State v. Emery

• Decision Date: 24 March 1994
• Citation: 869 P.2d 859,318 Or. 460
• Parties: STATE of Oregon, Respondent on Review, v. Gordon Tubandt EMERY, Petitioner on Review. DC L90-0163CR; CA A69343; SC S40000.
• Court: Oregon Supreme Court

Page 859

869 P.2d 859

318 Or. 460

STATE of Oregon, Respondent on Review, v. Gordon Tubandt EMERY, Petitioner on Review.

DC L90-0163CR; CA A69343; SC S40000.

Supreme Court of Oregon.

Argued and Submitted Nov. 4, 1993.

Resubmitted March 22, 1994.

Decided March 24, 1994.

Michael W. Seidel, Bend, argued the cause and filed the petition for petitioner on review.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS and GRABER, JJ.

CARSON, Chief Justice.

In this criminal case, defendant seeks review of the decision by the Court of Appeals holding that defendant was not denied his right to a speedy trial under ORS 135.747 or under Article I, section 10, of the Oregon Constitution. We reverse. The judgment of conviction is reversed, and the charge against defendant is dismissed pursuant to ORS 135.747.

On October 31, 1988, defendant was cited for illegal possession of an elk, a crime. ¹ On November 19, 1988, defendant appeared for arraignment at the time specified on the citation at the North Lake County Justice Court but, when he arrived, there was no one at the Justice Court. ² Sometime later, the case was transferred to the South Lake County Justice Court.

During that time, defendant and the Lake County District Attorney pursued plea negotiations. Later, at the time of the hearing on defendant's motion to dismiss, the trial court found that the district attorney and defendant "did engage in good faith negotiations for a period of time after the charges were filed." ³

Following the creation of a district court for Lake County (Or.Laws 1989, ch. 1021, § 5), the Justice Court for South Lake County apparently was abolished. Defendant's case was transferred to the new district court on July 1, 1990. Defendant's case was entered into the records of the district court on August 8, 1990, and was set for trial beginning October 17, 1990.

On September 7, 1990, defendant moved to dismiss for lack of a speedy trial. On October 25, 1990, the district court held a hearing on defendant's motion to dismiss. At that hearing, defendant testified that the pending charges had made him "somewhat" nervous. ⁴ He also testified that he felt "tainted around town."

At the hearing, there also was testimony that one potential witness had died during the summer of 1990, while this case was awaiting trial. The potential witness was one of several people who had come upon an elk kill site early in the morning on the first day of the 1988 elk season. At the hearing, defendant's lawyer summarized, "[The witness] is dead. We don't know what he would have testified to. We don't know if he would have been helpful to the state or if he would have been helpful to the defendants. The fact of the matter is, he is not available to testify."

On November 7, 1990, the trial court denied the motion to dismiss by letter. The trial court's letter opinion, which was incorporated by reference into its order, stated, in part:

"The court and the District Attorney have certainly not moved these cases with the dispatch urged by the prevailing guidelines for case disposition. However, it is my opinion that the delay, unfortunate as it is, is not grounds for dismissing any of these charges.

" * * * * *

"All defendants have been subjected to anxiety during the pendency of the charges, and memories have faded. One witness has died, but that witness apparently saw nothing that wasn't seen by other witnesses and would probably be a witness for the state in any event.

"The anxiety felt by the defendants and the memory loss by the witnesses are within the normal range for cases of this type, and are not justification for dismissal."

Following the denial of the motion to dismiss, defendant's lawyer moved to withdraw, the court allowed the motion, and defendant informed the court that he would represent himself. After a jury trial, on February 26 and 27, 1991, defendant was convicted of the charged offense. On April 5, 1991, the district court entered judgment and sentenced defendant.

Defendant appealed his conviction to the Court of Appeals, assigning as error the trial court's denial of his motion to dismiss based on the speedy trial claims. The Court of Appeals affirmed defendant's conviction, holding that both ORS 135.747 (set forth infra ) and Article I, section 10, of the Oregon Constitution, ⁵ required defendant to show prejudice in order to prove that he was deprived of his right to a speedy trial. ⁶ State v. Emery, 115 Or.App. 655, 657-58, 840 P.2d 95 (1992), mod., 117 Or.App. 565, 842 P.2d 467 (1993). The Court of Appeals held that "[d]efendant makes no claim of actual prejudice"; thus, neither ORS 135.747 nor Article I, section 10, was violated by the two-year delay in bringing defendant to trial. 115 Or.App. at 658-59, 840 P.2d 95.

