State v. Wimber

UNIS, J.,

dissenting.

The majority today holds that a trial court may amend an indictment by changing the dates between which crimes charged were alleged to have been committed, so that the charges fall within the applicable statute of limitations. The court holds that such amendments by the trial court are not amendments of substance, but are permissible amendments as to defects in the form of the indictment. 315 Or at 115.

*117 I cannot join in that holding. Article VII (Amended), section 5(3), of the Oregon Constitution provides, in part, that, with exceptions not relevant here, “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” (Emphasis added.) Article VII (Amended), section 5(6) provides, in part, that “[t]he district attorney may file an amended indictment * * * whenever, by ruling of the court, an indictment * * * is held to be defective in form.” 1 In my view, the amendments made by the trial court to counts 10, 11, and 12 of the indictment were constitutionally prohibited amendments on matters of substance. In approving the amendments, the majority allows a trial court to usurp the constitutionally guaranteed role of the grand jury, and it denies defendant a basic protection that the guaranty of the intervention of the grand jury was designed to secure. I would, therefore, reverse the circuit court’s judgment of conviction on counts 10,11, and 12, and I would reverse the Court of Appeals’ decision affirming the judgment of conviction on those counts.

Article VII (Amended), section 5, of the Oregon Constitution, in express language, makes the bringing of an indictment the exclusive province of the grand jury. The constitutional guaranty provides that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form.

In State v. Moyer, 76 Or 396, 398 , 149 P 84 (1915), 2 this court said:

“[T]he amendment of the indictment is authorized only by the Constitution itself in this state, which provides that it may be amended as to matter of form merely. * * * By our Constitution the defendant is entitled to be tried upon an indictment found by a grand jury who act under oath, and amendment of the indictment in matters of substance is unauthorized.”

*118 See also State v. Russell, 231 Or 317, 322-23 , 372 P2d 770 (1962) (“The time to amend the substantial facts alleged in an indictment is while the indictment is before the grand jury”). Thus, neither the prosecutor nor the trial court may constitutionally amend an indictment on a matter of substance.

The constitutional prohibition against amendment of an indictment on a matter of substance is designed to serve two purposes: (1) to protect the right of the grand jury to determine whether a particular charge should be brought and (2) to ensure that the charge presented against a defendant was based on facts found by the grand jury.

In State v. Moyer, supra, this court, after observing that “[o]ur Constitution contains the only provision which authorizes * * * an amendment [of an indictment], but only as to form[,]” stated:

“[T]here seems to be a well-recognized distinction between matters that are purely matters of form and matters that go to the substance of the indictment, namely, formal 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, would be the only cases which are permissible under our Constitution. But where there is an omission or misstatement which prevents the indictment from showing on its face that an offense has been committed, or to charge the particular offense, the test of the amendment is whether the same defense is available to the defendant after the amendment as before and upon the same evidence.” 76 Or at 399 (emphasis added).

Matters of form include corrections of misnomers or typographical errors. LaFave and Israel, 2 Criminal Procedure 465, § 19.2. “An amendment need not[, however,] change the offense charged in order to deal with substance.” Id. at 463, § 19.2. An amendment is automatically substantive if it “alters * * * ‘essential facts that must be proved to make the act complained of a crime.’ ” Id. (quoting Brown v. State, 285 Md 105, 400 A2d 1133 (1979)).

An indictment in a criminal case must satisfy four objectives: (1) the notice function, furnishing the defendant with sufficient notice so as to enable the defendant to properly prepare his defense, State v. Smith, 182 Or 497, 500 , 188 P2d 998 (1948); (2) the double jeopardy function, identifying the *119 crime so as to provide protection against further prosecution based on the same crime, id. at 501 ; (3) the judicial review function, informing the court of the facts charged so that it may determine whether the prosecution’s case is based on a legally valid interpretation of the offense, id.; and (4) the jurisdictional function, requiring that the indictment is the product of the grand jury and that the defendant is entitled to be tried only for an offense that is based on facts found by the grand jury which indicted him, see Russell v. United States, 369 US 749, 770 , 82 S Ct 1038 , 8 L Ed 2d 240 (1962) (stating principle applicable to federal courts under the Fifth Amendment).

