State v. Harwood

• Decision Date: 21 April 1980
• Docket Number: Nos. 79-5-355,79-6-105,s. 79-5-355
• Citation: 45 Or.App. 931,609 P.2d 1312
• Parties: STATE of Oregon, Respondent, v. Donald Frank HARWOOD, Appellant. to 79-6-108, 79-6-110; CA 15566.
• Court: Oregon Court of Appeals

Page 1312

609 P.2d 1312

45 Or.App. 931

STATE of Oregon, Respondent, v. Donald Frank HARWOOD, Appellant.

Nos. 79-5-355, 79-6-105 to 79-6-108, 79-6-110; CA 15566.

Court of Appeals of Oregon.

Argued and Submitted Feb. 22, 1980.

Decided April 21, 1980.

Timothy P. Alexander, Beaverton, argued the cause for appellant. With him on the brief was Myatt & Bell, Beaverton.

Melinda L. Bruce, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C. J., and THORNTON and CAMPBELL, JJ.

THORNTON, Judge.

Defendant appeals his conviction on five counts of rape in the first degree upon his daughter. He had been charged by two different grand juries with eight counts of rape, two counts of sexual abuse in the second degree and one count of sodomy in the first degree. One rape count was dismissed on the state's motion before trial and defendant was acquitted on the remaining charges.

Defendant assigns as error the following:

1) Failure to suppress evidence seized from defendant's home pursuant to a search warrant predicated on an affidavit which contained allegedly stale information;

2) Failure to dismiss indictments returned by the second grand jury allegedly on the same evidence presented in the first grand jury proceeding without court order as required by ORS 132.430(2);

3) Failure to dismiss indictments returned by the second grand jury because the state had failed to present defendant's allegedly exculpatory testimony given before the first grand jury;

4) Refusal to allow defendant to lay a proper foundation for impeaching the complainant with prior statements made to the grand jury;

5) Permitting expert testimony concerning the reactions of victims in positions similar to complainant's;

6) Refusal to direct a verdict in favor of defendant on one charge where the events, as described by the complainant, allegedly could not have occurred; and

7) Refusal to give jury instructions relating to the credibility of a complainant in a rape case and to the introduction of evidence less satisfactory than that which could have been adduced.

At the outset we wish to indicate that we do not reach defendant's fourth assignment of error inasmuch as it relates exclusively to the sexual abuse charges on which defendant was acquitted. ¹

The Search Warrant

Complainant was first interviewed by police on March 1, 1979. After a 45 minute interview, an affidavit was prepared requesting a warrant to search defendant's home for certain sexual devices allegedly used on complainant within the last six months. The search was conducted on March 5, 1979. The indictments subsequently returned charging sexual abuse in the second degree by means of these devices alleged that the incidents had occurred between September 7, 1977, and June 12, 1978 (complainant's recollection was that the acts had occurred during the school year.)

Defendant filed a motion to suppress the devices seized and a motion to controvert the six month time frame stated in the affidavit. He contends on appeal that, because the time element in the affidavit was incorrect, the reference to time must be stricken and the remaining information in the affidavit is insufficient to establish probable cause that the items sought would be on the premises.

ORS 133.693(5) states that, where information in the affidavit has been controverted,

"(t)he court shall determine whether, under applicable law, any inaccuracy, untruthfulness or lack of good faith requires suppression."

This statute was intended to incorporate case law relating to the procedure for dealing with inaccuracies in the affidavit. State v. Hughes, 20 Or.App. 493, 502 n.1, 532 P.2d 818 (1975).

In State v. McManus, 267 Or. 238, 251, 517 P.2d 250, 256 (1973), our Supreme Court stated the applicable procedure:

"We hold that a statement in an affidavit supporting a warrant must be removed if it is intentionally false. Negligent statements in an affidavit need not be excised, but we require that the entire supporting affidavit be re-examined in light of the controverting statements given at the hearing. Would the magistrate as a reasonable, cautious man have issued the warrant if he had known the correct facts and drawn the correct inferences in arriving at probable cause when he issued the warrant?"

