State v. Pratt

CourtSupreme Court of Oregon
Citation316 Or. 561,853 P.2d 827
PartiesSTATE of Oregon, Respondent, v. Jesse Clarence PRATT, Appellant. CC 86-00328-CR; SC S38102.
Decision Date17 June 1993

[316 Or. 563] Stephen J. Williams, Deputy Public Defender, Salem, argued the cause and filed the briefs for appellant. With him on the briefs were Sally L. Avera, Public Defender, and Diane L. Alessi, Deputy Public Defender, Salem.

Virginia L. Linder, Sol. Gen., and Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause and filed the briefs for respondent. With them on the briefs were Theodore R. Kulongoski, Atty. Gen., and Timothy A. Sylwester, Asst. Atty. Gen., Salem.

Michael D. Schrunk, Multnomah County Dist. Atty., John C. Bradley, Deputy Dist. Atty., and David L. Hattrick, Deputy Dist. Atty., Portland, filed a brief for amicus curiae Michael D. Schrunk, Multnomah County Dist. Atty.

Tom Ryan, Portland, and Hubert Duvall, Jr., Eugene, filed a brief for amicus curiae Oregon Criminal Defense Lawyers Assn.

[316 Or. 564] GILLETTE, Judge.

This criminal case is before this court on automatic and direct review of a judgment of conviction and sentence of death for two counts of aggravated murder. It is the second time that the case has been before us. This court previously reversed defendant's initial conviction and sentence of death and remanded for a new trial. State v. Pratt, 309 Or. 205, 785 P.2d 350 (1990). On retrial, defendant again was convicted on two counts of aggravated murder and sentenced to death. On this second appeal, defendant assigns a total of 20 errors that allegedly occurred during the guilt and penalty phases of the trial. Defendant and the state also have briefed and argued a question of whether the indictment in this case was properly handed down, where fewer than seven grand jurors considered the case and handed down the indictment. We affirm the judgment of conviction and the sentence of death.


Defendant was charged with two counts of aggravated murder in the death of Carrie Love. One count alleged that defendant murdered Love in the course of attempting to rape her; the second count alleged that he murdered her in the course of maiming her. 1

[316 Or. 565] The jury could have found the following facts. See State v. Tucker, 315 Or. 321, 325, 845 P.2d 904 (1993) ("Because the jury found defendant guilty, we view the evidence in the light most favorable to the state."). Defendant owned and operated a trucking company in Seattle. Love, who was one of defendant's employees, agreed to accompany defendant in his truck on a trip to Los Angeles to open a new office. Love was concerned that defendant might make sexual advances toward her during the trip, but she told her boyfriend that, if defendant did make such advances, she would get out of the truck and call her boyfriend.

Defendant and Love left Seattle on June 16, 1986. On June 17, a passerby discovered a sleeping bag and a pillowcase in a ditch beside Highway 97 north of Klamath Falls. The pillowcase contained Love's purse and identification. The passerby turned the items over to the Oregon State Police. The next day, the police found Love's nude body at a truck turnout along Highway 97 south of the location where her purse was found. Love had been stabbed, asphyxiated, and run over by a vehicle.

On June 19, defendant telephoned his office in Seattle while an Oregon State Police officer was present. Defendant told the officer that he was on his way to Phoenix. The Oregon State Police sent a teletype message to police agencies in the western states requesting that defendant be arrested and his truck seized. Later that day, defendant was stopped and arrested by the Arizona Highway Patrol.

Following a jury trial in early 1988, defendant was convicted on both counts of aggravated murder and sentenced to death. On automatic review, this court reversed defendant's conviction and sentence and ordered a new trial, because the guilt phase of the first trial was tainted by prejudicial evidence of a prior crime. State v. Pratt, supra. On [316 Or. 566] retrial, defendant again was convicted on both counts and sentenced to death. This automatic appeal followed.


We discuss first the question raised by the parties concerning the number of grand jurors who indicted defendant. While this case was awaiting oral argument in this court, the Court of Appeals, sitting in banc, decided Goodwin v. State of Oregon, 116 Or.App. 279, 840 P.2d 1372 (1992). In Goodwin, a post-conviction relief case, a six-member majority of the Court of Appeals held that, when a person is indicted for a crime, Article VII (Amended), section 5(2), of the Oregon Constitution, 2 "mandates that seven grand jurors hear and consider all of the evidence presented before a valid indictment can be found." 116 OrApp at 283, 840 P.2d 1372. The majority in Goodwin concluded that, "[b]ecause only six grand jurors heard the evidence in petitioner's case, he was entitled to dismissal of the indictment." Id. at 284, 840 P.2d 1372.

