the basis for joinder is narrower than you might think
by: Ryan • December 9, 2013 • no comments
There are three bases for joinder of counts in an indictment: the crimes must be the same or similar, the crimes must arise from the same criminal episode, or the crimes must be part of a common scheme or plan (or connected together). In my presentation at the Benson on Friday, I noted that the AG's position is that PCS and DUII are never part of the same act or transaction as a matter of law, even if arising from the same traffic stop. This would mean they should never be joined in the same indictment unless they are part of a common scheme or plan or connected together. While the appellate courts have not answered this question directly, nevertheless they have discussed "common scheme or plan" and the limitations of joinder are much stricter than you might assume.
The Oregon Court of Appeals addressed this question head-on in State v. Johnson, 199 Or App 305 (2005), albeit in the context of a motion to sever rather than a demurrer. In Johnson, the defendant was involved in a marijuana manufacturing, which resulted in his affiliation with methamphetamine manufacture. This in turn led to a methamphetamine-related robbery. Johnson at 316. In Johnson, the state argued that this relationship was enough to make the offenses of robbery and murder “parts of a common scheme” or “connected together” with the marijuana operation that the statute allowed them to be tried together. Id.
The Johnson court rejected this argument:
- To accept the state's position would stretch the meaning of the phrases "connected together" or "common scheme or plan" to a level of generality that equates the expansive standard for relevance in OEC 401, see, e.g., Trook v. Sagert, 171 Ore. 680, 688, 690, 138 P.2d 900 (1943), (evidence is relevant when it "will advance the search for truth" or "throws some light on the issue"), with the connectedness between offenses required in ORS 132.560(1)(b)(C), rendering almost useless the tests in subparagraphs (1)(b)(A) and (1)(b)(B).
Johnson at 316.
The Johnson court noted that the amendments to the joinder statute were intended by the legislature to bring the statute in line with the federal statute on joinder. 199 Or. App. at 316-317. A lengthy analysis of the legislative history can be found in the Johnson opinion. Id. In particular, the court noted that the Ninth Circuit’s interpretation of the federal joinder statute in United States v. Anderson, 642 F2d 281 (9th Cir 1981) was cited by the House Committee on the Judiciary. Johnson, 199 Or. App. at 317.
Consequently, the Johnson court relied on Anderson as an example of legislative intent of the analogous state statute on joinder. Id. The Johnson court observed:
- In Anderson, the court interpreted the three tests encompassed in FRCP 8(a) (and later added to ORS 132.560(1)(b)(A) to (C)) and held that "when the joined counts are logically related, and there is a large area of overlapping proof, joinder is appropriate." 642 F.2d at 284. [Emphasis added.]
Johnson at 318 .
