State v. Hammang

• Decision Date: 24 April 1975
• Parties: STATE of Oregon, Respondent, v. Kevin Thomas HAMMANG, Appellant.
• Court: Oregon Supreme Court

Page 501

534 P.2d 501

271 Or. 749

STATE of Oregon, Respondent, v. Kevin Thomas HAMMANG, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 10, 1975.

Decided April 24, 1975.

John K. Hoover, Deputy Public Defender, Salem, argued the cause for respondent With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

O'CONNELL, Chief Justice.

Defendant was charged with the murder of Clark Syverson. His motion to dismiss the indictment on the ground of double jeopardy was denied and a jury found defendant guilty. The Court of Appeals affirmed the conviction. We granted defendant's petition for review in order to consider what level of prosecutorial knowledge of the possibility of two or more charges growing out of the same act or transaction is sufficient to bar a second prosecution under our ban on double jeopardy as expressed in State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972).

The murder of Syverson was the climax of a feud between two factions in Bend, Oregon. The feud apparently began with what is called the Meadow Camp fracas in early June, 1973. The fracas started out as a beer party at Meadow Camp where a group of people, including Larry Noyes and Richard English, were living. An unwanted guest at the party was a man named Cronen, who apparently began making advances toward the women at the party. Mr. Noyes expressed his disapproval of the conduct to Mr. Cronen and a fist fight broke out which pitted Noyes against Cronen, and later English against Cronen. Mr. Cronen was persuaded to leave the camp. Some minutes later, Cronen returned with two car loads of his friends. The Cronen gang opened fire, wounding one man with a shotgun blast of rock salt. Another man was stabbed in the back with a knife. Everyone scattered and the Cronen bunch thereupon laid waste to the camp, burning Mr. English's tent and its contents and destroying an automobile and various pieces of camp equipment. The Noyes-English faction became both frightened and angry as the result of this incident. Noyes obtained a pistol to defend himself. English unsuccessfully tried to borrow this pistol and attempted to obtain guns elsewhere during the days immediately following the fracas. English, Noyes and the rest of the Meadow Camp group reported the incident to the police who investigated but so far as the record reveals took no action against Cronen or his compatriots.

Defendant entered the scene approximately a week after the fracas. Just previously he had been released from the Navy and came to Bend from California looking for his old friend, Richard English. ¹ He found English and the rest of the Meadow Camp group at Tumalo State Park to which they had moved after the fracas. The two embraced and, discovering the group to be destitute, defendant purchased a keg of beer around which the group told defendant of the fracas, their fear and their anger. According to Mr. Noyes, the defendant seemed upset at what he had heard and stated, 'Well, we'll get them sons-of-bitches one by one.' Defendant denies having made such a statement.

From the time of defendant's arrival in Bend until the day of the killing, he and Mr. English were constant companions. According to Mr. Noyes, English and defendant continued to discuss 'getting back' at the Cronen group and attempted to arm themselves.

Defendant and English spent the morning of June 25, 1973, the day of Syverson's death, drinking. In the afternoon they went to an outdoor store in Bend where defendant broke a display case lock and stole three pistols. He gave one pistol to English, retained one for himself and sold the third to a friend. Defendant and English drove defendant's car to a hardware store where English purchased ammunition with money provided by defendant. They then practiced firing the pistols until approximately four in the afternoon.

During the late afternoon the two went to Drake Park where they met the victim Syverson, who offered to provide them with narcotics. Defendant agreed to purchase a quantity of cocaine from Syverson and the three left the park in defendant's automobile. Witnesses at the park testified that Syverson was very much under the influence of some drug and was barely able to walk and talk.

