Bench Trials, Severance Motions and OEC 404

by: Ryan Scott • January 9, 2025 • no comments

Yesterday, the Court of Appeals issued an opinion in which the primary issue was the trial court's denial of a motion to sever. The Court never reached the merits because they found any error in denying severance was harmless. So this post really isn't about severance at all, but about how judges will try to immunize their bad rulings when the defendant waives jury, and the most effective way to stop them from doing so.

The case is State v. Harrington, 337 Or App 350 (2025), and it involved two sets of charges against the same victim, the defendant's then-girlfriend. One set was from 2019 and alleged strangulation. The other was from 2020 and alleged rape, among other charges.

As far as I can tell, the trial attorney made all the right arguments regarding severance, including citing the wonderful case of State v. Brown. If you don't remember which one was Brown, it was the "daisy-chain" case. Anyway, not the point of this post, except that, again, the trial attorney made the right arguments, and it appears the trial court got it wrong.

But then the defendant waived jury. And though there was an outstanding legal question regarding the cross-admissibility of the evidence, the trial court held off on ruling until it reached its verdict.

So when the judge acquitted the defendant of the 2019 charges, and convicted of some of the 2020 charges, he then ruled the evidence was not cross-admissible, and the evidence from the 2019 case had absolutely no bearing on the guilty verdicts in the 2020 case.

In other words, even if the counts were improperly joined in a single trial, it was harmless because the trier-of-fact himself says it had zero impact on his decision making process.

I guess that could be true. But whether true or not, it guaranteed the COA would find any error in keeping the charges together to be harmless error.

Other than not waiving jury, was there something the defendant could have done to at least preserve the viability of appeal?

Yes. Don't waive jury until the judge indicates they are not severing the charges, and then put on the record -- if true -- that the decision not to sever will so prejudice the defendant that that is the reason now he is waiving jury.

Consequently, if he would not have waived jury but for the judge's ruling, the error can't have been harmless because the ruling caused the defendant to waive a substantial constitutional right.

I'm simplifying the argument somewhat, and obviously, to make honest representations to the court, you have to have a serious and detailed conversation with your client about the advantages and disadvantages of waiving jury, including the fact that doing so, without some insurance, will likely cost the defendant any chance on appeal, at least on this issue and probably most others.