# State v. Zweigart > Oregon Supreme Court · June 26, 2008 · 344 Or. 619 URL: https://www.frixlaw.com/law-library/cases/9503292 ## Case - **Full name:** STATE OF OREGON, Respondent, v. ALLEN GARY ZWEIGART, SR., Appellant - **Court:** Oregon Supreme Court - **Decided:** June 26, 2008 - **Citations:** 344 Or. 619; 188 P.3d 242; 2008 Ore. LEXIS 433 - **Precedential status:** Published - **Opinion:** Dissent by Walters - **Judges:** Gillette, Walters, Durham - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9503292 ## How later opinions describe it (automated extraction) - holding that the requisite finding of separate victims for purposes of the imposition of consecutive sentences was inherent in the jury’s verdicts ## Opinion text WALTERS, J., dissenting. The majority sustains defendant’s convictions for aggravated murder by concluding that the trial court instructed the jury that it unanimously must decide who shot Hong Ha Zweigart and that the jury did so. Specifically, the majority opines that the trial court instructed the jury that, on count 1, it must find that Fortier shot the victim, and that, on count 2, it must find that defendant did so. If the majority is correct in its presumption that the jury understood and followed those instructions, then the jury found that both For-tier and defendant pulled the trigger, when the inescapable fact that stares out of the record is that only one man did so. To me, the logical impossibility of the jury’s verdicts spotlights the errors that I discern in the instructions. The instructions permitted some jurors to decide that Fortier was the shooter and others to decide that defendant played that role. Because the instructions did not clearly inform the jury that it must reach unanimous agreement on the identity of the shooter, the court cannot determine that the jury agreed on that essential fact. And because unanimous juror agreement on that essential fact is necessary for both convictions, the court cannot sustain them. Respectfully, I must dissent. 1 Article I, section 11, of the Oregon Constitution requires that a jury’s verdict of guilty on every charge of *641 first-degree murder must be unanimous. 2 This court has held that, in returning a verdict in a criminal case, a jury must agree, not only that a defendant is guilty of a crime, but also on all the facts material to prove the crime. State v. Boots, 308 Or 371 , 780 P2d 725 (1989). The state may allege alternative sets of facts, any one which may be sufficient to establish guilt, and may offer proof of alternative sets of facts, but the jury, in returning its verdict, must select one of those alternative scenarios and agree on it. Id. at 377 . It is not permissible for half of the jurors to select one scenario, half to select another, and all to agree only that the defendant is “guilty.” Id. In the past, the court has reviewed guilty verdicts in aggravated murder cases to ensure that juries were unanimous in finding all material facts, and has reversed convictions when it could not be certain that that requirement was met. And, in the past, the court has reversed convictions in those cases even if the defendant failed to preserve the error. State v. Hale, 335 Or 612 , 75 P3d 448 (2003); State v. Lotches, 331 Or 455 , 17 P3d 1045 (2000). In Hale , the state charged the defendant with numerous counts of aggravated murder. Some counts of the indictment alleged that the defendant had committed aggravated felony murder, that is, intentional homicide committed in the course of the commission of another felony, in that case, the felony of sexual abuse. The indictment did not allege the identity of the perpetrator of the underlying sexual abuse *642 or the victim of that abuse. At trial, the state presented evidence that either the defendant or his friend had sexually-abused multiple victims under multiple circumstances. The trial court did not instruct the jurors specifically that they had to agree unanimously on the identity of either the perpetrator or the victim of the sexual abuse. The defendant did not request an instruction to that effect, nor did he object to the instructions that the trial court gave. The jury returned guilty verdicts, finding, in accordance with the court’s instructions, that the defendant had intentionally killed the victim in the course of the commission of the felony of sexual abuse. On review, this court reversed those convictions. The court applied its holding in Lotches , in which the court had held that the jury must reach -unanimity on all material facts necessary to establish “ ‘just what defendant did’ to bring himself within the purview of the particular subsection of the aggravated murder statute under which he was charged.” 331 Or at 468 -69 (quoting United States v. Gipson, 553 F2d 453, 457 (5th Cir 1977)). Even though the identities of the perpetrators and the victims of the underlying abuse were not “elements” of the crimes in the sense that the particular identities of those people would not make the difference between guilt and innocence, the court explained that their identities were material, and held that because the instructions did not specifically inform the jury that it must unanimously agree on those facts, they “carried an impermissible danger of jury confusion.” Hale, 335 Or at 627 . In the case before us, defendant’s role in the murder — as either the person who hired the shooter or as the actual shooter — is a factual issue that the jury must decide in determining “just what defendant did” to render him guilty of aggravated murder. A jury determination of that fact was necessary for the entry of lawful verdicts on both counts. As the majority explains it, the court’s instructions informed the jurors that they were required to find on count 1 that the person that defendant hired, Fortier, was the shooter, and on count 2, that defendant shot the victim “personally.” 