The officer who prepared the affidavit here testified at the hearing that, during the brief initial interview, complainant was very reluctant to discuss any of the incidents and that he had to proceed by means of leading questions which complainant generally answered either yes or no. He admitted at the hearing that the six month time frame was incorrect. It is clear that the trial judge found that the error was not intentional. Therefore, the proper approach is not, as defendant contends, to strike all reference to the time frame but to inquire whether, had the affidavit alleged that the acts occurred between September, 1977, and June, 1978, the affidavit would support issuance of the search warrant. Compare State v. Hughes, supra at 501, 532 P.2d 818 (apparently intentional overstatements of affiant's information required the court to completely disregard those statements); State v. Diaz, 29 Or.App. 523, 525-26, 564 P.2d 1066 (1977).

Assuming that the affidavit had alleged an eighteen month, as opposed to a six month, time frame, we hold that the search warrant would properly have issued. In State v. Vely, 37 Or.App. 235, 586 P.2d 1130 (1978), we held that a warrant was properly issued for a search of defendant's car for condoms and evidence of sexual intercourse alleged to have occurred in the back seat over 90 days earlier. We quoted from State v. Ingram, 251 Or. 324, 327, 445 P.2d 503, 504 (1968):

"No permissible or reasonable time lapse can be specified. Whether the lapse of time is deemed to have been so long that it reasonably cannot be inferred that contraband is present at the premises will depend upon all the circumstances." 37 Or.App. at 238.

In State v. Kirkpatrick, 45 Or.App. 899, 609 P.2d 433 (1980), we held that an affidavit alleging that defendant had shown obscene photographs to two children within the last two years was sufficient, given the nature of the items sought, to justify issuance of a warrant.

In this case, the sexual devices sought were not illegal to possess nor readily consumable. They are not, unlike narcotics, the object of trafficking. Under the circumstances, it was likely that the items would still be in defendant's possession despite the lapse of as much as eighteen months since their alleged use on complainant. They were therefore admissible at trial.

The Grand Jury Proceedings

The evidence presented to the first grand jury on April 17, 1979, was the product of the 45 minutes interview with complainant previously referred to. Defendant also testified. His testimony consisted of a denial of all charges and an explanation why his daughter might fabricate charges against him. Based on the evidence, the grand jury returned two indictments for rape. No action was taken on other alleged rapes. Thereafter, further interviews with complainant and other witnesses were conducted and corroborative evidence gathered which resulted in discovery of further incidents and a more accurate time-frame for the charges made by the first grand jury. This evidence was submitted to the second grand jury on June 7, 1979, which indicted on the other nine charges. Defendant did not testify before this grand jury.

Defendant argues that, under ORS 132.430(2), evidence submitted to the first grand jury could not be submitted to the second without a court order and that his allegedly exculpatory testimony should have been made available to the second grand jury. The trial court found:

"Well, I find that there wasn't any intentional effort on the part of the District Attorney to withhold denials by the defendant, constituted by either his prior testimony in the first Grand Jury or failing to notify him of the second Grand Jury. I don't see anything improper about that, nor do I find anything unethical about it. And there is no evidence that the first Grand Jury found a not true bill on any of the alleged acts on which they acted upon (sic) and returned the indictments at the second Grand Jury. So based on what I see in the record, I overrule the motion for dismissal of the indictments returned * * *." ²

ORS 132.430 states, in pertinent part:

"(1) When a person has been held to answer a criminal charge and the indictment in relation thereto is not found 'a true bill,' it must be indorsed 'not a true bill,' which indorsement must be signed by the foreman and filed with the clerk of the court, in whose office it shall remain a public record. * * *

"(2) When an indictment indorsed 'not a true bill' has been filed with the clerk of the court, the effect thereof is to dismiss the charge; and the same cannot be again submitted to or inquired of by the grand jury unless the court so orders."

We have held that this statute does not apply where a defendant has not been held to answer. State v. Franklin, 21 Or.App. 721, 724, 536 P.2d 538 (1975). Defendant conceded in the memorandum accompanying his motion to dismiss the indictments on this theory that he had not been taken into custody or otherwise held to answer on any charge prior to the second grand jury. Absent such a circumstance, ORS 132.340(1) does not operate. The trial court specifically found that the first grand jury had not voted on indictments other than the ones it returned. We are bound by this finding. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). Where a person has not been held to answer, there is no requirement that a grand jury take specific action with respect to each alleged criminal act considered by it and no basis for presuming the grand jury found charges groundless on which it did not return indictments. T...