State v. Gilmore

"[A]lthough the intent to commit a murder might “follow the bullet” under the doctrine of transferred intent, the legislature in ORS 161.219 expressly conditioned a person’s use of deadly force on their reasonable belief that a particular person—i.e., the person killed— was engaged in the conduct described by ORS 161.219 (1) to (3)."

Following a first-degree manslaughter conviction in a two-victim case, Defendant assigned three errors: (1) a successful justification defense precludes a finding of recklessness as towards another victim in the same incident; (2&3) the prosecutor should have been compelled to obtain and disclose records relating to a child witness.

Three supplemental assignments: (4) conviction for a lesser-included crime violated due process; (5) ORS 161.209 and ORS 161.219 compel acquittal; and (6) conviction for first-degree manslaughter was in error.

The Court of Appeals concluded that justifying deadly force requires a reasonable belief that the person killed was engaged in statutorily defined conduct. Although Defendant may have been justified in killing one of the two victims, the evidence supported a conclusion that Defendant “used a degree of force against [the second victim] that was objectively unreasonable.”

Self-defense defenses establish actual notice of lesser-included offense convictions for manslaughter, because that justification requires an intentional or knowing killing (effectively conceding the killing was reckless). The trial court could convict for the lesser-included offense without violating due process.

Finally, the prosecutor was not compelled to obtain and disclose the child witness records because those records were not in the prosecutor’s actual or constructive possession.

“Affirmed.”