State v. Stout

• Decision Date: 02 February 1988
• Citation: 305 Or. 34,749 P.2d 1174
• Parties: STATE of Oregon, Respondent on Review, v. David Joseph STOUT, Petitioner on Review. TC C86-03-31225; CA A42431; SC S34328.
• Court: Oregon Supreme Court

Page 1174

749 P.2d 1174

305 Or. 34

STATE of Oregon, Respondent on Review, v. David Joseph STOUT, Petitioner on Review.

TC C86-03-31225; CA A42431; SC S34328.

Supreme Court of Oregon.

Argued and Submitted Dec. 2, 1987.

Decided Feb. 2, 1988.

John P. Daugirda, Deputy Public Defender, Salem, argued the cause and filed the petition on behalf of the petitioner on review. With him on the petition was Gary D. Babcock, Public Defender, Salem.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause and filed the response on behalf of the respondent on review. With her on the response were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Michael D. Schrunk, Portland, filed an amicus curiae brief on behalf of Oregon District Attys. Ass'n. With him on the brief were David L. Hattrick and Charlene Woods, Deputy Dist. Attys., Portland.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and GILLETTE, JJ.

GILLETTE, Justice.

The issue in this case is whether an indictment must be quashed if it was based, in part, on hearsay evidence. We hold that it need not be quashed.

On March 24, 1986, a Multnomah County grand jury returned an indictment charging defendant with intentional murder, felony murder and robbery. Defendant filed a motion to quash the indictment on the ground that it "was obtained by presenting improper and inadmissible evidence to the grand jury," in violation of ORS 132.320(1), which provides:

"Except as provided in subsections (2) and (3) of this section, in the investigation of a charge for the purpose of indictment, the grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question." ¹

Defendant objected that some of the witnesses who testified before the grand jury had no personal knowledge of the crime and, therefore, their testimony must have been hearsay. Accompanying the motion were copies of police reports based on interviews with these witnesses. The reports tend to substantiate defendant's claim that the indictment was based, in part, on hearsay testimony.

The trial court denied defendant's motion to quash. The state voluntarily dismissed the intentional murder charge before trial. A jury subsequently convicted defendant on the robbery charge and acquitted him of felony murder. Defendant appealed his conviction, arguing that the trial court erred in denying his motion to quash the indictment. The Court of Appeals affirmed from the bench. State v. Stout, 86 Or.App. 755, 740 P.2d 251 (1987). We also affirm.

The arguments in this case focus primarily on the validity of the rule set out in State v. McDonald, 231 Or. 24, 361 P.2d 1001 (1961), cert. den. 370 U.S. 903, 82 S.Ct. 1247, 8 L.Ed.2d 399 (1962). In McDonald, a grand jury returned an indictment against the defendant after hearing hearsay evidence. The state voluntarily dismissed the indictment. After a second proceeding, at which no hearsay evidence was presented, the same grand jury returned a second indictment against the defendant for the same crime. The defendant objected that the admission of hearsay evidence during the first proceeding influenced the grand jury in the second proceeding and, therefore, violated ORS 132.320. This court concluded that ORS 132.320 "is admonitory in character only, not mandatory," 231 Or. at 34, 361 P.2d 1001, and held that "the fact a grand jury may have been prejudiced by hearsay evidence or prejudicial publicity which it ought not to consider is not grounds for dismissing or quashing an indictment." Id. at 35, 361 P.2d 1001.

After McDonald was decided, the legislature enacted OEC 101(4)(b), which provides:

"ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in the following situations:

" * * *

"(b) Proceedings before grand juries, except as required by ORS 132.320."

The unofficial commentary to OEC 101(4)(b) states, in part:

"The Oregon Supreme Court has held that the statute is admonitory only, and the fact that a grand jury may have been prejudiced by hearsay evidence not allowed under the statute is not grounds for dismissing or quashing an indictment. State v. McDonald, 231 Or 24, 361 P2d 1001 (1961). The Legislative Assembly disapproves this case law. It intends that the statute means what it says."

Legislative Commentary to OEC 101, published in Kirkpatrick, Oregon Evidence 4 (1982).