The Fifth Amendment to the United States Constitution 3 provides protections in federal courts similar to those provided in Oregon state courts under Article VII, section 5(6), of the Oregon Constitution. In Russell v. United States, supra, the Supreme Court of the United States said that to allow a defendant “to be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him” is to “deprive the defendant of a basic protection which the guaranty of the intervention of the grand jury was designed to secure.” Id. In Russell , the defendant’s convictions for refusing to answer questions when summoned before a congressional committee were reversed because the indictments were defective in failing to identify the subject under inquiry. The Court declared:

“To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure.” 369 US at 770 .

“This underlying principle,” said the Court, “is reflected by the settled rule in the federal courts that an indictment may *120 not be amended except by resubmission to the grand jury, unless the change is merely a matter of form.” Id.

“ ‘If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a [defendant’s] trial for a crime, * * * may be frittered away until its value is almost destroyed. * * * Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the [defendant] can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists.’ ” Russell v. United States, supra, 369 US at 770 -71 (quoting Ex parte Bain, 121 US 1, 10, 13 , 7 S Ct 781 , 30 LEd 849 (1887)) (emphasis added).

In Ex parte Bain, supra, the indictment charged the defendant with having made a false statement ‘ ‘with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs of said association.” 121 US at 4 . The Supreme Court held that an amendment that did no more than strike the reference to the “Comptroller of the Currency” was impermissible, and the defendant’s subsequent conviction on the amended indictment, therefore, had to be reversed. The Court rejected the view that the reference to the Comptroller was merely “surplusage” that had no bearing on the grand jury’s view of the case. The Court reasoned that there may well have been at least one member of the grand jury “who was satisfied that the report was made to deceive the Comptroller, but was not convinced that it was made to deceive anybody else.” Id. at 10 . Accordingly, it could not be said that, “with those words stricken out, [the amended indictment] is the indictment which was found by the grand jmy.” Id. 4

*121 In this case, there is no contention that the amendment to the indictment made by the trial court corrected a misnomer or a typographical error. Rather, the amendment in this case changed the dates between which the crimes charged in counts 10, 11, and 12 were alleged to have been committed. The amendment, the majority recognizes, permitted the charges to fall “wholly within the applicable statute of limitations.” 315 Or at 114 (emphasis added). If the offenses charged in counts 10, 11, and 12 were not wholly within the applicable statute of limitations before the amendment, as this court implicitly concedes, how can this court rationally conclude that the amendment made by the trial court, that changed the time period within which the offenses allegedly occurred, did not alter the substance of the indictment?

According to the indictment, the crimes charged in counts 10, 11, and 12 occurred between January 25, 1984, and November 27, 1989. After the trial court’s amendment, the crimes charged in those counts occurred between January 25,1987, and November 27,1989. There may well have been at least one member of the grand jury, whose concurrence in the indictment was necessary, who was satisfied that the offenses occurred exclusively outside the applicable statute of limitations, i.e., between January 25,1984, and before January 27, 1987. 5 At argument, the state acknowledged that there is no way to know whether the act that formed the basis for each crime charged in counts 10, 11, and 12 of the indictment fell outside the statute of limitations. At argument, the state acknowledged that the grand jury could have found that the offenses charged in those counts of the indictment were committed before January 25, 1987, and thus *122 outside the statute of limitations. Nonetheless, the majority concludes that the amended indictment is the product of the grand jurors and that defendant was tried only for the offenses that were based on facts found by the grand jurors that indicted him.

