Summary
holding that the trial court erred in giving jury instructions that offered alternative theories of murder
Summary of this case from Madison v. AllenOpinion
TC 10-87-08999; CA A47865; SC S36382
Petition for review filed August 8, 1989
Appeal from judgment of Lane County Circuit Court, George J. Woodrich, Judge. 97 Or. App. 432, 775 P.2d 930 (1989).
Allowed, affirmed, conviction of murder reversed and remanded for further proceedings November 16, 1989
In Banc
Sally L. Avera, Acting Public Defender, and David E. Groom, Salem, for petitioner on review.
Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem, for respondent on review.
MEMORANDUM OPINION
The petition for review is allowed. The circuit court's judgment of conviction of criminal solicitation is affirmed. The circuit court's judgment of conviction of murder is reversed. Remanded to the circuit court for further proceedings in the light of State v. Boots, 308 Or. 371, 780 P.2d 725 (1989). MEMORANDUM OPINION
Defendant petitions for review of a Court of Appeals decision affirming his convictions of murder and solicitation to murder. ORS 163.115; ORS 161.435. State v. Murray, 97 Or. App. 432, 775 P.2d 930 (1989). Count 1 of the indictment charged alternative theories of murder, viz, intentional murder and felony murder. As concerns defendant's murder conviction, this issue appears to be the same as that in State v. Boots, 308 Or. 371, 780 P.2d 725 (1989), i.e., whether the trial court correctly instructed the jury about the necessity for a unanimous verdict on a single murder theory.
The record here indicates that the trial court erred in instructing the jury. Accordingly, we reverse defendant's murder conviction and remand to the trial court for further consideration in the light of State v. Boots, supra.
As concerns defendant's criminal solicitation conviction, finding no error assigned or claimed as to that conviction, we affirm the judgment of the circuit court.
The petition for review is allowed. The circuit court's judgment of conviction of criminal solicitation is affirmed. The circuit court's judgment of conviction of murder is reversed. Remanded to the circuit court for further proceedings in the light of State v. Boots, 308 Or. 371, 780 P.2d 725 (1989).