State v. Boyd

Decision Date01 April 1975
Citation533 P.2d 795,271 Or. 558
PartiesSTATE of Oregon, Petitioner, v. Sharon Kay BOYD, Respondent.
CourtOregon Supreme Court

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for petitioner. With him on the briefs were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed briefs for respondent.

O'CONNELL, Chief Justice.

The Court of Appeals affirmed the dismissal of an indictment charging defendant with criminal activity in drugs (ORS 167.207) on the ground that prosecution was barred under our decision in State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972) because of a prior prosecution of defendant for theft (ORS 164.055). We allowed the petition for review in this case in order at attempt a clarification of the meaning of the phrase 'same act or transaction' employed in State v. Brown, and the phrase 'same criminal episode' found in ORS 131.515(2).

The facts of this case are undisputed. During January of 1974, the Eugene Police Department came into possession of information which gave them probable cause to believe that defendant's husband had burglarized a tavern on December 31, 1973. They obtained a warrant to search defendant's home for specified evidence of that crime. In executing the warrant, the police discovered evidence of a number of other crimes, including a television set stolen some months before, a quantity of amphetamine tablets, and more than an ounce of marijuana. Defendant was arrested during the search for criminal activity in drugs and theft of the television set. Both charges were based solely upon her possession of the contraband items.

On January 23, the arresting officers testified before the grand jury as to the discovery of the television and the drugs. An indictment charging defendant with theft of the television issued the same day. A second indictment charging defendant with criminal activity in drugs for possession of the amphetamines was issued February 1, based on the January 23rd testimony of the arresting officers and upon a subsequently received laboratory analysis of the pills found in defendant's house. The state was represented in obtaining both indictments by the same assistant district attorney. It is undisputed that the district attorney's office had full knowledge of both indictments and the facts underlying them at all conceivably relevant times. There was no attempt to consolidate the indictments for trial.

On April 23, 1974, defendant was tried on the theft charge. No evidence of the concurrent discovery of the narcotics was introduced. The case was submitted to the jury upon the theory that defendant had committed theft solely by virtue of having retained and concealed the television set at the time of the search. The jury found defendant to be not guilty of this charge.

On May 7, 1974, defendant moved to dismiss the drug indictment on the ground that trial of the theft charge had placed defendant in jeopardy as to the same 'act or transaction.' The trial court granted this motion upon the authority of State v. Brown, Supra. A majority of the Court of Appeals affirmed in the belief that two crimes of possession occurring simultaneously constitute a single act or transaction under Brown. The majority explicitly noted the inherent lack of certainty in the 'single act or transaction' concept, saying that

'Although we are frankly uncertain about the exact metes and bounds of the concept of a single act or transaction, we find the defendant's analysis in this case to be somewhat more persuasive.' State v. Boyd, Or.App., 99 Adv.Sh. 2057, 2064, 527 P.2d 128, 132 (1974).

The dissent agreed that the problem before the court lacked definition but felt that the two charges did not constitute a single episode because they were related only by the accident of their simultaneous discovery.

The Court of Appeals' opinions in this case accurately describe the confusion and perplexity which has followed in the wake of our decision in State v. Brown, Supra. The majority and dissenting opinions in the court below demonstrate the difficulty of applying the 'one act or transaction' or 'single criminal episode' concepts to specific fact situations. This difficulty is inherent in any case where an attempt is made to apply a highly abstract term to a particular set of facts. In such an attempt it frequently becomes apparent that there is no way to explain on rational grounds the reason for treating the facts as falling inside or outside the category. This is the situation we find ourselves confronted with in the present case.

The criteria employed in deciding whether multiple charges constitute a unitary transaction under the double jeopardy principle must relate to the purposes which the prohibition of double jeopardy serve. Although the proscription against double jeopardy has been explained as serving certain non-constitutional objectives, 1 the explanation for the doctrine as a constitutional precept is the protection of the accused from undue harassment. But, as has been pointed out, this 'is no standard because it does not tell us how much harassment is required to invoke the principle.' 2 Thus, if the one transaction or single criminal episode test is to be measured by the standard of undue harassment, we simply substitute one high level abstraction for another and therefore come no closer to a workable test for determining whether two or more charges are unitary for the purpose of the double jeopardy rule.

State v. Brown, Supra, which fathered the one transaction--one offense equation, did not elaborate upon the meaning of 'the same act or transaction,' except to say that '(a) prosecutor who is or should be aware of the facts ought not to be able, in his sole discretion, to subject a defendant to a series of trials for violations which are part of the same course of conduct and which could be tried together.' (262 Or. at 457, 497 P.2d at 1198.)

As observed in the majority opinion in this case below, our cases subsequent to State v. Brown do not attempt to explain the scope of the one transaction concept. Finding no guidelines in our opinions, the Court of Appeals, in State v. Sanchez, 14 Or.App. 234, 237, 511 P.2d 1231 (1973), Supreme Court rev. den., ventured the hypothesis that 'the Supreme Court intended that what constitutes a criminal transaction for purposes of ORS 132.560(2) 3 also constitutes a criminal transaction for purposes of the Brown rule.' This conclusion was reached principally upon the ground that in Brown the court noted that the two offenses involved in that case could have been joined under ORS 132.560(2), the permissive joinder statute. It was further noted that in State v. Huennekens, 245 Or. 150, 152, 420 P.2d 384, 385 (1966), we held that under ORS 132.560(2), 'to be joined the charges must relate to conduct or acts that are concatenated in time, place and circumstances and that the evidence of one charge would be relevant and admissible with the evidence of other charges.' This test of joinable charges, based upon relevance and admissibility, was rejected as being too broad in State v. Fitzgerald, 267 Or. 266, 273, 516 P.2d 1280, 1284 (1973), and a new definition of joinability was fashioned as follows:

'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.'

We went on to hold that under the foregoing test a charge of escape from prison and a charge of the unauthorized use of a motor vehicle following the escape were not joinable.

It is important to note that in Huennekens and Fitzgerald the court was concerned with defining a unitary transaction for the purpose of determining whether it was Permissible to join multiple charges; these cases did not purport to say that the same test would be applicable to determine whether the charges Must be joined under the double jeopardy principle.

The distinction was recognized by the Criminal Law Revision Commission in drafting the 1973 Criminal Procedure Code. The double jeopardy section (ORS 131.515(2) provides that '(n)o person shall be separately prosecuted for two or more offenses based upon the same criminal episode * * *.' A criminal episode is defined by ORS 131.505(4) as 'continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.'

In the commentary to the proposed draft of ORS 132.560(2), the Commission, after referring to the test laid down in Huennekens, observes:

'* * * The difference in definition is that a criminal episode is directed to a single criminal objective (compulsory joinder) while a criminal transaction would include crimes where evidence of one offense would be relevant to evidence of another crime (permissive joinder).' Criminal Law Revision Commission, Proposed Oregon Criminal Procedure Code, comment to § 84, p. 50 (1972).

At the time the Commission's commentary was written, State v. Fitzgerald, narrowing the test in Huennekens, had not been decided. There, is, therefore, no way of knowing whether the Commissioners would have regarded the narrower test of Fitzgerald as the equivalent of the narrower test intended to be expressed in the statutory definition of 'same criminal episode' in ORS 131.505(4). We believe that there is such equivalence. We are unable to conceive of 'continuous and uninterrupted conduct * * * so joined in time, place and circumstance' that such conduct is directed to the accomplishment of a single criminal objective, which at the same time would not fulfill the test of Fitzgerald and be 'so closely linked in time, place and circumstance that a complete account...

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