State v. Fair

• Decision Date: 10 November 1972
• Citation: 263 Or. 383,502 P.2d 1150,95 Or.Adv.Sh. 1654
• Parties: STATE of Oregon, Respondent, v. Boyce Gail FAIR, Petitioner.
• Court: Oregon Supreme Court

Page 1150

502 P.2d 1150

263 Or. 383

STATE of Oregon, Respondent, v. Boyce Gail FAIR, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 7, 1972.

Decided Nov. 10, 1972.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief 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 John W. Osborn, Sol. Gen.

McALLISTER, Justice.

Petitioner was first charged with burglary not in a dwelling. ¹ The indictment alleged that he broke and entered a certain motel on January 19, 1971, with the intent to commit larceny therein. At the trial on the burglary charge, after the state had rested its case, petitioner moved for a judgment of acquittal. The motion was granted and a judgment of acquittal was entered on the ground that the state's evidence would not support a verdict of guilty. Although the record of the burglary trial was not introduced in evidence in this case, it appears from reported discussion among court and counsel that the motion for judgment of acquittal was made on the specific ground that the evidence showed that the motel was a dwelling and that if the petitioner had committed burglary it was burglary in a dwelling. ²

After petitioner was acquitted on the first charge he was indicted for larceny by an indictment alleging the theft of a television set from the same motel on the same date as that alleged in the burglary indictment. Petitioner entered a plea of former jeopardy, which was rejected by the trial court. Petitioner was then found guilty by the jury of the larceny charge and appealed. The Court of Appeals affirmed. State v Fair, Or.App., 94 Adv.Sh. 298, 493 P.2d 182 (1972). ³

As the burglary and larceny charges both arose out of the same transaction, this case poses the question of the retroactivity of our decision in State v. Brown, 94 Or.Adv.Sh. 1591, 497 P.2d 1191 (1972). In State v. Clifton, 240 Or. 378, 401 P.2d 697 (1965) we said that no question of retroactivity arose in a case which had not been finally disposed of on appeal at the time the new rule was announced. In later cases, however, we have abondoned that principle, and have closely followed the retroactivity rules adopted by the United States Supreme Court. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) and in Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), the Supreme Court assumed, as we did in Clifton, that a decision which was not applied retroactively nevertheless applied to cases which had not been finally disposed of at the time it was announced. A short time later, however, the Supreme Court decided Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), in which it held that the rules announced in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966) would apply only to trials which began after the dates of those decisions.

Since Johnson the Supreme Court has continued to specify exactly when new rules should take effect. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) it held that the 'lineup' rules announced in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) would apply only to lineups which took place after the date of those decisions. In Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) the Court held that Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) extending the prohibition on electronic surveillance without a warrant to cases in which no physical intrusion was involved, would apply only to cases in which the prosecution sought to introduce the fruits of its eavesdropping into evidence after the date of the Katz decision. In Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971) it held that Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) would apply only to searches conducted after Chimel was decided.

In Johnson the Supreme Court said:

'* * * Of course, States are still entirely free to effectuate under their own law stricter standards than those we have laid down and to apply those standards in a broader range of cases than is required by this decision.' 384 U.S. at 733, 86 S.Ct. at 1781, 16 L.Ed.2d at 892.

For the most part, however, we have followed the lead of the Supreme Court's decisions on retroactivity. We have applied Miranda according to the formula in Johnson, ⁴ and have followed Stovall v. Denno, supra, in deciding the retroactivity of the lineup cases. ⁵ We made an exception, however, in our application of the principles of Escobedo v. Illinois, supra. We were first called upon to determine the retroactivity of Escobedo before the Supreme Court had spoken. We held, relying on Linkletter and Tehan, supra, that Escobedo would apply only to cases which had not been finally disposed of on the date Escobedo was decided. ⁶ After the Supreme Court in Johnson v. New Jersey, supra, adopted a more restrictive rule, in Escobedo cases we continued to apply our own rule. ⁷ Recently, however, in State v. Evans, 258 Or. 437, 483 P.2d 1300 (1971), we conformed our rule in Escobedo cases to that applied by the Supreme Court and overruled our earlier cases.

In Bouge v. Reed, 254 Or. 418, 459 P.2d 869 (1969) we again had to decide the question of the retroactivity of a federally guaranteed right without the guidance of a Supreme Court determination. We relied on criteria set out in Johnson v. New Jersey, supra, in making that determination. We held in Bouge that the procedural requirements of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), which involved remands from juvenile court to adult court, would not be applied retroactively. We indicated in dictum that we would apply Kent only to remands which took place after Kent was decided.

We may draw two conclusions from our recent decisions on retroactivity. First, we are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires. Secondly, we have tended to restrict the retroactive application of newly-announced rights, giving them only the application which the Supreme Court has adopted as a minimum. In the present case since we are dealing with a new principle of law which rests entirely on our own Constitution the determination of retroactivity or prospectivity is for us alone. The decisions of the United States Supreme Court are not binding on us, but we may look to those cases for guidance.

The Supreme Court has summarized the criteria it employs in deciding questions of retroactivity as follows:

'* * * (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. * * *' Stovall v. Denno, supra, 388 U.S. at 297, 87 S.Ct. at 1970, 18 L.Ed.2d at 1203.

The first question is whether the new rule substantially enhances the reliability of the determination of guilt. This is a matter of degree. Johnson v. New Jersey, supra, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d at 889. If the new rule is not central to the fact-finding process, other factors are considered. This approach was described in Williams v. United States, 401 U.S. at 653, 91 S.Ct. at 1152, supra, 28 L.Ed.2d at 395:

'Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.

'It is quite different where the purpose of the new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary or unreliable results but to serve other ends. In these situations the new doctrine raises no question about the guilt of defendants convicted in prior trials. * * *' Our decision in Brown, requiring that the state join in a single proceeding all charges arising out of a single act or transaction, has little to do with the reliability of the determination of guilt. The guarantee against double jeopardy, and our implementation of that guarantee in Brown, are concerned primarily with protection of the accused from unnecessary harassment and from the burden of having to defend repeatedly against substantially the same evidence. We also considered the policy of finality in litigation. The purpose of the new rule was to require prosecutors to join, in the first instance, all available charges which they wish to prosecute, so that guilt or innocence can be finally determined in a single proceeding and so that the accused will not have to bear the burden of a series of prosecutions based on a single criminal episode.

Before we decided Brown prosecutors were not charged with notice that they must join in a single proceeding all charges arising out of the same act or transaction. They were entitled to assume that the 'same evidence' test permitted some latitude in bringing successive charges arising out of the same act or transaction if the first charge was aborted because of prosecutorial error....