State v. Bishop

Decision Date28 January 1974
Citation16 Or.App. 310,98 Adv.Sh. 884,518 P.2d 177
PartiesSTATE of Oregon, Respondent, v. Bruce Gregory BISHOP, Appellant.
CourtOregon Court of Appeals

David L. Jensen, Eugene, argued the cause and filed the brief for appellant.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

SCHWAB, Chief Judge.

In each of two indictments defendant was charged with first-degree theft. ORS 164.055(1)(a). 1 One indictment alleged defendant had committed theft of several hundred books from the University of Oregon Library; the other alleged he had committed theft of several hundred books from the Eugene Public Library. The state moved to consolidate the indictments for trial on the ground that the 'state's evidence in each case regarding defendant's guilt will be the same, except as to testimony concerning ownership.' The state's motion was granted over defendant's objection. A jury found defendant guilty of two counts of the lesser-included offense of second-degree theft. ORS 164.045(1). 2 The dispositive issue presented by defendant's appeal is whether the charges were properly joined for trial. We hold they were not.

The evidence established that a person living in the same house in Eugene as defendant reported to the University of Oregon Library that defendant had a large number of what appeared to be library books. An assistant librarian and a police officer went to that house and seized the books. The next day the person who had first reported the matter took the assistant librarian to Alpine, Oregon, where additional library books were seized from a building defendant used for storage. Police officers then contacted defendant, and he admitted sending the books that had been seized in his home and in Alpine.

After the trial of this case the Oregon Supreme Court decided State v. Fitzgerald, 98 Or.Adv.Sh. 171, 516 P.2d 1280 (1973), which involves the question of joinder of charges for trial. The relevant statute reads:

'When there are several charges against any person or persons for the same act or transaction, instead of having several indictments, the whole may be joined in one indictment in several counts; and if two or more indictments are found in such cases, the court may order them to be consolidated.' ORS 132.560(2).

In Fitzgerald, the Supreme Court stated this statute was 'clearly intended to narrowly limit the circumstances under which joinder would be allowed,' 98 Or. Adv.Sh. at 174, 516 P.2d at 1283, and that the 'Oregon approach is * * * to strictly limitjoinder * * *,' 98 Or. Adv.Sh. at 175, 516 P.2d at 1283. The Supreme Court stated the strictly limited joinder rule to be:

'We hold that the two charges arise out of the same act or transaction if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge * * *.' 98 Or. Adv.Sh. at 176, 516 2d at 1284.

Applying this rule to the Fitzgerald facts, which involved charges of escape and unauthorized use of a car, the Supreme Court concluded:

'* * * The unauthorized use of the vehicle took place at least 15 miles away and 16 1/2 hours after the escape was completed so that the two transactions were clearly not closely linked in time, place and circumstance * * *.' 98 Or. Adv.Sh. at 177, 516 P.2d at 1284.

Oregon law on joinder of charges in criminal trials has recently undergone some radical changes. State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), abandoning the traditional 'same evidence' test, requires, as a matter of constitutional law, that charges arising from the 'same act or transaction' ordinarily be tried together. Fitzgerald, interpreting a statute that permits joinder of charges arising from the 'same act or transaction,' states that this standard strictly limits permissive joinder. Fitzgerald does not state whether the definition of 'transaction' for purposes of the joinder statute is the same as the definition of 'transaction' for purposes of the constitutional rule of State v. Brown, supra. This area is further complicated by the provisions of the new code of criminal procedure that require a single prosecution for offenses committed as part of a 'criminal episode.' Oregon Laws 1973, ch. 836, §§ 27(2) and 26(4). Also, State v. Leverich, Or.App. 97 Adv.Sh. 850, 511 P.2d 1265 (1973), which involved joinder issues, is at this time pending on review in the Oregon Supreme Court.

In State v. Sanchez, Or.App., 97 Adv.Sh. 885, 889, 511 P.2d 1231, Sup.Ct. review denied (1973), we stated:

'We appreciate that standards like 'closely linked' are somewhat subjective. Therefore, we believe that district attorneys would be well advised to resolve doubt concerning whether charges they wish to press were part of a single transaction in favor of joining all such charges in a single indictment or in separate indictments that they promptly move to consolidate for trial.'

In light of Fitzgerald, and the generally unsettled nature of Oregon law on joinder, it might instead be wiser for prosecutors to obtain separate indictments and then make a timely pretrial motion to consolidate the charges for trial. Such a device would require a defendant to make an election as to whether he wants a single trial or separate trials. Such an election would usually either constitute a waiver of Brown rights to a single trial, or waiver of Fitzgerald rights to separate trials.

Likewise, trial judges would be well advised to resolve doubts in favor of the defendant's position in such a situation.

Turning to the joinder problem in this case, there is no evidence that the books taken from Both libraries constituted a single transaction, within the Fitzgerald definition, for purposes of the joinder statute, ORS 132.560(2). 3 There was no evidence about the distance between the libraries. There was no evidence about when the books were taken, other than defendant's confession from which it could be inferred they were taken over a period of many years. The charges in this case have not been proved closely enough linked in time, place and circumstances to be tried together over defendant's objection.

Fitzgerald apparently contemplates that evidence will always be available concerning the time, place and circumstances of all the crimes a person has committed. This case indicates that such an expectation might not always be realistic. Here, the state found defendant in possession of hundreds of stolen library books. Aside from the inferences that can be drawn from defendant's confession, for all the prosecution knew, defendant carted them all away one night in a truck, or took one every day for years. In any event, Fitzgerald requires evidence of a close link in time, place and circumstances before different charges can be tried together. If the prosecution lacks such evidence, the only alternative, under Fitzgerald, is to have separate trials on the different charges even though, as the state's motion to consolidate in this case stated, 'it would work unnecessary hardship on the state's witnesses to appear twice.'

Since, following remand, the state will be entitled to retry defendant--in two trials--we note another assigned error. Defendant moved for a new trial on the grounds that: (1) there was no evidence that the crimes were committed within the two-year misdemeanor statute of limitations, ORS 131.110(3)--since defendant was indicted February 8, 1973, this raised the question of whether there was evidence the crimes were committed after February 8, 1971; and (2) there was no evidence the crimes were committed after the effective date of the new criminal code, i.e., 'after January 1, 1972,' ORS 161.035(1). 4

If the state had been proceeding on the theory that defendant committed theft by receiving, these contentions would not...

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  • State v. Warren
    • United States
    • Oregon Supreme Court
    • December 6, 2018
    ...a single trial and separate trials. Boyd , 271 Or. at 569-70, 533 P.2d 795 (endorsing procedure, first suggested in State v. Bishop , 16 Or. App. 310, 518 P.2d 177 (1974), for prosecutors to force a defendant "to elect between serving her interest in having the case disposed of in a single ......
  • State v. Hunter, C
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    • Oregon Court of Appeals
    • July 8, 1982
    ...of the motion to dismiss. See ORS 135.470(2); ORS 135.520.4 State v. Boyd, 271 Or. 558, 533 P.2d 795 (1975); State v. Bishop, 16 Or.App. 310, 518 P.2d 177 (1974).5 Although defendant refers to the federal Constitution, Amendment V, none of the cases cited by defendant was decided on Fifth A......
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    • February 19, 1980
    ...be joined in a single trial. ORS 131.515(2), supra, note 6; see also State v. Boyd, 271 Or. 558, 533 P.2d 795 (1975); State v. Bishop, 16 Or.App. 310, 518 P.2d 177 (1974). The Brown test is " * * * a second prosecution is for the 'same offense' and is prohibited if (1) the charges arise out......
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