Constitutionally Required Merger of Two Counts of Att Murder I
by: Ryan Scott • April 5, 2026 • no comments
Facts: Defendant has been found guilty of attempting to kill John Smith, while trying to kill John Doe in the same criminal episode (count 1) and attempting to kill John Doe while trying to kill John Smith in the same criminal episode (count 2)
Summary of Argument: The two counts must merge into a single conviction under the Federal Double Jeopardy Clause and/or the Oregon Double Jeopardy Provision. In the alternative, the counts must be sentenced to run concurrently.
Argument
A. Conviction of the defendant on the second of two inverse attempted murder counts in 24CR36206 would violate federal and state constitutional proscriptions on double jeopardy.
1. The conviction would violate the double-jeopardy proscription in the Fifth Amendment to the U.S. Constitution.
The Fifth Amendment to the U.S. Constitution guarantees that “no[] * * * person [shall be] subject for the same offence to be twice put in jeopardy of life or limb * * *.” The guaranty “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 US 711, 717, 89 S Ct 2072, 23 L Ed 2d 656 (1969) (quoted with approval in City of Lake Oswego v. $23,232.23 in Cash, 140 Or App 520, 527, 916 P2d 865 (1996)). The guaranty applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 US 784, 794, 89 S Ct 2056, 23 L Ed 2d 707 (1969)); State v. Sawatzky, 339 Or 689, 694 n 6, 125 P3d 722 (2005).
Only if a state legislature “specifically authorizes cumulative punishment under two statutes” may a state punish the same conduct twice without violating the Fifth Amendment. Missouri v Hunter, 459 US 359, 368–69, 103 S Ct 673, 74 L Ed 2d 535 (1983). Without that specific authorization, whether charges are for the “same offense” depends on the elements of each charge. If all the elements of one are included in the elements of the other, the charges are for the “same offense.” State v. Dodge, 373 Or 156, 173 n 4, 563 P3d 339 (2025) (citing Blockburger v. United States, 284 US 299, 304, 52 S Ct 180, 76 L Ed 306 (1932)). Under the state’s approach, whenever a defendant is convicted of attempted murder under ORS 163.107(1)(d)—which requires that there be “more than one murder victim”—the defendant can always be convicted (and sentenced) twice, unlike a defendant convicted of attempted murder under any other subparagraph of ORS 163.107(1).
That’s because every instance of attempted murder under ORS 163.107(1)(d) can be charged, as here, in the inverse, by switching the names of the two victims. For that double punishment to comply with federal double-jeopardy proscription, it must not just be authorized; it must be specifically authorized. For authorization to be specific, it must authorize the specific double punishment of a defendant convicted under ORS 163.107(1)(d), at least by referring to a conviction under that statute. No such specific authorization appears in Oregon law. Indeed, whether the analogous former offense of attempted aggravated murder under ORS 163.095(1)(d) existed at all had to be settled by the Oregon Supreme Court’s 2022 decision in State v. Kyger, 369 Or 363, 506 P3d 376 (2022).
Here, the two attempted-murder charges are the inverse of each other; count 1 charges the attempted murder of Smith while attempting to murder Jones, and count 2 differs only in that the names are switched. Because both counts arose under the same statute (ORS 161.107(1)(d)) and the same two individuals are named in each, it follows that both counts had the same elements and that all the elements of one were included in the elements of the other. The state relied on the same evidence (the gunshots) to prove both offenses; none of the evidence proved only one of those offenses. Notably, the completed offense of murder in the first degree under ORS 163.107(1)(d) does not suffer from the same constitutional infirmity. That is because the elements of two counts of the completed offense can never be identical. To prove the completed offense, the state need only show that the defendant intended to kill one person (A) and that another person (B) died during the same criminal episode; the state need not show that the defendant intended to kill B. If the state charges the inverse offense, it must to show that the defendant intended to kill B, but it need not show that the defendant intended to kill A. Here, by contrast, the defendant is charged with attempting and thus intending to kill both victims in both counts, so neither count has an element the other lacks. Conviction for both attempted-murder counts would violate the federal constitutional double-jeopardy proscription.
