State v. HewardState v. Heward
Stacy M. Du Clos, Deputy Public Defender, Oregon Public Defense Commission, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.
BUSHONG, J.
The decision of the Court of Appeals is reversed in part. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings.
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* Appeal from Linn County Circuit Court, Rachel Kittson-MaQatish, Judge. 341 Or App 381 (2025) (nonprecedential memorandum opinion).
In this criminal case, we are asked to decide whether a trial court erred in allowing a district attorney to amend an indictment without presenting the amendment to a grand jury.
The original indictment alleged, among other things, that defendant had committed second-degree robbery on two separate occasions by threatening to use physical force while committing theft, but neither count alleged that he had threatened the immediate use of physical force, as required by statute to charge defendant with second-degree robbery,
We allowed defendant’s petition for review and now reverse. Under
I. BACKGROUND
The facts are mostly procedural and are undisputed. We summarize those facts from the trial court record.
Defendant was charged with two counts of second-degree robbery and other offenses after he took merchandise from two stores—a Fred Meyer store and a Walmart store—without paying and threatened to use physical force against the store employees who confronted him. Under
On the two counts of second-degree robbery at issue here, the indictment alleged that, on two separate occasions, defendant “unlawfully and knowingly, while in the course of committing or attempting to commit theft, and with the intent of overcoming resistance to defendant’s taking of property or retention of the property immediately after the taking, use[d] and threaten[ed] the use of physical force” upon the store employees, and that defendant “represent[ed] by word or conduct that [he] was armed with what purported to be a dangerous or deadly weapon[.]” The indictment did not allege that defendant had threatened the “immediate” use of force during either incident.
On the morning of the first day of trial, the state moved to amend the indictment to add allegations that
“would have explained to [the grand jury] what robbery means and correctly stated the law, which I know to be immediate use of physical force. What they signed, however, did not include that language, and I would submit to the court that it was basically a scrivener’s error, which is something that the court can correct by interlineation.”
The prosecutor argued that the amendment was permissible without returning to the grand jury. She noted, however, that the same grand jury that had indicted defendant was “still sitting” and would be in the courthouse the next day. She indicated that defendant “could be indicted correctly” as quickly as the next day but wondered whether it would be worth it to delay the trial “for such a minor amendment.”
Defendant objected, arguing that the proposed amendment was substantive. The prosecutor responded that if the state had to return to the grand jury to amend the indictment, the state would not present any additional evidence but would be asking the grand jury to add the word “immediate” to the two robbery counts and then sign the amended indictment. The prosecutor further indicated that requiring the state to return to the grand jury on the following day would not be “justice” or “efficiency in the court system” because, “had this been a Wednesday grand jury, [she] would have just done it th[at] morning[.]”
In a colloquy with the court, defense counsel acknowledged that she had received a transcript of the grand jury testimony, but she indicated that the transcript did not include what the prosecutor had said to the grand jury about the robbery charges. The prosecutor responded that the testimony before the grand jury was that “the threats were at the same time that the thefts were occurring,” which made them “an immediate threat.”1 Defense counsel disagreed
At trial, the state relied on evidence that defendant had threatened to use physical force in both incidents, not that he had used physical force. The store employees testified that, on each occasion, when they attempted to stop defendant, he reached into his pocket or waistband for what they thought might be a weapon and that defendant then stated, “Is this worth dying over?” In addressing the threatened use of force element in closing argument, the prosecutor asked, “What is the threat of immediate physical force? It’s the words,” specifically, defendant’s statement, “‘[I]s this worth dying over?’” The prosecutor submitted that threatening the immediate use of physical force “doesn’t get much more obvious” than when someone says, “‘[I]s this worth dying over?’” The prosecutor mentioned that there was “some force” used in the Walmart incident, but stated that in both incidents, the state’s “stronger” argument was based on defendant’s threat.2 In rebuttal closing, the prosecutor focused only on the threats, stating that the reason the loss prevention officers did not pursue defendant “is because he threatened their lives.” The prosecutor concluded that, in both incidents, the efforts at loss prevention stopped “when those threats [were] made” and that the store employees did not “go after [defendant] *** because of those threats. That, folks, is a robbery.”
