State v. Salzmann

• Decision Date: 30 October 1992
• Citation: 119 Or.App. 217,850 P.2d 1122
• Parties: STATE of Oregon, Respondent, v. Peter Joseph SALZMANN, Appellant. C9111-36157; CA A75561. . On appellant's petition for review of an order dated
• Court: Oregon Court of Appeals

Page 1122

850 P.2d 1122

119 Or.App. 217

STATE of Oregon, Respondent, v. Peter Joseph SALZMANN, Appellant.

C9111-36157; CA A75561.

Court of Appeals of Oregon.

On appellant's petition for review of an order dated Oct 30, 1992, dismissing the appeal Decided April 14, 1993.

Laura Graser, Portland, for petitioner.

Before RIGGS, P.J., and DE MUNIZ and DURHAM, JJ.

DE MUNIZ, Judge.

We dismissed defendant's appeal in an order of dismissal. ORAP 7.15(1). Defendant filed a petition for review, which we treat as one for reconsideration. ORAP 9.15(1). We allow reconsideration, modify our previous order and adhere to it as modified. ¹ The issue is whether defendant has a right to a direct interlocutory appeal when a trial court denies a motion to dismiss on the ground of former jeopardy. ² We conclude that he does not and allow the state's motion to dismiss the appeal.

Defendant is charged with rape, kidnapping and robbery. His defense is mistaken identity. During trial, he moved for a mistrial on several occasions, claiming that the prosecutor had engaged in misconduct by withholding relevant and exculpatory discovery. The circuit court denied those motions. The jury was unable to reach a verdict and the court declared a mistrial. Defendant moved to dismiss the charges on the ground of former jeopardy based on the nature of the prosecutor's conduct. See State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983). The court entered an order denying defendant's motion. Defendant appeals from that order. ³

We first analyze the issue under Oregon law. Defendant concedes, and we agree, that no statute gives him the explicit right to an interlocutory appeal from the denial of a motion to dismiss on the ground of former jeopardy. ⁴ However, he draws our attention to the substantive protection of the state constitution's former jeopardy clause. See also ORS 131.505 to ORS 131.535. Article I, section 12 provides in part:

"No person shall be put in jeopardy twice for the same offence [sic ]."

As the Supreme Court recently said:

"The purposes of the constitutional protection are to prevent the state from attempting repeatedly to convict a person for the same offense, thereby subjecting the person to embarrassment, expense, and continuing anxiety, and to give a person the right to have a trial completed by a particular tribunal once trial has begun." State v. Wolfs, 312 Or. 646, 653, 826 P.2d 623 (1992).

Defendant argues that Article I, section 10, of the state constitution gives him the right to an interlocutory appeal when a trial court denies a motion to dismiss on the ground of former jeopardy. Article I, section 10, provides:

"No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."

Defendant contends that the substantive protections of the former jeopardy clause become meaningless unless a defendant has the right to an interlocutory appeal in which trial court error may be corrected before a second trial takes place.

Whatever merit defendant's argument may have in the abstract, we reject it because the issue appears to be foreclosed by the broad holding of State v. Endsley, 214 Or. 537, 331 P.2d 338 (1958). In Endsley, the court rejected the defendant's argument that he had a constitutional right to an appeal under Article VII, section 6; Article VII (amended), section 2 and Article I, section 10. After reviewing those provisions, the court said: "[I]t is not open to doubt that appeal in this state is a statutory privilege and not a constitutional right." 214 Or. at 547, 331 P.2d 338. Moreover, in State v. Haynes, 232 Or. 330, 375 P.2d 550 (1962), the defendant appealed from an order denying a motion to dismiss on the ground of former jeopardy. The Supreme Court, citing Endsley, dismissed the appeal. 232 Or. at 331-332. The Supreme Court has cited Endsley with approval many times, most recently in State v. Carmickle, 307 Or. 1, 6, 762 P.2d 290 (1988). Consequently, we must reject defendant's argument that Article I, section 10, gives him a constitutional right to an interlocutory appeal from an order denying a motion to dismiss on the ground of former jeopardy.

In a related argument, defendant contends that, even if the Oregon Constitution does not give him a right to an interlocutory appeal, "disparities" in the statutory scheme violate Article I, section 20, the Equal Privileges and Immunities Clause. That section provides:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."

