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Merger: Att Agg Murder and Two Counts of Att Murder

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by: Ryan • August 28, 2011 • no comments

This post was substantially re-written on September 7, 2011, following a review of a case that is close to being - but not quite - on point.

The question I intend to answer in this post is whether two counts of Attempted Murder, for trying to kill Victims A and B in the same criminal episode, would both merge into the greater charge of Att Agg Murder, based on a theory of trying to kill two victims in the same criminal episode.

Before we get to that, however, I want to point out an analogous merger issue.

Assume the defendant steals $750 from Victim A and two weeks later he steals $750 from Victim B. Instead of just charging the defendant with just two counts of Theft in the Second Degree, the prosecutor charged those same counts and, relying on the aggregation statute, charged the defendant with Theft in the First Degree (over $1000).

There is one victim (A) for one count of theft in the second degree, one victim (B) for the second count, but the Theft I has two victims (A & B).

If the defendant is convicted of all three counts, he would certainly expect to merge counts 1 and 2 into the felony, since both of those counts are entirely encompassed by the felony. But the state argues, you can't do that, because there are two victims - A and B - and they are each entitled to separate convictions against the defendant. And there's nothing that would support dismissing the Theft I.

Wouldn't the state lose that argument? Legislative intent clearly permits aggregation and it would seem crazy that the state could eat its cake and have it too by getting multiple convictions based on the exact same theft-by-taking.

Well, instead of trying to steal from A & B, assume defendant shoots at A and B, trying to kill them. He is charged with an ultimately convicted of attempted murder against both. But he is also charged with attempted aggravated murder.

The Attempted Aggravated Murder Charge, alleges in part:

[The Defendant] did . . . intentionally attempt to cause the death of another human being, defendant having unlawfully and intentionally attempted to cause the death of an additional human being, in the course of the same criminal episode.

One crime merges in another if it is a lesser-included offense. A crime is a lesser-included offense of another crime as a matter of law if either of two circumstances exist: "(1) the elements of the lesser offense necessarily are included in the greater offense because the elements of the former are subsumed in the latter; or (2) all of the elements of the lesser offense are expressly set forth in the accusatory instrument." State v. Lee, 174 Or App 119, 125, 23 P3d 999, rev den, 332 Or 559 (2001).

Under the facts as I've described them, a conviction for attempted aggravated murder relies on both the attempt to kill Victim A and it relies on the attempt to kill Victim B. In other words, both of the alternative circumstances described in Lee as constituting lesser-included offenses exist. The elements of each attempted murder "are expressly set forth in the accusatory instrument" in the attempted aggravated murder count and the elements of each attempted murder "necessarily are included in the greater offense because the elements of the former are subsumed in the latter."

I see no difference between this hypothetical and the theft hypothetical above. The two counts of attempted murder should both merge into the single count of attempted aggravated murder.

As I mentioned, there is a case that is quite relevant - though not completely on point - and it is 11 years old. I mention the age of the case because it's important to stress that prior to 6 or 7 years ago, merger analysis by the Court of Appeals was much more "seat of the pants." There wasn't the kind of rigor that has since been applied to it. And this rigor has resulted in a dramatically more defense- favorable merger landscape than existed in 2000. A case that's 11 years old, that doesn't provide much analysis, should be treated skeptically (especially if the Oregon Supreme Court hasn't weighed in).

Even if it is still good law, St v. Goltz can be distinguished. In it, the the defendant was convicted of trying to kill two people. And he was charged with two counts of Att Aggravated Murder, neither of which was a lesser-included of the other. The difference, obviously, is that in my hpothetical, there was only one count of Att Agg Murder and two counts of Att Murder.

