Offenses Against Persons

ORS 163.115
Murder in the second degree

  • affirmative defense to certain felony murders
  • sentence of life imprisonment required
  • minimum term


(1)

Except as provided in ORS 163.095 (“Aggravated murder” defined), 163.118 (Manslaughter in the first degree) and 163.125 (Manslaughter in the second degree), criminal homicide constitutes murder in the second degree:

(a)

When it is committed intentionally, except that it is an affirmative defense that, at the time of the homicide, the defendant was under the influence of an extreme emotional disturbance;

(b)

When it is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit any of the following crimes and in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom, the person, or another participant if there be any, causes the death of a person other than one of the participants:

(A)

Arson in the first degree as defined in ORS 164.325 (Arson in the first degree);

(B)

Criminal mischief in the first degree by means of an explosive as defined in ORS 164.365 (Criminal mischief in the first degree);

(C)

Burglary in the first degree as defined in ORS 164.225 (Burglary in the first degree);

(D)

Escape in the first degree as defined in ORS 162.165 (Escape in the first degree);

(E)

Kidnapping in the second degree as defined in ORS 163.225 (Kidnapping in the second degree);

(F)

Kidnapping in the first degree as defined in ORS 163.235 (Kidnapping in the first degree);

(G)

Robbery in the first degree as defined in ORS 164.415 (Robbery in the first degree);

(H)

Any felony sexual offense in the first degree defined in this chapter;

(I)

Compelling prostitution as defined in ORS 167.017 (Compelling prostitution); or

(J)

Assault in the first degree, as defined in ORS 163.185 (Assault in the first degree), and the victim is under 14 years of age, or assault in the second degree, as defined in ORS 163.175 (Assault in the second degree) (1)(a) or (b), and the victim is under 14 years of age; or

(c)

By abuse when a person, recklessly under circumstances manifesting extreme indifference to the value of human life, causes the death of a child under 14 years of age or a dependent person, as defined in ORS 163.205 (Criminal mistreatment in the first degree), and:

(A)

The person has previously engaged in a pattern or practice of assault or torture of the victim or another child under 14 years of age or a dependent person; or

(B)

The person causes the death by neglect or maltreatment.

(2)

An accusatory instrument alleging murder by abuse under subsection (1)(c) of this section need not allege specific incidents of assault or torture.

(3)

It is an affirmative defense to a charge of violating subsection (1)(b) of this section that the defendant:

(a)

Was not the only participant in the underlying crime;

(b)

Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid in the commission thereof;

(c)

Was not armed with a dangerous or deadly weapon;

(d)

Had no reasonable ground to believe that any other participant was armed with a dangerous or deadly weapon; and

(e)

Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death.

(4)

It is an affirmative defense to a charge of violating subsection (1)(c)(B) of this section that the victim was a dependent person who was at least 18 years of age and was under care or treatment solely by spiritual means pursuant to the religious beliefs or practices of the dependent person or the guardian of the dependent person.

(5)

Except as otherwise provided in ORS 144.397 (Release eligibility for juvenile offenders after 15 years of imprisonment) and 163.155 (Sentencing for murder of pregnant victim):

(a)

A person convicted of murder in the second degree, who was at least 15 years of age at the time of committing the murder, shall be punished by imprisonment for life.

(b)

When a defendant is convicted of murder in the second degree under this section, the court shall order that the defendant shall be confined for a minimum of 25 years without possibility of parole, release to post-prison supervision, release on work release or any form of temporary leave or employment at a forest or work camp.

(c)

At any time after completion of a minimum period of confinement pursuant to paragraph (b) of this subsection, the State Board of Parole and Post-Prison Supervision, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time. The sole issue is whether the prisoner is likely to be rehabilitated within a reasonable period of time. At the hearing the prisoner has:

(A)

The burden of proving by a preponderance of the evidence the likelihood of rehabilitation within a reasonable period of time;

(B)

The right, if the prisoner is without sufficient funds to employ an attorney, to be represented by legal counsel, appointed by the board, at board expense; and

(C)

The right to a subpoena upon a showing of the general relevance and reasonable scope of the evidence sought, provided that any subpoena issued on behalf of the prisoner must be issued by the State Board of Parole and Post-Prison Supervision pursuant to rules adopted by the board.

(d)

If, upon hearing all of the evidence, the board, upon a unanimous vote of three board members or, if the chairperson requires all voting members to participate, a unanimous vote of all voting members, finds that the prisoner is capable of rehabilitation and that the terms of the prisoner’s confinement should be changed to life imprisonment with the possibility of parole, release to post-prison supervision or work release, it shall enter an order to that effect and the order shall convert the terms of the prisoner’s confinement to life imprisonment with the possibility of parole, release to post-prison supervision or work release and may set a release date. Otherwise, the board shall deny the relief sought in the petition.

