State v. Gonzalez
| Decision Date | 18 August 1993 |
| Citation | 852 P.2d 851,120 Or.App. 249 |
| Parties | STATE of Oregon, Appellant-Cross-Respondent, v. Ruben Carrillo GONZALEZ, Respondent-Cross-Appellant. 90-1448; CA A69492. |
| Court | Oregon Court of Appeals |
Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for appellant-cross-respondent. With him on the opening brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem, and with him on the reply brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Robert E. Thomas, III, Molalla, argued the cause and filed the brief for respondent-cross-appellant.
In Banc *
Defendant was charged with manslaughter in the second degree, ORS 163.125, driving under the influence of intoxicants, ORS 813.010, and reckless driving. ORS 811.140. The state appeals a pretrial order excluding evidence about defendant's blood alcohol content and his appearance when admitted to a hospital. Defendant cross-appeals from an order denying his motion to exclude the hospital records. We reverse on appeal and affirm on cross-appeal.
Defendant was involved in a motor vehicle accident that resulted in the death of another person. Defendant was injured in the accident and was taken to a hospital. A blood-alcohol test was done by the hospital, which showed an alcohol content of .12 percent. The state submitted the case to the grand jury. Part of the evidence before the grand jury was the hospital records, which included the results of defendant's blood alcohol test and a statement by one of the examining physicians, Dr. Grady, that defendant "appeared intoxicated."
Before trial, defendant moved to dismiss the indictment or, in the alternative, to exclude testimony derived from the hospital records because the state had failed to disclose, on the foot of the indictment, that the hospital records had been admitted before the grand jury, in violation of ORS 132.580(1). The state explained that it had not listed the hospital records or the custodian of the records on the indictment, because it had concluded that ORS 132.580 did not require the state to do so. The trial court denied defendant's motion to dismiss the indictment, but ruled that the failure to list the hospital records on the foot of the indictment violated ORS 132.580 and that the violation was not inadvertent, ORS 132.580(2)(a). The court concluded that the appropriate remedy was "to bar trial testimony derived from the hospital records, specifically the testimony of the toxicologist Marlis Coleman as to defendant's blood alcohol and testimony of Dr. Ian Grady as to defendant's state of intoxication in the emergency room shortly after the accident."
On appeal, the state argues that the trial court erred when it excluded the testimony, because ORS 132.580(1) does not require that persons noted in the hospital records, who may be witnesses at trial, be noted on the indictment. Defendant responds that statements made by Coleman and Grady in the hospital records constitute "reports" under ORS 132.580(1) and ORS 132.320(2), and that ORS 132.580(1) requires their names to be listed.
ORS 132.580 provides:
Subsection (1) requires only two things to be endorsed on the foot of the indictment: the names of the witnesses who were examined before the grand jury and the names of persons whose reports were submitted under ORS 132.320(2). 1 Coleman and Grady do not come under either of these categories. They were not persons whose reports were submitted pursuant to ORS 132.320(2), because hospital records are not "reports" as described in ORS 132.320(2). Coleman and Grady also were not witnesses examined before the grand jury. The plain meaning of the phrase "examined before the grand jury" is that the witness appeared and testified in person. The commentary to the proposed 1973 amendment to ORS 132.580 reflects that meaning:
"The witness-name requirement would apply only to witnesses who testified before the grand jury that indicted the defendant." Commentary, Proposed Oregon Criminal Code 50, § 85 (1972).
Because Coleman and Grady did not appear and testify before the grand jury, their names were not required to be listed on the indictment. Consequently, there was no violation of ORS 132.580 and no need to impose sanctions.
The dissent nevertheless urges that the trial court properly excluded the testimony, because the state deliberately sought to avoid the intent of the statute and the remedy provided in ORS 132.580(2) was rendered meaningless.
We disagree with the dissent, because it imposes a common law rule of suppression that goes beyond the mandate of the statute and its expressly provided remedy. ORS 132.580 does not require that evidence presented to a grand jury be listed on the indictment, it only requires that the names of witnesses "examined before the grand jury" and the names of persons "whose reports were received" pursuant to ORS 132.320(2) be included in the indictment. Because the statute expressly limits its scope to those categories, we are not free to amend the statute by requiring evidence or other information to be noted on the foot of the indictment. Royal Aloha Partners v. Real Estate Div., 59 Or.App. 564, 651 P.2d 1350 (1982).
A similar analysis applies to the remedy provided in ORS 132.580(2). See State v. Stout, 305 Or. 34, 749 P.2d 1174 (1988). In Stout, the court held that an indictment cannot be attacked on the ground that the grand jury heard the wrong type of evidence. In that case, the defendant asked that the indictment be dismissed because the witnesses before the grand jury had no personal knowledge of the crime and their testimony recited inadmissible hearsay. The court held that the indictment could not be dismissed on that basis. In essence, the court concluded that it would not go behind the indictment to determine its validity. Any challenge to an indictment would be limited by ORS 135.510, and that statute did not include the remedy of dismissal, because the grand jury had considered inadmissible hearsay evidence.
By parity of reasoning, we cannot go behind an indictment to exclude testimony or other evidence from the trial except as specifically allowed by statute. The only statute allowing such exclusion is ORS 132.580(2), and it restricts exclusion to a witness who was examined before the grand jury and whose name is not endorsed on the indictment. Here, the potential witnesses' statements were disclosed to the grand jury via the hospital records. That may have been inadmissible hearsay, but see OEC 803(6); it was not "witnesses examined before the grand jury." This is no different than the statements of potential witnesses disclosed to the grand jury by the police reports in State v. Stout, supra. The trial court erred in excluding the testimony.
On cross-appeal, defendant contends that the trial court erred when it denied his motion to suppress all of the hospital records. He argues that the state was required to follow the procedures provided in ORCP 55 H 2 when it procured the hospital records for the grand jury proceeding.
The rules of civil procedure only govern civil actions and special proceedings, unless their applicability is otherwise extended by statute or rule. ORCP 1 A. ORS 136.600 makes specific provisions of ORCP applicable to criminal proceedings:
"The provisions of ORS 44.150 and ORCP 39 B. and 55 E. and G. apply in criminal actions, examinations and proceedings."
The state contends that, because ORS 136.600 does not mention ORCP 55 H, the rule does not apply to criminal proceedings. Defendant argues that ORS 41.945 provides a separate statutory basis for applying ORCP 55 H to criminal proceedings:
"ORCP 55 H. appl[ies] in any proceedings in which testimony may be compelled."
Defendant reasons that, because testimony in a grand jury proceeding may be compelled, ORCP 55 H applies to the state's procurement of the hospital records.
We decline to read ORS 41.945 as incorporating ORCP 55 H into criminal proceedings. ORS 136.600 specifically incorporates those provisions of ORCP applicable to criminal proceedings. We interpret the express terms of a statute as reflective of legislative intent to exclude unmentioned terms. Royal Aloha Partners v. Real Estate Div., supra, 59 Or.App. at 568, 651 P.2d 1350. The legislative context of the applicable statutes supports that conclusion. ORS 41.945, ORS 136.600 and ORCP 55 H were amended by the same bill in 1979. Or.Laws 1979, ch. 284, §§ 78, 115 and 35. If the legislature had intended ORCP 55 H to apply to criminal proceedings, it would have included the provision in ORS 136.600. ORCP 55 H does not apply to criminal proceedings.
Alternatively, defendant argues that the state's use of a subpoena instead of a warrant to obtain the hospital records violates Article I, section 9, of the Oregon Constitution. He asserts that ORS 192.525 and ORS 192.530 3 create for the patient a reasonable expectation of privacy in hospital...
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