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What Issues Remain?

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by: Ryan Scott • December 14, 2018 • no comments

With the issuance of State v. Warren by the Oregon Supreme Court, the lengthy litigation over whether the face of the indictment must affirmatively justify joinder of multiple counts is over. It must, or the indictment is subject to a demurrer.

Nevertheless, some questions remain. Here are three.

1. Does an indictment that alleges that crimes are from the same criminal episode prohibit the state from arguing otherwise at sentencing?

State v. Bush held "same criminal episode" language in the indictment did not prohibit, under the doctrine of equitable estoppel, the state from taking a contrary position at sentencing. Part of the court's analysis was based on the lack of any reliance by the defendant on that language. What is worth noting is that Bush was decided more than a decade before the Court of Appeals ruled in State v. Poston that an indictment without such language might be subject to a demurrer. I see cases now where the relevant language is enough to keep the defendant from filing the demurrer, which would, it would seem, show detrimental reliance by the defendant. In sum, Bush may not be good law anymore.

2. If the state alleges grounds for joinder, but those grounds aren't supported by the facts, may a defendant move for a mistrial at the close of the state's case?

The answer would appear to be "yes."

If, however, a case goes to trial and the evidence establishes that the charges are not properly joined, then either: (1) the improperly joined charges should be dismissed at the defendant's motion so that they can be the basis of a separate, later trial, see, State v. Clipston, 3 Or. App. 313, 473 P.2d 682 (1970); or (2) if the jury has possibly been unduly influenced by the evidence received concerning the improperly joined charges, then the only remaining procedure is for the defendant to move for a mistrial.

State v. Sanchez, 14 Or. App. 234, 511 P.2d 1231 (1973)

As you can see, Sanchez is from 1973, but there wouldn't appear to be any flaws in its holding or any reason to believe it has been undermined by subsequent case law.

3. Can the state amend the indictment, without resubmitting it to the Grand Jury, to include the necessary joinder language?

State v. Haji says yes. But that's a Court of Appeals decision, and the Supreme Court has just granted review. The argument for why Haji is wrong is this. An error cannot both merit demurrer and be a defect in form—those categories are mutually exclusive. The granting of a demurrer would either end the case in its entirety, or it would require the grand jury to consider a new and different indictment. Allowing the state to simply add language that would obviate either outcome alters the essential nature of the indictment and effectively adds charges to the indictment that should not be there. Because the defect is one of substance and not form, the prosecutor has no authority to amend the indictment in this case.