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Oregon v. Fitzgerald

August 27, 1973

STATE OF OREGON, RESPONDENT,
v.
JEFFREY EDWARD FITZGERALD, APPELLANT



Appeal from Circuit Court, Yamhill County. Kurt C. Rossman, Judge. No. 28921.

John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

John H. Clough, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Schwab, Chief Judge, and Langtry and Thornton, Judges.

Schwab

Defendant was charged with attempted escape in the first degree, ORS 162.165,*fn1 ORS 161.405,*fn2 and assault in the first degree, ORS 163.185,*fn3 by the following indictment:

"COUNT I

"The said Jeffrey Edward Fitzgerald, on or about the 24th day of June, 1972, in the County of Yamhill, State of Oregon, then and there being, and then and there acting jointly and cooperating with

Gerald Bruce Cooley, did then and there unlawfully and knowingly attempt to escape from the Yamhill County Jail, a correctional facility, by the use of a dangerous weapon, to-wit: an iron bar, by striking one Thomas Jerome Ring with said iron bar * * *.

"COUNT II

"As part of the same transaction as contained in Count I herein, the said Jeffrey Edward Fitzgerald, on or about the 24th day of June, 1972, in the County of Yamhill, State of Oregon, then and there being, did then and there unlawfully, intentionally, and knowingly aid and abet one Gerald Bruce Cooley to cause serious physical injury to Thomas Jerome Ring by striking the said Thomas Jerome Ring on the head with an iron bar, under circumstances manifesting extreme indifference to the value of human life * * *." (Emphasis supplied.)

A jury returned verdicts of guilty on both charges. The trial court then entered separate judgments of conviction and imposed separate concurrent sentences for each of the two charges.

Defendant's appeal raises the following issues: (I) As stated more fully below, the principal witness who connected defendant with the attempted escape and the assault was Ronald Keeland. Defendant contends that Keeland was an accomplice as a matter of law, that the jury should have been so instructed, and that based on ORS 136.550 the jury should have been further instructed that since Keeland was an accomplice, his testimony had to be corroborated in order to find defendant guilty; (II) As is apparent from the relevant statutes, nn 1-3, supra, and the italicized portions of the indictment, striking Mr. Ring with an iron bar was regarded as an element of both the attempted

escape and the assault. Defendant contends that his conduct and the conduct of his accomplice Cooley for which he is liable does not constitute both attempted escape in the first degree and assault in the first degree.

The state's evidence was that the Yamhill County Jail contains three individual cells in a maximum security area. On June 24, 1972, Bruce Cooley was incarcerated in the first cell, Ronald Keeland was in the second cell, and defendant was in the third cell. A set of bars separated the maximum security area from the rest of the jail; these bars could be reached from defendant's cell, but not from the other two.

Keeland testified that defendant smuggled a hacksaw blade into the jail; that Cooley and defendant planned an escape; that Cooley sawed one of the bars out of his individual cell; that defendant sawed one of the bars that separated the maximum security area from the rest of the jail; that Cooley left his cell through the hole he had created; that Cooley went through the hole defendant had created from the maximum security area into the main area of the jail; and that Cooley's and defendant's plan was that Cooley would attack a guard, obtain keys, return and open defendant's cell so they could both complete their escape.

Other witnesses testified that Cooley went through the two holes created by his and defendant's sawing into the main area of the jail and, using the pieces of iron bar that had been sawed out, attacked one of the guards, Mr. Ring.

Although Cooley beat Ring severely with the bars, Cooley never obtained keys necessary to complete the escape. About the time other officers arrived

to assist Ring, Cooley abandoned the escape attempt as hopeless.

The defendant in this case never got out of his own cell or participated in the attack on Ring. Instead, defendant was charged and tried on the theory that he was criminally liable for aiding and abetting Cooley in planning and committing the attempted escape and the assault. See, ORS 161.155.

I

ORS 136.550 provides:

"A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the crime. The corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission."

Relying on this statute, defendant requested the following instruction:

"* * * [T]he witness, Ronald J. Keeland, as a matter of law, aided and abetted in the commission of the crimes charged and is, therefore, an accomplice."

The trial court did not give defendant's requested instruction; instead, the court instructed the jury that whether Keeland was an accomplice or not was for it to decide.

The question of whether a state's witness is an accomplice is for the jury when different inferences can be drawn from the evidence; however, if the facts are not in dispute, the trial judge should rule on that question as a matter of law. State v. Gowin, 241 Or 544, 407 P2d 631 (1965); State v. Carr, 28 Or 389, 42 P 215 (1895).

There was no significant dispute as to the facts concerning Keeland's participation in the criminal episode. Keeland testified that he knew that Cooley and defendant were planning to escape for about a week before the actual attempt; that during this week he passed the hacksaw blade back and forth between Cooley and defendant so that they could saw the bars in order to escape; and that during this week he did not inform jail officials of the planned escape.

We have repeatedly held that a person is an accomplice for purposes of ORS 136.550 if he could be indicted and tried for the same criminal act for which the defendant is being tried. State v. Polk, 5 Or App 605, 485 P2d 1241 (1971); State v. Winslow, 3 Or App 140, 472 P2d 852 (1970); State v. Folsom, 1 Or App 404, 463 P2d 381 (1970). A provision in the Oregon Criminal Code of 1971 defines when such can occur:

"A person is criminally liable for the conduct of another person constituting a crime if:

"(1) He is made criminally liable by the statute defining the crime; or

"(2) With the intent to promote or facilitate the commission of the crime he:

"(a) Solicits or commands such other person to commit the crime; or

"(b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime; or

"(c) Having a legal duty to prevent the commission of the crime, fails to make an effort he is legally ...


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