State v. McCormickState v. McCormick
- Reporters:
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- Before:
- Linde
Lead Opinion
After a preliminary hearing upon a complaint, the District Court for Multnomah County on March 16, 1976, ordered that defendant be held to answer in circuit court to a charge of criminal mischief in the first degree, a Class C felony.
The motion was renewed before trial in the circuit court and again denied. The trial resulted in defendant’s conviction of criminal mischief in the second degree, a Class A misdemeanor under
With respect to defendant’s requested instruction concerning the flight of another potential suspect,1 the Court of Appeals considered and rejected defendant’s argument that he was entitled to such an instruction because the prosecution is entitled to a corresponding instruction on the flight of a defendant. The argument would be
Upon review, we find that the prior decisions do not compel such a conclusiоn. These decisions hold that it is not error to give a flight instruction in a proper case, but this is not the same as holding that the prosecution is entitled to it. Of course, in view of the state’s inability to appeal, the court has had no occasion to decide whether it was error to refuse such an instruction nor even to know whether and how often trial courts decline to give it.
It is clear that no instruction concerning the possible significance of flight is proper when there is insufficient evidence to give rise to any suspicion on that score. See State v. Wilson, 112 Or 373, 142 P2d 680 (1943), in which defendant leaving the scene had said that he could be found at home and was in fact found therе; State v. Bonner, 241 Or 404, 406 P2d 160 (1965), in which the only evidence was one statement that defendant “beat it out of the room.” Moreover, the flight instruction as stated in Bonner, the most recent decision on the point, is as concerned with deterring the jury from making tоo much of the evidence as with drawing it to their attention. The instruction does not speak of any “inference” of guilt to be drawn from flight or concealment but only of a circumstance that may be taken into consideration. It continues:
Such flight or concealment if any, is not of itself sufficient evidence of the defendant’s guilt, but it is only a circumstance to be taken into consideration by the jury, along with all the other circumstances in the case. 241 Or at 406-407.
This caution is consistent with what appears to be the earliest discussion of the matter by this court. In State v. Osborne, 54 Or 289, 103 P 62 (1909), the court wrote that evidence of flight, like evidence of possession of stolen goods in a larceny case, is only a fact to be considered by the juay; it could not, standing alone, be sufficient to warrant conviction. Given this dual function of an instruction on the flight of a defendant, when one is permissible at all, it appears that the same instruction hardly fits the defendant’s propose when a possible suspect other than the defendant has fled the scene of the crime.
We agree with the Count of Appeals that thе debatable significance of flight can in most cases be left to argument by the parties, unless the trial count believes in the particular case that the issue should be clarified for the jury. It was not error to refuse thе instruction requested by defendant.
However, it was error to permit the prosecution to go forward after it should have been dismissed under
When a person has been held to answer for a crime, if an indictment is not found аgainst him within 30 days or the district attorney does not file an information in circuit court within 30 days after the person is held to answer, the court shall order the prosecution to be dismissed, unless good cause to the contrary is shоwn.
The state, and the courts below, cite the decision of this court in State v. Sutton, 223 Or 570, 355 P2d 247 (1960) for this result. At that time, defendants in circuit court were entitled to insist on an indictment, and the predecessor to
State v. Sutton does not help the state in this case. The existence of a valid and outstanding order holding a defendant to answer is immaterial to a grand jury indictment, but it is a constitutional prerequisite to prosecution on a district attorney’s infonnation unless a dеfendant has waived indictment.5 The constitution provides:
The district attorney may charge a person on an information filed in circuit court if, after a preliminary hearing before a magistrate, the person has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it, or if the person knowingly waives preliminary hearing. Or Const am art VII, §5(5).
This provision, adоpted by the people in 1974, for the first time permitted crimes to be prosecuted in circuit court upon a district attorney’s information, without a grand jury indictment or waiver thereof. But the initiation of a prosecution was not left wholly to the sole discretion of district attorneys. The requirement that a magistrate must first have found probable cause to hold a defendant to answer represents the alternative to the older safeguard of requiring a showing of probable cause for an indictment to the grand jury. Thus, unlike the indictment in Sutton, an information that lacks a basis in an outstanding order to hold defendant to answer is indeed void. Where, as in this case, such аn order was once issued, this consequence results not from the constitution as such but from the statute requiring the prosecution to be dismissed after a stated time.
There is no doubt under
Reversed.
Notes
Defendant’s requested instruction would have read:
I instruct you that if you find evidence that a witness in this case was a suspect and that he fled then you may consider that evidence as bearing upon that witness’ consciousness of guilt and you may draw an inference against that witness.
Indeed, the relative positions of the parties are not entirely symmetrical, since the state must prove its case beyond a reasonable doubt, while an inference favorable to a defendant need only be sufficient to raise suсh a doubt. On the other hand, the flight of another person who may be implicated will in many cases show nothing about the guilt or innocence of the defendant.
When a person has been held to answer for a crime, if an indictment is not found against him within 60 days after the person is held to answer, the court shall order the prosecution to be dismissed, unless good cause to the contrary is shown.
The effect of a dismissal under
The court also found that Sutton had waived his right to a dismissal because he filed no motion to dismiss until 16 days after the indictment was found. That motion concerned the indictment, not the earlier order holding him to answer. In the present case, defendant notified the district attorney on the 31st day that he was about to. file his motion to dismiss the prosecutiоn, and the district attorney then filed his information. There is no waiver in losing a race to the clerk’s office.
See Or Const am art VII, §5(4).
Concurrence Opinion
specially concurring.
I concur without reservation in that portion of the opinion of the court with respect to dismissal under
Upon the flight issue I would adopt the holding of the majority of the Court of Appeals but would go even further. The majority held:
“[W]e think the better rule is that suсh instruction should not be given whether with respect to conduct of a defendant or of a witness.” 28 Or App 821, 827, 561 P2d 665 (1977).
I believe that the significance of flight should always be left to argument, whether it be the flight of the defendant, of an in-court witness, оr of anyone else. My belief is based on the same line of reasoning as that of the majority in the Court of Appeals and the cases there cited. See also Lee v. Hoff, 163 Or 374, 97 P2d 715 (1940).
I agree with Chief Judge Schwab, who, dissenting in the Court of Appeals, noted that it was “interesting” that the state questions the propriety of the requested instruction and urges in its brief that the requested instruction “singled out” a particular item of evidence. The state’s contention is interesting, because it so often seeks an instruction on flight or concealment when flight of the defendant is involved.