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an improper joinder demurrer analysis

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by: Ryan • May 13, 2013 • no comments

I want to ask you something about how things are done in your county. Let's assume the defendant is charged with felony theft by deception. Let's further assume the theft occurred four years ago (5/13/2009), but it wasn't indicted until today.

The statute of limitations for felony theft is 3 years. ORS 131.125(6)(a). So the indictment is subject to a challenge for being outside the statute of limitations? But there is an "exception" to the three year statute of limitation, and it is under sub (7) of the same statute. It says:

(a) If the offense has as a material element either fraud or the breach of a fiduciary obligation, prosecution may be commenced within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is not a party to the offense, but in no case shall the period of limitation otherwise applicable be extended by more than three years;

So here is my question: when the indictment is filed 4 years after the incident occurred, does the indictment in your county -- in order to survive the facial challenge -- allege that the discovery of the offense was discovered by the aggrieved party with the past year? That is, does the indictment allege the language necessary to apply the "exception" to the 3 year statute of limitations?

Or, does the indictment remain silent and merely allege the incident date? In that situation, if the defendant challenges via a demurrer, would the state say in response, "we don't have to allege the facts giving rise to the exception. Rather, the burden is on the defendant to show that the exception doesn't apply?"

A similar question can be asked regarding sex offenses which might appear to be past the statute of limitations, but have not yet run because the victim has not, for example, reached the age of 30. Does the prosecutor in your county allege something which would satisfy the exception to the statute of limitations or does the prosecutor argue it is the defendant's burden to prove the exception doesn't apply?

In my experience, the state in fact alleges the facts necessary to support the exception to the statute of limitations. Is your experience the same?

Why do I ask? Because the above examples serve as very effective analogs to the improper joinder demurrer.

Just as the statute of limitations for felony Theft is three years, the presumptive indictment is only allowed to contain a single count. Sound crazy? ORS 132.560 says: "(1) A charging instrument must charge but one offense, and in one form only. . . ."

But wait, what did I leave out and replace with that ellipsis? Well, I left out the "exception" to one-count-per-indictment rule. The full sentence says:

(1) A charging instrument must charge but one offense, and in one form only, except that:
     (b) Two or more offenses may be charged in the same charging instrument 
         in a separate count for each offense if the offenses charged are alleged to 
         have been committed by the same person or persons and are:
     (A) Of the same or similar character;
     (B) Based on the same act or transaction; or
     (C) Based on two or more acts or transactions connected together or 
         constituting parts of a common scheme or plan. 

As with the statute of limitations, the key word is "except." The default is one thing (3 years SOL, a single count in the indictment), and the exception is something else (6 year statute of limitations for felony Theft by deception in some circumstances/mult-count indictment if same act or transaction, common scheme or plan, etc.).

So my question is this: if the prosecutor in your county feels it is necessary to add the language supporting the exception to the default statute of limitations, why wouldn't she similarly need to allege the language (same act or transaction or common scheme or plan) that justifies the exception to the only-one-count-in-the-indictment rule?

This comes up when you've filed the improper joinder demurrer. Let's assume the crimes are Criminal Mischief and Unlawful Use of a Weapon. These two crimes may be from the same criminal episode or they may not be. They may be part of a common scheme or plan but maybe not. But the indictment is silent. It doesn't allege either of those things.

So you file the demurrer, and because it's a demurrer, the trial court can't consider extrinsic evidence. For example, the prosecutor isn't allowed to offer facts that show that these two crimes come from the same criminal episode, unless those "facts" are contained in the indictment.

The prosecutor agrees that everyone is limited to the language in the indictment, but the prosecutor argues, "but wait, it's the defendant's burden to prove no exception to the only-one-count-in-the-indictment rule applies. It's not my burden to allege in the indictment that the exception exists."

Well, this isn't the worst argument in the world. Defendant's demurrer, then defendant's burden. It has a certain symmetry. But it would also mean the demurrer could never win, because the indictment is never going to say "these counts are improperly joined." And if the indictment doesn't say that, if it's silent, and you can't go beyond the four corners of the indictment, the defendant would never be able to prove improper joinder. So for the prosecutor to be correct, the legislature must have created a remedy (a demurrer) that could never, ever prevail.

I submit, instead, that it's the state's burden, not yours, to justify the exceptions. Getting back to the SOL examples above, if the state feels the need to allege in the indictment the facts supporting the exceptions to the default SOL, why wouldn't the same rule apply to the improper joinder demurrer? We don't -- at least I've never seen it -- expect the defendant to prove (while simultaneously limited to the four corner of the indictment) that no exception to the SOL would apply. Similarly, when the indictment, on its face, violates the no-more-than-one-count-in-the-indictment rule, we shouldn't expect the defendant to prove something he can never prove as a matter of law. Rather, the trial court should grant the demurrer and dismiss the indictment.

What this means, practically speaking, is that you should file the improper joinder demurrer even when the facts might support joinder, as long as the indictment itself is deficient because it doesn't have the necessary language in it. You'd do the same thing for an indictment that appeared to violate the SOL, even if you believe there were facts to support the extended SOL. Why? Because if you lose the demurrer in front of the trial court, it might win at the COA. In that situation, at worst your client gets a new trial. At best, it is now too late to reindict.