The jury ultimately convicted defendant of two counts of second-degree robbery and other charges. Defendant appealed, contending that the trial court had
As noted, the Court of Appeals affirmed the convictions, concluding that the amendment was not substantive. We allowed defendant’s petition for review to address whether the original indictment was “defective in form” within the meaning of
II. ANALYSIS
We review a trial court’s ruling that an indictment is “defective in form”—and thus may be amended by the district attorney with the court’s approval, without returning to the grand jury—for legal error. See State v. Wimber, 315 Or 103, 113-15, 843 P2d 424 (1992) (applying without stating standard). Before addressing whether the original indictment in this case was “defective in form,” it is helpful to summarize the role of grand jury indictments, the history of the constitutional grand jury provision, and our prior cases analyzing when an indictment is considered “defective in form” and thus subject to amendment without further consideration by the grand jury. We begin with that overview.
A. Role of a Grand Jury Indictment
A grand jury functions “as an accusatory body [that] serves a crucial role in protecting individual liberties.” State v. Burleson, 342 Or 697, 703, 160 P3d 624 (2007); see also State v. Gortmaker, 295 Or 505, 510-14, 668 P2d 354 (1983) (summarizing historical roots of the grand jury and Oregon’s grand jury system). A grand jury “serves as a brake on the state’s potential abuse of the accusatory process.” Burleson, 342 Or at 703. The grand jury is “an institution in which a group of ordinary citizens must approve of the initiation of the state power to accuse citizens of major crimes.” Id. A grand jury indictment is, in effect, an agreement between “the executive branch [of government], in its prosecutorial function, and the judicial branch, in the form of a grand jury *** before a criminal process may go forward.” Id.
“‘(1) to inform the defendant of the nature of the crime with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the defendant to avail himself of his conviction or acquittal thereof if he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction.’”
Antoine v. Taylor, 368 Or 760, 772, 499 P3d 48 (2021) (quoting State v. Cohen, 289 Or 525, 529, 614 P2d 1156 (1980)). We have described the “constitutional purposes of requiring an indictment by grand jury” in similar terms. Wimber, 315 Or at 115.4
B. History of Constitutional Grand Jury Provision
As adopted in 1857,
“No person shall be charged in any circuit court with the commission of any crime or misdemeanor defined or made punishable by any of the laws of this State, except upon indictment found by a grand jury. Provided, however, that any district attorney may file an amended indictment whenever an indictment has, by a ruling of the court, been held to be defective in form.”
Between 1908 and 1973, the people amended Article VII three more times, but the provision requiring a grand jury indictment for a “crime or misdemeanor” remained unchanged, as did the provision allowing amendments to indictments that are “defective in form.” See Reinke, 354 Or at 108-09 (summarizing that history).
“(3) Except as provided in subsections (4) and (5) of this section,6 a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.
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“(6) An information shall be substantially in the form provided by law for an indictment. The district attorney may file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be defective in form.”
(Emphasis added.) Although the current version of
The 1974 and 1908 versions of the constitutional grand jury requirement do not define the term “defective in form,” but Oregon statutes that were in place when the 1908 version was enacted used substantially similar wording. Pachmayr, 344 Or at 486 (citing The Codes and Statutes of Oregon, title XVIII, ch VIII, §§ 1314, 1315 (Bellinger & Cotton 1901)). As we explained in Pachmayr, those statutes “drew a distinction between the substantive aspects of an indictment that were required to render the indictment sufficient and the formal aspects of an indictment[.]” Id. at 487-88. Under those statutes, “defects in the formal aspects of an indictment were defects that did not prejudice the defendant
The 1891 edition of Black’s Law Dictionary, which was in general use in 1908, “recognized the same distinction” between “form” and “substance,” id., as did the 1897 edition of Bouvier’s Law Dictionary, as we explained in Haji, 366 Or at 404 (citing and discussing 1 Bouvier’s Law Dictionary 528, 831 (1897)).
