State v. Gray
| Decision Date | 28 July 2022 |
| Docket Number | CC 21CR19107 (SC S068673) |
| Citation | 370 Or. 116,515 P.3d 348 |
| Parties | STATE of Oregon, Plaintiff-Adverse Party, v. Randy GRAY, Defendant-Relator. |
| Court | Oregon Supreme Court |
Rian Peck, Visible Law LLC, Portland, argued the cause and filed the brief for defendant-relator. Also on the brief was Christopher Marin Hamilton, CBMH Law, Portland.
Paul L. Smith, Deputy Solicitor General, Salem, argued the cause and filed the brief for plaintiff-adverse party. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Cassidy Rice, Portland, filed the brief for amici curiae American Civil Liberties Union of Oregon and Oregon Criminal Defense Lawyers Association.
This matter is before us as an original mandamus proceeding. See Or. Const., Art. VII (Amended), § 2. Relator invoked his statutory right to appear before the grand jury that was considering whether to indict him on felony charges. Relator also sought to have his counsel present in the grand jury room during his testimony. After the trial court denied his motion to allow counsel to appear, relator sought mandamus relief from this court. We allowed an alternative writ and now conclude that, on the facts presented here, Article I, section 11, of the Oregon Constitution entitles relator to have his counsel present in the grand jury room during his testimony.
The relevant facts are procedural and undisputed.
Relator is the defendant in the underlying case in Multnomah County Circuit Court. In April 2021, he was charged by district attorney's information with (among other things) the felony of assaulting a public safety officer, ORS 163.208.
A district attorney's information may initiate a felony prosecution. See ORS 131.005(9)(a), (b) (defining "district attorney's information"); Or. Const., Art. VII (Amended), § 5 (4), (5) (). With certain exceptions, however, felony charges can go to trial only on indictment by the grand jury. Or. Const., Art. VII (Amended), § 5 (3) ().
Shortly after the information was filed, relator's defense counsel notified the district attorney that relator intended to appear as a witness before the expected grand jury proceeding. Such an appearance is authorized by ORS 132.320(12)(a), which provides, in part:
"A defendant who has been arraigned on an information alleging a felony charge that is the subject of a grand jury proceeding and who is represented by an attorney has a right to appear before the grand jury as a witness if, prior to the filing of an indictment, the defense attorney serves upon the district attorney written notice requesting the appearance."
In addition to giving notice that relator would exercise his statutory right to appear, relator's counsel later emailed the district attorney, expressing relator's desire to have his counsel present in the grand jury room and asserting that he had a right to the presence of counsel under the Sixth Amendment to the United States Constitution. The district attorney did not agree to counsel being in the grand jury room.
Relator then filed a motion in the trial court for an order allowing counsel to attend. He noted that his right to counsel had already attached. He contended that the Sixth Amendment to the United States Constitution meant that the exercise of his statutory right to testify before the grand jury carried with it a right to have counsel present. A defendant has a right to the presence of counsel at all "critical stages" of a criminal prosecution. See, e.g. , Rothgery v. Gillespie County , 554 U.S. 191, 212 & n 16, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008) (summarizing "critical stages"). Relator's written argument asserted a right to counsel only under the federal constitution; he did not, at that time, assert any claim under state law.
The state objected to the motion on the ground that, by statute, grand jury proceedings are closed to all but certain designated persons, of whom a witness's attorney is not one. See ORS 132.090(1) (). In the state's view, while ORS 132.320(12) allowed relator to testify, it did not provide for relator's counsel to be admitted into the room, and the legislative history showed that the legislature did not expect counsel to be allowed entry. The state contended that relator's constitutional argument was incorrect under State v. Miller , 254 Or. 244, 249, 458 P.2d 1017 (1969) ().
At the hearing, relator made the additional argument that the Oregon Constitution gave him the right to have his counsel present in the grand jury room. He also expanded on his contention about what that right entailed, arguing for the first time that his counsel could not only be present but could take an active role, including objecting to questions and directing relator not to answer questions.
The trial court denied relator's motion, ruling that relator's exercise of his statutory right to appear before the grand jury did not entitle him to have his counsel present in the room with him, but that counsel could wait outside and be available for consultation.
Relator then filed this proceeding, seeking a writ of mandamus directing the trial court to grant his motion. We allowed an alternative writ, and after briefing and argument, the matter is now before us. Relator contends that the trial court erred, and that relator's appearance before the grand jury, though voluntary, is nonetheless a "critical stage" of the prosecution that entitles him to have his counsel present in the grand jury room. The state argues that the legislature, in enacting the statute that gives relator the right to testify, did not create a statutory right to have counsel present, and that relator's exercise of his statutory right to appear does not trigger a constitutional right to have his counsel present in the room with him.
"The origin of the grand jury is veiled in obscurity." State v. Gortmaker , 295 Or. 505, 510, 668 P.2d 354 (1983), cert. den. , 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 (1984) (footnote omitted); see id. at 510-12, 668 P.2d 354 (reviewing available history). The cases agree, however, that the grand jury serves a "high function," not only of bringing to trial those persons justly accused of crimes, but also of safeguarding the citizenry against arbitrary, malicious, or unfounded prosecutions. Id. at 512, 668 P.2d 354 ; see United States v. Mandujano , 425 U.S. 564, 571, 96 S.Ct. 1768, 48 L.Ed.2d 212 .(1976) (describing grand jury as "an integral part of our constitutional heritage" whose "historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance"); State v. Burleson , 342 Or. 697, 703, 160 P.3d 624 (2007) ().
The institution of the grand jury is provided for in the Oregon Constitution, which also gives the legislature authority to enact implementing legislation. See Or. Const., Art. VII (Amended), § 5 (1)(b) ().
The grand jury is composed of seven persons sworn to inquire of crimes committed or triable in the relevant county. Or. Const., Art. VII (Amended), § 5 (2); ORS 132.010. The crimes may be submitted to the grand jury by the district attorney, ORS 132.330, or by a member of the grand jury, ORS 132.350.
In Oregon, a felony may be charged initially by the mechanism of either a grand jury indictment or a district attorney information. See ORS 131.005(9)(b) (). With certain exceptions, however, felony charges in the state can only go to trial on indictment by the grand jury. Or. Const., Art. VII (Amended), § 5 (3) (). The exceptions are where the person waives indictment, id. § 5 (4), or after a preliminary hearing where a magistrate finds probable cause that the person committed a crime punishable as a felony, id. § 5 (5) ().
The grand jury considers whether "all the evidence before it, taken together, is such as in its judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury." ORS 132.390. If the grand jury decides to indict, then it endorses the indictment as a "true bill." ORS 132.400. If the grand jury decides not to indict, then it endorses the indictment as "not a true bill," the effect of which is to dismiss any pending charge against the defendant. ORS 132.430. Five grand jurors must concur to indict a defendant. Or. Const., Art. VII (Amended), § 5 (2); ORS 132.360.
The grand jury hears the testimony of witnesses under oath. See ORS 132.100 (). The testimony is recorded and, in some circumstances, may be used as evidence against the defendant at trial. ORS 132.250(1)(a) (); ORS 132.260(1)(b), (c) (record must include "[t]he name of each witness appearing before the grand jury" and "[e]ach question asked of, and each response provided by, a witness"); ORS 132.270(7)(a) (...
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