What Can Brown Do for You?

by: Ryan Scott • August 16, 2023 • no comments

In September, I will be presenting at the OCDLA CLE in Newport. I will be speaking on severance, aka, having separate trials for different counts. You'll need to go to the conference for my full presentation, but I wanted to alert everyone to State v Brown, 326 Or App 46 (2023).

In Brown, the Court of Appeals held that all counts that are joined for trial must be properly joined with all other counts. They rejected the argument that "if A is properly joined with B and B is properly joined with C, then A, B and C, can all be joined in one trial, even if count A and count C are not properly joined."

Here's the most basic hypothetical I can think of. If the defendant -- a convicted felon -- is charged with murder in December by stabbing, and a second murder in January by shooting, he might fact the following charges:

Count 1: Murder

Count 2: Murder w/ a Firearm

Count 3: Felon in Possession of a Firearm w/ a Firearm.

Assume the murders are completely unrelated. Before Brown, the state would argue that count 1 is properly joined with count 2 because the counts are "same or similar." They would also argue that count 2 and count 3 are properly joined because they are from one criminal episode and part of a common scheme or plan.

Post-Brown, the defendant would counter that count 1 and count 3 are not properly joined. They are not "same or similar." They are not part of the same transaction or a common scheme or plan. There is no independent basis for joining counts 1 and 3. Therefore, each murder should have a separate trial. There is no obligation for the defendant to show "substantial prejudice," although obviously each trial will be more fair if tried separately.