Defendant claims that a defendant under the jurisdiction of the district court may challenge the denial of a motion to dismiss on the ground of former jeopardy by petitioning for a writ of mandamus in the circuit court, but that a defendant under the jurisdiction of the circuit court may make such a challenge only by seeking a writ of mandamus directly with the Oregon Supreme Court. ORS 34.120. ⁵

Defendant's argument fails to demonstrate that the statutory scheme has denied him, either individually or as a member of a class to which he belongs, a right to pursue a remedy, while granting that right to others who are similarly situated. See State v. Clark, 291 Or. 231, 630 P.2d 810, cert. den. 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981); City of Klamath Falls v. Winters, 289 Or. 757, 619 P.2d 217 (1980). Moreover, the characteristics of the statutory classification are not, like gender or ethnic background, personal to a defendant so as to make the statutory classification impermissible. Hunter v. State of Oregon, 306 Or. 529, 533, 761 P.2d 502 (1988).

Defendant's argument also fails to persuade us that the Oregon Constitution ⁶ and the statutory scheme lack a rational basis for designating different courts to rule on petitions for writs of mandamus. See Atlantic Richfield Co. v. Greene, 100 Or.App. 16, 19-20, 784 P.2d 442 (1989), rev. den. 309 Or. 698, 790 P.2d 1141 (1990). It is true that a defendant in district court must pass through more layers of review, including review by this court, if a party appeals under ORS 34.240. It is also true that a defendant in circuit court may petition the Supreme Court directly, bypassing this court. ORS 34.120; ORAP 11.05. However, under both schemes and in every case, the Supreme Court remains the final arbiter.

More importantly, the remedy of direct interlocutory appeal, which is the specific right defendant seeks here, is equally unavailable to all defendants, regardless of whether they find themselves under the jurisdiction of the district or circuit court. ORS 138.040; ORS 138.053; State v. Spencer, 88 Or.App. 300, 301, 744 P.2d 1009 (1987).

We turn now to defendant's arguments under federal law. No federal statute gives a defendant the right to an interlocutory appeal in a state criminal proceeding. However, defendant argues that Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), establishes a federal constitutional requirement for interlocutory appeals of denials of motions to dismiss on the ground of former jeopardy that all states must recognize. Although we cited Abney in State ex rel. Wark v. Freerksen, supra n. 5, neither this court nor the Oregon Supreme Court has addressed the issue that defendant presents here.

In Abney, the Court stated that the issue was "whether a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is a final decision within the meaning of 28 U.S.C. § 1291 and thus immediately appealable." 431 U.S. at 653, 97 S.Ct. at 2037. (Footnote omitted.) ⁷ It began its analysis by stating two guiding principles:

"First, it is well settled that there is no constitutional right to an appeal. McKane v. Durston, 153 U.S. 684, 14 SCt 913, 38 LEd 867 (1894). * * * The right of appeal as we presently know it in criminal cases, is purely a creature of statute.

"Second, since appeals of right have been authorized by Congress in criminal cases, as in civil cases, there has been a firm congressional policy against interlocutory or 'piecemeal' appeals and courts have consistently given effect to that policy. Finality of judgment has been required as a predicate for federal appellate jurisdiction." 431 U.S. at 656, 97 S.Ct. at 2038.

The Court applied factors that it identified in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and concluded that a pretrial order denying a motion to dismiss on the ground of former jeopardy fell within Cohen's "collateral-order exception to the final-judgment rule." Abney v. United States, supra, 431 U.S. at 662, 97 S.Ct. at 2041.

One of the Cohen factors is whether the order appealed from involves an important right that would be lost, perhaps irreparably, if review had to await final judgment. In the course of its analysis of that factor, the Court explained the nature of the federal constitution's former jeopardy protection:

"[T]he Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense." Abney v. United States, supra, 431 U.S. at 660-61, 97 S.Ct. at 2041. (Emphasis in original.)

It stated that "the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of former jeopardy claims were postponed until after conviction and sentence." 431 U.S. at 660, 97 S.Ct. at 2040-41. The court said: "We therefore hold that pretrial orders rejecting claims of former jeopardy, such as that presently before us, constitute 'final decisions' and thus satisfy the jurisdictional prerequisites of [28 U.S.C.] § 1291." 431 U.S. at 662, 97 S.Ct. at 2042.

If the source of the right to appeal in Abney...