State v. Bennett
1986 Ore. App. LEXIS 2795, 719 P.2d 38, 79 Or. App. 267 (1986)
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Rule of Law:
An appellate court may apply a higher court's recent holding that a statute is unconstitutionally vague to a case on appeal, even if the defendant did not raise that specific constitutional argument at the trial level, when the error is apparent on the face of the record.
Facts:
- The defendant and his co-defendant, Allen, used a screwdriver to pry open a window and enter a vacant hotel located above a gun shop.
- They then used a hammer, a wrecking bar, and screwdrivers to break through the hotel floor and into the ceiling of the gun shop below.
- Inside the gun shop, they stole several guns and ammunition.
- The defendant and his accomplices later drove to another state, where Allen took photographs of the defendant holding the stolen guns.
- The defendant left a backpack on a carport, which was turned over to the police.
- Inside the backpack, police found a receipt for film development from a pharmacy in the other state, which led them to the incriminating photographs.
Procedural Posture:
- The defendant was indicted in a trial court for burglary in the first degree, theft in the first degree, and being an ex-convict in possession of a firearm.
- The defendant's pre-trial motion to suppress evidence, including a film receipt and resulting photographs, was denied by the trial court.
- At the close of evidence, the defendant's motion for a judgment of acquittal on all charges was denied.
- A jury in the trial court convicted the defendant on all charges.
- The trial court merged the theft conviction into the burglary conviction and sentenced the defendant to a 20-year term for burglary, a concurrent 5-year term for firearm possession, and a 5-year mandatory minimum sentence for using a firearm in the burglary.
- The defendant appealed his convictions to the Court of Appeals of Oregon.
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Issue:
Does an appellate court have the discretion to apply a recent Supreme Court decision declaring a criminal statute unconstitutionally vague to a defendant's case, when the defendant was convicted under that statute but failed to raise the specific constitutional vagueness argument at trial?
Opinions:
Majority - Warden, J.
Yes. An appellate court can apply a dispositive new precedent from a higher court even if the issue was not preserved at trial. Although appellate courts generally do not consider issues raised for the first time on appeal, the court made an exception in this case. The Oregon Supreme Court had recently held in State v. Graves that the portion of the first-degree burglary statute defining a 'burglar's tool' was unconstitutionally vague. Because the defendant was convicted under this exact statute for using a screwdriver, the error was apparent on the face of the record. The court reasoned that applying the normal preservation rule would not serve its purposes, such as conserving judicial resources, because the legal question had already been squarely decided. The court also held that merely stealing unloaded guns as loot does not constitute 'using' a firearm for the purpose of a sentence enhancement, distinguishing it from possessing a firearm as a separate crime.
Analysis:
This case establishes an important exception to the preservation doctrine in appellate procedure, specifically in the context of criminal law. It demonstrates that when a statute forming the basis of a conviction is declared unconstitutional by a higher court, the principle of fundamental fairness can override procedural bars like the failure to raise an issue at trial. This precedent allows for retroactive application of new constitutional rulings to pending cases to prevent defendants from serving sentences under laws that have been deemed invalid. It underscores the judiciary's role in correcting manifest injustices, even when procedural requirements are not perfectly met.
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