Chapter 132
NOTES OF DECISIONS
A
circuit court has no authority to order the wholesale recordation and
preservation of grand jury testimony under either statutory or common law.
State ex rel Johnson v. Roth, 276 Or 883, 557 P2d 230
(1976)
Where
defendant was found in contempt for failure to comply with grand jury subpoena,
circuit court had no authority to examine grand jury testimony or discuss its
content for the sole purpose of determining the sentence to impose. State v.
Applegate, 41 Or App 287, 597 P2d 1290 (1979), Sup Ct review denied
132.010
NOTES OF DECISIONS
Grand
jury selection under temporary law enacted expressly in lieu of ORS 10.030 was
valid. State v. Hutchinson, 169 Or App 264, 9 P3d 722 (2000), Sup Ct review
denied
132.020
NOTES OF DECISIONS
A
grand juror’s knowledge of events under investigation does not require the
constitution of a new grand jury. State v. Ore. City Elks Lodge No. 1189, 17 Or
App 124, 520 P2d 900 (1974), Sup Ct review denied
The
grand jury which indicts can rely only on evidence presented to it. State v.
Ore. City Elks Lodge No. 1189, 17 Or App 124, 520 P2d 900 (1974), Sup Ct review
denied
Requirement
that inquiry or investigation be made entirely by same grand jury does not
prohibit one grand jury from investigating matter into which another grand jury
has initiated investigation. State v. Ore. City Elks Lodge No. 1189, 17 Or App
124, 520 P2d 900 (1974), Sup Ct review denied
132.030
See
annotations under ORS 132.040 in permanent edition.
132.050
NOTES OF DECISIONS
A
grand juror’s knowledge of events under investigation does not require the
constitution of a new grand jury. State v. Ore. City Elks Lodge No. 1189, 17 Or
App 124, 520 P2d 900 (1974), Sup Ct review denied
132.080
NOTES OF DECISIONS
Handwritten
notes kept by clerk of grand jury, pursuant to this section, are not
discoverable. State v. Goldsby, 59 Or App 66, 650 P2d
952 (1982)
132.090
NOTES OF DECISIONS
Where
an order is sought for recordation of testimony before a grand jury, all testimony
of all witnesses must be recorded or none can be recorded. State ex rel Drew v. Steinbock, 286 Or
461, 595 P2d 1234 (1979)
This
section gives court authority to order recordation only on motion made by
district attorney, and trial court erred in granting plaintiffs’ petition for
alternative writ of mandamus requiring recordation of all testimony before
grand jury in matter for which plaintiffs were subpoenaed. State ex rel Woodel v. Wallace, 89 Or App
478, 750 P2d 178 (1988), Sup Ct review denied
132.110
NOTES OF DECISIONS
Permitting
grand jury originally composed of seven members to proceed with six or five
members for good cause does not violate Article VII (amended), section 5,
requirement that grand jury have seven members. State v. Conger, 319 Or 484,
878 P2d 1089 (1994)
132.220
NOTES OF DECISIONS
This
section does not provide exclusive means by which testimony from grand jury
proceedings may be produced. State v. Dickerson, 112 Or App 51, 827 P2d 1354
(1992), Sup Ct review denied
132.310
NOTES OF DECISIONS
Grand
jury could not indict defendant for failure to report child abuse, a violation
by explicit statutory terms, as this section authorizes inquiry only into
crimes. State v. Payzant, 32 Or App 371, 574 P2d 677
(1978) Sup Ct review denied
132.320
NOTES OF DECISIONS
ORS
135.510 sets out exclusive statutory grounds for setting aside indictment and,
because those grounds do not include use of hearsay evidence, trial court was
not required to set aside indictment on that ground. State v. Stout, 305 Or 34,
749 P2d 1174 (1988)
LAW REVIEW CITATIONS: 10 WLJ 145 (1974);
19 WLR 347 (1983); 62 OLR 507 (1983)
132.340
NOTES OF DECISIONS
Prosecutor
has authority to subpoena witnesses before grand jury but inquisitorial power
to compel testimony resides in grand jury; attorney-witness before grand jury
who refused to answer question on ground of attorney-client privilege could not
be compelled to testify by prosecutor’s asking court on behalf of grand jury to
order answer to question. State ex rel Frohnmayer v. Sams, 293 Or 385,
648 P2d 364 (1982)
132.400
NOTES OF DECISIONS
Indorsement as true bill does not require that words “true
bill” be handwritten by foreman. State v. Cox, 12 Or App 215, 505 P2d 360
(1973), Sup Ct review denied
132.430
NOTES OF DECISIONS
When
a grand jury indicts for a certain crime based upon a certain set of facts it
does not automatically render a “not true bill” on any greater offense under
which the defendant might have been indicted. State v. Rankin, 21 Or App 721,
536 P2d 538 (1975)
Where
first grand jury returned two rape indictments and did not act on other alleged
rapes, and second grand jury indicted defendant on nine other charges,
dismissal of indictments was not required by this section because defendant had
not been taken into custody or otherwise “held to answer” on any charge prior
to second grand jury. State v. Harwood, 45 Or App 931, 609 P2d 1312 (1980), Sup
Ct review denied
This
section does not control the right of district attorney to file misdemeanor
complaint in district court based on same incident as that giving rise to