On reconsideration, the Court of Appeals modified its opinion to hold that defendant did make a claim of actual prejudice when he asserted that a potential witness had died, that other witnesses' memories had faded, that he had suffered anxiety and had felt "tainted about town," and that his travel plans had been interrupted by the pending criminal charge. State v. Emery, 117 Or.App. 565, 567, 842 P.2d 467 (1993), on recon from 115 Or.App. 655, 840 P.2d 95 (1992). Nonetheless, the Court of Appeals adhered to its decision and held that defendant's allegations of prejudice were not sufficient to require dismissal under ORS 135.747 or Article I, section 10. 117 Or.App. at 568, 842 P.2d 467. ⁷

Before this court, defendant first argues that the Court of Appeals erred in holding that the speedy trial provision contained in ORS 135.747 requires that defendant make a showing of prejudice resulting from the delay. ORS 135.747 provides:

"If a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed."

It is the task of this court to determine what the legislature intended when it enacted ORS 135.747. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993) (setting forth method of statutory interpretation). To determine legislative intent, we first examine the text and context of the statute. 317 Or. at 610-11, 859 P.2d 1143.

Defendant argues that the text of ORS 135.747 is clear and that the express language of ORS 135.747 does not suggest any legislative intent to require a showing of prejudice. The language of the statute requires that, if the defendant is not brought to trial within a "reasonable period of time" and that if the trial is not postponed upon the application of or with the consent of the defendant, "the court shall order the accusatory instrument to be dismissed." (Emphasis added.)

ORS 174.010 ⁸ directs judges, when engaged in statutory construction, "not to insert what has been omitted." ORS 135.747 does not explicitly require a showing of prejudice. Therefore, this court must proceed cautiously in examining the state's argument that the legislature intended to require a showing of prejudice when it prescribed dismissal of the accusatory instrument if a defendant is not brought to trial in a reasonable period of time. ⁹

The context of ORS 135.747 also suggests that a showing of prejudice is not necessary. The context of a statute "includes other provisions of the same statute and other related statutes." PGE v. Bureau of Labor and Industries, supra, 317 Or. at 611, 859 P.2d 1143. ORS 135.745 provides:

"When a person has been held to answer for a crime, if an indictment is not found against the person 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."

ORS 135.745 is the statutory speedy trial provision that applies before an accusatory instrument is returned or filed, and ORS 135.747 is the provision that applies after the accusatory instrument is returned or filed. ORS 135.745 does not require a showing of prejudice. If an accusatory instrument is not filed within 30 days, the court must dismiss the case unless the prosecution is able to show good cause for not filing within 30 days. ¹⁰ Read together, ORS 135.745 and 135.747 provide guidelines for the trial court for dismissing cases that have been in the system too long without prosecutorial action. Prejudice to the particular defendant is irrelevant.

ORS 135.753(2) provides that an order of dismissal pursuant to ORS 135.745 or ORS 135.747 "is a bar to another prosecution for the same crime if the crime is a Class B or C misdemeanor; but it is not a bar if the crime charged is a Class A misdemeanor or a felony." Taken as a whole, the statutory speedy trial scheme provides a method for dismissing cases that are languishing in the criminal justice system without affecting the state's ability to reprosecute serious charges. ORS 135.745, 135.747, and 135.753(2) provide a "housecleaning" mechanism triggered by the length of time that a particular case has been in the system, rather than by the effect of the delay on a particular defendant.

The state argues that, to the contrary, State v. Jackson, 228 Or. 371, 377-78, 365 P.2d 294 (1961), stands for the proposition that Article I, section 10, and ORS 135.747 should be read to mean the same thing and, therefore, that a speedy trial claim under ORS 135.747 requires a showing of prejudice. This court held in Jackson:

"It follows that the statute and the constitutional provision have substantially the same meaning and, therefore, that the tests heretofore announced by this court...