Gillmore v. Pearce

• Decision Date: 03 February 1987
• Parties: In the Matter of the Application of Richard Troy Gillmore for a Writ of Habeas Corpus, Richard Troy GILLMORE, Plaintiff, v. Fred PEARCE, Multnomah County Sheriff, Defendant. S33603.
• Court: Oregon Supreme Court

Page 1039

731 P.2d 1039

302 Or. 572

In the Matter of the Application of Richard Troy Gillmore

for a Writ of Habeas Corpus,

Richard Troy GILLMORE, Plaintiff, v. Fred PEARCE, Multnomah County Sheriff, Defendant.

S33603.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Jan. 21, 1987.

Decided Jan. 27, 1987.

Reconsideration Denied Feb. 3, 1987.

Wayne Mackeson, Portland, argued the cause and filed petition for plaintiff. With him on the petition were Des Connall & Dan Lorenz, P.C., Portland.

Thomas H. Denney, Salem, argued the cause and filed response on behalf of defendant. With him on the response were Dave Frohnmayer, Atty. Gen. and Virginia L. Linder, Sol. Gen., Salem.

GILLETTE, Justice.

This is a habeas corpus case. On January 13, 1987, plaintiff, an inmate in the Multnomah County Detention Center, filed a habeas corpus petition in this court pursuant to Article VII (Amended), section 2, of the Oregon Constitution. Plaintiff is in the custody of defendant, the Sheriff of Multnomah County. This court ordered that the writ issue; pursuant thereto, defendant filed his return. At a hearing on January 21, 1987, this court inquired into the circumstances of plaintiff's imprisonment. ORS 34.580. Plaintiff contends that the security amount set for his release on pending criminal charges is excessive in violation of his rights under ORS 135.230-135.295, Article I, sections 14 and 16 of the Oregon Constitution and amendments VII and XIV to the Constitution of the United States. We conclude that the security amount in question is not excessive as a matter of law.

The Oregon Constitution guarantees that "[o]ffenses, except murder, and treason, shall be bailable by sufficient sureties." Or. Const., Art. I, § 14. The Constitution further provides that, "[e]xcessive bail shall not be required." Or. Const., Art. I, § 16.

ORS 135.245 provides, in pertinent part that, except when charged with murder or treason,

"(1) * * * a person in custody shall have the immediate right to security release or shall be taken before a magistrate without undue delay. * * *

" * * *

"(3) The magistrate shall impose the least onerous condition reasonably likely to assure the person's later appearance. A person in custody, otherwise having a right to release, shall be released upon his personal recognizance unless release criteria show to the satisfaction of the magistrate that such a release is unwarranted.

"(4) Upon a finding that release of the person on personal recognizance is unwarranted, the magistrate shall impose either conditional release or security release."

ORS 135.230(6) sets forth the release criteria:

" 'Release criteria' includes the following:

(a) The defendant's employment status and history and financial condition;

(b) The nature and extent of the family relationships of the defendant;

(c) The past and present residences of the defendant;

(d) Names of persons who agree to assist the defendant in attending court at the proper time;

(e) The nature of the current charge;

(f) The defendant's prior criminal record, if any, and, if the defendant previously has been released pending trial, whether the defendant appeared as required;

(g) Any facts indicating the possibility of violations of law if the defendant is released without regulations;

(h) Any facts tending to indicate that the defendant has strong ties to the community; and

(i) Any other facts tending to indicate the defendant is likely to appear."

In the present case, plaintiff was arrested on December 19, 1986, and charged with one count each of burglary in the first degree (ORS 164.225(1)) and rape in the first degree (ORS 163.375(2)). On the following day, plaintiff completed and signed a document entitled "Motion for Recog/Bail Reduction." That document reflects that the figure $20,000 was initially written in, in a section denoted "Bail $," with respect to the security amount to be required for each offense. The $20,000 figures were crossed out and replaced with the figures "$100,000."

On December 22, 1986, plaintiff was charged by a district attorney's information in Multnomah County District Court with burglary in the first degree and, "as part of the same act and transaction," with rape in the first degree. The information designated the security amount to be posted as "$100,000 + $100,000." On December 23, 1986, plaintiff filed a "Motion for Evidentiary Bail Hearing" and requested release pending further proceedings in circuit court. The next day, while his motion for a hearing was still pending, plaintiff was indicted by the Multnomah County Grand Jury and charged with burglary in the first degree, rape in the first degree, and two counts of sexual abuse in the first degree (ORS 163.425), all the crimes alleged to have been "part of the same acts and transactions." The indictment designated as "security amount" the amount of "$100,000 + $1,500 + $1,500 + $100,000." Plaintiff is presently incarcerated awaiting trial on this indictment.

On December 24, 1986, plaintiff was arraigned on the indictment and a security release hearing was held before a Multnomah County Circuit Court Judge. Information provided at the hearing by the deputy district attorney revealed that plaintiff had confessed to seeing a 13-year-old girl in her home while he was out jogging, breaking into her home and sexually assaulting her on impulse. Plaintiff also confessed to seven previously unsolved burglary-rapes committed in the Portland area between 1978 and 1981. His confession contained details of those offenses which were not matters of public knowledge. Three of the victims identified plaintiff in photograph "throw-downs," and his fingerprints were found at the scene of one of the offenses.

It was also pointed out at the hearing that plaintiff was interviewed shortly after his initial arrest by a recognizance officer who recommended to the court that release on his own recognizance be denied, noting on the form "Recog Be Denied--Nature of Chgs." The trial judge further reported that

"Close Street Supervision has interviewed him and made an investigation. They absolutely deny that they would take this man. They have rejected this man out of hand * * * they have no room for him, but they wouldn't take him even if they did have room for him."

Finally, the deputy district attorney represented in the trial court that "Information from the jail is that if [plaintiff] was released * * * he would want to leave the area."

Plaintiff is 27 years old. Although married, he and his wife are apparently about to dissolve their marriage. His mother and father are divorced. His father lives in Troutdale. His mother works in Atlanta, Georgia, and returns to Oregon "about twice a month." The former family home is presently occupied by plaintiff's brother and sister, both of whom work during the day and, presumably, are therefore unable to supervise him during that time.

At the conclusion of the bail hearing, the judge apparently was not impressed with plaintiff's evidence and, after considering the entire presentation by the state and plaintiff, concluded:

"[N]o recognizance will be allowed. The Court will order bail to remain constant to reasonably insure and compel [plaintiff] to appear in light of the gravity and nature of the charges in this indictment where the lure of freedom might well be too great a temptation, in light of the circumstances and [Plaintiff's] personal circumstances, to impel him to flee."

Plaintiff argues that leaving the security amount at such a high figure constitutes preventive detention, a concept not included in the Oregon security release scheme. As this court explained in Sexson v. Merten, 291 Or. 441, 448, 631 P.2d 1367 (1981):

"The only indication that Oregon's statutory scheme authorized conditions on a defendant's release for protection of society is found in ORS 135.230(6)(g):

" ' "Release Criteria" includes the following:

" 'Any facts indicating the possibility of violations of the law if the defendant is released without regulations.'

"This provision may provide guidance to trial judges in determining whether a defendant is to be released upon: (a) 'person recognizance,' (b) 'conditional release', or (c) 'security release.' This provision does not, however, authorize a trial judge who chooses to release a defendant under a 'security release agreement' to impose any conditions other than those which reasonably relate to providing assurance that the defendant will appear at trial."

We think it is clear from the foregoing statement in Sexson that the likelihood that a particular accused person will commit further crimes if released is relevant to the decision to release the person on recognizance or conditional release. However, this criterion from ORS 135.230(6)(g) plays no role in setting the amount required for security release. Security amounts as a whole (not the ten per cent actually deposited, see Liberman v. Burks, 293 Or. 457, 463-464 n. 6, 650 P.2d 83 (1982)) are supposed to represent the least onerous amount whose possibility of loss reasonably assures the attendance at trial of the person charged. The likelihood that the charged person will or will not commit other offenses while released contributes nothing to the calculation of that monetary amount. Preventive detention, in other words, is not authorized by the Oregon statutory scheme.

The unavailability in Oregon of preventive detention notwithstanding, however, one can understand why, in view of the arguments made by the deputy district attorney at the hearing, plaintiff is concerned that his security amount was set with preventive detention in mind. The deputy district attorney said, in his opening argument,

"What makes this case particularly [egregious] is that the [plaintiff] has confessed to seven other Burglary--Rapes that he committed during a period of time between 1978 and 1981. * * *

"[The officers who took plaintiff's confession] would tell you...