State v. Vasquez-Hernandez

WARREN, S. J.,

dissenting.

As the state points out in its brief, our decisions under ORS 135.755 are unusual because we nominally apply an abuse of discretion standard but, in fact, routinely reverse trial courts when they dismiss cases over the state’s objection. Our apparent presumption that a dismissal is reversible presents a stark contrast to the normally deferential nature *76 of the abuse of discretion standard. See, e.g., State v. Stough, 148 Or App 353 , 939 P2d 652 , rev den 326 Or 58 (1997); State v. Sanchez, 136 Or App 329 , 901 P2d 978 , rev den 322 Or 362 (1995); State v. Hadsell, 129 Or App 171 , 878 P2d 444 , rev den 320 Or 271 (1994). In this case, the trial court clearly reviewed our decisions and carefully considered the issues that we have held to be important before it decided to dismiss this case. The majority holds, nevertheless, that the court abused its discretion. The majority thereby makes express the implication that the state draws from our cases: if a trial court dismisses a case over the state’s objection, then it will be reversed, no matter how carefully the court has followed our teachings. Because I cannot join in this final step in the process of negating a statute that has been part of this state’s law since the Deady Code, I dissent.

ORS 135.755 grants the trial court authority to dismiss a criminal case “either of its own motion or upon the application of the district attorney, and in the furtherance of justice.” In our previous cases reversing dismissals under this statute, we described criteria that a trial court is to consider when deciding whether to dismiss a case under it; we summarized the essential considerations in Stough. A trial court should reserve dismissal for severe situations, because dismissal frustrates the public interest in the prosecution of crimes, the protection of the public, and the rehabilitation of offenders. 148 Or App at 355 . A trial court that dismisses a case in the interests of justice must articulate substantial reasons for that decision that should generally involve consideration of the defendant’s substantive and procedural rights and of the public’s interest in having the law enforced. In the absence of constitutional violations, the inconvenience, expense or delay caused to a defendant by the prosecution of a criminal case is insufficient to justify dismissal. Id. at 356 .

The trial court stayed precisely within the criteria that we have established, including carefully articulating substantial reasons for its actions that derive directly from our previous decisions. In its letter opinion and subsequent findings of fact, the court gave the following reasons for dismissing this case: (1) Before the shooting, defendant was a member of the community in good standing, with no significant criminal record. Although he had previously had a *77 drinking problem, he had been sober for a year and a half, due in large part to his wife’s influence. His drinking that night was not a course of continuing conduct but a single misstep. (2) Defendant was under arrest in the hospital for two and a half days before the officers took a statement from him. He had no contact with an attorney before he was arraigned a number of days later. During that period he was denied a number of constitutional and statutory rights, particularly the right to a speedy arraignment and the right to counsel. Because of those violations, the trial court concluded that its admission of defendant’s statement at a previous trial was erroneous. (3) The city treated the case as one of potential civil liability and conducted an investigation, using a city police officer as the investigator and providing attorneys at taxpayer expense to the officers involved in the shooting before taking their statements. It then refused to provide the information that it had acquired to either the district attorney or defendant. A city attorney, indeed, testified that he would not provide any exculpatory evidence that the investigation uncovered.

In its letter opinion, the court noted that there were several issues involved in a dismissal on its own motion: “One, fundamental fairness to the Defendant; two, protection of the community; and three, fundamental fairness to the victim, the City of Salem.” It then concluded the letter by explaining its reasons for dismissing the case:

“This is a Defendant who has never been in real trouble who seems to be a productive member of the community and in this Court’s opinion will probably never be in trouble in the future. Second, this Court is not [unjmindful of the fact that at some juncture it has a duty to send a message to law enforcement that they [sic] need to follow the arraignment procedures, they [sic] need to follow the appointment of counsel procedures, preliminary hearing procedures and discovery procedures. This Judge has been on the bench since 1973 and prior to that a prosecutor and defense attorney and has handled numerous criminal cases. * * * I can honestly say, I have never in my life seen a case * * * where so many of the defendant’s rights were violated. The only conclusion the court can come to is that City liability was more important than protecting the Defendant’s statutory and constitutional rights. * * * This Defendant has spent *78 over one year in jail awaiting this trial [1] and the City of Salem seems to of [sic] violated a majority of his rights. Therefore this Court finds it only appropriate that on it’s [sic] own motion this Court shall dismiss all charges in furtherance of justice.”

The court’s opinion and findings show that it considered the matters that we have identified as relevant to a decision to dismiss under ORS 135.755. Its conclusions would show that there was no need to continue the case in order to promote the rehabilitation of defendant or to protect the public from further offenses, because defendant was normally a law-abiding citizen whose actions on the evening in question were an aberration. 2 It also concluded that the city, which the court identified as the victim, was itself responsible for many of the violations of defendant’s rights. The situation that the court described is different from many of the cases in which we have held that a court erred in dismissing a case, in which the courts seemed to be concerned primarily with terminating what they perceived to be poor cases, not with applying the appropriate factors under the statute. See, e.g., Stough (defendant’s status as a Vietnam veteran did not justify prosecution for possession of 0.03 grams of heroin); Hadsell, (weakness of state’s case and inconvenience and expense to the defendant justified dismissal).

The state argues, and the majority agrees, that the defects that the trial court identified did not in fact harm defendant and that they would not require the exclusion of evidence. The statement that defendant gave the police in the hospital was consistent with his trial testimony, while the information that the city acquired during its investigation was also consistent with the evidence at trial. 3 While the *79 state admits that defendant’s arraignment was untimely, it asserts that he would not have received some of the other rights that the trial court identified even if he had been timely arraigned. I agree that those are things that the trial court could properly weigh in deciding whether to dismiss the case. They do not, however, decide the issue before us.

The state and the majority simply overlook the essential foundation for the trial court’s decision: its conclusion that the city’s primary goal was to protect itself from civil liability and that it ran roughshod over defendant’s rights in order to achieve that goal. Even assuming that none of the constitutional or statutory violations that the trial court identified would require exclusion of evidence, the city’s purposes and actions are still relevant to the court’s exercise of its discretion under ORS 135.755. The purpose of that statute is not to enforce a defendant’s rights at trial but to allow the court to act in the interests of justice. Those interests can include making clear the court’s unwillingness to tolerate a conscious and intentional violation of a defendant’s essential pretrial rights, particularly when the city itself was both the victim of defendant’s alleged crime and the violator of his rights.

The trial court carefully evaluated the situation as a whole, including the factors that we have identified in previous cases, before it decided to dismiss the case. I cannot say that it abused its discretion in doing so and would therefore affirm its decision.

I dissent.

Armstrong and Wollheim, JJ., join in this dissent.

1 When the trial court later sentenced defendant pursuant to the Supreme Court’s mandate, it imposed a sentence of 13 months’ imprisonment, which was approximately equal to the time that defendant had already spent in jail waiting trial.

Although the majority compares this statement to the action of the trial court in Stough, there are essential differences. In Stough, the trial court essentially exercised leniency to the defendant because he was a Vietnam veteran charged with what the trial court treated as a minor offense. Here, the trial court did not exercise leniency but considered defendant’s background as part of determining whether dismissing the case would be dangerous to the community, one of the criteria that our previous decisions told it to consider.

After the original dismissal, the state moved for reconsideration based on an affidavit of a deputy district attorney that gave details about the city’s *79 investigation. Although the trial court denied the motion for reconsideration, the information in the supporting affidavit was part of the record when the trial court again dismissed the case after the Supreme Court’s ruling.