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.
In 1991, the Oregon Court of Appeals held that Delivery of a Controlled Substance (DCS) and Possession of a Controlled Substance (PCS) do not merge, because each crime contains an element the other does not. Specifically, a person can deliver a controlled substance (which, by statute, includes "attempted delivery") but not simultaneously possess the controlled substance. State v. Sargent, 110 Or App 194 (1991).
In Oregon law, merger refers to the combination of two or more guilty verdicts into a single conviction. If DCS and PCS were to merge, the benefits are real but relatively marginal. Merger of those two crimes would be unlikely to reduce the defendant's time in custody, but it could (1) reduce fines and fees, (2) possibly help with expungement many, many years later and (3) reduce the defendant's criminal history score, in case he or she is charged with more crimes in the future. Generally speaking, though, it's always better to have fewer convictions. Most important of all, however, is that it would require prosecutors to improve their offers pre-trial. A prosecutor who makes no concessions on the DCS because he or she is already agreeing to dismiss the PCS may be pressured to make additional concessions to keep a case from going to trial, since, if the counts merge, the PCS is going away anyway.
There are four different ways for crimes to merge, but the one most relevant to the Sargent analysis is whether, by committing DCS, a person necessarily commits PCS. If yes, then they merge. If not, then they don't.
You might think, of course you have to be guilty of PCS when you commit DCS. You've got to have/possess the drugs to deliver them, don't you?
Not according to the Sargent court. The reason is because of how "delivery" is defined in Oregon law.
ORS 475.005 defines "delivery" as "the actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance, whether or not there is an agency relationship."
"Attempted" is the key word here. The Sargent court determined that a person could "attempt a delivery" and thus be guilty of DCS if they solicit someone else to deliver drugs. Consequently, the court held:
- We conclude that, if a person solicits another to engage in conduct constituting an element of the crime of delivery, e.g., to provide to the person a controlled substance for the purpose of distribution to third parties, the person has taken a substantial step toward committing the crime of attempted delivery under ORS 475.992(1). Under that statute, the conduct constitutes delivery. Consequently, possession and delivery do not merge as a matter of law, because it is possible to commit the crime of delivery without having a possessory interest in the controlled substance. [Bold added.]
The key thing to note is that the opinion hinges on the defendant soliciting a third party to delivery drugs, which amounts to an attempted delivery. This is distinct from a theory of accomplice liability. If a defendant is convicted as an accomplice to another person's delivery and possession of drugs, he'd still be guilty of possession even if he didn't personally possess the drugs themselves.
The Oregon Supreme Court said as much in the context of forgery in State v. Blake, 348 Or 95 (2010):
- Accomplice liability makes a person who aids or abets a crime liable for that crime even though the accomplice may not have committed any of the acts that the crime entails. See ORS 161.155(2)(b) (criminal liability for aiding and abetting another person in planning or committing a crime). Because the principal who utters a forged instrument also necessarily possesses it, a person who aids and abets the principal in the crime of forgery by definition also aids and abets the principal in the crime of criminal possession of a forged instrument. An accomplice who is liable for forgery is also liable for criminal possession of a forged instrument."
Blake didn't overrule Sargent because unlike DCS, a person could not be convicted of "uttering" a forged instrument merely by attempting to do so. If they couldn't be convicted merely for the attempt, then they couldn't be convicted for mere solicitation.
Even before the events of last week, the Sargent holding was based on a questionable view of the relevant legislative history, specifically whether or not the legislature intended that solicitation by itself amounted to an attempt. There was a subsequent COA case from 2005 that went into the problems with the Sargent reading of legislative history, but reaffirmed Sargent anyway, in part because no one was arguing at that time Sargent was wrong decided. That case is State v. Johnson, 202 Or App 478 (2005).
Skip to December 2018, and the attempted aggravated murder/solicitation to commit aggravated murder case State v. Kimbrough, 364 Or 66 (2018). The bottom line is that the court held that solicitation to commit a crime did not amount to an attempt to commit the crime, unless the defendant intended to commit the crime also. The Supreme Court held:
- Thus, the rule is that to be guilty of attempt, the defendant must personally engage in conduct that constitutes a substantial step, and that substantial step must be toward a crime that the defendant intends to participate in himself.