As defendant correctly states, and the state acknowledges, “the grand jury could just as easily have concluded that there was probable cause to believe the crimes alleged in counts 10-12 [of the indictment] occurred between January 25, 1984, and * * * January 25,1987, as after * * * the latter date[].” “As such,” defendant asserts, “the only authority which the trial court had was to allow [defendant’s] demurrer [to counts 10, 11, and 12] with leave for the prosecutor to resubmit the case to the grand jury.” I agree.

That a particular crime was committed within the applicable statute of limitations is a matter of substance is reflected in ORS 132.370, which provides:

“(1) When the grand jury is in doubt whether the facts, as shown by the evidence before it, constitute a 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.

“(2) A presentment cannot be found and made to the court except as provided in subsection (1) of this section, and, when so found and presented, the court shall give such instructions to the grand jury concerning the law of the case as it thinks proper and necessary.

“ (3) A presentment is made to the court by the foreman in the presence of the grand jury. But being a mere formal statement of facts for the purpose of obtaining the advice of the court as to the law arising thereon, it is not to be filed in court or preserved beyond the sitting of the grand jury.” (Emphasis added.)

How can this court rationally conclude that defendant’s rights were not affected when the statute of limitations defense that was available to defendant before the amendment was no longer available to him after the amendment? An indictment is an accusation by a grand jury that a certain person has committed a certain crime, contrary to the laws of *123 this state. An amendment that changes the date on which the crime charged occurred, so that it will not cease to be punishable by reason of lapse of time (i.e., barred by the statute of limitations), is a matter of substance, not form. The amendments made by the trial court in this case to counts 10,11, and 12 of the indictment may well have deprived defendant of a defense of statute of limitations.

In sanctioning the amendments to counts 10,11, and 12 of the indictment in this case, the majority allows the trial court to speculate as to what was in the minds of the grand jury at the time that they returned the indictment, thereby depriving defendant of a basic protection that the constitutional guaranty of the intervention of a grand jury was designed to secure.

“A prosecution for an offense other than that the grand jury had in mind may be viewed * * * as no different than a prosecution without an indictment * * *. ” LaFave and Israel, supra, at 451, § 19.2. In this case, the state may well have proven defendant guilty of a different crime than that laid in the indictment returned by the grand jury. “[If the state proves] defendant guilty of a different crime from that laid in the indictment, it is in the same position in which it would find itself if it had proven him guilty of no crime at all. ” State v. Russell, supra, 231 Or at 323 . 6

For these reasons, the majority’s holding that “[d]efendant’s rights were not affected [by the trial court’s amendment],” 315 Or at 116, is wrong. The amendment made by the trial court to counts 10, 11, and 12 of the indictment were unauthorized amendments of substance. I respectfully dissent.

For the full text of Article VII (Amended), section 5, of the Oregon Constitution, see supra, 315 Or at 113.

The text of Article VII (Amended), section 5, of the Oregon Constitution is virtually identical to Article VTI, section 18, which was in effect when State v. Moyer, 76 Or 396, 398 , 149 P 84 (1915), was decided. See 315 Or at 113 n 19.

The Fifth Amendment to the United States Constitution provides:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (Emphasis added.)

“Read broadly, Justice Miller’s opinion in Bain would have barred any amendment to the ‘body of the indictment.’ His discussion of common law authority *121 included cases that refused to permit amendments to correct a misnomer or even amendments offered with the consent of the defendant. Modern federal cases have refused to read the prohibition against amendment as so absolute. * * * Bain itself is still cited, however, as an illustration that a substantive change in the description of the elements of crime cannot be viewed as a matter of form, even though there is no suggestion that the change will affect the preparedness of the defendant.” LaFave & Israel, 2 Criminal Procedure 465, § 19.2.

Article VII (Amended), section 5(2), of the Oregon Constitution provides that “ [a] grand jury shall consist of seven members * * *, five of whom must concur to find an indictment.” See also ORS 132.360 (requiring at least five grand jurors to concur on an indictment).

In State v. Russell, 231 Or 317 , 372 P2d 770 (1962), the substitution of different property as the subject of larceny on arelated offense was held to constitute an unauthorized amendment of substance.