State v. Gortmaker

• Decision Date: 09 February 1983
• Docket Number: No. 119907,No. 119906,No. 119905,119905,119906,119907
• Parties: STATE of Oregon, Respondent, v. Gary D. GORTMAKER, Appellant. ; CA 19226,; CA 19227,; CA 19228. . *
• Court: Oregon Court of Appeals

Page 575

655 P.2d 575

60 Or.App. 723

STATE of Oregon, Respondent, v. Gary D. GORTMAKER, Appellant.

No. 119905; CA 19226, No. 119906; CA 19227, No. 119907; CA 19228.

Court of Appeals of Oregon,

In Banc. ^*

Argued and Submitted Nov. 20, 1981.

Resubmitted In Banc Nov. 3, 1982.

Decided Dec. 15, 1982.

Reconsideration Denied Feb. 9, 1983.

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

William F. Gary, Sol. Gen., Salem, argued the cause for respondent. 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.

WARDEN, Judge.

Defendant appeals his convictions for theft in the first degree, ORS 164.055; tampering with public records, ORS 162.305; unsworn falsification, ORS 162.085; and official misconduct, ORS 162.415. ¹ He contends that the trial court erred in failing to quash the indictment on the ground that the grand jury was selected in violation of Article VII (Amended), Section 5(2) of the Oregon Constitution and in denying his motions for judgment of acquittal on each of the crimes charged.

Defendant was the Marion County District Attorney from 1965 until the time of the trial. On May 27, 1980, a special grand jury was empaneled in the county to investigate allegations of criminal conduct by defendant; it subsequently returned the indictments on which he was tried. The principal issue on appeal concerns the method of selecting the special grand jury, ² which was as follows: In January, 1980, the Marion County Court Administrator summoned 250 persons to serve on the jury panel for both the district and circuit courts for Marion County. Of the 250 persons summoned, between 70 and 95 actually reported. Some did not respond to their summons, and others were excused from duty, either by a circuit or district judge or by court administrative staff without consulting with a judge.

The regular term of jury duty in Marion County is two months, but the term of this jury panel, which was selected in January, was extended through June by order of the court, because of the county's financial difficulties. During this extended term, some of the original 70 to 95 jurors were excused entirely after having served for more than four weeks. See ORS 10.050(3), n. 4, infra. Others were temporarily excused, either by a judge or a member of the court staff, for reasons of personal convenience, such as vacation plans. In addition, staff members were apparently unable to contact some of the original jurors to inform them that their term had been extended, ³ and therefore they were excused.

On May 21, 1980, the court administrator drew by lot the names of ten jurors for the special grand jury that was to investigate defendant from all the jurors then remaining for jury duty and not known to be unavailable for duty commencing May 27. Of these ten jurors, five either could not be reached by the court staff or indicated to the staff that they would be unavailable for duty on May 27. The court administrator accepted the statements of the prospective jurors who indicated that they would be unavailable, without conferring with a judge as to whether they should be excused from service.

On May 22, the court administrator drew the names of four more jurors from all the remaining jurors not known to be unavailable. On May 27, some of the jurors selected on May 21 and 22 did not report for duty. In order to complete the special grand jury, a court secretary selected 17 jurors for a sub-pool, from which two additional jurors were drawn by lot. The 17 were chosen, according to the secretary, because they had regularly attended during the three months that they had already served.

ARTICLE VII, (AMENDED) SECTION 5(2)

In his first assignment, defendant contends that the trial court erred in denying his motion to quash the indictments, because the grand jury was not selected by lot from among all the jurors in attendance as required by Article VII (Amended), Section 5(2) of the Oregon Constitution, which provides:

"A grand jury shall consist of seven jurors chosen by lot from the whole number of jurors in attendance at the court, five of whom must concur to find an indictment." ⁴

In response, the state argues (1) that defendant's motion is barred by ORS 135.510; (2) that Article VII, Section 5(2) does not create a substantive right for individual defendants but rather is only the authority for prosecutors to proceed by grand jury indictment; (3) that technical noncompliance with this constitutional provision is inconsequential when, as here, the defendant cannot show prejudice from the grand jury's selection; and (4) even if the trial court erred, the error is harmless in light of defendant's subsequent conviction.