Kimbrough is a deep-dive into legislative history that does need not to be summarized here. What is important to note is that the holding of Sargent that DCS and PCS do not merge depended on the COA's conclusion that solicitation to deliver drugs constituted an attempt to deliver drugs. The OSC has now held that solicitation is insufficient to constitute attempted delivery, unless the defendant is going to participate, in which case the defendant himself is in possession of those drugs, either as a principal or as an accomplice.
If you are a defense attorney in Oregon, preserving this issue after trial is simple. You can write a memo that cites to the cases above or, if your court tolerates informality, you can simply give them a copy of the blog post. In my experience, most trial judges would not merge, until Sargent is explicitly overruled. But as long as you preserve the issue, an appellate attorney can do the heavy lifting.
Yesterday, in a case called Timbs v. Indiana, the United States Supreme Court heard oral argument on whether the Excessive Fines Clause of the 8th Amendment applied to the states.
When the Bill of Rights -- the first 10 amendments to the US Constitution -- was first adopted, it did not apply to the states. However, the passage of the Due Process Clause of the 14th Amendment -- which does apply in state court -- was widely interpreted as incorporating some of the first 10 amendments, that is, limiting state power in state criminal prosecutions, primarily. But which federal constitutional rights protect a defendant in state court and which do not? Early on, it was hit or miss, and in 1884, in a case called Hurtado v. California, the US Supreme Court appeared to hold that the indictment clause in the Fifth Amendment does not apply to state prosecutions. More on this later.
Over time, the Supreme Court increasingly held that the Due Process Clause of the 14th Amendmendment incorporated more and more of the Bill of Rights. And the trend has been to reverse earlier opinions that said otherwise. For example, it wasn't until 2010 that the US Supreme Court held that the 2nd Amendment (the right to bear arms) was incorporated by the Due Process Clause, reversing very old precedent. Thus, in state court, a defendant could cite the federal protections of the 2nd Amendment when challenging a state statute.
In the Timbs case, the question at issue was whether the Due Process Clause incorporated the provision in the 8th Amendment that prohibits "Excessive Fines." Here's what SCOTUSblog had to say about how the argument went:
- Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does. Justice Neil Gorsuch seemed to summarize the feeling on the bench in a question for Thomas Fisher, the Indiana solicitor general who argued on behalf of the state. Gorsuch asked, almost rhetorically: The excessive fines clause “applies to the states, right?” Gorsuch observed that most of the Supreme Court’s cases interpreting the Bill of Rights to apply to the states “took place in like the 1940s.” Somewhat incredulously, Gorsuch continued, “here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on.”
Why does this matter in Oregon? It matters for two reasons. Two provisions from the Bill of Rights that have arguably not yet been incorporated are the right to a unanimous jury (which is not expressly found in the Bill of Rights) and, as mentioned above, the right to a Grand Jury indictment.
I'm not going to talk about the first. This post is about whether the Grand Jury Clause applies to Oregon. But before we get to that, your first question should be, "who cares?"
That should be your first question because Oregon's Constitution has its own Grand Jury clause, Article I, section V. It states that felony prosecutions require an indictment by Grand Jury, a waiver of indictment or a preliminary hearing. If the Oregon Constitution guarantees at least a preliminary hearing, why does it matter that the federal constitution does not?
But the reason it matters is this: the US Constitution recognizes as elements of crimes -- often referred to as Blakely elements -- that the state constitution does not. These elements enhance or aggravate a crime, and they can significantly lengthen the defendant's period of incarceration. Because they are not recognized as elements of a greater offense under the Oregon Constitution (with some exceptions), they do not need to be submitted to a Grand Jury under the Oregon Conbstitution. In other words, the prosecutor can threaten to double the defendant's potential sentence by dashing off -- without any oversight by a Grand Jury or a magistrate -- a number of often ill-thought-out enhancement factors up to 60 days obtaining the indictment.
But because these are elements of aggravated offenses under the US Constitution, if the Grand Jury clause was incorporated as part of the 14th Amendment, and therefore applicable to the state's, the current statutory notice scheme for enhancement factors would be unconstitutional. It would require some form of oversight, and as a result, we would see far fewer enhancements and thus shorter prison sentences.
Put another way, if Hurtado v. California were overturned, then a large number of defendants would benefit. For one, it would decrease the prosecutor's leverage pre-trial. More than anything else -- even more than unanimous juries -- it would have a significant impact on the number of people in prison by generally reducing the length of prison sentences.
(Yes, the prosecutor could still get upward departure factors past the GJ or past a magistrate, but as with anything else, the harder you make it for someone to get a widget, the fewer widgets they will get.)
