the proposition that the jury has to agree, not just on a crime, but on a specific prosecution theory.
The Court of Appeals reasoned in Phillips and Pipkin that a concurrence instruction is not required if the two theories would merge into a single conviction. That legal notion is tenuously supported by State v. King (jury need not decide whether the defendant was impaired or had a BAC above .08 to convict for DUII). But it is inconsistent with Boots and State v. Barrett, which held that multiple theories of aggravated murder merge, even though Boots held that those same multiple theories required unanimity instruction.
It's arguable that Phillips and Pipkin aren't good law right this minute. In any case, they're certainly in trouble. Ask for a concurrence instruction (and file related pleadings, like a demurrer or a request for an election) whenever there are two legally distinct theories. I think that it is at least possible that other distinctions, like the difference between accomplice and principal liability may also require either concurrence instructions or a prosecutorial election of theories. The cases are not all that clear about the relationship between the requirements for an indictment, the right to an election, the right to a unanimity instruction, and the right to merger. Until the courts clear it up (which may not be soon) be sure to ask for all of them.
