State v. Kennedy, No. C-79-12-34399
| Court | Court of Appeals of Oregon |
| Writing for the Court | GILLETTE |
| Citation | 49 Or.App. 415,619 P.2d 948 |
| Parties | STATE of Oregon, Respondent, v. Bruce Alan KENNEDY, Appellant. ; CA 17729. |
| Docket Number | No. C-79-12-34399 |
| Decision Date | 24 November 1980 |
Page 948
v.
Bruce Alan KENNEDY, Appellant.
Decided Nov. 24, 1980.
Donald C. Walker, Portland, argued the cause and filed the brief for appellant.
Page 949
John C. Bradley, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.
Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.
[49 Or.App. 417] GILLETTE, Presiding Judge.
This is a criminal case in which the defendant's sole assignment of error is the trial court's failure to dismiss the case against him based upon a theory of prior jeopardy. We reverse.
Defendant was charged with the theft of an oriental rug. At his first trial, one of the principal witnesses against him was a Mr. Ewaldsen, whose testimony was crucial to the prosecution's case in that it provided proof of both the value and the identity of the rug in question.
On cross-examination, the defense attorney immediately attempted to establish bias on the part of the witness by asking him if he had filed a "complaint" against the defendant with the District Attorney's office in Medford. The witness first denied doing so, but then acknowledged that he had filed a complaint charging the defendant with fraudulent advertising. Without objection by the prosecution, it was further established that the District Attorney's office had taken no formal action as a result of the complaint.
Later, during redirect examination, the prosecutor unsuccessfully attempted to ask the witness why he had filed a complaint against the defendant. The trial judge sustained a series of objections by the defense to this line of inquiry. The objections were not well taken, and the judge's rulings were probably wrong, but that is not the issue before us now. The prosecutor then asked,
"Q: (The Prosecutor): Have you ever done business with the Kennedys?
"A: No I have not.
"Q: Is that because he is a crook?"
A mistrial was immediately granted.
When the case came on for retrial, a second judge declined to grant the defendant's motion for dismissal of the charges on the ground of prior jeopardy. The defendant was then tried and convicted.
The general rule is said to be that the double jeopardy clause does not bar reprosecution, " * * * where circumstances develop...
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State v. Kennedy
...of Appeals because his trial followed a mistrial brought on by what the court described as "flagrant overreaching" by the prosecutor. 49 Or.App. 415, 418, 619 P.2d 948 (1980). After this court denied review, 290 Or. 551 (1981), the state obtained a writ of certiorari from the Supreme Court ......
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People v. Batts, No. S101183.
...subsequent request for a mistrial. (Kennedy, supra, 456 U.S. 667, 669, 102 S.Ct. 2083, 72 L.Ed.2d 416; see also State v. Kennedy (1980) 49 Or.App. 415, 619 P.2d 948, The defendant moved under the Fifth Amendment's double jeopardy clause to bar the state's subsequent attempt to retry him. "A......
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Hagez v. State, No. 902
...the trial in an Oregon court, a "crucial" witness for the State testified as to the value and identity of the rug. State v. Kennedy, 49 Or.App. 415, 619 P.2d 948, 949 (1980), rev'd, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). In an attempt to establish bias on cross-examination, th......
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State v. Jones, No. 1271
...caused by prosecutorial overreaching. The trial court judge found Page 596 that it had not, but the Oregon Court of Appeals reversed. 49 Or.App. 415, 619 P.2d 948. The Supreme Court reversed the Court of Appeals, holding that the issue of prosecutorial intent was quintessentially factual an......
-
State v. Kennedy
...of Appeals because his trial followed a mistrial brought on by what the court described as "flagrant overreaching" by the prosecutor. 49 Or.App. 415, 418, 619 P.2d 948 (1980). After this court denied review, 290 Or. 551 (1981), the state obtained a writ of certiorari from the Supreme Court ......
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People v. Batts, No. S101183.
...subsequent request for a mistrial. (Kennedy, supra, 456 U.S. 667, 669, 102 S.Ct. 2083, 72 L.Ed.2d 416; see also State v. Kennedy (1980) 49 Or.App. 415, 619 P.2d 948, The defendant moved under the Fifth Amendment's double jeopardy clause to bar the state's subsequent attempt to retry him. "A......
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Hagez v. State, No. 902
...the trial in an Oregon court, a "crucial" witness for the State testified as to the value and identity of the rug. State v. Kennedy, 49 Or.App. 415, 619 P.2d 948, 949 (1980), rev'd, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). In an attempt to establish bias on cross-examination, th......
-
State v. Jones, No. 1271
...caused by prosecutorial overreaching. The trial court judge found Page 596 that it had not, but the Oregon Court of Appeals reversed. 49 Or.App. 415, 619 P.2d 948. The Supreme Court reversed the Court of Appeals, holding that the issue of prosecutorial intent was quintessentially factual an......