I

Although the threshold question is whether ORS 135.510 bars the challenge to the indictment, its resolution is interwoven with the underlying nature of Article VII, Section 5(2), i.e., whether that provision creates an individual right, and both questions bear on the same underlying issue: whether an indictment which is returned by a grand jury selected in contravention of Article VII, Section 5(2) is subject to a motion to quash. Because the same precedent and policy considerations determine both questions, we will discuss them together.

The constitution has contained a provision comparable to Article VII, Section 5(2) since 1859. ORS 135.510⁵ provides:

"(1) 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."

A statutory provision comparable to ORS 135.510 has existed since 1864. ⁶ Defendant's ground for challenging the indictment does not come within this statute. For that reason, and in reliance on State v. Bock, 49 Or. 25, 88 P. 318 (1907), the trial court ruled that ORS 135.510 barred defendant's motion, without considering the merits of the challenge. Defendant argues that ORS 135.510 does not apply to constitutional challenges to an indictment. We agree.

In State v. Lawrence, 12 Or. 297, 7 P. 116 (1885), the defendant contended that the grand jury that indicted him was formed in violation of original Article VII, Section 18. See n. 5, supra. The grand jury had been formed pursuant to a statute which provided that the jurors be selected several days prior to the term of court. The statutory predecessor to ORS 135.510, see n. 6, supra, did not authorize a defendant to challenge an indictment on that ground. See State v. Whitney, 7 Or. 386, 388 (1879). The court nevertheless struck down the statute under which the grand jury was selected, because it violated Article VII, Section 18 and further held that the defendant was entitled to have the indictment quashed and his conviction reversed. The court stated:

"With us, so long as the grand-jury system is permitted to remain--not abolished--it 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." 12 Or. at 300, 7 P. 116. (Emphasis supplied.)

Lawrence was limited somewhat by State v. Witt, 33 Or. 594, 55 P. 1053 (1899). In that case, the defendant moved to vacate the judgment, after he had been sentenced, because the pool from which one member of his grand jury had been chosen did not include 12 jurors who had already been empaneled for a case being tried at the same time. The court upheld the conviction, distinguishing Lawrence as follows:

"First, the grand jury which indicted Lawrence was chosen and organized under an unconstitutional and void law; and, second, the objection to the validity of the grand jury was made before plea." 33 Or. at 596-97, 55 P. 1053.

In State v. Bock, supra, the defendant moved to quash the indictment before his plea, because a grand juror had been discharged from duty for a reason not authorized by statute. Without mentioning Lawrence, the court ruled that the predecessor to ORS 135.510 did not authorize a motion to set aside an indictment on that ground, quoting from State v. Whitney, supra, a statement that that statute set out the only grounds to challenge an indictment.

Taken together, these cases indicate that an indictment is subject to a motion to quash on the ground that the grand jury which returned it was not selected in the manner required by Article VII, Section 5(2). ⁷ Such an interpretation continues to Moreover, it becomes even clearer that Article VII, Section 5(2) is designed to safeguard that individual interest when it is viewed in the context of subsections 5(3), (4) and (5). Those subsections provide that a person can be charged in circuit court with a felony only on a grand jury indictment or an information and that an information can serve as the charging instrument only after probable cause that the person named committed a felony is established in a preliminary hearing before a magistrate--unless the person knowingly waives indictment or preliminary hearing. That a prosecutor's alternative method for bringing an accused to trial also provides for an evaluation of the evidence against him by a neutral decision-maker, which can be avoided only with an accused's consent, amply demonstrates that personal protection against an unnecessary trial is a major purpose of this provision. Moreover, even if Section 5(2) were designed to create powers in the prosecutor, as the state argues, the language at issue is clearly a limitation on that power; it is hardly necessary to specifically empower prosecutors to select grand jurors through random, as opposed to non-random, methods.

                make sense.  Whether this

...