State v. King
| Decision Date | 10 April 1987 |
| Citation | 84 Or.App. 165,733 P.2d 472 |
| Parties | STATE of Oregon, Respondent, v. Robert Haden KING, Jr., Appellant. 82-247; CA A34353. |
| Court | Oregon Court of Appeals |
John P. Daugirda, Deputy Public Defender, Salem, argued the cause, for appellant. With him on brief, was Gary D. Babcock, Public Defender, Salem.
Stephen F. Peifer and Terry Ann Leggert, Asst. Attys. Gen., Salem, argued the cause, for respondent. With them on brief, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.
Defendant appeals his conviction for aggravated murder. ORS 163.095. 1 He makes eleven assignments of error, many of which have multiple contentions and arguments. We affirm.
The first indictment in this case was filed in 1982. At that time, defendant was in custody in the State of Washington. Thereafter, he was transferred to Oregon pursuant to the Interstate Agreement on Detainers (IAD), ORS 135.775 et seq.
Defendant first contends that the trial court erred in denying his motion for an order compelling his return to Washington after the first indictment was quashed, and in granting the state's motion to continue to permit resubmission to the grand jury. Defendant moved to quash the indictment on the ground that the grand jury had consisted of only six persons, in violation of his rights under Article VII (amended), section 5, paragraph 2 of the Oregon Constitution 2 and ORS 132.110. 3 Although an indictment had been returned, the prosecutor had excused one grand juror for business reasons. The court concluded that there was not "good cause" for excusing the juror. It quashed the indictment and gave the state 30 days to resubmit the case. The following day, the state moved to continue for 30 days "for good cause * * * to allow the state to resubmit said matter to the grand jury." Defendant then moved for an order compelling his return to Washington. He argued that Oregon had no authority to hold him without Washington's express consent. The court denied his motion, found that there was good cause to allow resubmission and granted the state's motion.
Article V of the IAD provides, in relevant part:
IAD's language permits the receiving state to retain custody and to bring new charges "arising out of the same transaction" as the original charge in the indictment under which the prisoner was transferred. That is precisely what happened here. The trial court did not err in granting the state's motion.
Defendant argues that, because the first indictment was quashed on constitutional grounds, the trial court did not have authority under ORS 135.530 4 to allow resubmission and reindictment. However, in addition to relying on constitutional grounds, defendant's motion to quash also expressly relied on statutory grounds for grand jury membership, i.e., ORS 132.010, ORS 132.020(1) and ORS 132.110(2) and (3). The court's order states, in relevant part:
"THE COURT FINDS that the original indictment herein, having been quashed/set aside, and the Court having given leave to the State to resubmit the case to the Grand Jury, there exists good cause shown that this case be continued for thirty days * * *."
In State v. Lawrence, 12 Or. 297, 300, 7 P. 116 (1885), relied on in State v. Gortmaker, 295 Or. 505, 509, 668 P.2d 354 (1983), the Supreme Court stated that, when a grand jury is not selected as required by law, the indictment is null and void and should be quashed "and the prisoner indicted de novo." Defendant cites no authority, and we are aware of none, which prohibits resubmission after an indictment is quashed. The trial court did not err in denying defendant's motion.
Defendant next contends that the trial court erred in denying his motion to dismiss with prejudice for failing to bring him to trial within IAD's 120-day time llimit. 5 Defendant arrived in Oregon on November 20, 1982. Without a continuance, the 120-day period would have expired on March 20, 1983. On December 1, 1982, the court granted his motion for a psychiatric evaluation. On January 6, 1983, the court ruled that defendant was able to assist in his defense. He entered a not guilty plea, agreed to an additional eight day continuance and to a trial date of March 28. On March 18, he obtained a continuance to April 18. On April 11, the first indictment was quashed. On April 15, the state was granted a 30-day continuance. The trial court found:
On April 18, the second indictment was filed. On April 19, the third indictment was filed. Defendant was arraigned on it on April 19.
Had there been no continuance, defendant should have been brought to trial by March 20, 1983. He consented to 29 days of continuance. The 120-day limit, by then extended to 149 days, could be extended only for a necessary or reasonable continuance for good cause shown in open court and with defendant or his counsel present. See note 5, supra. At the April 15 hearing, the trial court found that the state's motion for a continuance was supported by good cause and granted the motion. Because the state was given 30 days, a trial could have been set as late as May 15. He was not tried until 1984; however, his speedy trial claim only involves the time up to April 19, 1983.
Defendant argues that there is a contradiction in the trial court's rulings because, in dismissing the first indictment, the court found that there was not good cause for excusing one grand juror but, when the state requested a continuance, the court found good cause to continue. We see no contradiction. Although the prosecutor lacked good cause to excuse the juror, it does not follow that, when defendant's motion to quash was made just six days before his speedy trial period would expire, the state lacked good cause to seek a continuance to resubmit the case to the grand jury. The trial court did not err in denying defendant's motion.
Defendant next contends that the trial court erred in denying his motions to quash and to set aside the third indictment because it was obtained without authority from the court. In denying his motion to quash, the court ruled:
In denying his motion to set aside the third indictment, the court ruled:
Defendant relies on ORS 132.430. 6 That statute is inapposite. First, he was not "held to answer" after a preliminary hearing on the second indictment. See ORS 135.185; ORS 135.195; ORS 135.225; see also State v. Harwood, 45 Or.App. 931, 609 P.2d 1312, rev. den., 289 Or. 337 (1980); State v. Rankin, 21 Or.App. 721, 536 P.2d 538 (1975). Second, ORS 132.430 requires that the grand jury have returned "not a true bill." That is not what happened here. When the matter was first resubmitted to the grand jury, it returned the second indictment.
Defendant also relies on Article VII (amended), section 5, paragraph 5, of the Oregon Constitution, which provides:
"The district attorney may file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be defective in form."
See State v. Green, 44 Or.App. 253, 605 P.2d 746 (1980). The state and the grand jury acted with the trial court's permission in returning the third indictment. The record supports the court's finding that the third indictment was not an amended indictment and that the court had given the state permission to obtain the third indictment. The trial court did not err in denying defendant's motions.
Defendant contends that the trial court erred in overruling his demurrer to the third indictment. He argues that ORS 163.095(1)(b), defining aggravated murder, is unconstitutionally vague. He also argues that, because the third indictment does not specify what "things of value" were offered, the indictment is not definite and certain, in violation of ORS 135.630(6), 7 and did not "enable a person of common understanding to know what is intended," as required by ORS 132.550(7). 8
When an indictment lists specifications in the conjunctive form, proof of any specification is sufficient to prove the crime, so long as it is sufficient to establish violation of the statute. It is not necessary to prove each or all of the specifications. State v. Montieth, ...
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