Since Justice Gorsuch appears to believe that partial incorporation doesn't pass the laugh test, maybe we should be thinking about challenging the use of enhancement facts that haven't been submitted to the Grand Jury and give him the opportunity to apply the last part of the 5th Amendment to Oregon criminal prosecutions.
But I mentioned above that Hurtado "appeared" to hold that the GJ Clause doesn't apply to state prosecutions. Why the hedge?
While it's true that Hurtado found that it does not violate Due Process when the state doesn't submit a charge to the Grand Jury, it does appear to say that Due Process would still require a preliminary hearing. The Hurtado court wrote, after a discussion of the importance and history of Grand Jury indictments:
- Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.
In other words, a preliminary hearing in state court prosecution satisfies Due Process. If this is correct, enhancement factors that aren't subject to preliminary hearings, even if Hurtado isn't overturned, violate the US Constitution.
This concept -- that maybe the right applies but not the full scope of that right -- was endorsed -- at least generally -- by Justice Kagan at the same oral argument mentioned above. Again, SCOTUSblog:
- At one point during Fisher’s time at the lectern, Kagan noted that, when the Supreme Court decides that a provision of the Bill of Rights applies to the states, “there are always going to be questions about the scope of the right” that applies. But when the justices “have decided whether to flip the switch” and decide whether a right applies, it hasn’t decided those questions, instead leaving them “for another day,” she explained.
That sounds like exactly what Hurtado did. Maybe you don't get an indictment in state court but the protection that an indictment is supposed to provide is satisfied by a preliminary hearing.
It is not unusual, in a promoting prostitution case, that the defendant is in jail when the crimes allegedly occurred. Tape recorded jail calls will reveal that the defendant sought to have money placed on his books by a woman whose phone number is often used in backpage ads, which offer her services as an escort, though nothing expressly illegal is described in the ad itself. The money that is subsequently placed on defendant's books at the jail is, under the theory used to obtain an indictment, "pursuant to an agreement or understanding that the money, goods, property, services or something else of value is derived from a prostitution activity."
In these cases, the alleged prostitute never testifies, and it is up to a police officer to testify as an expert that those backpage advertisements are consistent with "prostitution activity." This falls under the category of "profile evidence," because there is no direct evidence of this particular person exchanging sex for money, but rather, that she does things -- such as placing lawful backpage advertiesements -- that other people -- who did exchange sex for money -- also did.
Is that enough to prove that the money placed on the books was derived from prostitution activity?
It shouldn't be, and there are a number of ways to attack it. One way would be to move for a limitation on the jury's consideration of the officer's profile evidence testimony. Specifically, the jury should be prohibited from using the profile evidence as substantive evidence that she in fact prostituted herself.
Case law in Oregon is thin or non-existent when it comes to the uses for which profile evidence can be put. Other jurisdictions have more developed case law in these areas. In 'AZ v. Escalante, (issued Sept 14, 2018), the Arizona Supreme Court -- under their version of the plain error standard -- reversed convictions based on the use of profile evidence as substantive proof of guilt, which is impermissible because "of the 'risk that a defendant will be convicted not for what he did but for what others are doing.' [Lee, 91 Ariz at 54.]"
The AZ court wrote:
- The prosecutor here introduced drug-courier profile evidence. He elicited testimony from officers who, after relating their training and experience in drug interdiction, described typical behaviors of drug-traffickers, thereby suggesting that because Escalante also engaged in such behaviors, he too was a drug-trafficker.
The court noted that such evidence can have value, but not as substantive evidence of guilt. If you're representing someone whose is charged with promoting or compelling prostitution because profile evidence is the only evidence the non-testifying witness engaged in acts of prostitution, use AZ v Escalante and the cases it cites to limit the jury's consideration of that evidence as substantive proof of prostitution activities. Then, move for a motion for judgment of acquittal at the close of the state's case. If you won the former, you'll likely win the latter.
CONTEMPT - Jurisdiction OFFENSIVE LITTERING COLLATERAL DNA TESTING - Prima facie case SENTENCING - Forfeiture EVIDENCE - Expert witnesses SENTENCING - Merger EVIDENCE - Relevance
See also this story from Oregon Public Broadcasting: Exonerations Raise Questions About Oregon's Controversial Jury System
Time did a story here.
The story prompted this editorial from the Oregonian.
