State v. Vasquez-Hernandez

Decision Date17 March 1999
Docket NumberC-20467,VASQUEZ-HERNANDE,R
Citation977 P.2d 400,159 Or.App. 64
PartiesSTATE of Oregon, Appellant, v. Hectorespondent. (94; CA A95499)
CourtOregon Court of Appeals

Janet A. Metcalf, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Diane L. Alessi, Chief Deputy Public Defender, argued the cause for respondent. With her on the brief was Sally L. Avera, Public Defender.



The state appeals the trial court's judgment dismissing this case under ORS 135.755 after the jury had found defendant guilty of attempted aggravated murder and related offenses. The state also challenges the court's previous order granting defendant a new trial. ORS 136.535. We hold that the order granting a new trial is not reviewable on appeal. However, we conclude that the trial court abused its discretion in dismissing the indictment against defendant, and therefore, we reverse.

Defendant was indicted in 1994 for attempted aggravated murder and other related charges arising out of allegations that he had attempted to kill two police officers. After a jury trial, defendant was found guilty on all charges. He subsequently filed a motion to dismiss the indictment under ORS 135.755 and a motion for a new trial. When the trial court granted his motion to dismiss, the state filed a mandamus action with the Supreme Court challenging the dismissal. In that case, State ex rel Penn v. Norblad, 323 Or. 464, 918 P.2d 426 (1996), the Supreme Court directed the defendant judge to vacate the judgment of dismissal, to sentence defendant and to enter judgment on the convictions. 323 Or. at 471, 918 P.2d 426.

In its opinion, the Supreme Court explained:

"Realtor Dale W. Penn, the District Attorney for Marion County, seeks a writ of mandamus to compel defendant, a circuit court judge, to (a) vacate a post-verdict judgment of dismissal in the case of State v. Vasquez-Hernandez, Marion County Circuit Court Case No. 94C-20467; (b) sentence Vasquez-Hernandez; and (c) enter judgment on the convictions obtained in that case. * * *

"In the underlying criminal case, Vasquez-Hernandez was charged with two counts of attempted aggravated murder, two counts of attempted first degree assault, and three counts of unlawful use of a weapon, for aiming a loaded gun at two Salem police officers. A jury convicted him of all seven counts. After the jury returned the verdict, Vasquez-Hernandez filed two motions. The first sought a new trial, and the second moved to dismiss the case on the ground that Vasquez-Hernandez 'did not receive a fair trial and was not afforded due process and it would be in the interest of justice if the matter were dismissed at this time.'

"Defendant judge concluded that the court had 'a duty to [Vasquez-Hernandez] to order a new trial but that instead the court should go further under ORS 135[.755] and dismiss the case in furtherance of justice.' Defendant judge gave two reasons. First, he concluded that he had erred in denying Vasquez-Hernandez's pretrial motion to suppress a statement made to police. Vasquez-Hernandez had argued therein that his arraignment had been delayed improperly and that his statement was the fruit of that unlawful delay. Second, defendant judge concluded that Vasquez-Hernandez had been deprived of a fair trial, because it had not received materials developed by the Salem City Attorney's office during its civil investigation of the incident. After issuing a letter opinion and 'Findings of Fact' describing his reasons, defendant judge entered a judgement of dismissal.

" * * * * *

"As noted, defendant judge purported to act under the authority of ORS 135.755. He likewise asserts to us that the statute authorizes his actions. We therefore must determine whether ORS 135.755 authorizes a court to dismiss a case after the return of a valid jury verdict. * * * Our task is to discern the legislature's intent when it enacted that statute.

" * * * * *

"After examining both text and context, we conclude that ORS 135.755 is a procedural statute that grants authority to trial judges to act pursuant to it only before trial. Defendant judge lacked authority to dismiss State v. Vasquez-Hernandez after receiving a valid jury verdict." 323 Or. at 466-67, 471, 918 P.2d 426. (Footnotes and citations omitted.)

After the writ of mandamus issued, the defendant judge sentenced defendant and entered judgment. Defendant then renewed his motion for a new trial, which the trial court granted. It then ruled sua sponte that, because the case was then in a pretrial posture as a result of its grant of a new trial, it had the authority under ORS 135.755 to dismiss the case. The trial court incorporated by reference its earlier opinion:

"1. This matter was initiated with the shooting of the Defendant by the Salem Police Department. It was uncontroverted that the Defendant was a member of this community in good standing with no significant criminal history. In the past he had a drinking problem but he had gotten married and the Defendant's wife put her foot down and the Defendant had not drank in a year and a half. The drinking that night was not a part of any course of continuing conduct but was a misstep on the part of the Defendant. The Defendant drank with a friend of his in his house, decided to show his friend his guns, further decided to take them outside and fire them in the air. The Salem Police were called by neighbors and when they arrived, the Defendant again came out and fired the gun in the air and lowered the gun to somewhere between 0 and 45 degrees or according to one police officer, pointed the shotgun at him and at that point the Salem Police Officer shot him. The Defendant was placed under arrest and then taken to the Salem Hospital and at the hospital he was placed under guard. He remained at the hospital for approximately two and one half days until he was well enough that the police officers arrived and took a statement from him. Later, believed to be on 29 March 1994, he was taken to the Marion County Jail after recovering somewhat from his wounds and was arraigned on 31 March 1994.

