How Does St v. Cuevas Impact the Improper Joinder Demurrer

This wikilog article is a draft, it was not published yet.

by: Ryan • July 22, 2014 • no comments

An appellate attorney more cynical than I am believes that certain legal principles are not applied equally to the state and the defense at the Court of Appeals. I'm not there (yet), but an upcoming opinion might be an interesting test of the hypothesis.

The Court of Appeals currently has under advisement a case involving the improper joinder demurrer. The indictment in that case did not allege the basis for joinder of multiple counts. As I have written before, Oregon statutes state that an indictment shall allege one count and one count only, unless an exception is met. Analogizing to the statute of limitations, I submit that when the state wants to rely on an exception to a rule limiting what may or may not be in the indictment, it must allege the exception it is relying on. In a few appellate cases from many years ago, the COA or the Supremes upheld an indictment against the demurrer because the indictments alleged "as part of the same act and transaction."

As I noted, the indictment on appeal did not make that allegation. But the state points to language in those appellate cases saying it's up to the defendant to show that the counts COULD NOT have been part of the same act and transaction. To me, it's obvious that a defendant would only need to show that they could not have been part of the same act and transaction BECAUSE that language is alleged in the indictment. If you remove that language, then the defendant need make no such showing.

We'll see if it's equally obvious to the COA.

One of the reasons I think it's obvious is the rule regarding demurrers, which says that the court may only look at the four corners of the indictment and not the facts of the case, in evaluating whether to grant the demurrer. This rule has been the basis for affirming convictions at the COA for many years. How could a person show that the counts couldn't be part of the same act and transaction if they can't show the facts of the case? Presumably, they'd have to show that the counts could never be part of the same act and transaction (or part of a common scheme or plan or connected together). In other words, you don't look at the facts. Rather, you say, hey, failure to register as a sex offender and PCS could never be properly joined, therefore the court should grant the demurrer.

Obviously, such an argument would prevail in very few cases (most of them involving Failure to Register, which -- it is hard to imagine -- could ever be part of a larger scheme), and thus it wouldn't amount to much of a remedy for counts that were improperly joined but not inevitably so. Because even if they were improperly joined under your particular set of facts, you can't show that (can't go outside the four corners). You'd have to show they could never be improperly joined.

Note that a motion to sever, per statute, only applies when the counts are properly joined but too prejudicial to be tried together.

Okay, so what about Cuevas? Well, that case says, in certain situations (e.g., when the counts all occur on the same day), the state must prove to the jury separate criminal episodes. This is because in certain situations, separate criminal episodes are Blakely/6th Amendment factors. Well, if they're Blakely factors, then the state, per statute, must give notice of an intent to prove the factor.

So you could have a situation where the state has charged, say, DCS and UUV in the same indictment, alleged to have occurred on the same day. The state gives notice that they intend to prove the counts are from separate criminal episodes. The defendant files the demurrer, arguing the counts are improperly joined. But if the COA adopts the state's position on the case under advisement, the demurrer loses because the defendant could NEVER prove the counts must be, as a matter of law, from separate criminal episodes. And that remains true even though the state has alleged in this case they are from separate criminal episodes. Again, the facts of a particular case don't matter when evaluating a demurrer.

Which brings to mind this lovely discussion from a book published in 1961:

There was only one catch and that was Catch-22, which specified that a concern for one's own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane, he had to fly them. If he flew them, he was crazy and didn't have to; but if he didn't want to, he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

"That's some catch, that Catch-22," he observed.

"It's the best there is," Doc Daneeka agreed.