By Carrie Petersen
Albany Democrat-Herald | Posted: Saturday, November 3, 2007 12:00 am
Gary Dennis Lang, 28, who was involved in a fatal shootout in Albany almost three years ago, will get a new trial in Linn County Circuit Court after his conviction was overturned by the Oregon Court of Appeals.
On Dec. 15, 2004, Lang fatally shot 24-year-old Kenneth "Kenny" Maham at an Albany residence. Lang was charged with murder but the following year a Linn County jury found him guilty of the lesser charge of first-degree manslaughter. He was sentenced to 15 years in prison.
According to testimony in the trial, on the night of the shooting, another man had been looking for Lang and the two planned to meet at the Cottonwoods to settle a dispute. The other man didn't show up and when Lang returned home around 2 a.m. to where his girlfriend and her three young children where, he found three men inside and fired his handgun.
During the trial, Lang claimed self-defense and the defense of others, but prosecutors said that he had gotten rid of the gun and never told police it was self-defense.
The Oregon Court of Appeals overturned the conviction in September because of a problem with the jury instructions regarding the idea that a person would have a "duty of retreat" before using deadly force in self-defense.
According to the court of appeals opinion, the jury instruction on the murder charge stated, "'The danger justifying self-defense must be absolute, imminent, and unavoidable … There must be no reasonable opportunity to escape and to avoid [the affray] or no other means of avoiding or declining combat.'"
The opinion continues, "Defendant argued that the instruction should not be given because 'there is no Oregon duty of retreat' when a person finds armed individuals in his own home … The instruction was based on State v. Charles, in which the Supreme Court held that Oregon recognizes a 'duty to retreat' as a predicate to the use of deadly force in self-defense. The trial court, in other words, properly instructed the jury in accordance with the law that applied at the time of the trial."
Since then, however, the supreme court concluded in another case, State v. Sandoval, "that a nearly identical instruction to the one given in this case was erroneous. The court acknowledged that the instruction had been drawn from its own opinion in Charles, but it concluded that Charles itself had been incorrectly decided in that regard.
"The court concluded that it was clear from the relevant statutes - which it noted, Charles had neglected to consider - that 'the legislature did not intend to require a person to retreat before using deadly force to defend against the imminent use of deadly force by another.'
"The court further concluded that the delivery of the instruction was not harmless error because the jury likely would have concluded that the instruction required it to find retreat from the conflict as a prerequisite to a lawful claim of self-defense."
Lang is being held at the Linn County Jail.
During his original trial, Lang was also convicted of felon in possession of a firearm. That conviction stands, as do two other unrelated convictions of felon in possession of a firearm for which he was sentenced to five years in prison.
Arnold Poole, an Albany lawyer, has been appointed as his attorney. Reed Dinsmore of the Linn County District Attorney's Office will be prosecuting the case. He and another prosecutor handled the original trial.
No new trial date has been set. Lang's next court appearance is set for Nov. 16.
Joshua Raymond Burks of Sweet Home was also charged in the shooting. He was convicted in June of second-degree attempted assault for firing at Lang during the shootout, and sentenced to 21 months in prison.
Burks' criminal charges weren't settled until this year so that he had time to resolve unrelated methamphetamine charges in federal court.
He pleaded guilty earlier this year in federal court to conspiracy to distribute 50 grams or more of actual methamphetamine. The distribution took place from an unknown date up until October 2005.
Burks was sentenced to the custody of the United States Bureau of Prisons for four years and nine months.