Lessons from State v. Antoine
by: Swiley • May 7, 2015 • no comments
On February 11, 2015, the Court of Appeals decided State v. Antoine, 269 Or App 66, in which the court wrestled with a scenario all too familiar to many of us. The state charges your client in an indictment featuring multiple counts, most commonly sex crimes, each of them identical, alleging the same act, during the same time period, against the same victim. The language used to describe the actus reus in each of the counts is generic and without detail, mirroring the wording of the statute your client allegedly violated. Pretrial discovery reveals that those identical counts could be based on any number of factual incidents described by the victim in different statements to family members, the police, CARES personnel, etc. Those statements may or may not include identifying details to distinguish one occurrence from another (e.g., “He touched me one afternoon after we went to a movie,” or, “I remember it happened once in the living room after everyone had gone to bed”).
That scenario—repetitive, generically-worded counts that are not clarified by pretrial discovery—implicates at least four significant legal issues. First, has your client received sufficient notice of the charges against him? Second, is the state trying your client for acts not considered by the grand jury when it indicted him? Third, if the state presents evidence of more criminal acts than there are counts capturing those acts, how do we ensure that jurors agree on the factual predicate underlying a conviction? And fourth, do the repetitive, generic counts protect your client’s double jeopardy rights? In Antoine, Judge Nakamota tackles the first two of those concerns, and we can glean some important lessons from the decision.[1]
The defendant in Antoine was charged with four counts of sodomy; each of those four counts was worded identically:
- That as a separate act and transaction from [each of the other counts]: The defendant, on or between September 1, 2006, and October 1, 2008, in Washington County, Oregon, did unlawfully and knowingly have deviate sexual intercourse with [the victim], a child under 12 years of age.
Antoine, 269 Or App at 69.[2] Antoine filed a demurrer, arguing that the indictment “provided insufficient notice of the charges, placed him at risk of double jeopardy, and failed to ensure that he was being tried only for those criminal acts for which the grand jury had indicted him.”[3] The prosecutor asserted that the state could resolve the problem by making an election at the end of its case. The trial court agreed, and held that the prosecution could only elect factual incidents relied upon by the grand jury.[4]
Antoine responded to that ruling by unsuccessfully moving the court to order the state to disclose grand jury notes, in order to discern which factual incidents were in play. In responding to that motion, the prosecutor disclosed that the grand jury had been presented a “broad” description of sexual abuse inflicted on the victim by the defendant and that the resulting counts were “representative samples” of that evidence.[5] The prosecutor assured the court that the state could tie specific counts to specific incidents when it made its election.[6] The state subsequently elected at the close of its case, and the trial court tailored the jury instructions to signal that particular counts were tied to specific factual incidents detailed in the state’s evidence.
On appeal, Antoine reasserted that the generically-worded indictment violated his constitutional right under the Sixth Amendment and Article I, section 11, to notice of the charges against him. The Court of Appeals “agree[d] with defendant that the indictment itself did not provide him with sufficient notice, and the problem with inadequate notice, which arose before trial, was not cured during trial.”[7]
That holding is significant. The court noted the general rule that an indictment generally is sufficient if it charges an offense in the words of the statute. An exception to that rule exists where the indictment fails to inform the defendant of the specific factual allegations that he must defend against and discovery does not supply that missing information. But Oregon courts have never endowed the exception with a lot of teeth. See, e.g., State v. Molver, 233 Or App 239, 244-49, 225 P3d 136 (2010) (discussing exception but concluding that DUII allegation was not sufficiently complex to render generically-worded indictment insufficient).
In Antoine, Judge Nakamoto restores adequate notice and the corresponding opportunity to defend against the charges as the focus of the analysis:
- This case involves multiple, separately identifiable criminal acts, but the indictment tracks the wording of the criminal statutes without differentiating separate criminal acts. From discovery, defendant learned that the victim had described more criminal acts than were charged in the indictment, and the state elected the specific criminal acts that it was prosecuting only after the close of its case-in-chief. As a result, the state’s charging method effectively allowed the state to adduce evidence of multiple criminal acts in each count of the indictment, without defendant knowing which of the acts would be specified and argued to the jury for convictions. Such a charging process failed to provide defendant with proper notice of the charges before trial.
Antoine, 269 Or App at 76-77; emphasis added.[8]
However, having found that the indictment failed to sufficiently apprise Antoine and the trial court of the charges prior to trial (which the court labeled the “core function” of an indictment), and that pretrial discovery failed to bridge that gap, the court nevertheless affirmed the trial court’s denial of the demurrer. The court determined that State v. Hale, 335 Or 612, 75 P3d 448 (2003), cert den, 541 US 942 (2004), demanded that result.
