If you've been following my posts on the improper joinder demurrer, you may recall that the defense argument was (1) per statute, all indictments should contain only one count, unless an exception applies. And (2) when there is no language in the indictment supporting one of the necessary exceptions, the indictment was subject to a demurrer.
ORS 132.560 says: "(1) A charging instrument must charge but one offense, and in one form only. . . ."
There are exceptions. Literally, exceptions ("(1) A charging instrument must charge but one offense, and in one form only, except that:")
If an indictment alleges UUV and PSC, for example, it is in violation of ORS 132.560 unless one of the exceptions applies. But the remedy for an ORS 132.560 offense is dismissal, specifically, a demurrer. And in a demurrer, you can only look at the four corners of the indictment.
I argued the demurrer a couple of months ago (ruling still pending) and the prosecutor didn’t challenge the argument that, when evaluating the demurrer, we were all limited by the four corners of the indictment. Rather, he made the argument that it is defendant’s burden to prove that the counts were not properly joined. In other words, the state's position is that the state has no obligation to include language in the indictment that the indictment properly satisfied the exception to the one-count rule.
Today’s opinion from the Court of Appeals, State v. Gruhlke, has a remarkably similar issue. It involves whether the state, when relying on an exception to the statute of limitations, must include language in the complaint that supports the exception. The parties in Gruhlke argued as follows:
- On appeal, defendant primarily asserts that the information was subject to demurrer because, like an indictment, an information must contain sufficient allegations of fact that establish that the charged offense is timely brought, noting parallel statutory requirements for the sufficiency of indictments and other accusatory instruments. Given the face of the information--reflecting only that the offense had been committed in 2002, that the information was filed in 2007, and a conclusory statement asserting that the prosecution was timely--and case law requiring specificity of pleading in indictments,defendant contends that the information was insufficient. The state contends that the date of an information is irrelevant to when a prosecution actually is commenced and asserts that the allegation that the DUII prosecution was timely commenced and continuously maintained against defendant sufficed to save the indictment from demurrer. For the following reasons, we agree with defendant.
The court further explained:
- As for that specific analysis, defendant relies on State v. Bovee, 76 Or App 572, 710 P2d 786 (1985), rev den, 300 Or 605 (1986), and a number of similar cases, such as State v. Livingston, 73 Or App 551, 699 P2d 1131 (1985) , all applying ORS 132.540(1)(c). Those cases make clear that the state must plead specific facts (or else it must be evident otherwise on the face of the indictment) that prosecution is timely.
It is true that the cases cited all involve exceptions to the statute of limitations, rather than an exception that would permit joinder of multiple counts. But I see no logical reason for distinguishing between the two, and to my knowledge, the state has not offered any authority for its position that the defendant must prove improper joinder while simultaneously limited to the four corners of the indictment.
And here's what I want to emphasize most: when the joinder language is missing, the indictment is subject to a demurrer even when the counts might, factually, be properly joined. Why demur when the state could simply reindict with the proper language? Because maybe they won't, maybe you'll lose the demurrer (it's still a novel argument after all) and maybe you'll win on appeal, when it would be too late to reindict.