C. Case Law on Indictments “Defective in Form”
Our case law since the adoption of the 1908 amendment addressed the distinction between indictments that are “defective in form” and those that are defective in substance. As we will explain, we have consistently determined that indictments that do not contain allegations essential to the crime charged, as defined by statute, are defective in substance—not defective in form—and that such a defect may not be corrected by a district attorney amendment.
The first case to consider the district attorney’s authority to amend indictments after the 1908 constitutional amendment—State v. Moyer, 76 Or 396, 398, 149 P 84 (1915)—involved an indictment that alleged that the defendant had set fire to a stable. That indictment was defective because it did not allege that the stable was owned by “another person,” as required by the governing statute. Id. (citing Lord’s Oregon Laws, title XIX, ch. III, § 1932 (1910)). After sustaining the defendant’s demurrer to the indictment, the trial court allowed the district attorney to amend the indictment without returning to the grand jury, and the defendant was convicted. Id. at 396-97. This court reversed, concluding that the indictment could not be amended without returning to the grand jury, because it was not “defective in form.” The court noted “a well-recognized distinction between matters ** * of form and matters that go to the substance of the indictment[.]” Id. at 399. Matters of form, the court explained, are matters “which are not essential to the charge and merely clerical errors, such as where the defendant cannot be misled to his prejudice by the amendment[.]” Id. By contrast, an indictment has a substantive defect “where there is an omission or misstatement which
In the years since Moyer was decided, this court has consistently applied that distinction between defects in form and defects in substance. See Pachmayr, 344 Or at 489 (“Since Moyer, the court has continued to consider the allegations of an indictment that are essential to the charge to be matters of substance”).
In Wimber, 315 Or 103, we adopted a framework for assessing whether an amendment to an indictment that did not contain a defect that was apparent from the face of the indictment was a substantive amendment.8 Under those circumstances, we explained, “[c]onsistent with the holding” in Moyer, the analysis proceeds by asking the following questions:
“(1) Did the amendment alter the essential nature of the indictment against defendant, alter the availability to him of defenses or evidence, or add a theory, element, or crime? ***
“(2) Did the amendment prejudice defendant’s right to notice of the charges against him and to protection against double jeopardy? * * *
“(3) Was the amendment itself sufficiently definite and certain? ** *
“[And, if] the amendment deleted allegations, we ask one additional question[:]
“(4) Did the remaining allegations in the indictment state the essential elements of the offenses? ***”
Our decision in Pachmayr confirmed that the Wimber analysis applies only when the defect is not “apparent from the face of the indictment,” that is, where an indictment “appear[ed] to be both sufficient and accurate” but where “extrinsic facts” showed it to be insufficient or inaccurate. 344 Or at 489.9 We explained that Wimber had posed four questions that a court should ask in that context, phrased “as questions about the nature of the proposed amendment and not as questions about the indictment itself.” Id. at 490. That focus was “sensible,” we explained, when we were assessing a defect in an indictment that “may not be apparent on the face of that document.” Id. In that situation, a court “must examine the proposed amendment and its effect on the indictment to understand the nature of the defect it seeks to remedy.” Id.
Pachmayr also involved a defect that was not apparent from the face of the indictment. Id. The indictment charged the defendant with two counts of second-degree assault by means of a “dangerous weapon” (Counts 1 and 3), and one count of second-degree assault by means of a “deadly weapon” (Count 2), all arising out of an incident in which the defendant drove over a highway median and collided with another car. For all three counts, the state alleged that the “weapon” was an automobile. The state acknowledged at the close of its case-in-chief that it had not adduced evidence that the car was a deadly weapon as stated in Count 2 of the indictment, but the state moved to amend that count
On appeal, the defendant contended that the trial court erred in allowing the amendment to Count 2, because the definition of a “deadly” weapon focuses on its “design” while the definition of a “dangerous” weapon focuses on how it was used. We disagreed and affirmed the conviction. We noted that, even though Count 2 in the original indictment “did not use the phrase ‘dangerous weapon,’ it contained all of the allegations that were necessary to make out a charge under that theory” because it alleged that the defendant used the car in a way that made it “capable of causing death or serious physical injury”—the definition of a “dangerous weapon” under
“Because the original indictment alleged that defendant used the car under circumstances that rendered it capable of causing injury, it already charged the crime of assault with a dangerous weapon. The amended indictment did not require defendant to defend against any allegations that were not already included in the original indictment.”