(e)

If the board denies the relief sought in the petition, the board shall determine the date of the subsequent hearing, and the prisoner may petition for an interim hearing, in accordance with ORS 144.285 (Hearing after petition for change in terms of confinement denied to prisoner convicted of aggravated murder or murder).

(f)

The board’s final order shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the board’s order.

(6)

As used in this section:

(a)

“Assault” means the intentional, knowing or reckless causation of physical injury to another person. “Assault” does not include the causation of physical injury in a motor vehicle accident that occurs by reason of the reckless conduct of a defendant.

(b)

“Neglect or maltreatment” means a violation of ORS 163.535 (Abandonment of a child), 163.545 (Child neglect in the second degree) or 163.547 (Child neglect in the first degree) or a failure to provide adequate food, clothing, shelter or medical care that is likely to endanger the health or welfare of a child under 14 years of age or a dependent person. This paragraph is not intended to replace or affect the duty or standard of care required under ORS chapter 677.

(c)

“Pattern or practice” means one or more previous episodes.

(d)

“Torture” means the intentional infliction of intense physical pain upon an unwilling victim as a separate objective apart from any other purpose. [1971 c.743 §88; 1975 c.577 §1; 1979 c.2 §1; 1981 c.873 §5; 1985 c.763 §1; 1989 c.985 §1; 1993 c.664 §1; 1995 c.421 §3; 1995 c.657 §1; 1997 c.850 §2; 1999 c.782 §4; 2007 c.717 §2; 2009 c.660 §7; 2009 c.785 §1; 2011 c.291 §1; 2015 c.820 §46; 2019 c.634 §28; 2019 c.635 §4]

Notes of Decisions

Under Former Similar Statute (Ors 163.010)

Where the only felony committed (apart from the murder) was the assault upon the victim which resulted in the killing, the assault merged with the killing and could not be an ingredient of a felony-murder. State v. Shirley, 7 Or App 166, 488 P2d 1401 (1971), Sup Ct review denied

Murder indictment charging failure to provide "adequate sustenance, and medical and hygienic care" was sufficiently particular. State v. House, 260 Or 138, 489 P2d 381 (1971)

Where the single crime of first degree murder is charged it was not error to instruct the jury that guilt may be established under either the felony-murder theory or premeditated murder theory; it was immaterial that some members of the jury may have believed him guilty of premeditated murder while others may have believed him guilty of felony-murder. State v. Hazelett, 8 Or App 44, 492 P2d 501 (1972), Sup Ct review denied

In General

Pre-1975 amendments

Defense of extreme emotional disturbance is question for trier of fact if there is sufficient evidence to reasonably support inference which excludes defense. State v. Siens, 12 Or App 97, 504 P2d 1056 (1973), Sup Ct review denied

Expert testimony is not indispensable to disproving defense of extreme emotional disturbance. State v. Siens, 12 Or App 97, 504 P2d 1056 (1973), Sup Ct review denied

Defense of extreme emotional disturbance is not an affirmative and thus according to ORS 161.055 the state has burden of disproving it beyond reasonable doubt. State v. Siens, 12 Or App 97, 504 P2d 1056 (1973), Sup Ct review denied

This section does not require that "extreme emotional disturbance" be caused by an "unexpected and provocative event." State v. Corbin, 15 Or App 536, 516 P2d 1314 (1973), Sup Ct review denied

Admission into evidence of death threats made month previous to homicide charged were held not to be in error because they tended to show defendant's indifferent attitude toward human life. State v. Gardner, 16 Or App 464, 518 P2d 1341 (1974), Sup Ct review denied

In order to convict defendant of murder, jury must find beyond reasonable doubt the nonexistence of "extreme emotional disturbance." State v. McCoy, 17 Or App 155, 521 P2d 1074 (1974), aff'd 270 Or 340, 527 P2d 725 (1974)

Reckless murder could arise from attack on specific individual. State v. Draves, 18 Or App 248, 524 P2d 1225 (1974), Sup Ct review denied

Pre-1977 amendments

"Extreme emotional disturbance" becomes issue in murder prosecution when there is evidence at trial that raises it. State v. Keys, 25 Or App 15, 548 P2d 205 (1976)

Pre-1979 amendments

Where defendant was indicted for aggravated murder under ORS 163.095, conviction on stipulated facts for intentional murder did not violate defendant's due process rights. Riley v. Cupp, 56 Or App 467, 642 P2d 333 (1982), Sup Ct review denied

Pre-1981 amendments

Since, under this section, defendant could receive lesser minimum sentence for aggravated intentional murder than for unaggravated intentional murder, provision of this section requiring defendant to serve 25 years before becoming eligible for parole was invalid under Article I, Section 15 of the Oregon Constitution. State v. Shumway, 291 Or 153, 630 P2d 796 (1981)

When defense is extreme emotional disturbance, jury should be instructed on meaning of whole term rather than singling out word "extreme" for amplification. State v. Ott, 297 Or 375, 686 P2d 1001 (1984)

Point of extreme emotional disturbance defense is to provide basis for mitigation that differs from finding of mental defect or disease to such extent as altogether to preclude criminal responsibility. State v. Ott, 297 Or 375, 686 P2d 1001 (1984)

Where defense is "extreme emotional disturbance" trial court's instructions to jury must contain five specified elements. State v. Ott, 297 Or 375, 686 P2d 1001 (1984)

Pre-1985 amendments

Affirmative defense of extreme emotional disturbance is separate and independent from elements state must prove to obtain murder conviction and accordingly does not violate due process clause of federal constitution. State v. Lyon, 65 Or App 790, 672 P2d 1358 (1983)

Affirmative defense to felony murder, requiring defendant to prove he was not armed with dangerous weapon, did not require him to disprove element of robbery charge that defendant or his accomplices were armed with dangerous weapon and related jury instruction did not unconstitutionally transfer to defendant burden of proof for element of underlying crime. Burrow v. Cupp, 787 F2d 1346 (1986)

This section does not violate equal protection by virtue of aggravated felony murder statute requiring additional element of personal commission of homicide. Grooms v. Kenney, 826 F2d 883 (1987)

Pre-1995 amendments

Required and discretionary minimum terms of confinement for person receiving life sentence constitute "mandatory minimum sentence" as used in ORS 161.620. State v. Jones, 315 Or 225, 844 P2d 188 (1992)

Sentencing guidelines do not impliedly repeal those parts of murder statute authorizing 10-year sentence with additional 15-year sentence. State v. Morgan, 316 Or 553, 856 P2d 612 (1993); State v. Hostetter, 125 Or App 491, 865 P2d 485 (1993), Sup Ct review denied

Enactment of sentencing guidelines in 1989 impliedly repealed indeterminate life sentence for murder. State v. Morgan, 316 Or 553, 856 P2d 612 (1993); State v. Hostetter, 125 Or App 491, 865 P2d 485 (1993), Sup Ct review denied

Under 1991 version of statute, "imprisonment for life" means imprisonment for indeterminate number of years and subsequent lifetime term of post-prison supervision. Jones v. Board of Parole and Post-Prison Supervision, 231 Or App 256, 218 P3d 904 (2009), Sup Ct review denied

Pre-1999 amendments

1995 amendment revived and reenacted indeterminate life sentence for murder. State v. Francis, 154 Or App 486, 962 P2d 45 (1998), Sup Ct review denied

Requirement that murder be punished by mandatory imprisonment for life without providing parole mechanism was unconstitutionally disproportionate in comparison to penalty of life imprisonment with possibility of parole for greater crime of aggravated murder. State v. McLain, 158 Or App 419, 974 P2d 727 (1999), but see State v. Davis, 216 Or App 456, 174 P3d 1022 (2007), Sup Ct review denied

Requirement that minimum sentence be without possibility of parole is nondiscretionary ameliorative provision applicable to sentencing of defendant on remand, notwithstanding that resulting sentence may be longer than original sentence. State v. Davis, 216 Or App 456, 174 P3d 1022 (2007), Sup Ct review denied

Generally

Indictment alleging commission of crime by particular means sufficiently alerts defendant of charge to permit conviction based on alternative means of committing same crime. State v. Draves, 18 Or App 248, 524 P2d 1225 (1974), Sup Ct review denied; State v. Davis, 23 Or App 331, 541 P2d 1404 (1975), Sup Ct review denied

Defendant cannot be sentenced for both felony murder and underlying felony. State v. Fish, 282 Or 53, 577 P2d 500 (1978)

Fact that state may choose to prosecute defendant accused of personally committing homicide under this section or ORS 163.095 does not by itself violate Article I, Section 20 of Oregon Constitution or Fourteenth Amendment to United States Constitution. State v. Reynolds, 289 Or 533, 614 P2d 1158 (1980)

Felony murder is not limited to negligent or accidental killing during felony. State v. Reams, 292 Or 1, 636 P2d 913 (1981)

"Year and a day rule," requiring that murder indictment allege that decedent died within a year and a day of the commission of the act alleged to cause the death, is not applicable in Oregon. State v. Hudson, 56 Or App 462, 642 P2d 331 (1982), Sup Ct review denied

Where amendment to this section that permits imposition of minimum sentences in murder cases did not take effect until after murder in this case occurred, application of amendment offends constitutional prohibition against ex post facto laws. State v. Reese, 84 Or App 211, 733 P2d 495 (1987), Sup Ct review denied; State v. Young, 85 Or App 421, 736 P2d 626 (1987), Sup Ct review denied