Today, in State v. Pryor, the COA re-affirmed that the mental state of "intentionally" applies to "serious physical injury" in a charge of assault I, rejecting the state's argument that some pre-Barnes case law saying the same thing should be overruled. At trial, the judge found that the pre-Barnes case law was already overruled by St v Barnes and instructed the jury that Mr. Pryor did not need to intend serious physical injury; he only needed to intend an injury that turned out be serious. Mr. Pryor's Assault I conviction was reversed and remanded for a new trial. The remaining convictions stood.
The short opinion is worth reading, and it may be helpful in the following way. I have long argued that Barnes has been effectively overruled by St v Simonov, and that in assault II (or APSO or Criminal Mistreatment), a "knowing" mental state applies to the injury, serious or not. The alternative argument -- if Barnes is not overruled -- is that when the assault charge is generally charged "knowingly," criminal negligence applies to physical injury, so that if you punch someone (i.e., you don't have a weapon), resulting in serious physical injury, you at least have to be negligent as to that serious physical injury.
The flukier the injury, the more helpful such an instruction would be.
The state generally argues that Barnes is against us on the first issue (which is true), but on "criminal negligence" the prosecutor will likely argue that Barnes held that NO mental state applied to injury. In fact Barnes doesn't say that, but it's a common misunderstanding among both prosecutors and judges.
Today's opinion -- Pryor -- makes plain the second argument is wrong. The Pryor court makes clear that the Barnes decision is strictly limited to whether "knowingly" applies to the injury. It says nothing about the application of any other mental states.
- The issue in Barnes was focused on the meaning of only one of several culpable mental states that may be in play in second-degree assault. At issue in Barnes was the culpable mental state, “knowingly,” in one of the several forms of second-degree assault.
Pryor doesn't discuss criminal negligence because it doesn't need to. It's focus is on whether "intentionally" applies to serious physical injury. And, as mentioned above, it does. But in footnote 1 in that opinion, it has the key quote from Simonov that would support criminal negligence applying to assaults with a knowing mental state.
- The state’s reading of Barnes, even if limited to the context of second-degree assault, does not take into account later Supreme Court cases that have clarified how mental states attach to different elements of a crime. See, e.g., State v. Simonov, 358 Or 531, 539-40, 368 P3d 11 (2016) (“Unless otherwise indicated for a particular offense, ‘conduct’ elements require proof of an intentional or knowing mental state, ‘result’ elements require proof of an intentional, reckless, or criminally negligent mental state, and ‘circumstance’ elements require proof of a knowing, reckless, or criminally negligent mental state. The state may plead and prove the least culpable of the applicable mental states for a particular element of an offense. ORS 161.115(3). As a result, the minimum culpable mental state for elements that constitute conduct is knowledge, and the minimum culpable mental state for result and circumstance elements is criminal negligence.” (Internal citation omitted.)). The state has not developed any argument how the various mental states apply to the elements of first-degree assault under those more recent Supreme Court cases, let alone an argument that persuades us that our conclusion in Peacock is plainly wrong under a modern approach.
That footnote is satisfying in another way. When responding to the argument that Simonov changes the whole approach to mental states and elements, prosecutors frequently say, "no, it doesn't." They argue that Simonov is a property crime case and says nothing about "assault." That position is inconsistent with that quote of above that strongly implies ("the modern approach") that the rules have changed and the state needs to be prepared to recognize that.
(Incidentally, when arguing against criminal negligence applying to $ value in theft or criminal mischief, the state says the Jones case also says no mental state applies. The state is wrong there too.)
In sum, Pryor represents an important step towards obtaining accurate jury instructions where the standard instructions either mis-state the law or are otherwise incomplete.
A worthwhile read from the Washington Post can be found here.
Here's a key paragraph that gets at something most everyone misunderstands:
- Of particular concern to some on the right is the term “systemic racism,” often wrongly interpreted as an accusation that everyone in the system is racist. In fact, systemic racism means almost the opposite. It means that we have systems and institutions that produce racially disparate outcomes, regardless of the intentions of the people who work within them. When you consider that much of the criminal-justice system was built, honed and firmly established during the Jim Crow era — an era almost everyone, conservatives included, will concede rife with racism — this is pretty intuitive. The modern criminal-justice system helped preserve racial order — it kept black people in their place. For much of the early 20th century, in some parts of the country, that was its primary function. That it might retain some of those proclivities today shouldn’t be all that surprising.
An article on this topic here.
