State v. Freeland

• Citation: 58 Or.App. 163,647 P.2d 966
• Decision Date: 08 July 1982
• Docket Number: No. C81-04-32282,C81-04-32282
• Parties: STATE of Oregon, Appellant, v. Johnny Dale FREELAND, Respondent. ; CA A22721.
• Court: Court of Appeals of Oregon

Page 966

647 P.2d 966

58 Or.App. 163

STATE of Oregon, Appellant, v. Johnny Dale FREELAND, Respondent.

No. C81-04-32282; CA A22721.

Court of Appeals of Oregon.

Argued and Submitted April 23, 1982.

Decided July 8, 1982.

Virginia L. Linder, Asst. Atty. Gen., Salem, argued the cause for appellant. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

James S. Coon, Portland, argued the cause for respondent. With him on the brief was Sobel & Coon, Portland.

Before BUTTLER, P. J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

The state appeals an order of the circuit court dismissing the indictment charging defendant with the crime of robbery in the second degree. The dismissal was grounded on the state's refusal to afford defendant a post-indictment preliminary hearing within 30 days after being directed to do so by the court. The state contends that the dismissal should be reversed, because the decision to initiate the prosecution of defendant by indictment rather than by information and preliminary hearing was based on criteria uniformly applied to all defendants similarly situated and, thus, under State v. Clark, 291 Or. 231, 630 P.2d 810 (1981), and State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981), did not violate defendant's equal protection rights. We agree and reverse and remand for trial.

Defendant was arrested and charged by information on April 24, 1981. A preliminary hearing was set for May 4, 1981. On May 1, 1981, however, a deputy district attorney presented defendant's case to the grand jury, which returned an indictment on that date. At the scheduled preliminary hearing on May 4, 1981, defendant was informed of the grand jury indictment, at which time he objected and requested a preliminary hearing. The district court denied that request.

Defendant then moved in circuit court for a post-indictment preliminary hearing or, in the alternative, for dismissal of the indictment, contending that the state's refusal to grant him a preliminary hearing violated his rights to equal protection under the Fourteenth Amendment to the United States Constitution ¹ and to equal privileges under Article I, section 20, of the Oregon Constitution. ² On the basis of State v. Clark, supra, and State v. Edmonson, supra, in which the Supreme Court held that the mere coexistence of two constitutionally authorized means of initiating prosecution (Or.Const.Art. VII (amended), § 5 ³), does not deny a defendant equal protection or equal privileges, absent a showing that the administration of the two procedures fails to meet other constitutional standards (e.g., Or.Const.Art. I, § 20), defendant requested, and was granted, a hearing to make such a showing.

At the hearing, the District Attorney for Multnomah County, Michael Schrunk, as well as the deputy to whom defendant's case was assigned, Lance Caldwell, testified. Mr. Schrunk stated that his office has no written policy concerning which cases are presented to the grand jury, and which cases are charged by information requiring a preliminary hearing, except in cases involving rape or sexual assault and youthful victims. In those cases, the policy is to avoid a preliminary hearing in deference to the victims. In other cases, the decision is entrusted to the deputy district attorney assigned to the case, who applies the criteria discussed below in making a decision.

In property crimes, if the defendant is not in custody, the general approach is to submit the case to the grand jury. If, however, the defendant has been arrested, the case is handled differently. Police detectives present the case to a deputy district attorney for review. Frequently an arraignment is set for the same day, and a date for a preliminary hearing is set. Nevertheless, other considerations may lead the deputy to decide to submit the case to the grand jury. Those considerations were explained by Mr. Schrunk.

The complexity of the case, he said, is an important factor for several reasons. A complex case may involve a number of witnesses, both civilian and police, and the various schedules of the witnesses may make it difficult to hold a preliminary hearing. Also, the amount of witness time and judicial time required to hold a preliminary hearing in a complex case is considered. Because the case can be tried to the grand jury in a piecemeal fashion, permitting one witness to appear in the morning, and the next much later in the day and so on, witnesses' schedules can be accommodated better. However, when a minimum amount of court time will be involved and only a few witnesses need to be called, a preliminary hearing is favored. The complexity of the case is also relevant to the prosecuting attorney's ability to prepare the case for a preliminary hearing. Because of local judicial constraints (apparently based on former ORS 135.070), a preliminary hearing must be held within five days or as soon as possible thereafter. Where the facts of a case are complex, the investigation and preparation of the case may not be complete.

