State v. Clark, 35188
| Citation | 615 P.2d 1043,47 Or.App. 389 |
| Decision Date | 14 October 1980 |
| Docket Number | No. 35188,35188 |
| Parties | STATE of Oregon, Respondent, v. Andrew CLARK, Appellant. ; CA 15862. |
| Court | Court of Appeals of Oregon |
Robert J. McCrea, Eugene, argued the cause for appellant. With him on the brief was Morrow, McCrea & Divita, P. C., Eugene.
John C. Bradley, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before SCHWAB, C. J., and THORNTON and RICHARDSON, JJ.
Defendant appeals a judgment of conviction for theft in the second degree. He contends that the court erred in denying two pretrial motions for dismissal of the indictment. The basis of the first motion was that defendant was denied the opportunity, accorded to the state, to grant immunity from prosecution to prospective witnesses and that he was not offered immunity the same as other potential co-defendants. He argues that his right to due process of law and equal protection of the laws under the Fourteenth Amendment were therefore violated.
In State v. Grabill, 34 Or.App. 639, 579 P.2d 316, rev. den. 284 Or. 521 (1978), we held that the defendant's constitutional rights were not violated when he was not accorded the right to grant immunity to a witness. The same rationale would apply in the situation where the state declines to offer immunity to an accused. If the state determines it will not offer immunity to a particular person, the defendant has no right, based on statute or constitutional provisions, to insist on a grant of immunity.
Defendant makes an additional argument. He contends that the prosecutor's decision to grant immunity is not bound by any criteria and is not subject to judicial scrutiny. Thus, he contends, immunity is granted or withheld at the whim of the state, and similarly situated individuals are treated differently based on this whim.
The decision to prosecute or to grant immunity is within the discretion of the prosecutor. The district attorney, as the prosecutor, answers to the electorate for the conduct of his office, including the exercise of discretion to prosecute.
In an analogous situation, in State ex rel. Anderson v. Haas, 43 Or.App. 169, 602 P.2d 346 (1979), rev. den. 288 Or. 493 (1980), we held that when the diversion statute, ORS 135.881 et seq., gave the prosecutor discretion in proposing a diversion plan for a defendant, a particular defendant could not insist on statutory or constitutional grounds that diversion be offered to him. The exercise of that discretion is not subject to judicial supervision.
During the course of the hearing on defendant's motion to dismiss, he presented evidence that seven indictments had been returned charging him with various crimes, including the charge here under review. The evidence showed that a number of persons were involved in the criminal...
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... ... I.C.R. 6(g) ... Edmonson relies on a series of Oregon cases starting with State v. Clark, 291 Or. 231, 630 P.2d 810 (1981), cert. denied, 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981), continuing with State v. Edmonson, ... Page ... ...
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State v. Clark
...under a number of state and federal constitutional provisions. 1 The Court of Appeals rejected these constitutional claims, 47 Or.App. 389, 615 P.2d 1043 (1980), and we allowed review. We affirm the I. Denial of a preliminary hearing. Oregon law provides for charging a person with a felony ......
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State v. Kadderly
...231, 246, 630 P.2d 810 (1981),cert. den. 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981) (quoting with approval State v. Clark, 47 Or.App. 389, 392, 615 P.2d 1043 (1980)). Although those Oregon precedents did not involve vindictive or selective prosecution claims, the federal equal prot......