"2. Prior to this arraignment on 31 March 1994, the Defendant had no contact with an attorney or with a Court. During that period of approximately nine days, the Defendant was not informed of the fact that he was arrested or what the charges were, in violation of ORS 133.235. The Defendant was not arraigned within 48 hours of his arrest as required by County of Riverside v. McLaughlin, [500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) ]. The Defendant was not arraigned within 36 hours as required by ORS 135.010. The Defendant was not advised of his right to counsel and since he was indigent, was not provided counsel as required by ORS 135.070. Because there was no preliminary hearing, the Defendant was not given his right to make a statement as required by ORS 135.100. Also because of this, the Defendant was not given a right to provide this statement to the Grand Jury as required by ORS 135.105.

"3. Approximately two and a half days after the arrest, the police officers came to his room and took a statement. By this time, the Defendant should have been arraigned, either under the Oregon Statutes or the Riverside case and advised of and appointed an attorney. Therefore, the statement was inadmissible and this Court should not have allowed its introduction into this trial.

"4. After the appointment of counsel, counsel made requests for discovery on the 4th and 19th of April 1994, 6 May 1994, 26 June 1994 and the 7th and 13th of July 1994. The District Attorney's office provided the Defense Attorney all the information they had, but there was further information that was retained either by the Salem Police Department or by the City Attorney's Office. The City Attorney had a Salem Police Officer, Officer Driscoll, do an investigation which was part of and ran parallel to the other investigation. The officer did this investigation while carrying a gun and a badge and at times was in uniform. During this investigation this officer took certain statements from the Defendant's wife, other people and made a video of the scene. Whatever this officer did, was not released by the City Police or by the City Attorney's office to the District Attorney or to the Defense Attorney. Some of this information was provided to Officer Hayes, the principal officer involved in the shooting, prior to him giving his statement. The City Attorney testified outside the jury that it was his view these matters were covered by attorney/client privilege and that he would not release this information and in fact, to the absolute amazement of the Court, the Assistant City Attorney testified that if he obtained any evidence exculpatory to the Defendant, he would not release this to the District Attorney or the Defendant. The Court finds that ORS 135.815, the disclosure statute, was violated and in turn ORS 135.825, was violated in that information was not provided the Defendant about a search of his house. The Court feels that this must be provided even though consent was granted by his wife.

"5. The Court finds after listening to the testimony that the primary purpose of all of the investigation was to protect the City of Salem from civil suit as opposed to determining the guilt or innocence of the Defendant.

"The two officers that were involved in the shooting, immediately after the shooting, were advised of their Miranda Rights and in fact exercised their rights to an attorney and did not give a statement involving this criminal investigation until two and a half days later after they had talked to an attorney...

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4 cases
  • State v. Garcia
    • United States
    • Oregon Court of Appeals
    • June 8, 2022 under ORS 135.755 involves a court's own motion, or a defense motion, not the state's motion. E.g. , State v. Vasquez-Hernandez , 159 Or. App. 64, 72-75, 977 P.2d 400 (1999), aff'd , 335 Or. 506, 73 P.3d 291 (2003) (the court abused its discretion when it dismissed a criminal case based......
  • Northwest Pump & Equipment Co. v. Stach
    • United States
    • Oregon Court of Appeals
    • May 3, 2000
    ...and that "[a]n abuse of discretion occurs when a court exceeds the rules of law that circumscribe its authority," State v. Vasquez-Hernandez, 159 Or.App. 64, 72, 977 P.2d 400, rev. allowed 329 Or. 447, 994 P.2d 126 While Oregon courts have broad discretion in setting attorney fees, the Supr......
  • Liberty Northwest Ins. Corp. v. Jacobson
    • United States
    • Oregon Court of Appeals
    • November 3, 1999, but is nevertheless not among the purposes that the legislature sought to have served. See, e.g., State v. Vasquez-Hernandez, 159 Or.App. 64, 977 P.2d 400 (1999) (discretion to dismiss charge must be tested against the legislature's purpose in giving a court the authority to take that ......
  • State v. Vasquez-Hernandez, S46714.
    • United States
    • Oregon Supreme Court
    • October 26, 1999
1 books & journal articles
    • United States
    • Oregon State Bar Appeal and Review: The Basics (OSBar) Chapter 2 Appellate Jurisdiction
    • Invalid date
    ...a new trial." ORS 138.060(1)(h). This legislative amendment changed prior practice. See State v. Vasquez-Hernandez, 159 Or App 64, 70, 977 P2d 400 (1999), aff'd, 335 Or 506 (2003) (under prior statute, no right to appeal from new trial order). (9) "An order dismissing an accusatory instrume......

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