State v. Hammang
| Citation | 99 Adv.Sh. 2102,19 Or.App. 265,527 P.2d 137 |
| Parties | STATE of Oregon, Respondent, v. Kevin Thomas HAMMANG, Appellant. |
| Decision Date | 17 December 1974 |
| Court | Oregon Court of Appeals |
John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. 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.
Before SCHWAB, C.J., and LANGTRY and TANZER, JJ.
This is an appeal from a murder conviction. It presents the question of whether two criminal charges were known or reasonably should have been known to the prosecution within the meaning of the double-jeopardy rule of State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972).
About noon on June 25, 1973, defendant and Richard English stole some handguns from a sporting goods store in Bend. About 8 p.m. or 9 p.m. that same day, English used one of the stolen guns to shoot and kill Clark Syverson. Defendant was present at the time of the shooting.
Defendant, English and most other witnesses to the homicide fled from the state of Oregon. However, a few weeks later defendant returned to Bend and purported to cooperate with the police in their investigation of Syverson's death. Defendant then admitted stealing the guns.
On August 3, 1973 defendant waived indictment and plead guilty to first-degree theft of the guns from the sporting goods store. On December 21, 1973 the grand jury indicted defendant for aiding and abetting English in the murder of Syverson. O.R.S. 163.115; O.R.S. 161.155. 1 The day trial began, March 13, 1974, defendant filed a motion to dismiss contending that his former theft prosecution was a bar to the instant murder prosecution. 2 The trial court denied the motion. Trial was had and a jury found defendant guilty of murder. He appeals.
In State v. Brown, supra, the Supreme Court held that:
'* * * (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 act or 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.' 262 Or. at 457--458, 497 P.2d at 1198.
The parties dispute whether the theft and murder charge arose out of the same act or transaction within the meaning of Brown. Although that question is not free from doubt, See, State v. Boyd, Or.App., 527 P.2d 128 (decided this date), we find it unnecessary to resolve it because of our disposition of the other issue presented: whether the prosecutor knew or reasonably should have known of the facts relevant to the murder charge at the time of the theft prosecution.
In State v. Leverich, 14 Or.App. 222, 230, 511 P.2d 1265, 1269, aff'd 99 Or.Adv.Sh. 331, 522 P.2d 1390 (1974), we held that '* * * Brown requires testing the prosecutor's knowledge of the other crimes as of when the first charge goes to trial * * *.' For present purposes, 'goes to trial' means pleads guilty. Thus, our inquiry is directed to whether the prosecution knew or should have known of the facts relevant to the murder charge on August 3, 1973, the date defendant plead guilty to theft.
How is this 'knowledge' question to be resolved? The other two aspects of the Brown formula--same act or transaction and venue--are obviously questions of law. By contrast, the question of knowledge is one of fact. Being a question of fact initially passed upon by the trial court, it follows that the trial court must, if there is any factual dispute, hold an evidentiary hearing to determine the facts. And once the trial court has determined the factual question of prosecutorial knowledge, its finding should be subject to only limited review in this court under the doctrine of Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).
In this case, however, during the argument of defendant's motion to dismiss, both the prosecutor and defense counsel, without being sworn as witnesses, made factual representations to the trial court. This procedure obviously cannot always substitute for a full evidentiary hearing to determine the relevant facts. But since no party in the trial court or on appeal has objected to this procedure, and since there is no conflict in the representations of fact made to the trial court, we proceed to the merits on the record made.
Exactly to what extent must a prosecutor have 'knowledge' of other crimes within the meaning of the Brown rule? Defendant seems to suggest that any knowledge is sufficient to invoke the Brown double-jeopardy bar, pointing out that on August 3, 1973 the prosecution knew that defendant had stolen the gun English used to shoot Syverson, and that defendant was present when English committed that act. We think this misses the mark. We hold 'actual knowledge' within the Brown rule means such that a reasonably prudent prosecutor, given the information he had, should have thought it his duty to charge the additional crime and that a jury verdict of guilty would be more likely than not. We hold 'should have known' within the Brown rule means that a reasonably diligent prosecutor would have acquired actual knowledge as we have defined it.
Applying these standards in this case, there is evidence that the prosecution neither knew nor should have known...
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State v. Knowles
...neither knew nor should have known of Hammang's participation in the murder at the time he pleaded guilty to theft. State v. Hammang, 19 Or.App. 265, 527 P.2d 137 (1974). According to the majority opinion, this court allowed "in order to consider what level of prosecutorial knowledge of the......
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State v. Smith
...A question somewhat similar to the one we have before us was considered by the Oregon Court of Appeals in State v. Hammang, 19 Or.App. 265, 527 P.2d 137 (1974), aff'd 271 Or. 749, 534 P.2d 501 (1975). The Oregon Court of Appeals was considering the rule that a prosecution is prohibited by t......
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State v. Sprague
...the first trial for which defendant was later charged, tried and convicted. 2 This court addressed the same issue in State v. Hammang, 19 Or.App. 265, 527 P.2d 137 (1974), Aff'd, 75 Or.Adv.Sh. 1465, 534 P.2d 501 'How is this 'knowledge' question to be resolved? The other two aspects of the ......
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State v. Matischeck
...to test prosecutorial knowledge was the time when the first charge goes to trial or a guilty plea is entered. In State v. Hammang, Or.App., 99 Adv.Sh. 2102, 527 P.2d 137, Sup.Ct. review allowed (1974), we '* * * (T)he question of knowledge is one of fact. Being a question of fact initially ......