State v. Jones
| Decision Date | 11 July 1977 |
| Citation | 566 P.2d 867,279 Or. 55 |
| Parties | STATE of Oregon, Respondent, v. David Andrew JONES, Petitioner. |
| Court | Oregon Supreme Court |
Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs were Gary D. Babcock, Public Defender and Patrick B. Gilmore, Law Clerk, Salem.
Donald L. Paillette, 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.
Defendant was convicted of the crime of rape. In appealing to the Court of Appeals he contended, among other things, that the trial court erred in denying defendant's motion to suppress a sample of defendant's blood and that the conduct of the prosecuting attorney was such as to deny his right to receive a fair trial. The Court of Appeals affirmed the conviction. 28 Or.App. 131, 558 P.2d 1271 (1977). We granted defendant's petition for review because of our concern whether that court correctly decided those two questions. 1
According to testimony offered by the state, defendant and a companion stopped by the apartment of the complaining witness in Eugene on the afternoon of October 2, 1975, to inquire whether a friend might be there. They were permitted to enter the apartment. Finally, all other persons departed, leaving defendant alone with the complaining witness. She testified that he then raped her and did so after she told him that she was then menstruating. He denied having any intercourse with her.
After the alleged rape was reported a bloody Tampax was found in the room. Laboratory tests established that the blood on the Tampax was major type "A". Blood of the same type was found on the fly of defendant's undershorts after his arrest later that same day.
On November 6, 1975, the deputy district attorney assigned to the case, considering it important to determine whether defendant's blood was of that same type or some other type, obtained an ex parte order from Circuit Judge Beckett authorizing the taking of a sample of defendant's blood. Before that order was executed, however, defendant's attorney requested oral argument. Such a hearing was then set for November 20 before Judge Beckett. The district attorney's office was notified of that hearing date. At that time the trial was set for November 28.
On November 18, however, the deputy district attorney appeared ex parte before District Judge Hodges and obtained a search warrant authorizing the taking of a sample of defendant's blood. At that time Judge Hodges was not informed that a hearing on a motion for an order for the same purpose was then pending before Judge Beckett.
The next day, November 19, four police officers and a registered nurse entered the Lane County Jail and forcibly took a sample of defendant's blood, over his protest and attempted resistance. The blood taken from defendant was type "O".
Defendant then filed a motion to suppress that evidence, supported, among other things, by an affidavit by Judge Hodges that he would not have authorized the search warrant had he been told of the hearing then pending before Judge Beckett. At the hearing on the motion to suppress the deputy district attorney stated that the reason "for pursuing the Search Warrant was simply one of time"; that he then felt that "there was a pressing need * * * to pursue the obtaining of the blood sample promptly," so as not to delay the trial of the case (then set for November 28), and that he considered the search warrant to be an "alternative remedy." No other explanation was offered at that time for not informing Judge Hodges of the hearing then pending before Judge Beckett, from what appears in the record as transmitted to this court.
That motion to suppress, heard before Judge Allen, was denied with the statement that:
We agree with the trial court in its holding to the effect that any misconduct by the deputy district attorney in the securing of the warrant for the taking of a sample of defendant's blood did not violate any constitutional rights of the defendant. As held in State v. Stover, 271 Or. 132, 147 n.10, 531 P.2d 258:
(Emphasis theirs)
The same is true, in our opinion, with respect to the taking of blood samples to determine blood "type," as in this case. The state was entitled to either an order or a warrant for a sample of defendant's blood insofar as defendant's constitutional rights were concerned, as held by a majority of the courts which have considered that question. See Annot., 46 A.L.R.2d 1000, 1013 (1956), and 163 A.L.R. 939, 947 (1946), and cases cited therein.
We do not agree with defendant's contention that the blood sample should be suppressed because it was taken in jail, rather than in a "medical environment," and was taken under circumstances so "brutal," "shocking" and "offensive" so as to come within the rule of Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), in which the police pumped defendant's stomach to retrieve drugs swallowed by him on arrest. In this case the blood sample was taken by a registered nurse and the fact that defendant resisted the taking of the sample, resulting in its being taken by force, is immaterial to the question of the validity of the warrant. Cf. Breithaupt v. Abrams, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
If this were the only error assigned by the defendant, we would not be inclined to reverse the judgment of the conviction. Because, however, we must remand the case for a new trial for other reasons we believe it proper to give further consideration to the problem, not as one involving defendant's constitutional rights, but as a matter of legal ethics and the proper administration of criminal justice.
We believe that the conduct of the deputy district attorney in securing the warrant for the blood sample from a district court without informing that court that a hearing was then pending in circuit court on substantially the same matter was contrary to the standard of legal ethics to which all attorneys should conform, in the absence of some proper explanation which does not appear from the record in this case. Cf. State v. Robinson, 3 Or.App. 200, 208, 473 P.2d 152 (1970). We also believe that when such a breach of legal ethics is called to the attention of the trial court, it has a duty to consider whether contempt proceedings should be brought against such an attorney. 2
For these reasons, we believe that a proper disposition of this question under the circumstances of this case is to suppress the blood sample obtained by the search warrant, but without prejudice to the right of the state to apply for a further order or warrant for another blood sample in preparation for a new trial in this case.
Defendant also charges that "(t)he prosecution's persistent efforts, through statement, inquiry, and innuendo, to blacken defendant's character in the jury's eyes denied him a fair trial."
Upon examination of the record we find that in most instances of such alleged misconduct, objections by defendant were sustained and there were no motions for mistrial. The one remaining incident, however, involved error that, in our opinion, was so prejudicial as to require that defendant's motion for mistrial be granted.
That error involved the attempt by the state to impeach one of its own witnesses, one Becky Mullins, who testified that she lived in an apartment "across" from that of the prosecuting witness; that she saw defendant there during the afternoon of the alleged rape; that she and two other persons were also "there" for a short time, but that she then left and that she later heard a "yell" or a "laugh" from "that area."
On cross-examination Ms. Mullins testified that later that afternoon the prosecuting...
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