State v. McCormick

• Decision Date: 22 November 1977
• Citation: 280 Or. 417,571 P.2d 499
• Parties: STATE of Oregon, Respondent, v. Daniel Devin McCORMICK, Petitioner.
• Court: Oregon Supreme Court

Page 499

571 P.2d 499

280 Or. 417

STATE of Oregon, Respondent, v. Daniel Devin McCORMICK, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 11, 1977.

Decided Nov. 22, 1977.

Phillip M. Margolin of Nash & Margolin, Portland, argued the cause and filed a brief for petitioner.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen. and Catherine Allan, Asst. Atty. Gen.

LINDE, Justice.

After a preliminary hearing upon a complaint, the District Court for Multnomah County on March 16, 1976, ordered that defendant be held to answer in circuit court to a charge of criminal mischief in the first degree, a Class C felony. ORS 164.365. Appearance was set for April 20. No indictment or information of this charge having been filed in circuit court within the next 30 days, defendant on April 16 moved the circuit court to dismiss the prosecution pursuant to ORS 135.745. On the same day, the district attorney for Multnomah County filed an information on that charge in the circuit court. Defendant's motion was denied on April 19.

The motion was renewed before trial in the circuit court and again denied. The trial resulted in defendant's conviction of criminal mischief in the second degree, a Class A misdemeanor under ORS 164.354. On appeal, defendant raised two assignments of error: First, the failure to dismiss the prosecution, and second, denial of a requested instruction concerning the alleged flight of a prosecution witness who might have been the perpetrator of the mischief. The Court of Appeals rejected both claims and affirmed the conviction, 28 Or.App. 821, 561 P.2d 665 (1977), and we allowed review, asking the parties to address particularly the question of the propriety of instructing the jury on the significance of flight.

With respect to defendant's requested instruction concerning the flight of another potential suspect, ¹ the Court of Appeals considered and rejected defendant's argument that he was entitled to such an instruction because the prosecution is entitled to a corresponding instruction on the flight of a defendant. The argument would be plausible if the premise were correct. ² Accordingly, the Court of Appeals examined the question whether the prosecution is, in fact, entitled to a flight instruction against a defendant. It observed that such an instruction has been sustained in a number of cases. But it concluded that the relevance of flight is not so obscure as to require explanation by a judge, and that "the better rule is that such instruction should not be given whether with respect to conduct of a defendant or of a witness." 28 Or.App. at 827, 561 P.2d at 668. Chief Judge Schwab, dissenting, stated that he would probably agree with the majority in principle if prior decisions of this court did not compel the conclusion that an instruction on the significance of flight should be given on request whenever there is evidence to support it.

Upon review, we find that the prior decisions do not compel such a conclusion. These decisions hold that it is not error to give a flight instruction in a proper case, but this is not the same as holding that the prosecution is entitled to it. Of course, in view of the state's inability to appeal, the court has had no occasion to decide whether it was error to refuse such an instruction nor even to know whether and how often trial courts decline to give it.

It is clear that no instruction concerning the possible significance of flight is proper when there is insufficient evidence to give rise to any suspicion on that score. See State v. Wilson, 172 Or. 373, 142 P.2d 680 (1943), in which defendant leaving the scene had said that he could be found at home and was in fact found there; State v. Bonner, 241 Or. 404, 406 P.2d 160 (1965), in which the only evidence was one statement that defendant "beat it out of the room." Moreover, the flight instruction as stated in Bonner, the most recent decision on the point, is as concerned with deterring the jury from making too much of the evidence as with drawing it to their attention. The instruction does not speak of any "inference" of guilt to be drawn from flight or concealment but only of a circumstance that may be taken into consideration. It continues:

Such flight or concealment, if any, is not of itself sufficient evidence of the defendant's guilt, but it is only a circumstance to be taken into consideration by the jury, along with all the other circumstances in the case. 241 Or. at 406-407, 406 P.2d at 161.

This caution is consistent with what appears to be the earliest discussion of the matter by this court. In State v. Osborne, 54 Or. 289, 103 P. 62 (1909), the court wrote that evidence of flight, like evidence of possession of stolen goods in a larceny case, is only a fact to be considered by the jury; it could not, standing alone, be sufficient to warrant conviction. Given this dual function of an instruction on the flight of a defendant, when one is permissible at all, it appears that the same instruction hardly fits the defendant's purpose when a possible suspect other than the defendant has fled the scene of the crime.

We agree with the Court of Appeals that the debatable significance of flight can in most cases be left to argument by the parties, unless the trial court believes in the particular case that the issue should be clarified for the jury. It was not error to refuse the instruction requested by defendant.

However, it was error to permit the prosecution to go forward after it should have been dismissed under ORS 135.745. That section provides:

When a person has been held to answer for a crime, if an indictment is not found against him within 30 days or the district attorney does not file an information in circuit court within 30 days after the person is held to answer, the court shall order the prosecution to be dismissed, unless good cause to the contrary is shown.

It was stipulated that no indictment was found and no information was filed within the statutory 30 days from the order holding defendant for trial, and the district attorney conceded that there was no "good cause" for the delay. However, the courts below believed that dismissal of the prosecution was moot because an information had subsequently been filed, although belatedly.

The state, and the courts below, cite the decision of this court in State v. Sutton, 223 Or. 570, 355 P.2d 247 (1960) for this result. At that time, defendants in circuit court were entitled to insist on an indictment, and the predecessor to ORS 135.745 referred only to indictments. ³ In Sutton, defendant claimed that the indictment against him was void because it was not returned within the deadline after he was held to answer. The court held that a dismissal would have had the effect of gaining his release from custody or exoneration of his bail, but that it would not prevent a grand jury from finding an indictment. ⁴

State v. Sutton does not help the state in this case. The existence of a valid and outstanding order holding a defendant to answer is immaterial to a grand jury indictment, but it is a constitutional prerequisite to prosecution on a district attorney's information unless a defendant has waived indictment. ⁵ The constitution provides:

The district attorney may charge a person on an information filed in ...