Following the Goodwin decision, the parties in this case discovered that only six grand jurors were in attendance when the grand jury indicted defendant on the two counts of aggravated murder at issue here. 3 Thus, the rationale of the Goodwin

decision--if that decision was correct--would call for dismissal of the indictment in the present case. Consequently, the parties filed a joint motion asking this court to determine that issue. We conclude, however, that we cannot reach the issue in this case, because the issue was not raised in a timely manner

As noted, defendant previously was tried and convicted under the present indictment. This appeal arises out of his conviction following retrial. At no time before the briefing [316 Or. 567] in the present appeal did defendant raise any challenge concerning the qualifications of the grand jury that indicted him. We think that such a challenge now comes much too late.

Procedures for attacking the sufficiency of an indictment are provided in ORS chapter 135. They are: (1) a motion to set aside an indictment, ORS 135.510, and (2) a demurrer, ORS 135.610. With two exceptions concerning a demurrer that are not pertinent to our inquiry in this case, either a motion to set aside an indictment or a demurrer must be filed before trial. See ORS 135.520 (motion to set aside indictment "shall be made and heard at the time of the arraignment or within 10 days thereafter, unless for good cause the court allows additional time"); ORS 135.610 (demurrer "shall be entered either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose").

An assertion that fewer than the requisite number of grand jurors participated in handing down an indictment is specifically identified as a ground for a motion to set aside an indictment. ORS 135.510(1)(a) provides:

"(1) The indictment shall be set aside by the court upon the motion of the defendant in either of the following cases:

"(a) When it is not found, indorsed and presented as prescribed in ORS 132.360, 132.400 to 132.430 and 132.580."

(Emphasis supplied.) ORS 132.360 provides:

"A grand jury may indict or present facts to the court for instruction as provided in ORS 132.370, with the concurrence of five of its members, if at least five jurors voting for indictment or presentment heard all the testimony relating to the person indicted or facts presented."

It is true that the foregoing statutes do not speak to a challenge based on a constitutionally, rather than a statutorily, inadequate number of grand jurors. However, we think that the parallel between the latter kind of contention and the former is so complete that ORS 135.510(1)(a) should be deemed to apply equally to both kinds of challenges. It is obvious that defendant's challenge to the grand jury vote in this case came far later (by many years) than the time in which it had to be brought under ORS 135.510(1)(a) and 135.520. Any right that defendant may have had to have the [316 Or. 568] indictment set aside--and we express no opinion on that question--had to be exercised in a timely manner under those statutes. Defendant's failure to make a timely motion to set aside the indictment precludes this court from considering the grand jury issue further. See ORS 135.520 (if a motion to set aside the indictment is not made within the time required, "the defendant is precluded from afterwards taking the objections to the indictment"). Therefore, we proceed to a review of defendant's appeal on the merits.

Suppression of Evidence

Before trial, defendant moved to suppress all physical evidence and all statements obtained after his arrest in Arizona, on the ground that that arrest was unlawful. The trial court denied the motion, and defendant assigns that ruling as error. Defendant argues that his arrest was unlawful, because the Oregon State Police did not obtain an arrest warrant before defendant was arrested in a public place by the Arizona Highway Patrol, even though

there was sufficient time to do so. Because we decided that question adversely to defendant on his first appeal, we conclude that the trial court committed no error in denying defendant's motion

Before his first trial, defendant sought to suppress the same evidence that is the subject of the present motion. At that time, he argued that his arrest was unlawful because the arresting officer in Arizona lacked a reasonable belief that the Oregon State Police had information sufficient to establish probable cause for the arrest. On review of the trial court's denial of that earlier motion, this court held that the Arizona officer's reliance upon a teletype message requesting defendant's arrest was reasonable. State v. Pratt, supra, 309 Or. at 216-17, 785 P.2d 350. In a footnote, however, the court noted:

"We do not decide whether a warrantless...

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