felony charge from which “not true bill” was returned. State v. Gonzales, 56 Or
App 17, 641 P2d 42 (1982), Sup Ct review denied
In
exercising discretion to allow or deny resubmission of charges to grand jury,
trial court must determine, after considering averred facts, whether
resubmission is in interest of justice. State v. Stokes, 350 Or 44, 248 P3d 953
(2011)
132.510 to 132.590
LAW REVIEW CITATIONS: 2 EL 230-274 (1971)
132.540
NOTES OF DECISIONS
Indictment
was not void where it could reasonably be determined from its face that the
finding of the indictment occurred between the date of the crime alleged and
the date of filing. State v. Perry, 12 Or App 585, 507 P2d 58 (1973), Sup Ct review
denied
An
indictment in the language of the statute creating the offense is sufficient if
it alleges all the elements of the crime that must be proven for conviction,
but in situations where statutory language is not precise it must be
supplemented so as to leave no doubt as to the exact nature charged. State v.
Cannon, 17 Or App 379, 521 P2d 1326 (1974), Sup Ct review denied
Where
indictment dated November 7, 1977, alleged criminal conduct committed “through”
November 1974, portion of November, 1974, after November 7 was a period within
statute of limitations and therefore indictment was timely. State v. Scott, 48
Or App 623, 617 P2d 681 (1980)
Without
allegation of facts indicating tolling of period of limitation, it cannot be
understood from face of indictment that crime was committed within statute of
limitations and it was, therefore, error to deny demurrer. State v. Livingston,
73 Or App 551, 699 P2d 1131 (1985)
Indictment
containing two dates on which purportedly returned, one inside and one outside
Statute of Limitations, does not satisfy statutory requirement that indictment
show prosecution was commenced within period of limitation. State v. Bovee, 76 Or App 572, 710 P2d 786 (1985), Sup Ct review
denied
Where
proof of previous conviction determines whether offense is felony or
misdemeanor, existence of previous conviction constitutes material element of
crime charged. State v. Reynolds, 183 Or App 245, 51 P3d 684 (2002), Sup Ct review
denied
132.550
See
also annotations under ORS 132.520, 132.530 and 132.540 in permanent
edition.
NOTES OF DECISIONS
A
murder indictment charging failure to provide “adequate sustenance, and medical
and hygienic care” was sufficiently particular. State v. House, 260 Or 138, 489
P2d 381 (1971)
The
names of coparticipants were not necessary to fully
inform the defendant of the crime charged. State v. Nussbaum, 261 Or 87, 491
P2d 1013 (1971)
Since
the word “theft” is a term of art constituting a single offense committed by
the doing of an act that results in the “appropriation” of property of another
with the intent to substantially interfere with the property rights of another
an indictment alleging that the defendant committed “theft” provides adequate
notice of the crime charged. State v. Jim, 13 Or App 201, 508 P2d 462 (1973)
An
indictment for theft by receiving in the first degree was insufficient in
absence of allegation that the stolen property was received by buying it, or
that the stolen property was sold after being received. State v. Dechand, 13 Or App 530, 511 P2d 430 (1973)
An
indictment is merely a formal method of initiating criminal proceedings and
identifying the crime charged. State v. Shadley, 16
Or App 113, 517 P2d 324 (1973)
Trial
courts have little or no discretion to hold indictment insufficient for failure
to include information not constituting essential element of crime charged.
State v. Shadley, 16 Or App 113, 517 P2d 324 (1973)
Where
terms used in indictment are precisely defined in criminal statute, indictment
need not explain terms for defendant to be sufficiently informed of nature of
charge. State v. Cannon, 17 Or App 379, 521 P2d 1326 (1974), Sup Ct review
denied
Indictment
charging second degree burglary pursuant to ORS 164.215, which failed to
specify crime defendant intended to commit when he allegedly unlawfully entered
building, was fatally defective. State v. Sanders, 280 Or 685, 572 P2d 1307
(1977)
Indictment
based on felony murder (ORS 163.115) need not include statement that victim was
not participant in the crime. State v. Reams, 47 Or App 907, 616 P2d 498
(1980), aff’d on other grounds, 292 Or 1, 636
P2d 913 (1981)
Where
indictment for criminal nonsupport (ORS 163.555) identified the crime charged
and the applicable statute and alleged that defendant had failed to support his
minor children and that he had “unlawfully and knowingly” done so and where
defendant needed to look only to the statute to which he was directed to
determine that “unlawfully” meant “without lawful excuse,” the indictment was
sufficient. State v. Mitchell, 61 Or App 127, 655 P2d 632 (1982), Sup Ct. review
denied
Where
two counts of indictment did not designate county in which offense was
committed, court erred in not granting demurrer. State v. Dunn, 99 Or App 519,
783 P2d 29 (1989), Sup Ct review denied
Indictment
need not recite elements of crime to sufficiently identify charged offense.
