State v. Gortmaker

• Decision Date: 20 September 1983
• Citation: 668 P.2d 354,295 Or. 505
• Parties: STATE of Oregon, Respondent on review, v. Gary D. GORTMAKER, Petitioner on review. TC 119905/CA 19226; TC 119906/CA 19227; TC 119907/CA 19228; SC 29266.
• Court: Oregon Supreme Court

Page 354

668 P.2d 354

295 Or. 505

STATE of Oregon, Respondent on review, v. Gary D. GORTMAKER, Petitioner on review.

TC 119905/CA 19226; TC 119906/CA 19227; TC 119907/CA

19228; SC 29266.

Supreme Court of Oregon.

Argued and Submitted May 5, 1983.

Decided Aug. 16, 1983.

Rehearing Denied Sept. 20, 1983.

John R. Faust, Jr., Portland, argued the cause for petitioner on review. With him on the petition and brief was Schwabe, Williamson, Wyatt, Moore & Roberts, Portland

William F. Gary, Sol. Gen., Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Deputy Sol. Gen., and Thomas H. Denney, Asst. Atty. Gen., Salem.

Before LENT, C.J., and LINDE, PETERSON, CAMPBELL and JONES, JJ.

JONES, Justice.

Defendant appeals his conviction for two counts of theft in the first degree and one count of official misconduct. ¹

The sole question upon which we allow review is whether the special grand jury which indicted the defendant was constitutionally selected under Article VII (Amended), Section 5, of the Oregon Constitution. The Court of Appeals held that the grand jury selection procedure violated the Oregon Constitution but the defendant's subsequent "reliable conviction" by a properly selected trial jury negated the constitutional violations and allowed the conviction to stand. We affirm the Court of Appeals decision, but for different reasons.

The defendant argues on constitutional grounds that the trial court erred in failing to quash the indictment on at least one of three grounds: (1) that grand jurors were selected from a petit jury panel in violation of Article VII (Amended), Section 5(1)(b), of the Oregon Constitution, (2) that the Marion County Court Administrator excused prospective grand jurors from the grand jury panel without authority of the court and for reasons not allowed by statute and this resulted in less than random selection, and (3) that because some grand jury members were not selected by lot from among all the jurors in attendance at the court as required by Article VII (Amended), Section 5(2), of the Oregon Constitution.

The state responds that the defendant is prevented from attacking the grand jury selection procedure because of the limitations of ORS 135.510(1), which reads:

"The indictment shall be set aside by the court upon the motion of the defendant in either of the following cases:

(a) When it is not found, indorsed and presented as prescribed in ORS 132.360, 132.400 to 132.430 and 132.580.

(b) When the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment or indorsed thereon."

The state also takes the position that ORS 10.050(1), ² as applied by ORS 132.030, ³ In State v. Carlson, 39 Or. 19, 25, 62 P. 1016, 62 P. 1119 (1900), we held pursuant to the statute:

                further prohibits the defendant's challenge to the procedure utilized for empaneling the grand jury.  If the defendant were simply claiming that the state had violated a statute in the procedure that was utilized for empaneling the grand jury, we would be inclined to agree with the state that these statutes prohibit such a challenge.  For over 100 years such an objection has been in effect a challenge to the panel and not to individual jurors and such a challenge has long been abolished by statute in Oregon.   See, State v. Fitzhugh, 2 Or. 227 (1867); 4  see also State v. Dale, 8 Or. 229 (1880);  State v. Savage, 36 Or. 191, 60 P. 610, 61 P. 1128 (1900).  A predecessor statute 5 was applied in State v. Ju Nun, 53 Or. 1, 97 P. 96, 98 P. 513 (1908), where this court held that specific statutory challenges are the only challenges allowed to a grand jury.  However, we did state "[i]t may be that, if persons were [295 Or. 509] called or summoned as jurors wholly without color of law, an objection on that ground would be available to a litigant, for in such a case the persons so called or summoned would not be a jury either de facto or de jure."  Id. at 5, 97 P. 96, 98 P. 513.   In Ju Nun we followed State v. Dale, supra, where we said if a juror were improperly or illegally drawn or summoned a challenge was available outside the statute.  The Ju Nun court held "[w]here, however, the drawing and summoning is under color of law and semblance of legal authority, and the jurors are accepted and treated by the court as legal jurors, they are at least such de facto;  and it is not open to a litigant to object to their serving in a particular case on the ground that the law under which they were drawn is unconstitutional."  Ju Nun, 53 Or. at 6, 97 P. 96, 98 P. 513
                

" * * * No challenge shall be made or allowed to the panel from which the grand jury is drawn, nor to an individual grand juror, unless when made by the court for want of qualification as prescribed. The statute having thus imposed upon the court the duty of ascertaining the qualifications of grand jurors before accepting them, and prohibited all persons from challenging the panel or any individual grand juror, it remains to be seen whether the statute, in these respects, is violative of any constitutional provision. * * * " (Emphasis supplied; citation omitted.)