344 Or at 629. The majority then reasons that, because we must assume that the jurors followed those instructions, we must also conclude that the jurors found the identity of the shooter and did so unanimously. As a result, claims the majority, the *643 instructions were not defective in the respect identified in Hale . That reasoning is flawed. As the state acknowledges, the instructions were not as clear as the majority makes them out to be. On count 1, the trial court instructed the jurors that they must find that defendant “caused” the murder of the victim “by” soliciting and paying Fortier. Jurors— one, some, or all — could have understood that they could render a guilty verdict on count 1 if they found that defendant “caused” the murder “by” soliciting and paying Fortier, and then firing the gun himself. See ORS 163.095(l)(b) (subsection of aggravated murder statute requiring proof that the defendant committed murder and that the murder was “committed under, or accompanied by” circumstances of solicitation and payment). Any number of jurors also could have found defendant guilty on count 1 based on an additional “aiding and abetting” instruction that the court gave. That instruction permitted the jury to hold defendant criminally liable for aggravated murder if he aided and abetted someone else who committed that crime. 3 Some jurors reasonably could have determined that defendant was guilty on count 1 because he solicited and paid Fortier to kill his wife and then aided and abetted Fortier by himself doing the shooting. Similarly, on count 2, as the state again acknowledges, some jurors could have understood the word “personally” to require only that they find that defendant had “an actual role in causing the death.” See State v. Nefstad, 309 Or 523, 541 , 789 P2d 1326 (1990) (jury was properly instructed that “ ‘[personally in the context of aggravated murder means that to be guilty of that crime the [defendant must have had an actual role in causing the death and not merely a role in the felony during which the death occurred’ ”). Without an instruction that precluded them from doing so, jurors *644 could have found that defendant played the necessary role because he supplied Fortier with the gun and goaded Fortier to “do it.” Jurors with that understanding of the instructions did not necessarily decide that defendant shot the victim, despite voting “guilty” on count 2. And again, relying upon the aiding and abetting instruction the trial court gave, jurors could have convicted defendant on count 2 by finding that he did not shoot the victim but “aided and abetted” the person who did, i.e. Fortier. To summarize, some jurors could have understood that they had to find that Fortier was the shooter to reach a guilty verdict on count 1 and that defendant was the shooter to reach a guilty verdict on count 2, but others could have had a different understanding. Because the instructions permitted some of the jurors to select one scenario and the rest to select another, the instructions presented the exact constitu-. tional defect that required reversal in Hale . Although the majority admits the danger of confusion that the instructions presented, it shields its eyes by relying on defendant’s failure to preserve that error. The majority states, “Even if there were some possibility that the jury instructions did not require juror agreement on the identity of the triggerman, defendant did not preserve an objection either as to the clarity or the completeness of the instructions that the court did give regarding jury unanimity.” 344 Or at 629. The majority acknowledges that the instructions may have “left the door open to some measure of disagreement,” but declares that the likelihood of juror disagreement was not so high “that we should consider the instructions erroneous notwithstanding defendant’s failure to object to them,” and that any ambiguity was “far too tenuous” to constitute “plain” error. 344 Or at 630. The majority attempts to distinguish its exercise of plain error review in Hale by explaining that the danger presented by the jury instructions in that case was that the jury could be confused about the defendant’s role in the underlying felony, while in this case the danger was that the jury could be confused about defendant’s role in the murder itself. 344 Or at 630. *645 For me, close enough is not good enough in a capital case. The majority’s reasoning disregards, rather than distinguishes, Hale , and the circumstances of this case expose, rather than allay, a basis for judicial concern. See State v. Brown, 310 Or 347, 355-56 , 800 P2d 259 (1990) (instruction may have led jury to have convicted defendant without finding material fact and “prejudice to defendant is profound, because the missing element makes the difference between life and death”). If the jurors were confused here about whether they had to agree upon the identity of the perpetrator of the murder, as opposed to the identity of the perpetrator of an underlying felony, as in Hale , they were confused about an even more important fact than the factual issue in Hale , and the justification for engaging in plain error review is even stronger than in Hale. Whether the trial court made a faulty attempt to instruct the jury as to the material fact at issue, as it did in this case, or failed to instruct at all, as it did in Hale , should make no difference. Both errors carry the same risk: juror confusion. Because of the magnitude of the resulting prejudice to the accused, both errors call for “plain error” review. Most importantly, and uniquely, in this case, we need not engage in speculation to discern the degree of risk of juror confusion. We know that there was a real danger and we know that it was realized. The majority does not explain how a rational jury could have arrived, unanimously, at mutually exclusive