Blakely and Merger
To make merger as simple as possible, I've broken it down into four types of merger. And each type has its own formula. So the first thing to do is figure out which type of merger analysis is involved and therefore what formula applies. Is it a case involving multiple counts of the same crime, same elements, committed during the same criminal episode? Or is it a case of multiple counts of the same crime, but slightly different elements? If it's the former, you look at whether there were multiple victims (a trickier question than you might think), and if not, was there a sufficient pause between each count during which the defendant would have time to reflect and abandon his criminal activity? If it's the latter, you look at whether the different elements reflect separate legislative intents or, rather, they are simply two ways of addressing a single harm. Again, two very different analyses, and therefore two different formulas. And of course there are two other types of merger as well: (3) lesser-included offenses and (4) two crimes, different elements, but committing one invariably, in every case, requires committing the other.
Almost everything you'll need to know about merger can be found here.
When I use the word "formula," it's partly because I want people to think of merger as a largely mechanical exercise. A formulaic approach won't always get you the exact right answer, but it will 95% of the time. So again, first you figure out which type of merger is at issue, and then you apply the formula.
One reason, however, that the formula doesn't work 100% of the time is that, sometimes, there are still factual findings to be made, and you might see the evidence differently than the trial judge. One of those findings may be: was there a sufficient pause between each count during which the defendant had an opportunity to reflect and either stop his criminal activity or renew it? What you see as an inadequate period of time for reflection may not be how the judge sees it.
But the next question (which you may have guessed from the headline) is: why does the judge get to decide? If a finding of a sufficient pause results in additional convictions, why isn't that a jury question?
The issue came up in one of today's COA opinions. Though briefed, it wasn't preserved. The Court noted in a footnote:
- Defendant also argues that, under both the United States Constitution, see Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004); Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), and the Oregon Constitution, see State v. Wedge , 293 Or 598, 608-09, 652 P2d 773 (1982), his rights were violated when the trial court entered four convictions under ORS 161.067(3) in the absence of a determination by the jury that there were sufficient pauses between defendant's attempts to elude the police. Those arguments are not preserved and do not constitute error apparent on the record.
I wrote about the issue here. I don't point this out to be critical, since I think it's the rare defense lawyer who knows this issue. And as a practical matter, a finding of a sufficient pause isn't something that comes up too often.
But it does come up, and it will come up again, so I hope people will be alert to the issue. Where it will most often come up is in a case where there are, for example, 10 firearms found in a house. If they are located in different parts of the house, a judge may infer the guns were obtained at different times and therefore make a finding of a sufficient pause between possessions or even separate criminal episodes. I think this is obviously wrong, but it's the rule of the game for the time being. The jury may be less likely to make that inference than the trial court, and therefore you should object to the failure to submit the question of a sufficient pause (or separate criminal episode) to a jury.