2. The conviction would violate double-jeopardy proscription in Article I, section 12, of the Oregon Constitution.
Under Article I, section 12, of the Oregon Constitution, “no person shall be put in jeopardy twice for the same offence * * *.” Under that provision, charges are for the same offense if they “(1) arise out of the same act or transaction, (2) can be brought in the same court, and (3) the prosecutor knows or reasonably should know about them at the time of the original prosecution.” Dodge, 373 Or at 173 n 4, 563 P3d 339 (2025) (citing State v. Brown, 262 Or 442, 458, 497 P2d 1191 (1972)). Article I, section 44(1)(b), addressing “crimes against different victims,” limits only laws affecting sentencing; it does not limit the section 12 constitutional proscription against prosecution and conviction.
Here, the two attempted-murder offenses arose out of the same act (the shooting) and could have been (and were) brought in the same court, and because the prosecutor brought both counts in the same indictment, the prosecutor necessarily knew of both offenses when the state initiated the prosecution of both of them.
Conviction for both attempted-murder counts would also violate the state constitutional double-jeopardy proscription.
B. Consecutive sentencing on the second attempted-murder count would violate the proscription in Article I, section 16, of the Oregon Constitution on disproportionate punishments.
Under Article I, section 16, of the Oregon Constitution, “[c]ruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense * * *.” A punishment is unconstitutional if it is “so proportioned to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” Sustar v. County Court of Marion County, 101 Or 657, 201 P 445 (1921) (citing Weems v. United States, 217 US 349, 367, 30 S Ct 544, 54 L Ed 793 (1920)); see also State v. Gonzalez, 373 Or 248, 254, 564 P3d 109 (2025) (citing Sustar). “The primary authority to determine the gravity of an offense and the appropriate punishment lies with the legislature.” Gonzalez, 373 Or at 255.
The legislature has prescribed a uniform maximum penalty for every form of attempted first-degree murder, including under ORS 163.107(1)(d) by attempting to murder one person while also attempting to murder another. For that reason, an evaluation of the proportionality of double convictions and consecutive sentences for violating ORS 163.107(1)(d) once does not challenge a legislative policy judgment.
Three factors bear on whether a punishment is constitutionally disproportionate: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” State v. Rodriguez, 347 Or 46, 58, 217 P3d 659 (2009). Here, defendant challenges the proportionality of his and any other defendant’s conviction and consecutive sentence for committing one of several types of attempted first-degree murder by comparison to every other type of first-degree murder. So of the three Rodriguez factors, the only relevant one is the second: “a comparison of the penalties imposed for other, related crimes.”
It would shock the moral sense of all reasonable people to learn that for violating ORS 163.107(1)(d) once, a defendant would receive two convictions and concurrent sentences, but a defendant violating any other part of ORS 163.107(1) would receive but one conviction and sentence. Because the two attempted-murder counts have identical elements and are based on evidence of the same behavior, a conviction or consecutive sentence on the second attempted-murder count would violate Article I, section 16.
C. Under ORS 137.123(4) and (5), the sentence for the second attempted-murder count should be concurrent with the sentence for the first. Under ORS 137.123(4) and (5), sentences for multiple offenses “shall be concurrent” (1) if the offenses “aris[e] out of a continuous and uninterrupted course of conduct” and (2) the court does not find either— “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct.”
Because ORS 137.123(5)(a) applies only when the second offense “was not merely an incidental violation of a separate statutory provision,” it does not apply when the sentences arise from offenses under the same statutory provision. And because counts 1 and 2 both arise under ORS 163.107, ORS 137.123(5)(a) does not authorize consecutive sentences.
Neither does ORS 137.123(5)(b) authorize consecutive sentences. The basis for conviction on counts 1 and 2 was evidence of seven gunshots in quick succession, so those offenses arose out of a continuous and uninterrupted course of conduct. And because there was no evidence that any of the gunshots was aimed specifically at either Smith or Jones, as opposed to the house where they were present, there was no evidence that any of the gunshots was an attempt to kill only one of them; the state relied on the same seven gunshots to support both charges. Thus, there is no evidentiary basis for the court to make a finding that defendant’s attempt to kill Washington caused or created a risk of causing greater or qualitatively different loss, injury or harm to Jones than was caused by the attempt to kill Smith, or that defendant caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the attempt to kill Smith.
The state will claim that consecutive sentences are authorized because each count addresses harm to a different victim. That might be true for the completed offense of murder. But it is not true here for the offense of attempted murder. Each count alleges that Clay personally attempted to kill two people. Both victims are victims of each count, and neither count has a victim the other does not. Thus, under ORS 137.123(5), the court lacks discretion to impose a sentence for count 2 consecutive to the sentence for count 1.
