State v. Knowles
| Decision Date | 21 October 1980 |
| Citation | 618 P.2d 1245,289 Or. 813 |
| Parties | STATE of Oregon, Appellant-Respondent, v. Jeffrey B. KNOWLES, Respondent-Petitioner. TC 1136; CA 14735; SC 26735. |
| Court | Oregon Supreme Court |
Mike Kilpatrick, Mount Vernon, argued the cause for respondent-petitioner. With him on the petition and brief were Milo Pope and Kilpatrick & Pope, Mount Vernon.
Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for appellant- respondent. With him on the briefs were James A. Redden, former Atty. Gen., James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before DENECKE, C. J., and HOWELL, LENT, PETERSON and TANZER, JJ.
The issue is whether, under ORS 131.515(2), a conviction on a plea of guilty to unlawful possession of an elk bars a subsequent prosecution of the defendant for unlawfully taking a deer when both animals, freshly killed, had been discovered in plaintiff's possession at the same time and place.
The historical facts are not disputed. On December 3, 1978, an Oregon State Police officer followed signs of activity into a forested area in Harney County and came upon defendant and two companions in a remote area in possession of an elk and a deer. The defendant was leaning over the dead elk, apparently sawing off the horns. A deer lay nearby. Both animals appeared to have been freshly killed and gutted. Within 30 yards of the scene the officer found the place where the elk had been killed and gutted. The officer followed a blood trail left in the snow where the deer had been dragged for about 100 yards but did not follow the trail to its end because he was losing contact with the defendant and his companions. The officer then cited the three for illegal possession of an elk. He did not cite for the deer because he wished to consult with his superior officers on the matter.
The citation 1 ordered defendant to appear on December 5 in the Justice's Court at Burns in Harney County. Pursuant to the request of defendant, however, he and the officer appeared in that court on December 4, and defendant entered a guilty plea to the charge concerning the elk and was ordered to pay a fine.
Approximately a month later the officer "swore out a felony complaint" against defendant on the basis of the taking of the deer. 2 A preliminary hearing was held on this charge in February, 1979, and the defendant was ordered bound over to circuit court. In March, 1979, defendant was charged in circuit court by district attorney's information of a felony for the taking of the deer. Or.Const. Art. VII (Amend.), § 5(5). Upon defendant's motion the circuit court dismissed on the grounds of former jeopardy, and the State appealed. The Court of Appeals reversed, 43 Or.App. 567, 603 P.2d 1211 (1979), on the basis of State v. Hammang, 271 Or. 749, 534 P.2d 501 (1975). We there held that a conviction on a guilty plea to a charge of theft did not bar a subsequent prosecution for murder even if both offenses arose out of the same "transaction" and were triable in the same court and even if the prosecutor knew or reasonably should have known of the facts relevant to the murder at the time of the guilty plea to theft.
We allowed defendant's petition for review, ORS 2.520, 288 Or. 527 (1980), to consider whether our decision in Hammang has present validity under ORS 131.505 and 131.515. 3 Those sections of the code were not applicable to Hammang's prosecution although they were discussed in the various opinions in Hammang.
Some attention to the chronology of that case is necessary to point up the manner in which the various opinions treated the role of the statutes. On June 25, 1973, Hammang stole the gun used on that same day to kill another. The homicide was known to the police immediately. On the following day Hammang admitted to the police that at the time of the killing he had been in the car in which the victim was killed, and Hammang accused one English as the killer. On July 2 English was indicted for murder. On August 6 Hammang was convicted on a plea of guilty of the crime of theft of the gun. On December 11 English was convicted of negligent homicide for the killing. On December 21 Hammang was indicted for murder for the same homicide. The indictment alleged that Hammang had acted jointly with English in the shooting of the victim. Hammang's trial commenced and on March 15, 1974, Hammang moved to dismiss on the ground of former jeopardy. The motion was denied and, upon a jury verdict of guilty, he was sentenced to life imprisonment on March 21, 1974.
Hammang appealed, assigning as sole error the denial of his motion. Of the statutes in question, he cited in his brief only ORS 131.505(4), which defines "criminal episode." The state cited none of those statutes, asserting that they were not applicable because prosecution commenced prior to January 1, 1974. The Court of Appeals stated that the case presented the question whether the two criminal charges "were known or reasonably should have been known to the prosecution within the meaning of the double-jeopardy rule of State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972)." The Court of Appeals affirmed, finding that there was ample evidence to support the trial court's implicit finding that the prosecution neither knew nor should have known of Hammang's participation in the murder at the time he pleaded guilty to theft. State v. Hammang, 19 Or.App. 265, 527 P.2d 137 (1974).
271 Or. at 751, 534 P.2d 501. The majority went on to note that in Brown this court had construed Oregon Constitution, Article I, section 12, 4 as meaning that a second prosecution is for the same offense and is therefore constitutionally barred if the charges arise out of the same transaction and could have been tried in the same court and if the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution. This court further observed that Hammang and the state disagreed as to whether there was the requisite prosecutorial knowledge and whether the theft and murder were part of the same act or transaction.
Having accurately stated the issue as framed by the parties and having stated the purpose of allowing review, the majority proceeded with an opinion which came to grips with neither matter. Rather, the majority distinguished and partly, at least, overruled Brown. The majority discussed the case in terms of the opinion in Brown and held the rule of Brown inapplicable "because the first proceeding resulting in a guilty plea is initiated by the defendant himself and not by the state."
271 Or. at 756, 534 P.2d 501. Having found that the rule of Brown was not applicable to Hammang's case, the majority concluded:
"Since we find that defendant was not entitled to prevail upon his plea of former jeopardy, we need not determine if the theft of the murder weapon and the murder of Syverson constituted a single transaction or whether, if they did, this fact was reasonably known to the prosecutor."
The majority opinion referred to the statutes only to answer the dissenters' argument that ORS 131.505 and 131.515, if applicable, would require reversal of Hammang's conviction. The majority conceded that a "literal" reading of the statutes favors the dissenters' position, but held that a "literal" reading produced what the majority found to be an "absurd" result. The majority could find no legislative intent to produce the result required by applying the words of the legislature actually used and, therefore, refused to hold that Hammang had been "prosecuted for an offense" when he had been charged with theft and that action terminated in his plea of guilty.
In his dissent, Justice McAllister argued that if ORS 131.505 and 131.515 were applicable, their plain words required a finding in Hammang's favor if it were established that both the theft and murder arose out of the same criminal episode and if both offenses were reasonably known to the prosecutor when the first prosecution was commenced. Justice McAllister concluded that the statutes did not work a change in the rule of Brown and, therefore both Brown and the policy expressed by the soon to be operative statutes required reversal.
In his separate dissent, Justice Tongue agreed with the majority that the result produced by a literal application of the statutes was "unreasonable" but, since the language of the statutes was clear and unambiguous, that language should be given effect "even though the result is one which the legislature did not intend." He expressed concern over the policy of a court rejecting the result conceded to flow from the plain words of a statute because that result appears to the court to be unreasonable.
This review of Hammang establishes only that the case is not dispositive of the case at bar, for the discussion in Hammang concerning the statutory law now in effect was nothing but dictum. It remains for the court to determine in the case at bar what effect the statutes have on this case. There is no need to decide this case under either Brown or Hammang, which both predate legislative rules applicable to this case.
The statutes applicable are:
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