improper joinder edition
by: Ryan • January 14, 2015 • no comments
As you likely know, the improper joinder demurrer applies to multi-count indictments. The defense has been arguing that the grounds for joinder (e.g., same criminal episode) must be plain on the face of the indictment. The state usually argues that the demurrer should only be granted if the counts could not, under any circumstances, be properly joined. Note that the state's theory is that it doesn't matter -- for the purposes of a demurrer -- whether the counts are in fact properly joined. It only matters if there is no possible way those two crimes could ever be joined. With the exception of the crime of failure to register as a sex offender, it's hard to imagine that some creative person couldn't come up with a theory for joinder of just about any two crimes. Offensive littering in June and Murder in December? The murder was revenge for the littering that had offended the killer and gnawed at him for six months. Sure those might not be the actual facts, but joinder is limited only -- under the state's theory -- by your imagination.
I won't belabor the arguments I've made before, except to repeat that (1) this isn't generally how demurrers, which are limited to the four-corners of the indictment work (if the police reports couldn't be considered for a demurrer, how does it make sense to consider imaginary facts?); (2) the state says the solution is severance, but the statute is plain that severance only applies when the counts are properly joined but too prejudicial to by tried together; (3) an appropriate analog is when the state wants to rely on a statute to extend the statute of limitations, at which time the state must allege the basis for doing so in the indictment and can't simply argue that the demurrer should only be granted if no extension of the statute of limitations is at all possible under any imaginary facts; and (4), the original appellate language that has provided the state with this argument was intended to apply to indictments where the state did allege "as part of the same act or transaction," but such a claim, though put down in writing, cannot possibly be true.
Anyway, the point of this particular post is to address one particular basis for the state's theory. I'm not sure it interests the lawyer in me so much as the former English major. It's an example of how subtle statutory interpretation can be.
From a state's brief:
- ORS132.560(1) provides that an indictment “must charge but one offense, and in one form only,” but creates an exception in paragraph (b) where offenses charged are alleged to have been committed by the same person or persons and are offenses that fall in to one of the three listed subcategories. {Emphasis in state's brief.]
In sum, the state's argument is that the indictment must expressly allege that the crimes were committed by the same person or persons but the absence of the word "alleged" in the final clause of that sentence means no allegation is required that states the basis of the joinder. In other words, the legislature implicitly was signalling, "the indictment must allege this, but while the second thing is necessary, the indictment doesn't have to allege it."
At first blush, this is a fair reading. Until you spend a couple minutes thinking about it.
Does "alleged," as in the phrase "where offenses charged are alleged to have been committed by the same person or person" mean "put down in writing in the indictment"? Or does it mean "offenses of which defendant has been accused," because the defendant has not yet been found guilty?
After all, of course the indictment must "allege" the defendant committed offenses in an indictment. That's the heart of the indictment. Was the statute the state cited really necessary because the legislature wanted to make plain the defendant could demur to the indictment if it failed actually to allege the crimes committed by the defendants? I mean, if the indictment doesn't allege the crimes committed by the defendant, or alternatively who the defendant is, then why demur?
Of course not. The legislature could have said, "where the offenses were committed by the same person" but if it did, what would your reaction be? It'd be, "hey, she hasn't been convicted yet, thank you very much." So the legislature simply did what newscasters do every day; it injected the self-evident language that signals that the defendant has been accused of an offense when the indictment is issued but has not yet been found guilty.
In sum, the phrase "where offenses charged are alleged to have been committed by the same person" is not a reminder that the indictment must actually allege crimes against your client (duh!); it is simply another way of saying the defendant is only alleged to have committed the crimes in the indictment. And if that's the case, the phrasing isn't evidence of the legislature's requirement that only the crimes must be alleged but not the basis for joinder.
