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A Predictable But Important Decision for Criminal Episode Strategizing

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by: Ryan • December 28, 2011 • no comments

The law on criminal episodes can cut both ways. For example, if a judge finds that two crimes (such as DCS and Failure to Register as a Sex Offender) come from one criminal episode because both were charged after a single traffic stop, that can have significant benefits at sentencing (e.g., the shift-to-I rule might kick in). The downside is this: they are from one criminal episode, then they can be tried together, and the same jury would hear about the facts of both

On the other hand, if the two counts are - as I believe they are - from two separate criminal episodes, even when arising from the same traffic stop, then joinder on one indictment is improper and the charges can be (at least temporarily) dismissed. They wouldn't have to be tried together, and the jury who hears evidence of drug dealing wouldn't also hear about the prior sex convictions. But you don't get the advantages at sentencing.

Which brings us to the opinion the COA issued today in a PCR appeal. The defendant was charged with DUII, Assault II, Hit and Run and 7 counts of Felon in Possession. The DUII and the assault arose from the same traffic accident, and when the petitioner fled, the police got a search warrant for his house. During the execution of that search warrant, 7 firearms were found. The issue for the PCR was whether the Hit and Run were from the same criminal episode as the DUII/Assault.

The COA found that they were not, and while the criminal episode case law is all over the map, let's assume that's the right decision. (I think the COA royally screwed up the analysis regarding whether the 7 firearms were from the same criminal episode, but that analysis will have to wait for a different day.)

I don't necessarily want to debate whether the trial attorney in this case made the right strategic decisions. I don't have enough information. But I want to emphasize what the defense attorney could have done differently that might have produced a better result for his or her client.

The gun charges and the duii/assault were apparently from the same indictment. Since the crimes aren't similar, and they obviously aren't part of a common scheme or plan, the fact that they aren't from the same criminal episode means that they were improperly joined. The hit and run arguably could still have been joined with the DUII/assault, despite being from the same criminal episode, if they were part of a "common scheme or plan," so I won't address that issue for the moment. I want to focus only on the felon in possession and assault/DUII charges being in the same indictment. An attorney could have moved to sever, but I think that's the wrong choice. The relevant statutes seem to make clear that a demurrer is the proper remedy when counts are improperly joined, and a motion to sever is only appropriate when it is too prejudicial to try properly joined counts together.

If the demurrer had been filed, what would have happened? Well, the prosecutor - this would have been pretrial, of course - might have insisted they were in fact from the same criminal episode. If the judge agreed, while the defendant would have lost the demurrer, he would have won at sentencing.

If the judge agreed with the defendant that the counts were improperly joined, but she thought severance was the only available remedy, that would have meant the assault/DUII jury - had there been one - never would have heard about the gun charges. And maybe - although this hasn't yet been addressed by the appellate courts - the defendant would still have had a strong argument on appeal that severance, under the statutes, wasn't good enough, the charges should have been dismissed on remand, long after the statute of limitations had lapsed.

This isn't an unusual circumstance. If I see the docket and I see that a Failure to Register and a PCS are on the same indictment, I can't imagine how that indictment isn't subject to a demurrer. Or a Failure to Register and anything else. Reading today's opinion, I don't know that there would have been a different result - at least as related between the firearms and the assault/DUII - if the guns were found in the trunk of the car that got into the accident. In that case, would a PCS and Felon in Possession from the same traffic stop be subject to an improper joinder demurrer? We don't have a definitive answer yet, but today's opinion gives us ammunition that it would.