Id. (emphasis added).
Finally, we were “satisfied” in Pachmayr that “the grand jury, not the prosecutor, determined the charge to be brought and found the facts on which the charge was based.” Id. at 495. We were not required in that case to “make assumptions” from Counts 1 and 3—which, as noted, had charged the defendant with assault with a dangerous weapon—to determine “what the grand jury ‘actually’ intended to charge” in Count 2—which had charged the
Our most recent case on district attorney amendments to an indictment, State v Haji, 366 Or 384, presented a different question: whether a district attorney may add allegations to an indictment specifying the statutory basis for joinder of multiple offenses without resubmitting the case to the grand jury. We held that “neither the statute permitting joinder of multiple offenses in a single indictment nor
With those principles in mind, we turn to how they apply in this case.
D. Application to This Case
The original indictment alleged that, on two separate occasions, defendant “unlawfully and knowingly, while in the course of committing or attempting to commit theft, and with the intent of overcoming resistance to defendant’s taking of property or retention of the property immediately after the taking, use[d] and threaten[ed] the use of physical force” upon the store employees, and “represent[ed] by word
The defect in the indictment regarding the threatened use of force theory of robbery is apparent from the face of the indictment itself. Indicting defendant based on his threatened use of force while committing a theft does not allege the crime of robbery as defined in the governing statutes. It is not necessary to examine “extrinsic facts” to demonstrate the insufficiency or inaccuracy of the indictment. Pachmayr, Woodson, and Wimber all involved situations where the defect in the indictment “did not appear on the face of the indictment.” Pachmayr, 344 Or at 489.12 Under those circumstances, the court must examine extrinsic facts and consider the Wimber questions about the nature of the proposed amendment and its effect on the indictment to understand the nature of the defect. And we concluded that the original indictments in all three cases were “defective in form” because they already included the facts that were “essential to the charge.”
This case is different. This case involves the failure to include in the original indictment an allegation—that the defendant had threatened the immediate use of force—that is essential to the robbery charges as defined by statute for the prosecution theory that the state presented at trial. By prohibiting the threat of immediate use of physical force, the legislature distinguished robbery from theft by extortion, as we explained in State v. Williams, 374 Or 648, 676-77, 582 P3d 637 (2025).13 Thus, threatening the immediate use of physical force was essential to the robbery charge, and, as we noted in Pachmayr, this court has consistently treated “allegations *** that are essential to the charge to be matters of substance.” 344 Or at 489.
We addressed that type of defect in Moyer, 76 Or 396, which is controlling here. The missing allegation in Moyer—that the stable burned by the defendant was the property
The state argues that the amendment here is an amendment of form because it “does not change the facts found by the grand jury.” We disagree. The “facts found by the grand jury” are the facts set forth in the indictment. Even if we presume that the facts presented to the grand jury suggested that defendant had threatened the immediate use of force, we cannot tell, without speculating, that the grand jury found that defendant had threatened the immediate use of force. See Haji, 366 Or at 409 (stating that “it is essential for a grand jury indictment to include the facts supporting the elements of the crime”); Reinke, 354 Or at 112 (holding that
Finally, the state contends that, even if the defect in the indictment was substantive, the error in allowing the prosecutor to amend the indictment was harmless, requiring this court to affirm the convictions under
In summary, an allegation that defendant threatened the immediate use of physical force was essential to the robbery charges that the state presented at trial. The omission of that allegation made the indictment substantively defective, not defective in form. Allowing the prosecutor to amend the indictment without returning to the grand jury violated
The decision of the Court of Appeals is reversed in part. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings.