State v. WallState v. Wall
Brook Reinhard, Reinhard Law, Eugene, argued the cause for defendant-relator. Matthew L. Watkins, Matthew Watkins Attorney at Law LLC, Eugene, filed the briefs for defendant-relator. Also on the brief was Brook Reinhard, Reinhard Law, Eugene, and Rian Peck, Visible Law LLC, Portland.
Paul L. Smith, Deputy Solicitor General, Salem, argued the cause and filed the brief for plaintiff-adverse party. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Solicitor General.
Daniel C. Silberman, Oregon Criminal Defense Lawyers Association, Salem, filed the brief for amicus curiae Oregon Criminal Defense Lawyers Association. Also on the brief were Stacy M. Du Clos, and Amy Potter.
JAMES, J.
The alternative writ of mandamus is dismissed.
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* On petition for writ of mandamus from an order of Douglas County Circuit Court, Steve Hoddle, Judge.
JAMES, J.
This mandamus action arises out of relator‘s criminal prosecution—specifically, it concerns a dispute between relator and the state as to his testimony before the grand jury. Various motions were filed on this issue, but many were stayed and not ruled upon. The single ruling before us is the trial court‘s denial of relator‘s motion for an order requiring that he be allowed to appear in person before the grand jury, as opposed to by videoconference. As we will explain, the manner of witness presentation before the grand jury is determined, at least in the first instance, by the grand jury itself—not unilaterally controlled by either the prosecutor or the defendant. Here, the trial court did not have a nondiscretionary obligation to order relator‘s in-person appearance. Therefore, mandamus is not appropriate, relator is not entitled to the relief he seeks, and we dismiss the alternative writ.
I. BACKGROUND
The state initially charged relator with second-degree murder,
“A defendant who has been arraigned on an information alleging a felony charge that is the subject of a grand jury proceeding and who is represented by an attorney has a right to appear before the grand jury as a witness if, prior to the filing of an indictment, the defense attorney serves upon the district attorney written notice requesting the appearance.”
The prosecutor informed relator that she would only allow him to appear before the grand jury remotely and would not allow him to appear in person.
“A grand jury may receive testimony of a witness by means of simultaneous television transmission allowing the grand jury and district attorney to observe and communicate with the witness and the witness to observe and communicate with the grand jury and the district attorney.”
Relator moved the trial court for an order asking for a single form of relief: that it “require that [relator] be allowed to appear in person before the grand jury.” Relator argued that he had an absolute statutory and constitutional right to an in-person appearance. The trial court denied relator‘s motion, reasoning that it had no authority to determine whether a defendant could testify before the grand jury in person, because it had no authority to “dictate” how the prosecutor carried out grand jury proceedings:
“So, I don‘t believe—sort of just kind of going through it, I don‘t believe that I have the authority to determine how a witness is called or how the grand jury proceedings are going to be done. And so, I do—I do believe that he has a constitutional
right to appear. It doesn‘t—while there may be some—I don‘t think I have the authority to determine whether or not he can appear in person or not in person, I do think that there may be some minimal prejudicial effects via video. * * * “And so, I don‘t * * * think that the Court has the ability to dictate how the grand jury—how the—how the D.A.‘s Office decides the process for the grand jury, other than assuring that [relator‘s] rights are upheld.
“And so, I‘m not going to order the D.A.‘s Office to allow him to testify in person.”
Following that ruling, relator sought a stay of the grand jury proceedings, pending a petition for mandamus. The state objected:
“But staying the court proceedings, I think, is different than saying [the] grand jury can‘t hear the case.
“I‘m not sure what would prevent the State from even filing, you know, a new case on a grand jury indictment for these same charges as well. So, I don‘t think that staying the proceedings should or would affect the grand jury schedule.”
The trial court stayed the court proceedings, but expressed uncertainty as to whether it had the power to stay the grand jury proceedings:
“Well, I—to be clear, I do think it‘s appropriate to stay the proceedings.
“Now, I‘m not saying, because I—frankly, I don‘t know. But I‘m not saying that that stays grand jury or doesn‘t stay grand jury. And so I am going to stay the proceedings. I do think it‘s appropriate. I do think it‘s an issue of first impression. I do think it‘s important that the appellate courts, if they‘re willing, do shed some sort of guidance on this issue. And so I will stay the proceedings.”
The next day, relator‘s counsel observed that the grand jury proceedings were continuing and filed an objection. That objection, among other issues, was the subject of a subsequent hearing, where the court again indicated that it was uncertain whether its order staying the court proceedings could have any effect on the grand jury proceedings:
“[RELATOR‘S COUNSEL]: That‘s fine, Your Honor. If it‘s at all helpful, since—the Court mentioned yesterday that the Court wasn‘t clear—and admittedly, I wasn‘t sure, I didn‘t have authority at the time on whether a motion for a stay does pause grand jury, Your Honor.
“* * * * *
“So, I have several examples if you want citations. But I think it is within the Court‘s purview to order that [the] grand jury be stayed. So, I am asking that that be within the ambit of the Court‘s order. I know that was an open question yesterday.
“[THE COURT]: Well, I mean, I think I guess I just didn‘t decide. I said the case is stayed, period. * * * And what the legal effect of that is, is sort of, it is what it is, and, you know, I mean, so—
“[RELATOR‘S COUNSEL]: Okay. Thank you.”
At that point, relator filed a series of motions, including a motion to dismiss the indictment that the grand jury returned after the trial court had stayed the case, and a separate motion to set aside the indictment for a failure to follow the grand jury statutes. Finally, to enable the court to consider those motions, relator filed a separate motion to lift the stay of the trial court proceedings. The state objected, and the trial court denied the motion to lift the stay, noting from the bench, “I‘m not going to remove the stay. * * * [W]hen this case resumes, however it resumes, then we can litigate whatever motions are out there.”
