State v. Brown

• Decision Date: 24 May 1972
• Citation: 497 P.2d 1191,262 Or. 442,94 Or.Adv.Sh. 1591
• Parties: The STATE of Oregon, Respondent, v. Royce Lovell BROWN, Petitioner.
• Court: Oregon Supreme Court

Page 1191

497 P.2d 1191

262 Or. 442

The STATE of Oregon, Respondent, v. Royce Lovell BROWN, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 27, 1972.

Decided May 24, 1972.

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen.

McALLISTER, Justice.

On July 31, 1970, defendant was arrested in Lane County while carrying a concealed pistol. The same day a complaint was filed in the Lane County District Court charging him with a crime of carrying a concealed weapon, a misdemeanor, ¹ and on August 27 he was convicted in the district court on a plea of guilty. In the meantime, on August 25, defendant was indicted by the grand jury for the crime of being a convicted person in possession of a firearm, a felony. ² On September 2, 1970, he entered a plea of not guilty to the indictment, accompanied by a plea of former conviction. ³ Although it was stipulated that the indictment was based on the same incident as was the district court complaint and that the sentence imposed by the district court had been executed, the plea of former conviction was rejected. Defendant was then convicted on the felony charge and sentenced to five years in the penitentiary. He appealed, claiming a violation of the constitutional guarantee against double jeopardy. ⁴

The Court of Appeals affirmed, relying on State v. Miller, Or.App., 92 Adv.Sh. 963, 484 P.2d 1132, review denied (1971), cert. denied April 4, 1972. Miller involved an identical fact situation and the Court of Appeals held that defendant had not been twice in jeopardy for the same offense. It assumed that this court had adopted the 'same evidence' test and held that, under that test, the two charges did not involve the same offense. The 'same evidence' test, in the often-quoted language of Morey v. Commonwealth, 108 Mass. 433, 434 (1871) is

'* * * not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal, or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.'

A conviction under ORS 166.240(1) requires proof that the weapon was concealed upon defendant's person, whereas a conviction under ORS 166.270 requires proof that the defendant has been convicted of a felony, and that he owns or possesses a concealable firearm. No proof of actual concealment is necessary. Under the 'same evidence' test, the two charges were not for the same offense, as each required proof of a fact which the other did not. We granted review in this case to consider defendant's double jeopardy claim.

Although this court has quoted the Morey v. Commonwealth version of the 'same evidence' test on a number of occasions, ⁵ it has not consistently applied that test when deciding whether successive prosecutions violated the guarantee against double jeopardy. In some cases the decision has been based on that test. ⁶ In others the court has looked to whether the two prosecutions were based on the same 'transaction.' ⁷ In State v. Sly, 4 Or. 277 (1872) the court said that offenses are identical only if they are the 'same in law and in fact.' In some cases the court was concerned with whether one crime was a lesser included offense or constitutent element of the other. ⁸ And sometimes the court has discussed a variety of tests, holding that there was no double jeopardy under the circumstances regardless of which was applied. ⁹

No logical pattern or consistent approach to the problem emerges from these cases, and the same is true when we look to other jurisdictions. Although the 'same evidence' test in some form ¹⁰ is most commonly applied, our research suggests that the following observation, made by Mr. Chief Justice Robert S. Bean in 1895, is still true today:

'* * * 'The right not to be put in jeopardy a second time for the same cause is as sacred as the right of trial by jury, and is guarded with as much care by the common law and by the constitution': Black, C.J., in Dinkey v. Commonwealth, 17 Pa. 126. But the solution of the question as to what facts will sustain the plea is attended with difficulty, and has provoked much discussion by the courts and text writers. The general rules upon the subject, and the tests usually applied, are well settled; but, in the method of their application, much contrariety of opinion appears, owing, no doubt, to the generality and consequent elasticity of the rules themselves. * * *' State v. Howe, 27 Or. 138, 140, 44 P. 672 (1895).