- Two-thirds of those released from prison are re-arrested within three years. This incarceration cycle hurts families and communities — and also costs a lot of money. Governments and nonprofits have tried many programs to reduce recidivism, but most are not successful. In a recent review of the literature on prisoner reentry, I summarized the best evidence on how to improve the lives of the formerly incarcerated. One of the most striking findings was that reducing the intensity of community supervision for those on probation or parole is a highly cost-effective strategy. Several studies of excellent quality and using a variety of interventions and methods all found that we could maintain public safety and possibly even improve it with less supervision — that is, fewer rules about how individuals must spend their time and less enforcement of those rules. Less supervision is less expensive, so we could achieve the same or better outcomes for less money.
For two opinions that (mostly) reach the same conclusion, there are profound differences in the approaches taken by the COA and the Oregon Supreme Court. The following analysis is intended to highlight the practical differences in the two Mansor opinions, and why you should not assume that a cell phone or computer search warrant executed prior to June 28, 2018, is valid under the current interpretation of Article I, section 9.
I hope to have my own thoughts on the new Supreme Court opinion in Mansor up soon. Suffice it to say, for now, that you shouldn't be relying on the memos you wrote after the COA opinion was issued. The new opinion requires a significantly different analysis, which is better for some defendants but worse for others. Furthermore, boilerplate Mansor motions really will be worthless. Very fact-specific care will be needed each time you challenge an electronic devices search warrant on particularity grounds.
In the meantime, please enjoy this analysis by Orin Kerr, who was heavily quoted in the opinion.
Orin Kerr's same-day take on the status of the third-party doctrine can be found here (question #9)
- It lives, but there is an equilibrium-adjustment cap on it. The old understanding was that the third-party doctrine is a bright-line rule: When you voluntarily disclose information to someone, whether to an undercover officer or a business you're working with, you don't have Fourth Amendment rights in the recipient's copy of that information. Chief Justice Roberts says that the third-party doctrine is more limited than that.
- As I read him, the Chief seems to be saying that there is an equilibrium-adjustment limit on the third-party doctrine. Once the third-party doctrine starts to give the government massive new powers, the third-party doctrine may no longer apply. Here's the key passage:
- "There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information."
As many of you may know, I've written about the limitations on the third-party doctrine under the Oregon Constitution ever since St v Ghim came out. OCDLA had a presentation on Ghim at the Winter Conference 2017, which is looking rather prescient right now.
There is a lot for defense attorneys to work with now, under both Constitutions.
In a good opinion from the Court of Appeals today, State v. Gollas-Gomez, the defendant's convictions were reversed because the trial court refused to remove for cause a juror who admitted that he would be partial in the state's favor. Both sides are guaranteed the right to an impartial jury.
The issue was well-preserved, including the fact that the defendant used all of his peremptory challenges, a requirement for appealing a trial court's decision not to remove a juror for cause.
And the juror was ultimately seated on the jury.
Had the juror not been seated on the jury, because the defendant used one of his peremptories on the juror, it is likely, under current case law, the convictions would not have been reversed, because (1) no harm if the biased juror is not seated on the jury and (2) defendant does not have a due process right to peremptory challenges.
This puts defense counsel in an awkward position. If the judge refuses to remove a juror for cause, the defendant can still remove the juror (to avoid poisoning the trial) but gives up the issue for appeal. On the other hand, it's just one juror, and who wouldn't want to good basis for reversal, especially on multiple measure 11 charges, even if the only way to do so is to leave the juror on.
There may be a way around this. The defendant does not have a due process right to peremptory challenges, but if peremptory challenges exist, the defendant has a right to the same number of challenges as the state. There is no reason the state should have an advantage. After all, if a statute or UTCR expressly gave the state more peremptory challenges at the outset than the defendant, that would be a clear constitutional violation. Why should it be any different if the same result is achieved by an erroneous ruling by the court that effectively reduces the number of challenges a defendant has?
- This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not.
Opinion is here.
And here is Orin Kerr's hot take on the curtilage issues the opinion raises.
- HABEAS CORPUS -- Failure to provide medical care
Fourthamendment.com summary here.
Headline from fourthamendment.com: W.D.Tex.: Removal of def’s key fob to press the buttons to locate car was a search that violated a REP in def’s pants pocket
Their summary is here.
SCOTUS opinion here.
Summary from SCOTUSblog here.
Orin Kerr's analysis here.
From the headnotes:
- Held: 1. The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. Pp. 6–13.