In State v. Lawrence, 12 Or. 297, 7 P. 116 (1885), a grand jury was empaneled under the authority of a statute which allowed the jurors to be selected several days prior to the start of the term of the court. Although the statute prohibited a challenge to the indictment on that ground, see State v. Whitney, 7 Or. 386, 388 (1879), we found the statute under which the grand jury was selected violated Article VII (Original), Section 18, quashed the indictment and reversed the defendant's conviction. We held:

" * * * [I]t is the constitutional right of a defendant accused of a crime to demand that the indictment shall be found by a grand jury selected only as provided in the Constitution. * * * " Lawrence, 12 Or. at 300, 7 P. 116.

Review of this court's rulings for over 116 years clearly reveals that if the defendant had restricted his attack to statutory grounds, he would be prohibited from attacking the procedure used in empaneling Since Oregon's grand jury is created in the constitution, we hold the grand jury procedure to constitutional requirements. Article VII (Amended), Section 5, of the Oregon Constitution, mandates the legislative assembly to provide by law for the selection and qualification of grand jurors. Article VII (Amended), Section 5, cannot be read as reserving to the legislature the power to enact statutes which serve to prevent constitutional challenges to grand jury procedures.

the grand jury. However, the [295 Or. 510] defendant has consistently argued that the selection procedure used in empaneling the grand jury which indicted him was in violation of the Oregon Constitution. Notwithstanding this position, the trial court, relying upon ORS 135.510, and the holding of State v. Bock, 49 Or. 25, 88 P. 318 (1907), found that the defendant was prohibited from attacking the grand jury selection procedure on constitutional grounds. The Court of Appeals disagreed and ruled the defendant could make a direct constitutional challenge to the procedure outside the complex maze of statutes, legislative history and court decisions surrounding statutory violations.

The defendant's attack is restricted to a constitutional challenge of the grand jury selection procedure. The defendant makes no claim of actual bias or prejudice of any of the grand jurors selected. Because Oregon's constitution has an express provision, Article VII (Amended), Section 5(1)(b), regarding the selection of grand jurors from a petit jury panel, we begin our discussion by tracing the history of the grand jury and in particular the underlying principles surrounding Article VII (Amended), Section 5(1)(b).

HISTORICAL ROOTS OF THE GRAND JURY

The origin of the grand jury is veiled in obscurity. ⁶ It has never been resolved whether the idea developed from ancient Roman law, ⁷ whether it was a Norman institution introduced into England by William the Conqueror, ⁸ or whether it developed in England out of Anglo-Saxon institutions. ⁹ The earliest recorded juries were employed to investigate and answer inquiries addressed to them by the king:

" * * * The function of the jury of presentment [grand jury] shows that it is the lineal descendant of these juries. It is summoned to discover and present to the king's officials persons suspected of serious crime. It is probable that the regular use of the jury for this purpose in the royal courts dates from the Assize of Clarendon. * * * It made the use of the presenting jury general, both in the courts held by the king's judges and the sheriff's tourns. We have seen that both at the Eyre and the tourn presentments were made by representative juries from the hundred. These juries could present either from their own knowledge or from the information of others, just as at the present day the grand jury may present matters which they themselves have observed, or, as is more usual, may endorse the indictments or accusations made by others.

"We have seen that in the thirteenth century the jury was selected, as directed by the Assize of Clarendon, from the several hundreds. Juries of this kind were needed to answer the detailed enquiries contained in the articles of the Eyre. But, when the general Eyre ceased, when criminal justice had come for the most part to be administered by either the itinerant justices acting under more limited commissions, or by the justices of the peace in quarter sessions, the method of the selection of the grand jury changed. The sheriff was directed to summon for "The presentments made by the grand jury do not and never did amount to an assertion that the person presented is guilty. They are merely an assertion that he is suspected. * * * [I]n the thirteenth and earlier part of the fourteenth century all or some members of the grand jury always...