State v. Montez, 309 Or 564, 789 P2d 1352 (1990)
Where
indictment for racketeering states particular circumstances of enterprise and
of each predicate offense, statutory wording is sufficient statement of nexus
between predicate offenses. State v. Fair, 326 Or 485, 953 P2d 383 (1998)
Whether
indictment substantially conforming to statutory language is subject to demurrer
based on lack of specificity depends on whether discovery is adequate to inform
defendant of specific conduct being alleged. State v. Wright, 167 Or App 297,
999 P2d 1220 (2000), modified 169 Or App 78, 7 P3d 738 (2000), Sup Ct review
denied
Count
may allege venue for offense charged by reference to county designation
contained elsewhere in indictment. State v. Huckins,
176 Or App 276, 31 P3d 485 (2001)
Defendant
may not, on appeal, raise unpreserved challenge to sufficiency of facts stated
in charging instrument. State v. Caldwell, 187 Or App 720, 69 P3d 830 (2003),
Sup Ct review denied
Where
defendant seeks to require state to make indictment more definite and certain,
defendant has means other than demurrer to indictment to satisfy defendant’s
right to know theory, facts and circumstances relied upon by state. State v.
Hale, 335 Or 612, 75 P3d 448 (2003)
COMPLETED CITATIONS: State v. Howard, 6
Or App 230, 486 P2d 1301 (1971), Sup Ct review denied; State v.
Schulman, 6 Or App 81, 485 P2d 1252 (1971), Sup Ct review denied; State
v. Zimmerlee, 261 Or 49, 492 P2d 795 (1972)
132.557
NOTES OF DECISIONS
Where,
in addition to elements of crime, state pleads subcategory fact to enhance
crime for sentencing purposes, defendant cannot collaterally attack jury
verdict regarding fact by challenging imposition of enhanced sentence. State v.
Mihm, 157 Or App 262, 972 P2d 890 (1998), Sup Ct review
denied
132.560
NOTES OF DECISIONS
Charges
may be joined when conduct or acts are concatenated in time, place and
circumstances and the evidence of one charge would be relevant and admissible
without the evidence of the other charges. State v. Darroch,
8 Or App 32, 492 P2d 308 (1971), aff’d264 Or 54, 504 P2d 84; State v. Huennekens, 245 Or 150, 420 P2d 384 (1966); distinguished
in State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973)
Where
a greater offense includes a lesser one, an indictment charging both is not
defective. State v. McCauley, 8 Or App 571, 494 P2d 438 (1972), Sup Ct review
denied
Where
defendant desired to testify on own behalf regarding one case, but wished to
invoke right not to testify in other case, joinder
was prejudicial to defendant. State v. Eusted, 12 Or
App 351, 507 P2d 60 (1973)
Two
or more crimes are part of single transaction when: 1) they are closely linked
in time, place and circumstances; and 2) evidence of some or all of the
elements of one crime would be admissible at trial on other charges because
presentation of the evidence concerning the charges on trial would necessarily
include evidence of some or all of elements of other crimes. State v. Sanchez,
14 Or App 234, 511 P2d 1231 (1973), Sup Ct review denied
If
charges are improperly joined under this section, defendant should demur under
ORS 135.630, move for separate trials, move to withdraw improperly joined
charges from jury or move for mistrial. State v. Sanchez, 14 Or App 234, 511
P2d 1231 (1973), Sup Ct review denied
If
defendant is not prejudiced by misjoinder, his
convictions will not be reversed. State v. Fitzgerald, 267 Or 266, 516 P2d 1280
(1973)
The
indictment was good against a demurrer but the court erred in not requiring the
state to elect when it became apparent that the two offenses were not part of
the same transaction. State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973);
State v. Shields, 280 Or 471, 571 P2d 892 (1977)
Two
charges arise out of the same act or transaction if they are so closely linked
in time, place and circumstance that a complete account of one charge cannot be
related without relating details of the other charge. State v. Fitzgerald, 267
Or 266, 516 P2d 1280 (1973)
Defendant’s
motion for separate trials waived any double jeopardy claim. State v. Browne,
16 Or App 177, 517 P2d 1224 (1974)
A
single act may be an offense against two statutes; and if each statute requires
proof of an additional fact which the other does not, an acquittal, or
conviction, under either statute, does not exempt the defendant from
prosecution and punishment under the other. State v. Macomber,
18 Or App 163, 524 P2d 574 (1974); State v. Ortega, 20 Or App 345, 531 P2d 756
(1975)
Where
