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Dismissal of the Indictment Due to Improper Joinder (demurrer attached)

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by: Ryan • November 25, 2012 • no comments

The quote below is taken from oral argument at the Oregon Supreme Court. The case is State v. Campbell. Oral argument was on November 5, 2012. The speaker is from the AG's office. It's at the 27 minute mark of oral argument.

"In this case, with the crimes that have been charged, possession of methamphetamine and driving under the influence, it's really a legal question because there are no circumstances when just those two crimes are charged, that they could be directed at a single criminal objective."

It was a double jeopardy case. Weird procedural history but the question at issue was whether a DUII and a PCS arising from the same traffic stop were from the same criminal episode. As you can see above, the AAG said no, not the same criminal episode, and that's because -- even though they were joined in time and place -- the crimes of PCS and DUII had separate criminal objectives.

Furthermore, when it comes to PCS and DUII, they aren't from the same criminal episode -- according to the AAG -- as a matter of law. Other combination of charges would require a mix of fact and law to determine if they were from the same criminal episode.

But what if this wasn't a double jeopardy case. What if, instead, the DUII and PCS were on the same indictment? If they aren't part of the same criminal episode, why are they being tried together? The two other bases for joinder are "common scheme or plan" and "same or similar crimes." DUII and PCS aren't same or similar offenses, and it's unlikely the state would argue "common scheme or plan" since they've already argued that there are separate criminal objectives.

Under the Oregon statutes, if crimes are not properly joined in an indictment, then the indictment is subject to a demurrer (and, by extension, the remedy is dismissal). Severance is only a remedy when it is too prejudicial to try otherwise properly joined counts together. Don't take my word for it. That's what the statutes say. (All relevant statutes are in the attached demurrer.)

So most of you have heard this before. But what I really want to emphasize -- in light of the AG's argument that PCS and DUII are not from the same criminal episode -- is how often this comes up.

So, take Monday's Drug Call docket in Multnomah County. Without knowing the facts of any of these cases, I would say the charges give rise to a strong presumption that they aren't properly joined and the indictment should be dismissed:

Unlawful Use of a Computer and False Information to a Police Officer on a Citation

Theft of Identity, Delivery of Heroin and Escape III

Burg II and False Info on a Citation

Possession of MJ and DWS

Theft of Identity and Possession of Meth

Possession of Heroin and Prostitution

Giving False Info to Police and Delivery of MJ

From the AM docket, there's:

Possession of Cocaine and Robbery III

Burg I and Escape III

Now, are there facts in any of those case that would justify joinder? Sure, a defendant could burgle the house in order to steal the meth. But odds are the person was arrested after the burglary and in a search incident to arrest, meth was found. It's no more part of the same criminal episode than a DUII/PCS from the same traffic stop.

The thing is, look at everything through the DUII/PCS standard ably articulated by the AAG. And for cases like burglary and escape, keep in mind there's already case law that says such crimes aren't from the same criminal episode.

I've attached a sample demurrer. Change it as necessary depending on the crimes charged. Improve it. Massage it. But get that indictment dismissed. (Or improve your hand in plea negotiations.) Better yet, lose the demurrer, and give your client a great chance of winning at the COA, when it would be too late for the state to reindict.