verdicts, because a rational explanation is impossible. If the instructions on count 1 clearly had required that the jury unanimously find that Fortier shot the victim, and if the instructions on count 2 clearly had required that the jury unanimously find that defendant shot the victim, then the jury would have understood that it could not return verdicts of guilty on both counts. The logical impossibility of the jury’s verdicts demonstrates that the jurors either failed to understand that they were required to agree unanimously on the identity of the shooter or failed to follow the instructions that the court gave. Neither conclusion should lead to an affirmance of the convictions. In upholding the jury’s inconsistent verdicts, the majority points to an Oregon statute that permitted the trial *646 court to ask the jury to reconsider a mistaken verdict, and notes that defendant failed to invoke that procedure. 344 Or at 630-31 (citing ORS 136.480 4 ). However, that statute is an authorization to the court; it does not require action by a party. The majority’s announcement that it will not correct “plain error” because defendant failed to object undermines the entire “plain error” doctrine. The “plain error” exception to the rule requiring preservation exists for the purpose of addressing circumstances in which a party has failed to take the required action below to preserve an issue for appeal. An appellate court may invoke that doctrine when unpreserved error (1) is an error of law; (2) is apparent, which means that “the legal point is obvious, not reasonably in dispute [ ]”; and (3) appears on the face of the record, meaning that the court “need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” Brown, 310 Or at 355 . The first and third prongs of the “plain error” analysis do not present any difficulty in this case. As to the first, “the issue of what must be included in jury instructions is a question of law[,]” Hale, 335 Or at 630 , and “[w]hether verdicts are consistent is a question of law [.]” State v. Thompson, 328 Or 248, 268 , 971 P2d 879 (1999). As to the third, the defects in the instructions and verdicts are obvious from a review of the applicable statutes, the jury instructions, and the verdicts themselves. The errors in the instructions and verdicts also meet the second prong of the “plain error” test. The parties and the trial court knew that the jury must agree on all material facts and they clearly anticipated that the jury would select between alternative scenarios. The parties and the court discussed the alternative facts that the state pleaded and the *647 inconsistency that they created during argument on defendant’s motions for acquittal. The prosecutor argued as follows: “We cannot bootstrap them into counts that exist except for lesser includeds, and you have to file sometimes what appear to be inconsistent theories because the Supreme Court says you go to do them all at once, can’t string them out. ‘You can’t have your he shot her trial and then they shot her trial. You can’t do it. So I know it’s hard. Sometimes juries scratch their heads and say well, what the heck are you guys doing, can’t you make up your mind, but we’ll explain that in argument and I’m sure they’ll understand that.” (Emphasis added.) Although the majority asserts that the state and the court were “sure [the jurors would] understand,” the jurors plainly did not. When they returned guilty verdicts on both counts, the legal point — the jury’s confusion regarding the necessity that they agree upon and find the identity of the shooter — was obvious. In my view, the requirements of the “plain error” exception were met. It is true that defendant did not object to the instructions or the verdicts. But we cannot turn away from the truth that, if the jury instructions in this case were sufficiently clear, this court readily could determine from the verdicts the identity of the man who shot Hong Ha Zweigart. The court also would know which, if either, of the mutually exclusive verdicts to sustain. Instead there is a very real likelihood that, although the jurors thought that defendant was “guilty,” they did not agree unanimously on a fact essential to defendant’s conviction. Our prior cases insist that there is more to justice than two irreconcilable guilty verdicts. Justice requires that this court be able to determine that a jury unanimously decided just what defendant did that yielded a sentence of death. Because we cannot, I must dissent. Durham, J., joins in this dissenting opinion. I have limited my written dissent to the issues and assignments of error that the majority has chosen to discuss, but do not intend that limitation to express an opinion on whether I would affirm or reverse on any other grounds. Article I, section 11, of the Oregon Constitution provides: “In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise; provided further, that the existing laws and constitutional provisions relative to criminal prosecutions shall be continued and remain in effect as to all prosecutions for crimes committed before the taking effect of this amendment.” (Emphasis added.) The aiding and abetting instruction, which applied to all of the counts in this case, stated: “A person aids and abets another person in the commission of a crime if the person “(1) With the intent to promote or make easier the commission of the crime, “(2) Encourages, procures, advises, or assists, by act or advice, the planning or commission of the crime.” OES 136.480 provides: “When a verdict is found in which it appears to the court that the jury has mistaken the law, the court may explain the reason for that opinion and direct the jury to reconsider its verdict; but if after such reconsideration the jury finds the same verdict, it must be received.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9503292. Public record. Not legal advice.