Relator petitioned this court for a writ of mandamus, seeking two separate forms of relief in the petition. First, relator sought an order “[c]ommanding the trial court [to] vacate its earlier order and to allow defendant to appear in person to testify at grand jury.” Second, relator sought an order “to vacate the existing grand jury proceeding held in violation of the trial court‘s order of a stay.” This court issued an alternative writ and set the matter for briefing and argument.
We begin by clarifying what is, and is not, before us. As we understand it, the trial court declined to lift the stay of the trial court proceedings to consider relator‘s most recent motions challenging what had occurred at the grand jury and the resulting indictment. Accordingly, those motions have not been ruled upon by the trial court and are not before us. The trial court indicated it would take up those matters after our decision on mandamus.
The ruling on mandamus is the trial court‘s denial of relator‘s motion for an order “requir[ing] that [he] be allowed to appear in person before the grand jury.” In opening briefing before this court, relator advanced the single argument that his consent to remote appearance is required and that, absent that consent, he has an absolute statutory right to an in-person appearance before the grand jury. For relator, as expressed in his opening brief, the text, context, and legislative history of the phrase “a right to appear before the grand jury,” as used in
In briefing, relator writes that this case “presents the question whether prosecutors have unilateral, unreviewable power to force a defendant to testify remotely.” At its core, relator‘s narrow argument on mandamus is that prosecutors do not have “unilateral” power to dictate the mode of a defendant‘s grand jury testimony; instead, defendants have that “unilateral” power. As we explain further,
the notion that either the prosecutor or the defendant has a unilateral right to control the manner of testimony is inconsistent with the nature of grand juries and the statutory scheme.
A. The Role of the Grand Jury
Unless a criminal defendant waives the right, the
We see this in the way in which the grand jury is convened. It is the court that draws grand jurors “from the jurors in attendance upon the circuit court at a particular jury service term.”
The court resolves disputes about the grand jury proceedings, advises the grand jury on the law, and performs other functions with respect to the grand jury. See
crime in law or whether the same has ceased to be punishable by reason of lapse of time or a former acquittal or conviction, it may make a presentment of the facts to the court, without mentioning the names of individuals, and ask the court for instructions concerning the law arising thereon.“);
District attorneys—as executive agents—do not have statutory authority to unilaterally control, limit, or dictate the grand jury‘s inquiry. Rather, the grand jury has certain prerogatives of its own.
District attorneys do have an important role. They present evidence, examine witnesses, and “may submit an indictment to the grand jury in any case when the district
attorney has good reason to believe that a crime has been committed which is triable within the county.”
So understood, district attorneys—as the state correctly acknowledges before this court—“act as agents of, and advisors to, the grand jury.” It follows that district attorneys have no “unilateral” control over the method and manner by which the grand jury hears from witnesses. Likewise, defendants do not have “unilateral” control. Relator‘s argument to the contrary is that the use of the phrase “appear before the grand jury” in
Applying our usual statutory interpretive model derived from State v. Gaines, 346 Or 160, 206 P3d 1042 (2009), we consider the text, context, and legislative history of that phrase. Textually, the word “appear,” as used in
Neither does statutory context support relator‘s interpretation. First,
Finally, our review of the legislative history of
In short, neither text, context, nor legislative history support the idea that
manner of their appearance before the grand jury. As noted,
B. Appropriateness of Mandamus
“Mandamus is an extraordinary remedy and serves a limited function.” Lindell v. Kalugin, 353 Or 338, 347, 297 P3d 1266 (2013) (internal quotation marks omitted).
“A writ of mandamus may be issued to any inferior court * * * to compel the performance of an act which the law specially enjoins * * *; but though the writ may require such court * * * to exercise judgment, or proceed to the discharge of any functions, it shall not control judicial discretion.”
Generally, mandamus is not a vehicle for controlling discretion. HotChalk, Inc. v. Lutheran Church-Missouri Synod, 372 Or 249, 255-56, 548 P3d 812 (2024).
As we reiterated in HotChalk,
“we assess whether the trial court had a legal duty to act in a certain way. State ex rel. Maizels v. Juba, 254 Or 323, 327, 460 P2d 850 (1969) (‘Generally, the court has said that when the facts are not in dispute and there is a clear rule of law requiring
the matter to be decided in a certain way, mandamus will lie.‘). Accordingly, mandamus is appropriate
to review only obligatory—not discretionary—action. See, e.g., State ex rel. Ricco v. Biggs, 198 Or 413, 421-22, 255 P2d 1055 (1953), overruled on other grounds by Maizels, 254 Or 323 (‘It has become hornbook law in this state that the writ of mandamus cannot be used as a means of controlling judicial discretion, nor as a substitute for appellate review. The statute restricts its use to instances involving the performance of an act which the law specially enjoins. Mandamus will never lie to compel a court to decide a matter within its discretion in any particular way.‘).”
Id. However, mandamus relief may be appropriate when “the trial court‘s decision amounts to ‘fundamental legal error’ or is ‘outside the permissible range of discretionary choices‘” available. Lindell, 353 Or at 347 (quoting State ex rel. Keisling v. Norblad, 317 Or 615, 623, 860 P2d 241 (1993)).
As previously discussed, relator‘s argument is that the decision to testify in person is solely relator‘s. That is incorrect, for the reasons previously stated. The manner and form of receiving witness testimony is a decision that belongs, at least in the first instance, to the grand jury. On this record, the trial court did not have a nondiscretionary obligation to order defendant to be allowed to appear in person. Accordingly, relator is not entitled to the relief he seeks.
The alternative writ of mandamus is dismissed.