The issue in this case is whether an indictment must be quashed if it was based, in part, on hearsay evidence. We hold that it need not be quashed.
On March 24,1986, a Multnomah County grand jury returned an indictment charging defendant with intentional murder, felony murder and robbery. Defendant filed a motion to quash the indictment on the ground that it “was obtained by presenting improper and inadmissible evidence to the grand jury,” in violation of ORS 132.320(1), which provides:
“Except as provided in subsections (2) and (3) of this section, in the investigation of a charge for the purpose of indictment, the grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question.” 1
Defendant objected that some of the witnesses who testified before the grand jury had no personal knowledge of the crime and, therefore, their testimony must have been hearsay. Accompanying the motion were copies of police reports based on interviews with these witnesses. The reports tend to substantiate defendant’s claim that the indictment was based, in part, on hearsay testimony.
*37
The trial court denied defendant’s motion to quash. The state voluntarily dismissed the intentional murder charge before trial. A jury subsequently convicted defendant on the robbery charge and acquitted him of felony murder. Defendant appealed his conviction, arguing that the trial court erred in denying his motion to quash the indictment. The Court of Appeals affirmed from the bench.
State v. Stout,
The arguments in this case focus primarily on the validity of the rule set out in
State v. McDonald,
After McDonald was decided, the legislature enacted OEC 101(4), which provides:
“ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in the following situations:
<<* * * * *
“(b) Proceedings before grand juries, except as required by ORS 132.320.”
The unofficial commentary to OEC 101 (4) (b) states, in part:
“The Oregon Supreme Court has held that the statute is admonitory only, and the fact that a grand jury may have been prejudiced by hearsay evidence not allowed under the statute is not grounds for dismissing or quashing an indictment. State v. McDonald,231 Or 24 ,361 P2d 1001 (1961). The Legislative Assembly disapproves this case law. It intends that the statute means what it says.”
*38 Legislative Commentary to OEC 101, published in Kirkpatrick, Oregon Evidence 4 (1982).
Defendant argues that OEC 101 (4) (b) was intended to overrule this court’s characterization of ORS 132.320 as “admonitory” in
State v. McDonald, supra.
The state argues that the commentary to the Oregon Evidence Code is not controlling, because it never was adopted by the legislature and is not an official part of the code.
See State v. McClure,
However, we need not consider the effect of OEC 101 (4) (b) on State v. McDonald, supra, because another consideration disposes of this case. ORS 135.510 provides:
“(1) The indictment shall be set aside by the court upon the motion of the defendant in either of the following cases:
“(a) When it is not found, indorsed and presented as prescribed in ORS 132.360 [number of jurors required to concur], 132.400 to 132.430 [indorsement of indictment as ‘a true bill’; filing and inspection of indictment; prohibition against disclosing any fact concerning an indictment not subject to public inspection; indorsement of indictment as ‘not a true bill’] and 132.580 [requiring names of grand jury witnesses to be on indictment].
“(b) When the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment or indorsed thereon.
“(2) Nothing in paragraph (b) of subsection (1) of this section shall affect the application of ORS 132.580.”
Although the predecessors to ORS 132.320 and 135.510 both were enacted in 1864, the legislature did not include at that time the use of inadmissible evidence as a ground for setting aside an indictment under ORS 135.510, nor has it since amended the statute to include that ground.
2
This court has long held that the grounds listed in ORS 135.510 for setting aside an indictment are exclusive. In
State
*39
v. Whitney,
“Section 115 of the Criminal Code [now ORS 132.320] provides that ‘the indictment must be set aside by the court upon the motion of the defendant in either of the following cases:—
“ T. When it is not found indorsed and presented as prescribed in chapter 7 of this Code.
“ ‘2. When the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment, or indorsed thereon.’
“These, we hold are the only two cases for which an indictment can be set aside; and as the section prohibiting any person, other than the district attorney, from appearing before the grand jury is not in chapter 7, there was no error in the ruling of the court.”7 Or at 388 .