The problem of defining the same offense has continued to provoke discussion, and the courts have been unsuccessful in devising satisfactory solutions. At the same time, the development of the criminal law has added to the gravity of the problem. When offenses were few, a single course of conduct was not likely to violate more than a single criminal statute. That is no longer true. Over the years, legislative definition of criminal offenses has become more detailed and specific, and previously unregulated areas of behavior have been brought within the scope of the criminal law. Both this phenomenon and its accompanying dangers were recently noted by the United States Supreme Court:

'* * * (A)t common law, and under early federal criminal statutes, offense categories were relatively few and distinct. A single course of criminal conduct was likely to yield but a single offense. * * * In more recent times, with the advent of specificity in draftsmanship and the extraordinary proliferation of overlapping and related statutory offenses, it became possible for prosecutors to spin out a startlingly numerous series of offenses from a single alleged criminal transaction. * * * As the number of statutory offenses multiplied, the potential for unfair and abusive reprosecutions became far more pronounced.' Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469, 476 note 10 (1970).

Oregon has not been immune. A 1960 study which identifies approximately 1,350 separate crimes in Oregon is probably a gross understatement of the number of statutory offenses. ¹¹

In such a setting, the traditional 'same evidence' test provides virtually no protection against repeated prosecutions based on a single act or course of conduct. a prosecutor is limited only by the number of ways in which the legislature has made the defendant's conduct punishable, and may indulge in the harassment against which the double jeopardy guarantee should protect. He may split his case, so that if the first trial results in an acquittal he can try the defendant again, for essentially the same conduct, before a different jury ¹² or, in case of a conviction, he can prosecute further to obtain what he considers a suitable punishment. ¹³ He can use the first prosecution as a 'trial run,' planning on refining his case if the first prosecution is unsuccessful. ¹⁴ As a consequence, a defendant is deprived of the assurance that an acquittal is the end of the matter or that a conviction and sentence is the final measure of his guilt and punishment. Moreover, repeated prosecutions strain the resources of defendants and dissipate those of the courts and prosecutors, and deprive judgments of their finality. Modern commentators are, for these reasons, justly critical of the 'same evidence' test. ¹⁵

The United States Supreme Court has never approved or applied the 'same evidence' test in a case involving the Fifth Amendment double jeopardy guarantee against successive prosecutions. The court has applied that test in cases involving multiple charges in a single trial and has held that multiple convictions and cumulative punishments are permissible in a single trial if the offenses charged are not the same under that test. ¹⁶ The underlying considerations in multiple punishment cases are entirely different from those involved in multiple prosecutions, and a test which is appropriate in one class of cases is not necessarily appropriate in the other class. ¹⁷ The court has not made its position clear in multiple prosecution cases. In Ex Parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889) the court said the 'same evidence' test was inapplicable under the circumstances, holding that the second prosecution was barred because it was for an incident or necessary ingredient of the crime of which petitioner had already been convicted. In Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489, 490 (1911) the test was applied in a successive prosecution case, interpreting an act of Congress extending the double jeopardy guarantee to the Philippine Islands. The status of decisions under that statute as precedent in Fifth Amendment cases is doubtful. Green v. United States, 355 U.S. 184, 197 note 16, 78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 1119 (1957). See, also, Abbate v. United States, 359 U.S. 187, 198 note 2, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (separate opinion of Brennan, J.). In Ashe v. Swenson, supra, the majority did not find it necessary to reach the question of identity of offenses. Justice Brennan, joined by Justices Douglas and Marshall, indicated in a concurring opinion that he would reject the 'same evidence' test in favor of the 'same transaction' test. ¹⁸ Harlan, J., separately concurring, emphasized his understanding that the court was not adopting the 'same transaction' test, and the Chief Justice, dissenting, would have applied the 'same evidence' test.

Recent Supreme Court decisions do reveal a concern with double jeopardy problems. In 1969 the court overruled Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149,...