Submitted on Remand July 10, 2014.
C092027CR. Washington County Circuit Court. On remand from the Oregon Supreme Court, State v. Munoz, 355 Or. 567, 329 P.3d 770 (2014) . Gayle Ann Nachtigal, Judge.
Peter Gartlan, Chief Defender, and David O. Ferry, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the answering brief for respondent. On the supplemental briefs were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Senior Assistant Attorney General.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.[*]
[270 Or.App. 492] DUNCAN, P. J.
In this criminal case, defendant was convicted of murder for the stabbing of a person he and two associates believed to be a rival gang member. Defendant appealed and assigned error to the trial court's failure to instruct the jurors that they must concur as to whether he was criminally liable as a principal or as an accomplice. In State v. Munoz, 255 Or.App. 735, 298 P.3d 595 (2013), we affirmed defendant's conviction based on our reasoning in State v. Phillips, 242 Or.App. 253, 255 P.3d 587 (2011) ( Phillips I ), which had rejected a similar argument regarding a concurrence instruction. The Supreme Court subsequently disagreed with our reasoning in Phillips I, holding that the trial court erred in that case in failing to give a concurrence instruction; nevertheless, the court affirmed on the ground that the error
was harmless. 354 Or. 598, 317 P.3d 236 (2013) ( Phillips II ).
In the wake of Phillips II, the Supreme Court vacated and remanded this case for reconsideration. State v. Munoz, 355 Or. 567, 329 P.3d 770 (2014). On reconsideration in light of Phillips II, we conclude that the trial court erred in failing to give a jury concurrence instruction but hold that, as in Phillips II, any error was harmless. Accordingly, we affirm.
Defendant and two codefendants, Sias and Corbett, were indicted for murder for " unlawfully and intentionally caus[ing] the death" of the victim. The state presented evidence that the three defendants--all members of the same gang--were driving around looking for members of a rival gang when they came upon the victim and his friend, who were walking down the street. The victim had associated with members of the rival gang, but was not himself a gang member. The defendants stopped their car, got out, and confronted the victim and his friend, who ran once they saw that one of the defendants had a knife. The defendants ran after them and caught up to the victim. The victim was punched, kicked, stabbed, and left to bleed to death, and the defendants returned to their car and drove away. The entire encounter, from the time the defendants stopped their car until they left, lasted approximately a minute and a half.
[270 Or.App. 493] Although there were several witnesses who had observed three people kicking and punching the victim, there was conflicting evidence at trial about which of the three defendants actually stabbed the victim, and whether the victim had been stabbed by one knife or two. The state presented evidence, including Corbett's knife and statements that he had made about " going savage" on the victim, to prove that Corbett had stabbed the victim. Yet the state also presented evidence that, while in jail, defendant had claimed to be responsible for the stabbing. Specifically, the state presented evidence that defendant told a fellow inmate that he had run up quickly on the victim, stabbed him three times, and then left him " spread eagle" on the ground. The inmate testified that defendant said, " I wasn't fighting him, I was just stabbing him."
Both defendant and Corbett used that conflicting evidence at trial to blame each other for the killing. Corbett admitted that he had stabbed the victim twice in the back, but he argued that defendant had chased down the victim and inflicted fatal stab wounds to the victim's chest and side before Corbett arrived. Defendant, meanwhile, argued that Corbett was the only one who stabbed the victim, and that defendant's jailhouse confession was invented to make him appear tougher to other inmates. Defendant's theory of the case was that he and Sias, who were faster than Corbett, had chased down the victim and punched and kicked him, and that Corbett arrived later and--to their surprise--" brought a knife to a fist fight."
In light of the different factual theories, defendant asked the trial court to require the state to elect whether it was proceeding on the theory that defendant had committed murder as a principal or by aiding and abetting one of his codefendants. Alternatively, he asked the court to instruct the jurors that they must agree on whether he was guilty of murder " because he aided and abetted in the commission of the crime or in the alternative * * * intentionally and actually caused the death of [the victim]." The trial court did not require the state to elect a theory and declined to give the instruction, and the jury ultimately found defendant guilty of murder.
[270 Or.App. 494] Defendant appealed and assigned error to the trial court's failure to instruct the jury that its members had to agree on whether he was liable as a principal or for aiding and abetting. In a per curiam opinion, we rejected that argument based on our then-recent decision in Phillips I. We explained that, under our reasoning in Phillips I, a concurrence instruction was necessary to avoid the possibility that the requisite number of jurors did not agree on what crime, if any, the defendant committed, not the possibility that the jurors failed to agree on what particular acts of the defendant constituted an ...