At that time, the predecessor to ORS 132.320 (General Laws of Oregon, ch 6, § 48, p 449 (Crim Code) (
In
State v. Justus,
In
State v. Kelliher,
“The ground of the motion relied on here does not come within the provisions of this section; and in State v. Whitney,7 Or 386 , it was held that these are the only two cases for which an indictment can be set aside. Although, in State v. Justus,11 Or. 178 (8 Pac 337 :50 Am. Rep. 470 ), it is intimated, though not decided, that irregularities in proceedings before grand juries, not covered by Chapter VII, may, under some circumstances, be taken advantage of by motion to quash. However, even if the motion will lie to quash an indictment for irregularities in the proceedings before the grand jury or the district attorney, not prescribed by Chapter VII, still such motion cannot be permitted to question the sufficiency of the evidence to justify the indictment, and the motion was properly denied.”49 Or at 81 .
See also State v. Reyes,
More recently, in
State v. Gortmaker,
Under this court’s long-standing and consistent interpretation of ORS 135.510, an indictment cannot be set aside on any statutory ground save those listed in ORS 135.510. Although this court hinted in
State v. Justus, supra,
that some “irregularities” not mentioned in ORS 135.510 may be grounds for setting aside an indictment, it has never so held. It is clear, moreover, that an indictment cannot be set aside on the ground that the grand jury did not hear sufficient evidence to justify the charge, in violation of ORS 132.390.
3
State v. Broadhurst, supra; State v. Reyes, supra; State v. Kelliher, supra.
If an indictment cannot be attacked on the ground that the grand jury heard
insufficient
evidence, it follows that it cannot be attacked on the ground that the grand jury heard the wrong
type
of evidence. Thus, under this court’s interpretation of ORS 135.510, even if some “irregularities” outside that provision would justify setting aside an indictment, the admission of hearsay evidence is not among them. This court’s interpretation of ORS 135.510 has become part of the statute itself, and we are bound by it until the legislature changes the statute.
See, e.g., State v. White,
We do not reaffirm the McDonald court’s language that compliance with ORS 132.320 is “admonitory in character only, not mandatory.” That may have been only a poorly chosen way to say that noncompliance would not invalidate an indictment, whatever other sanctions might be invoked. It does not mean that prosecutors may use hearsay testimony *42 before grand juries. The unofficial commentary to OEC 101(4) (b) makes plain that this also was the view of those who prepared the Oregon Evidence Code. But the commentary is by no means a clear indication that the legislature intended to change this court’s long-standing interpretation of ORS 135.510. Under that interpretation, the statutory defect of which defendant complains 4 is not a ground for setting aside the indictment. 5
The decisions of the Court of Appeals and the trial court are affirmed.
Notes
The remainder of ORS 132.320 provides:
“(2) A report or a copy of a report made by a physicist, chemist, medical examiner, physician, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison or test performed by such person in connection with a case which is the subject of a grand jury proceeding, shall, when certified by such person as a report made by such person or as a true copy thereof, be received in evidence in the grand jury proceeding.
“(3) An affidavit of a witness who is unable to appear before the grand jury shall be received in evidence in the grand jury proceeding if, upon application by the district attorney, the presiding judge of the circuit court of the county in which the grand jury is sitting authorizes such receipt after good cause has been shown for the witness’ inability to appear. An affidavit taken in another state or territory of the United States, the District of Columbia or in a foreign country must be authenticated as provided in ORS 194.505 to 194.575 before it can be used in this state.
“(4) The grand jury is not bound to hear evidence for the defendant, but it shall weigh all the evidence submitted to it; and when it believes that other evidence within its reach will explain away the charge, it should order such evidence to be produced, and for that purpose may require the district attorney to issue process for the witnesses.”
ORS 135.510 has been amended twice. In 1959, the legislature deleted a reference to former ORS 132.585, which had been repealed. Or Laws 1959, ch 426, § 2. In 1973, the legislature added subsection (2). Or Laws 1973, ch 836, § 178.
ORS 132.390 provides:
“The grand jury may find an indictment when all the evidence before it, taken together, is such as in its judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.”
In his motion to quash, defendant cited the Fifth Amendment to the United States Constitution and Article I, section 11, of the Oregon Constitution. He has never made any argument based on those provisions or suggested in any way how a violation of ORS 132.320(1) would violate either provision. Therefore, we treat his objection as based solely on statutory grounds.
Because of our disposition of this case, we need not address the state’s argument that, after a criminal defendant is convicted or acquitted on a charge, defects in the indictment are moot.
See State v. Guse,