They went from Drake Park to a grocery where defendant wished to purchase some milk to ease the distress to his stomach caused by the whiskey with which he had begun the day. English and Syverson remained in defendant's car while he entered the store. During his absence, Mr. Noyes happened by and sat with English and Syverson in the car. English showed Mr. Noyes the gun defendant had given him and Noyes brought up the subject of the Cronen gang. Mr. Syverson, who was seated alone in the rear seat of the car, became agitated and began to shout: 'If you mess with us, I dare you to mess with us. And we're not afraid of you.' Mr. English indicated to Syverson the gun in his hand and shouted, 'Don't you see this? Don't you see this?' By this time, according to Noyes, defendant had returned from the store and was standing next to the car saying, 'Don't you see? We've got to shoot the son of bitch. Shoot him.' Mr. Noyes then left the vehicle sensing that there might be trouble in which he wanted no part. He got a few steps inside the store, heard a shot and turned to see defendant's car speed away. He could see Syverson's head tilted back and a bullet hole in the back of the car. Miss Hove, who was in a car parked nearby, also heard the shot and observed the uncomfortable tilt of Syverson's head as the car left. ²

Subsequently, Syverson received a total of three shots, all fired by English. English collided with an oncoming car on Highway 97 south of Bend. Soon after the accident both English and defendant fled from the car. English remained at large until picked up by the police the next morning while walking along the highway not far from the accident.

Defendant, however, returned to the vicinity of the accident after a few moments. He soon began to shout obscenities and tear at his clothes proclaiming that 'he shot my buddy.' The police had to restrain him forcefully to remove him to a hospital for observation.

On June 26, defendant admitted his presence in the car. At first he attributed the killing to a hitchhiker, but soon admitted that English had done it. He also maintained initially that English had stolen the guns, but soon confessed to the crime of theft.

On July 2, English was indicted for the murder of Syverson. On August 6, defendant waived indictment, pleaded guilty, and was convicted of the crime of theft of the guns. On December 11, English was convicted of negligent homicide. On December 21, defendant was indicted for the murder of Syverson acting jointly with English.

In State v. Brown, Supra 262 Or. at 457--458, 497 P.2d at 1198, we held:

'* * * (U)nder Article I, Section 12, of our constitution, a second prosecution is for the 'same offense' and is prohibited if (1) the charges arise out of the same transaction, and (2) the charges could have been tried in the same court, and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution.'

Defendant contends that at the time of his plea and conviction of theft, the prosecutor knew or reasonably should have known of the fact subsequently relied upon to charge him with murder, and that the two offenses are part of the same act or transaction. ³ The state disputes both contentions.

State v. Brown, Supra, did not purport to limit the prosecutor in fragmentizing Charges, even if all the charges arose out of a single transaction. The proscription laid down in Brown was against the multiple Prosecution of charges arising out of one transaction. It follows that even if it is assumed in the present case that the prosecutor had all the information he needed to prosecute defendant on the charge of murder, there was no requirement under the double jeopardy principle of Brown that he take any steps to consolidate the murder charge with the charge of theft. It is only at the moment when the state begins its prosecution that the two charges, if part of one transaction, must be joined to avoid a subsequent double jeopardy defense.

Assuming no unreasonable delay on its part, the state can decide when it wants to proceed with the prosecution of the various charges which constitute one transaction. If the state has all the information it needs to prosecute each of the charges arising out of one transaction, there still is no constitutional requirement that the state proceed forthwith to consolidate the charges and begin the prosecution. And the state's duty to proceed is not enlarged by the circumstance that the defendant unilaterally decides to enter a plea of guilty to one of the charges. Unless the state does more than acquiesce in the entry of the plea of guilty, the state's options as to how it wishes to proceed remain the same. Thus, after the defendant pleads guilty to one of the charges, the state may thereafter prosecute the defendant for the other charges arising out of the same transaction. There is no duty on the part of the state to inform the defendant before he enters his plea of guilty that other charges arising out of the same transaction may be filed.

It is true that a prosecution following a plea of guilty subjects the defendant to two proceedings and two convictions, but the danger of undue harassment seen in State v. Brown is not present because the first proceeding resulting in a guilty plea is initiated by the defendant himself and not by the state. To recognize that defendant could cut off the state's right to prosecute for other crimes growing out of one transaction by his election to plead guilty to one of...