Jury's unanimous conviction of defendant of felony murder is not inconsistent with less than unanimous vote on first degree kidnapping because dissenting juror could have found defendant guilty of lesser included offense sufficient to support felony murder verdict. State v. Mendez, 308 Or 9, 774 P2d 1082 (1989)

Trial court was without authority to impose fine as punishment for defendant's murder conviction. State v. Batty, 109 Or App 62, 819 P2d 732 (1991), Sup Ct review denied

Where crime was committed before basis for upholding minimum sentence was included in rules, use of basis to uphold sentence was not ex post facto. Carroll v. Board of Parole, 124 Or App 180, 859 P2d 1203 (1993)

Where either of two felonies could be predicate felony supporting aggravated murder sentence, court could impose separate sentence for that felony not found to be predicate for aggravated murder. State v. Lyons, 124 Or App 598, 863 P2d 1303 (1993), aff'don other grounds, 324 Or 256, 924 P2d 802 (1996)

Actions against single victim that include more than one of listed means of murder provide grounds for single conviction on multiple counts of murder but do not create grounds for multiple murder convictions. State v. Beason, 170 Or App 414, 12 P3d 560 (2000), Sup Ct review denied

Finding that defendant committed aggravated murder personally and intentionally does not require that murder conviction based on same event be for intentional murder. State v. Ventris, 337 Or 283, 96 P3d 815 (2004)

Conviction for murder under any theory merges with conviction for aggravated murder of same victim under any theory. State v. Walraven, 214 Or App 645, 167 P3d 1003 (2007), Sup Ct review denied

Culpable mental state is established when defendant commits or attempts to commit predicate felony. State v. Blair, 230 Or App 36, 214 P3d 47 (2009), aff'd 348 Or 72, 228 P3d 564 (2010)

Where person commits burglary with intent to assault or kill particular person and kills that person during commission of burglary, person commits felony murder. State v. Dasa, 234 Or App 219, 227 P3d 228 (2010), Sup Ct review denied

Attempted murder occurs when person, with intent to cause death of another human being, intentionally engages in conduct to achieve that end. State v. Pedersen, 242 Or App 305, 255 P3d 556 (2011), Sup Ct review denied

Provision permitting only "possibility of parole" is ex post facto violation when applied to defendant who committed murder in 1999 and then-existing provision required sentence of 300-month imprisonment followed by guaranteed parole. State v. Giles, 254 Or App 345, 293 P3d 1086 (2012)

Legislature's establishment of process by which offender could be considered for parole after completing 25-year term of incarceration required by subsection (5)(b) of this section and amendment of ORS 163.105 to require eligible offenders sentenced for aggravated murder to serve 30-year minimum term of incarceration before such offenders could be considered for parole, thus eliminating possibility that offender sentenced for more serious offense of aggravated murder would have opportunity to be considered for parole at earlier time than offender sentenced for murder, indicates that legislature intended offender convicted of murder to be sentenced to indeterminate life sentence with 25-year minimum term of incarceration specified under subsection (5)(b) of this section and did not intend for sentencing court to impose different minimum term of incarceration to be computed under sentencing guidelines or some other source of law. State v. Ambill, 282 Or App 821, 385 P3d 1110 (2016), Sup

Ct Review Denied

Completed Citations

State v. Moore, 4 Or App 548, 480 P2d 458 (1971), Sup Ct review denied; State v. Smallwood, 5 Or App 245, 481 P2d 378 (1971), Sup Ct review denied; State v. Tucker, 5 Or App 283, 483 P2d 825 (1971), Sup Ct review denied; State v. Obremski, 5 Or App 302, 483 P2d 467 (1971), Sup Ct review denied; State v. Gairson, 5 Or App 464, 484 P2d 854 (1971), Sup Ct review denied; State v. Crenshaw, 6 Or App 55, 486 P2d 581 (1971); State v. Martinelli, 6 Or App 182, 485 P2d 647 (1971), Sup Ct review denied; State v. House, 260 Or 138, 489 P2d 381 (1971); State v. Davis, 16 Or App 405, 518 P2d 1039 (1974), Sup Ct review denied

Law Review Citations

Pre 1975 Amendments

51 OLR 459 (1972); 8 WLJ 128 (1972)

Pre 1979 Amendments

16 WLR 1, 67 (1979)

Pre 1981 Amendments

17 WLR 629 (1981)

Pre 1995 Amendments

26 WLR 435 (1990)

§§ 163.005 to 163.145

Law Review Citations

51 OLR 459-493 (1972)

Chapter 163

Law Review Citations

51 OLR 427-637 (1972)


Source

Last accessed
Jun. 26, 2021