State v. Kadderly

• Decision Date: 05 September 2001
• Citation: 31 P.3d 1108,176 Or. App. 396
• Parties: STATE of Oregon, Respondent, v. Colleen Lois KADDERLY, Appellant.
• Court: Oregon Court of Appeals

31 P.3d 1108

176 Or. App. 396

STATE of Oregon, Respondent, v. Colleen Lois KADDERLY, Appellant.

970746181; A101010

Court of Appeals of Oregon.

Argued and Submitted May 26, 1999.

Decided September 5, 2001.

Andrew S. Chilton, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, Public Defender.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

Defendant appeals her conviction of one count of prostitution, ORS 167.007, challenging the trial court's denial of her motion to dismiss on vindictive and selective prosecution grounds. The sole issue presented is whether a prosecutor's decision not to bring charges against persons who testify truthfully against other offenders, while charging those who invoke their Fifth Amendment privilege and decline to so cooperate, amounts to vindictive or selective prosecution as to the persons who are charged. We conclude that it does not and, consequently, we affirm.

The relevant facts are not disputed. During a police investigation of certain escort services that were suspected fronts for prostitution, defendant was videotaped while engaging in an alleged act of prostitution at a Portland motel. Sometime later, two Portland police officers served her with a subpoena to appear and testify before a grand jury. The officers told defendant that, although neither she nor the other women who worked for the escort service were the targets of the investigation or the grand jury, she would be expected to testify truthfully about her dealings with the operators of the escort service. To dissuade defendant from testifying falsely, the police warned her that they had a videotape of her engaging in an act of prostitution. The police further told defendant that they would appreciate her cooperation but that they were not promising that she would not be prosecuted if she cooperated and testified before the grand jury. That charging decision, the police advised, would be made by the prosecutor.

Defendant appeared before the grand jury pursuant to the subpoena. When she was asked if she knew one of the operators of the escort service, she refused to answer, citing her Fifth Amendment right not to incriminate herself. She was not asked any additional questions. Later, defendant was indicted for prostitution. Of the employees who worked for the prostitution business and who were subpoenaed to the grand jury, defendant was the only one who refused to testify. She also was the only employee who was indicted for prostitution.

At the hearing on defendant's motion to dismiss, the prosecutor—who had presented witnesses to the grand jury investigating the escort services and who later obtained the indictment against defendant—testified that he would not have pursued the charge against defendant if she had testified truthfully before the grand jury instead of invoking her Fifth Amendment privilege. The prosecutor added that he had no personal animosity toward defendant. His intent was to pursue charges against those whom the state had probable cause to proceed, whose prostitution-related conduct had occurred within the statute of limitations, and who declined to testify truthfully against the organizers of the prostitution ring. The prosecutor explained:

"Those who cooperated, testified candidly, about their knowledge of [the operators of the prostitution ring], they were not charged-in effect, a tradeoff in order to prosecute the perpetrators of a class C felony in an organized criminal operation and not prosecuting those who committed a lesser offense, a class A misdemeanor."

The prosecutor viewed the employees' testimony as "critical" to a successful prosecution of the operators of the prostitution ring because it was "essential in proving the knowing elements" of the charge against those individuals. He thus described witnesses as the "bedrock" of the state's case-in-chief against the operators. The prosecutor did not tell the employees in advance of their grand jury appearance that they would not be prosecuted if they testified truthfully because he feared that the defense would use any such promise to impeach them at trial.

Before trial on defendant's prostitution charge, defendant moved to dismiss the indictment, claiming vindictive prosecution. In argument on the motion, defendant expanded her grounds to include a selective prosecution claim. After an evidentiary hearing, the trial court denied defendant's motion, concluding that she had not shown that the state's decision to prosecute her was "motivated by a discriminatory purpose." Following a stipulated facts trial, defendant was convicted of prostitution.

On appeal, the parties renew the arguments they made below. They do not dispute the facts relating to the prosecutor's reasons for bringing the charge against defendant; they disagree only as to the legal significance of those reasons. Thus, the issue presents us with a question of law for which our review is plenary. See State v. Folsom, 125 Or.App. 29, 32, 865 P.2d 372 (1993),

rev. den. 319 Or. 625, 879 P.2d 1287 (1994). Defendant argues, in essence, that because the prosecutor's explanation of the charging decision was that defendant would not have been prosecuted if she had waived her Fifth Amendment testimonial privilege before the grand jury, the charge necessarily was in response to her assertion of a constitutionally protected right. According to defendant, her prosecution therefore was vindictively motivated and unconstitutionally selective. The state counters by asserting that defendant was not charged due to animosity based on her assertion of her Fifth Amendment privilege; rather, other individuals were given leniency as a reward for their cooperation in prosecuting other offenders. In the state's view, such a motive is neither vindictive nor unconstitutionally selective. As we explain below, we agree with the state.

Defendant's vindictive and selective prosecution claims, as invoked in this case, are predicated on federal constitutional principles.¹ "Vindictive prosecution," which is rooted in the Due Process Clause, is premised on the notion that "[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort[.]" Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Thus, a criminal charge is subject to dismissal if the state brought the charge in retaliation against a person "for exercising a protected statutory or constitutional right." United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). "Selective prosecution" has a different constitutional source but reflects a similar value. Drawing from Equal Protection Clause standards, selective prosecution arises where a defendant demonstrates that others "similarly situated" were treated more favorably and "that the decision whether to prosecute [was] based on `an unjustifiable standard such as race, religion, or other arbitrary classification.'" United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962)). One such "unjustifiable standard" is the prosecution of a particular defendant for having exercised a constitutional right. United States v. Oaks, 527 F.2d 937, 940 (9th Cir.1975),cert. den. 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976); City of Portland v. Bitans, 100 Or.App. 297, 302, 786 P.2d 222 (1990). Thus, in general, "little substantive difference can be detected between selective prosecution and vindictive prosecution." United States v. Wilson, 639 F.2d 500, 502 (9th Cir.1981). The crux of both claims here is that the state was motivated to treat defendant more severely than she would have otherwise been treated—and more severely than others were in fact treated—due to her exercise of a constitutional right.²

Defendant's claim that the prosecutor charged her out of hostility to her assertion of her Fifth Amendment privilege before the grand jury is best understood against the backdrop of the Supreme Court cases on which she relies. In particular, it is helpful to contrast North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), in which the Court determined that the circumstances warranted a presumption of prosecutorial vindictiveness, with Bordenkircher and Goodwin, in which the Court refused to presume vindictiveness from the circumstances and, moreover, found no actual vindictiveness in fact.

Pearce arose after a judge imposed an increased sentence on a defendant who had successfully obtained a new trial on appeal from his first conviction and, in that sense, involved judicial vindictiveness rather than prosecutorial vindictiveness. The Court held that, in the absence of affirmative reasons based upon objective information justifying an increased sentence, no greater sentence could be imposed after a successful appeal, because the enhanced sentence appeared in that circumstance to be imposed solely due to hostility to defendant's exercise of his right of appeal. Pearce, 395 U.S. at 726,89 S.Ct. 2072. In Blackledge, the Court extended Pearce's presumption of vindictiveness to prosecutorial actions that resulted in increased charges after a new trial. There, the defendant originally was charged and convicted of misdemeanor assault. After he exercised his right to appeal and be tried de novo by a superior court, the prosecutor obtained a new indictment charging him with a felony, rather than a misdemeanor, offense. Again, in the absence of a demonstration that the new charge was based on newly discovered information or events, the...