State v. Edmonson

• Decision Date: 23 June 1981
• Citation: 291 Or. 251,630 P.2d 822
• Parties: STATE of Oregon, Respondent, v. Daniel Victor EDMONSON, Petitioner. TC 1079-03959; CA 15957; SC 27319.
• Court: Oregon Supreme Court

Page 822

630 P.2d 822

291 Or. 251

STATE of Oregon, Respondent, v. Daniel Victor EDMONSON, Petitioner.

TC 1079-03959; CA 15957; SC 27319.

Supreme Court of Oregon.

Argued and Submitted Dec. 3, 1980.

Decided June 23, 1981.

Ross Shepard, Asst. Director, Public Defender Services of Lane County, etc., Eugene, argued the cause for petitioner. On the brief were Gary D. Babcock, Public Defender, and Marianne Bottini, Deputy Public Defender.

Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., and Robert Bulkley, Jr., Asst. Atty. Gen.

Before DENECKE, C. J., and TONGUE, LENT, LINDE and PETERSON, JJ.

LINDE, Justice.

Defendant appealed his convictions of attempted murder and of illegal possession of a weapon, ORS 166.270, on several grounds including denial of his request for a preliminary hearing after indictment. Upon affirmance by the Court of Appeals, 47 Or.App. 1009, 615 P.2d 1208, defendant filed a petition for review limited to this denial of a preliminary hearing, and we granted review. We affirm the judgment.

Defendant contends that to refuse an indicted defendant the procedural advantages of a preliminary hearing that are available to defendants prosecuted upon a district attorney's information denies him equal privileges or equal protection under the Oregon and United States constitutions, relying on the decision of the Supreme Court of California in Hawkins v. Superior Court, 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916 (1978). ¹

We have reviewed these contentions in State v. Clark, 291 Or. 231, 630 P.2d 810, (1981). In Clark, we held that the simple coexistence of the two means of initiating a prosecution, by information with a preliminary hearing or by indictment without one, did not in itself grant to "any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens," as forbidden by Or.Const. art. I, § 20. The two methods are capable of valid administration, if the "terms" on which one or the other method is used are defensible under the constitutional guarantees of equal treatment. We held that the attack failed "(w)ithout a showing that the administration of Or.Const. art. VII, § 5 and ORS 135.070-135.185 in fact denied defendant individually, or a class to which he belongs, the equal privilege of a preliminary hearing with other citizens of the state similarly situated." State v. Clark, 291 Or. at 236 - 243, 630 P.2d 810. For the same reason, we rejected defendant's claim under the 14th amendment. In other words, defendant's constitutional claim requires a showing how the choice of procedure is administered, and whether it offers or denies preliminary hearings to individual defendants, or to social, geographic, or other classes of defendants (apart from the "classification" formed by the choice itself) purely haphazardly or otherwise on terms that have no satisfactory explanation under art. I, § 20. See State v. Clark, 291 Or. at 242-243, 630 P.2d 810.

The defendant made no such showing in this case. At the time of his request to conduct a preliminary hearing or to dismiss the indictment, defendant's counsel stated:

"Now, statistics in this area, I have found to be very difficult to come by, but I think I...