Defendant also contends that the trial court erred in not merging the two counts of attempted aggravated murder. He argues that attempted aggravated murder requires proof that there was more than one victim for each charge. In this case, he argues, the state, in essence, has "double counted" the victims. The state argues that it has not engaged in double counting. On the first count, there is evidence that defendant attempted to cause the death of Heauser and that, in the course of the same criminal episode, he also attempted to cause the death of Martin. And, on the second count, there is evidence that he attempted to cause the death of Martin and that, in the course of that criminal episode, he also attempted to cause the death of Heauser. We again agree with the state. We review the trial court's decision for errors of law. State v. Merideth, 149 Ore. App. 164, 168, 942 P.2d 803, rev den 326 Ore. 58, 944 P.2d 948 (1997). ORS 163.095 provides that aggravated murder means murder committed when, among other things, there "was more than one murder victim in the same criminal episode." ORS 163.095(1)(d). In State v. Norris, 40 Ore. App. 505, 595 P.2d 1261, rev denied. This court held that "there may be as many counts of aggravated murder as there are victims." Norris, 40 Ore. App. at 508. The court reasoned that it defies common sense to suppose that the legislature intended to immunize a multiple murderer from prosecution for aggravated murder for the killing of the first of his two victims. Norris, 40 Ore. App. at 507-08. See also State v. Fuller, 90 Ore. App. 158, 160, 750 P.2d 1209 (1988) ("When multiple murders occur in the course of the same criminal episode * * * there may be as many counts of aggravated murder as there are victims."). Defendant acknowledges the holding of Norris, but argues that the case is distinguishable, because in that case the defendant actually killed the two victims, while in this case he only only engaged in an unsuccessful attempt to do so. We do not find the distinction meaningful. It is no less nonsensical to suppose that the legislature intended to immunize one who attempts a multiple murder from prosecution for theattempted aggravated murder of the first victim than it is to suppose that the legislature intended to immunize a defendant who actually succeeds in the attempt. We find Norris to be dispositive. The trial court therefore did not err in failing to merge the two counts of attempted aggravated murder.

As far as analysis goes, this is as cursory as it gets. The Court never got past its gut reaction. For that matter, it never got past its gut reaction in Norris.

Had it gone further its analysis, it might have addressed the question that the defendant raised: does a single count of attempted aggravated murder include two victims? In other words, in a charge of attempted aggravated murder based on trying to kill two people, is each of the people the defendant trying to kill a victim of that single charge? Is it - as in the aggregated theft hypothetical - a situation where two victims are aggregated into a single offense in order to increase the seriousness of the charge?

If the answer is yes, there are two victims in attempted aggravated murder, why shouldn't the two attempted murder counts merge as lesser-included offenses, just at the two theft 2s would merge into the aggregated theft 1.

To summarize, the crux of the matter is this: how many victims of attempted aggravated murder when the defendant is charged with trying to kill two people? Is it one or is it two?

Whether there is one or two victims is one of the hardest analyses in Oregon, and not surprisingly, the two significant Oregon Supreme Court opinions on the topic came out after 2000: Luers and Glaspey. Discussion of those cases can be found elswhere, but suffice it to say, the bottom line is legislative intent. In both of those cases, the state argued that there were multiple victims for each crime (arson and felony assault IV, respectively). The state lost both times, but for reasons very specific to the statute.

A Goltz defender may say, "but they considered legislative intent, and they found that the legislature could never have intended to immunize a defendant by merging the convictions into one." First, of course, there is no "immunization." The conviction of Att Agg Murder (or straight Agg Murder) carries with it a greater punishment for the second murder or attempted murder. That greater sentence in the completed crime includes death. I don't think making it possible to kill someone can be dismissed as "immunization."

Secondly, the Goltz analysis of legislative intent put the cart before the horse. The first question is, how many victims and who? That's where the nub of the matter is. Merger is a consequence of answer that question. Jumping straight into whether the legislature wanted different crimes to merge generally is just framing the question in the most state-friendly way possible, without doing the analysis that gets you to that point.

Anyway, the number of victims in a single count of Attempted Aggravated Murder, based on trying to kill two people at once, was not clearly answered by Goltz. You can argue they answered it implicitly, and that they concluded there is only one victim, but I think a close reading of the opinion - and Norris -supports the argument that they didn't really analyze it that closely. Which is not surprising, since the kind of really rigorous analysis on who and how many victims that needed to be done wasn't being done by any appellate court in any meaningful way until the Oregon Supreme Court did it in Luers and Glaspey.