The status of the docket on any given day is a further consideration. There are times when a preliminary hearing is feasible, because courtrooms are readily available. On other days, however, when the docket is full, hearings sometimes run several hours behind schedule. When the hearing is unexpectedly delayed, other demands on the time of the attorneys and witnesses who need to be present at the hearing frequently interfere with their ability to do so.

The identity of an individual defendant in the case is sometimes a factor. If the defendant has a "high profile," undue publicity may follow from a preliminary hearing; therefore, a preliminary hearing is avoided. The usual emphasis, however, is on the victim and the witnesses, rather than on the individual defendant. Sex, race and similar characteristics are not factors in deciding which procedure to follow.

One other factor favoring a grand jury proceeding over a preliminary hearing occasionally arises in eyewitness cases when the eyewitness' identification is tentative. Because an identification of a defendant made during a preliminary hearing might be considered suggestive, the prosecutor in such a case may prefer to have the witness make an identification by means of a lineup to obviate a later claim of tainted identification.

Mr. Schrunk also testified that if the defendant has no criminal record a preliminary hearing is more likely, because a showing of witnesses at the hearing may convince the defendant to plead guilty, whereas a defendant with multiple convictions is more likely to go to trial in any event. Deputies also consider avoiding the possibility of inconsistency between witnesses' testimony at a preliminary hearing and that given later at trial. Both of those considerations were characterized appropriately by the trial court as tactical.

Mr. Caldwell, the deputy district attorney assigned defendant's case, testified that he understood the decision to initiate prosecution by indictment or by preliminary hearing to be within his sole discretion and that his decision to present defendant's case to the grand jury for indictment was based on "logistical reasons." Those reasons include the complexity of defendant's case (three codefendants and several witnesses were involved) and his concern that the deputy district attorney assigned to present cases at preliminary hearings would not have sufficient time to prepare the case effectively. Mr. Caldwell, as well as Mr. Schrunk, testified that the treatment of defendant's case was no different from that of any other similar case.

The circuit court concluded that defendant was denied equal protection of the laws because

" * * * the decision (to initiate prosecution by indictment or by information and preliminary hearing) is made primarily at the discretion of the prosecution who bases his decision upon 'logistical' and 'tactical' criteria, (and thus) the choice of procedure is administered 'purely haphazardly or otherwise on terms that have no satisfactory explanation under Art. I, § 20.' State v. Edmonson, supra, 291 Or. at 254 (630 P.2d 822). * * * "

The court ordered the state to afford defendant a preliminary hearing within 30 days or suffer dismissal of the indictment. At the end of the 30-day period, the state had not scheduled a preliminary hearing, whereupon the indictment was dismissed on defendant's motion.

We are uncertain where Clark and Edmonson lead us. It is clear from those cases that the existence of both procedures, expressly sanctioned by Article VII (amended), section 5, does not, per se, violate either the Oregon or the federal constitutions. It mandates that a person be charged with a felony in the circuit court "only on indictment by a grand jury," except as provided in subsections (4) and (5). Those subsections permit the district attorney to charge a person on an information filed in circuit court with a crime punishable as a felony if the person knowingly waives indictment in person before a circuit judge (subsection (4)), or if, after a preliminary hearing before a magistrate, the person has been held to answer upon a showing of probable cause that the person has committed a crime punishable as a felony, or if the person knowingly waives preliminary hearing. (Subsection (5).)

From those provisions, it is equally clear that the district attorney has discretionary authority to charge a person by information under the limited circumstances prescribed in Article VII (amended), section 5. Clark tells us that the "opportunity of a preliminary hearing is a 'privilege' within the meaning of the constitutional guarantee" (Art. I, § 20), 291 Or. at 241, 630 P.2d 810, and that the procedural rights afforded a defendant at a preliminary hearing (ORS 135.070 -.185) offer important advantages over those afforded a defendant charged by indictment. 291 Or. at 242, 630 P.2d 810. Yet the...