Defendant argues that OEC 101(4)(b) was intended to overrule this court's characterization of ORS 132.320 as "admonitory" in State v. McDonald, supra. The state argues that the commentary to the Oregon Evidence Code is not controlling, because it never was adopted by the legislature and is not an official part of the code. See State v. McClure, 298 Or. 336, 344, 692 P.2d 579 (1984). The state also argues that the commentary to the Proposed Oregon Criminal Procedure Code 42, § 68 (Final Report 1972) endorsed the McDonald court's interpretation of ORS 132.320.

However, we need not consider the effect of OEC 101(4)(b) on State v. McDonald, supra, because another consideration disposes of this case. ORS 135.510 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 [number of jurors required to concur], 132.400 to 132.430 [indorsement of indictment as 'a true bill'; filing and inspection of indictment; prohibition against disclosing any fact concerning an indictment not subject to public inspection; indorsement of indictment as 'not a true bill'] and 132.580 [requiring names of grand jury witnesses to be on indictment].

"(b) When the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment or indorsed thereon.

"(2) Nothing in paragraph (b) of subsection (1) of this section shall affect the application of ORS 132.580."

Although the predecessors to ORS 132.320 and 135.510 both were enacted in 1864, the legislature did not include at that time the use of inadmissible evidence as a ground for setting aside an indictment under ORS 135.510, nor has it since amended the statute to include that ground. ² This court has long held that the grounds listed in ORS 135.510 for setting aside an indictment are exclusive. In State v. Whitney 7 Or. 386 (1879), the defendant filed a motion to set aside the indictment on the ground that an unauthorized person attended the grand jury proceeding and examined some of the witnesses. The trial court denied the motion, and the defendant was convicted. On appeal, this court held:

"Section 115 of the Criminal Code [now ORS 132.320] provides that 'the indictment must be set aside by the court upon the motion of the defendant in either of the following cases:--

" '1. When it is not found indorsed and presented as prescribed in chapter 7 of this Code.

" '2. When the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment, or indorsed thereon.'

"These, we hold are the only two cases for which an indictment can be set aside; and as the section prohibiting any person, other than the district attorney, from appearing before the grand jury is not in chapter 7, there was no error in the ruling of the court."

7 Or. at 388. At that time, the predecessor to ORS 132.320 (General Laws of Oregon, ch. 6, § 48, p. 449 (Crim Code) (Deady 1845-1864)) was not in chapter 7 (governing "the finding and presentation of the indictment"), but in chapter 6 (defining the powers and duties of the grand jury). Thus, under the rule stated in Whitney, a violation of the predecessor to ORS 132.320 also would not have been a ground for setting aside an indictment.

In State v. Justus, 11 Or. 178, 180, 8 P. 337 (1883), the defendant filed a motion for a new trial on the ground that an unauthorized person had been present in the grand jury proceedings. The court affirmed the defendant's conviction because the objection to the indictment was not made until after the trial, and because no prejudice to the defendant resulted from the "irregularity" in the grand jury proceeding. In dictum, however, the court stated that, notwithstanding State v. Whitney, supra, " 'irregularities in the proceedings before the grand jury * * * may under some circumstances be taken advantage of upon a motion to quash the indictment' ". State v. Justus, supra, 11 Or. at 180, 8 P. 337 (citing 1 Bishop, Criminal Procedure, sections 747, 748, 762).

In State v. Kelliher, 49 Or. 77, 88 P. 867 (1907), the defendant filed a motion to quash the district attorney's information on the grounds, inter alia, "that West [the only witness examined by the district attorney], whose name is indorsed, had no knowledge of the facts upon which the information is based," and that "there was no legal evidence before the district attorney to sustain the charge." The court concluded that the statute defining the circumstances under which a grand jury should find an indictment applied to the district attorney in finding an information. Citing the predecessor to ORS 135.510 (then I Codes and Statutes of Oregon, title XVIII, ch IX, § 1349 (Bellinger and Cotton 1902)), however, the court held:

"The ground of the motion relied on here does not come within the provisions of this section; and in State v. Whitney, 7 Or 386, it was held that these are the only two cases for which an indictment can be set aside. Although, in State v. Justus, 11 Or. 178 (8 Pac 337: 50 Am.Rep. 470), it is intimated, though not decided, that irregularities in proceedings before grand juries, not covered by Chapter VII, may, under some circumstances, be taken advantage of by motion to quash. However, even if the motion will lie to quash an indictment for irregularities in the proceedings before the grand jury or the district attorney, not prescribed by Chapter VII, still such motion cannot be permitted to question the sufficiency of...