two criminal charges may have been improperly joined there is no prejudice if
the trial court sentences the defendant only on the greater charge and vacates
sentence on the lesser charge. State v. Overcross, 18
Or App 300, 525 P2d 176 (1974), Sup Ct review denied
Defense
attorney’s representation to opposing counsel that he would oppose
consolidation waived the right to consolidate. State v. Roach, 19 Or App 148,
526 P2d 1402 (1974)
For
purposes of charging more than one offense in charging instrument, based on
same transaction has same meaning that “same criminal episode” has for barring
separate criminal prosecutions under ORS 131.515. State v. Boyd, 271 Or 558,
533 P2d 795 (1975)
When
an indictment purports to charge theft in the first degree and alleges
sufficient facts to do so, an alternative charge of a lower degree of theft
arising from the same conduct may be properly alleged in the same count. State
v. Stapleton, 27 Or App 389, 556 P2d 156 (1976)
Demurrer
was improperly allowed to indictment which charged conspiracy to commit
burglary in first degree in Count I and “as part of the same act and
transaction alleged in Count I” conspiracy to commit custodial interference in
first degree, because indictment charged two separate and distinct
conspiracies. State v. Mathie, 42 Or App 571, 600 P2d
961 (1979), Sup Ct review denied; 54 Or App 232, 634 P2d 799 (1981), Sup
Ct review denied
In
proceeding against defendant for fraudulent sale of securities, where defendant
first sold securities to couple and later sold to couple’s sons, and sons did
not talk directly to defendant but relied upon defendant’s representations as
related to them by their parents, there was sufficient factual interrelation
among charges in three indictments to support consolidation for trial. State v.
Parrish, 45 Or App 99, 607 P2d 778 (1980)
Where
trial court severs counts in one criminal indictment, there will be separate
trials for separate offenses and judgments in each case are final with notice
of appeal from one not affecting trial court’s jurisdiction over remaining
charges. State v. Smith, 100 Or App 284, 785 P2d 1081 (1990)
Even
though this section has no application to traffic complaints, defendant waived
objection to that application, and court did not err in holding that joinder of five traffic offenses, all major traffic crimes
occurring in same county were of same or similar character. State v. Meyer, 109
Or App 598, 820 P2d 861 (1991), Sup Ct review denied
Denial
of motion for severance is reviewed for abuse of discretion, and in order to
prevail defendant must show substantial prejudice. State v. Meyer, 109 Or App
598, 820 P2d 861 (1991), Sup Ct review denied
Where
defendant committed crime before 1989 amendment to this section but trial took
place after amendment became effective, court was correct in applying amended
version of statute. State v. Hill, 111 Or App 629, 826 P2d 122 (1992)
Trial
court did not abuse its discretion by consolidating three indictments that
charged defendant with sexual conduct with male children brought into defendant’s
home for adoption. State v. Rood, 118 Or App 480, 848 P2d 128 (1993), Sup Ct review
denied
Motion
to consolidate does not require that trial court conduct OEC 403 balancing
analysis. State v. Parker, 119 Or App 105, 849 P2d 1157 (1993), Sup Ct review
denied
Consolidation
of indictments for offenses committed in separate criminal episodes does not
make sentencing for offenses subject to 200/400 percent limitation on
consecutive sentences. State v. Flower, 128 Or App 83, 874 P2d 1359 (1994), Sup
Ct review denied
Trial
court determination whether joinder of offenses in
single trial causes prejudice is subject to appellate review under error of law
standard. State v. Miller, 327 Or 622, 969 P2d 1006 (1998)
Acts
or transactions are connected together or part of common scheme or plan if
interlocking facts create logical relationship between offenses and large area
of overlapping proof. State v. Johnson, 199 Or App 305, 111 P3d 784 (2005), Sup
Ct review denied
LAW REVIEW CITATIONS: 53 OLR 102, 103,
110, 111 (1973); 55 OLR 368-374 (1976); 66 OLR 953 (1987); 70 OLR 112 (1991)
132.580
NOTES OF DECISIONS
When
the first indictment was dismissed and a second found, this section does not
require naming witnesses before the first grand jury. State v. Fennell, 7 Or
App 256, 489 P2d 964 (1971), Sup Ct review denied
Hospital
records are not reports and therefore need not be noted on indictment. State v.
Gonzalez, 120 Or App 249, 852 P2d 851 (1993), Sup Ct review denied