Demurrers, Extrinisic Facts and Imaginary Facts
by: Ryan • January 23, 2015 • no comments
State v. Nistler, which came out this week, dealt with the requirement that the indictment allege those facts that are necessary if the state intends to rely on an exception to the normal statute of limitations. This is what the Court held:
- We reiterate explicitly what was necessarily implicit in Cervantes and Knutson: A theory of prosecution dependent on facts not alleged in the indictment is insufficient to defeat a demurrer. Rather (stated in the affirmative), the question that a court must answer when faced with a demurrer concerning the statute of limitations is whether it appears “upon the face of the indictment” that the crime was committed “within the time limited by law for the commencement of” such action. Moreover, any facts “relied on to toll the statute of limitations ‘must be set forth in the indictment to survive a demurrer for failure to comply with ORS 132.540(1)(c).’” State v. Gruhlke, 257 Or App 485, 493, 306 P3d 773 (2013) (quoting State v. Bovee, 76 Or App 572, 576, 710 P2d 786 (1985), rev den, 300 Or 605 (1986))
Note that Oregon statutes explicitly state that the remedy for improper joinder of counts is a demurrer. ORS 135.630(2). Furthermore, the joinder of counts is an exception to the general rule that there should only be one count per indictment ("A charging instrument must charge but one offense, and in one form only, except that . . . .") Lastly, certain facts must exist to prohibit joinder, e.g., that the counts arise from the same criminal episode.
Many of us have argued that when the state wants to rely on an exception to the one-count-per-indictment rule (that is, when the state wants to allege multiple counts in the same indictment), it must state "on the face of the indictment" the factual basis for doing so. Consistent with the holding from Nistler, the prosecutor usually agrees that extrinsic facts of the case are not relevant to a demurrer. Nevertheless the state's position is that the court can rely on "imaginary facts" to defeat the demurrer. Think I'm kidding? The prosecutors don't phrase it that way, exactly. What they say is that if there is any conceivable basis for joinder, then the demurrer must be defeated. In other words, if you can conceive, i.e., imagine, a basis for joinder, even if what you imagine has no basis in reality, then the demurrer must be defeated.
So, if the state were to join an offensive littering from December with a murder the following June, the demurrer would be defeated because you could imagine the defendant and victim had a long-running argument about littering that led to one of them killing the other.
Relying on imaginary facts -- when extrinsic facts may not be considered -- would seem to be inconsistent with Nistler. I know where the state gets its argument, but I believe it is misreading an opinion where the impossibility of joinder could be a basis for a successful demurrer but only when the language justifying the joinder of counts was in fact alleged. For example, if a failure to register was from the same indictment as a driving while suspended, but the indictment alleged they were from the same criminal episode, a demurrer might be allowed because those two crimes could never as a matter of law be from the same criminal episode. But the impossibility of joinder only applies when an explicit allegation of proper joinder is made in the indictment.
A decision on which side is correct should be decided by the end of the year. Although a few cases are currently under advisement with the Court of Appeals, one in particular was argued nine months ago.
