State v. Williams, C79-09-33235
Decision Date | 22 September 1980 |
Docket Number | No. C79-09-33235,C79-09-33235 |
Citation | 48 Or.App. 319,617 P.2d 629 |
Parties | STATE of Oregon, Appellant, v. Charles Autry WILLIAMS, Respondent. ; CA 16610. |
Court | Oregon Court of Appeals |
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Kenneth D. Orcutt, Portland, argued the cause for respondent. On the brief was Richard S. Mannis, Portland.
Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.
The issue in this case and in the companion case of State v. Brown, --- Or.App. ---, 616 P.2d 582 (decided this date) is whether jeopardy has attached and prohibits a retrial when, in defendant's first trial, due to the bailiff's inadvertent error, the jury saw the defendant in handcuffs and the trial court granted the defendant's subsequent motion for mistrial. The trial court in the present case held that jeopardy had attached and dismissed. We reverse. We hold that the bailiff's negligent mistake in this case is not judicial misconduct which precludes a retrial of the defendant. State v. Rathbun, 287 Or. 421, 600 P.2d 392 (1979).
The record made below on the defendant's motion to dismiss is sparse. The only account of the events leading up to the mistrial is contained in the bailiff's statement. The parties stipulated to the admission of the statement which, in pertinent part, reads as follows:
While the bailiff's statement is not entirely clear on this point, the parties agree that the defendant was in handcuffs when he was led past the open door of the jury room. The parties also agree that, following this episode, the defendant moved for a mistrial.
On this appeal, the state does not ask us to examine the propriety of allowing the defendant's motion for mistrial. 1 Rather, the state contends that, while the mistrial was proper, the bailiff's mistake is not such judicial misconduct as to invoke the bar of double jeopardy. We agree.
The statutes concerning double jeopardy do not prohibit the retrial of this defendant.
ORS 131.515 provides in part:
By it own terms, ORS 131.515 is subordinate to ORS 131.525, which provides in part:
Here, it is clear that the trial court terminated the prosecution under the provisions of ORS 131.525(2)(c).
However, the defendant contends and the court below found that a retrial of the defendant is prohibited by the constitutional proscription against double jeopardy. 2 Our analysis of this contention turns upon an examination of and comparison between State v. Rathbun, supra, and this case.
In holding that the bailiff's conduct in Rathbun triggered the bar of double jeopardy, the court concluded that the conduct was akin to judicial misconduct
" ' * * * intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. *...
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