The defendant in Hale filed a demurrer, arguing that the allegations of aggravated murder based on murder to conceal the crime of sexual abuse which generically mirrored the statutory wording, failed to provide adequate notice.[9] Pretrial discovery indicated that Hale or another person may have sexually abused a number of the murder victims.[10] The Supreme Court agreed that Hale was entitled to know which facts and circumstances the state was relying on to support the aggravated murder counts.[11]
However, the Hale court held that the trial court properly denied the demurrer, because Hale had other methods available to him to acquire that information, such as by “later moving” to require the state to elect.[12] The Antoine court understood Hale to “place the burden on a defendant to attempt to procure adequate and timely notice of the charges against him, even when an indictment that is alleged in the words of the statute does not provide such notice.”[13] Given that burden, when the prosecutor proposed to elect after the state’s case-in-chief, Antoine’s failure to object and demand that the election occur pretrial was fatal to the issue on appeal.[14]
Despite that result, Antoine is a significant victory in an area of law that has consistently proven frustrating for the defense. Most courts faced with generic allegations and a record that would support multiple incidents of the relevant crime have focused on the requirement that jurors agree on the factual predicate underlying their verdict. Antoine squarely addresses the deficiencies in notice to the defendant inherent in those circumstances, with the corresponding difficulty in preparing to defend against the charges. The opinion provides a blueprint for us going forward: identify the extent to which the indictment and pretrial discovery fail to identify the factual instances the prosecution will rely on to prove the allegations, and demand a pretrial election. A judge who refuses to require an early election violates your client’s rights under the Sixth Amendment and Article I, section 11, and the issue is properly preserved for appeal. On the other hand, if the judge forces the state to elect prior to trial, motions for judgment of acquittal and to exclude other acts evidence (even post-Williams) gain focus and strength.[15]
Two interrelated issues remain. The Antoine court explicitly left for another day the application of its analysis to a more extreme, but no less common, variant of generic charging: “cases in which young children or others with disabilities may not be able to describe a particular incident with specificity and instead may generically describe repeated abuse of a particular type that has occurred over a period of time; in other words, they cannot describe dates, exact locations, or other details to differentiate one incident from the next.”[16] That situation will test the court’s ability to balance the interests of the state in prosecuting those cases and the defendant’s right to notice of the charges.
It will also fully implicate the due process concerns that the Antoine court declined to address. Article I, section 12, of the Oregon Constitution, prohibits a second prosecution if (1) the charges arise out of the same act or transaction, and (2) the charges could have been tried in the same court, and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution.[17] The use of generic, identical allegations as “representative examples” of repeated, nondifferentiated factual incidents, any of which could constitute the charged crime, creates a substantial double jeopardy risk for defendant. The resulting trial typically contains no evidence from which one can determine which incidents form the basis of the jury’s verdicts. Yet the complaining witness typically provides testimony alleging large numbers of those incidents. What protects the defendant from the state again charging defendant with the exact same crimes committed during the exact same time frame?
Those are questions and issues for another day. In the meantime, Antoine gives us the opportunity and authority to demand pretrial notice where the indictment and discovery do not clearly delineate which factual incidents the state intends to rely on to prove the charges against the client.
Endnotes
- ↑ Courts have often addressed the third concern—juror agreement on factual predicates—by requiring the prosecution to elect at the close of its case which act it is relying on to prove a particular charge. State v. Randolph, 123 Or App 566, 569, 860 P2d 873 (1993), State v. Yielding, 238 Or 419, 424, 395 P2d 172 (1964); State v. Pace, 187 Or 498, 212 P2d 755 (1949); State v. Ewing, 174 Or 487, 149 P2d 765 (1944).
- ↑ Antoine was also charged with four counts of sexual abuse that were similarly indistinguishable from each other. Id.
- ↑ Id. at 70.
- ↑ Id. at 71.
- ↑ Id. at 72-73.
- ↑ Id. at 73-74.
- ↑ Id. at 76.
- ↑ The Antoine court also noted that the indictment’s lack of specificity with regard to which factual incidents formed the basis of the charges made it impossible for the trial court to evaluate objections to other bad acts evidence under OEC 404(3), because the court cannot know which acts are the charged acts and which are the “other” acts. Id. at 77-78. However, the Oregon Supreme Court’s more recent opinion in State v. Williams, 357 Or 1 (March 19, 2015), may affect that portion of Judge Nakamoto’s analysis.
- ↑ Hale, 335 Or at 617-18.
- ↑ Id. at 616.
- ↑ Id. at 620-21.
- ↑ Id. at 621.
- ↑ Antoine, 269 Or App at 78.
- ↑ That result is somewhat puzzling, even in light of Hale. Antoine fully preserved the issue of inadequate notice by filing a demurrer in which he argued that the indictment and pretrial discovery failed to provide sufficient notice of the charges. The Court of Appeals held that, in fact, such notice was lacking, which violated Antoine’s constitutional rights. Yet because Antoine did not utilize another method of acquiring the necessary information prior to trial (one that the trial court could have ordered in response to Antoine’s demurrer), the Court of Appeals affirmed his conviction. Id. at 79.
- ↑ Should the legislature pass OCDLA’s 2015 bill (SB 822) to require grand jury proceedings be recorded, the defense will have a significantly stronger ability to argue that the factual incidents identified in the state’s pretrial election do not match the facts found by the grand jury. The Antoine court rejected that argument, somewhat reluctantly holding that prior Supreme Court opinions required it to presume that the grand jury relied upon the same factual incidents as the prosecution elected to rely on at trial. 269 Or App at 81-84 (citing State v. Wimber, 315 Or 103, 115, 843 P2d 424 (1992); State v. Pachmayr, 344 Or 482, 492-95, 185 P3d 1103 (2008)).
- ↑ Antoine, 269 Or App at 77 n6.
- ↑ State v. Leverich, 14 Or App 222, 225, 511 P2d 1265 (1973); see also ORS 131.515.
OCDLA Member Shawn Wiley is with the Appellate Division, Office of Public Defense Services, Salem. This article originally appeared in the April/May 2015 issue of The Oregon Defense Attorney journal.
