State v. Haji

• Decision Date: 07 May 2020
• Docket Number: CC 16CR02527 (SC S066254)
• Citation: 366 Or. 384,462 P.3d 1240
• Parties: STATE of Oregon, Respondent on Review, v. Hanad Ali HAJI, Petitioner on Review.
• Court: Oregon Supreme Court

366 Or. 384

462 P.3d 1240

STATE of Oregon, Respondent on Review,

v.Hanad Ali HAJI, Petitioner on Review.

CC 16CR02527 (SC S066254)

Supreme Court of Oregon.

Argued and submitted May 7, 2019.

May 7, 2020

Ernest G. Lannet, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Landau, Senior Justice pro tempore.^**

NAKAMOTO, J.

After a grand jury issued an indictment charging defendant with multiple offenses, the district attorney determined that the indictment could be challenged by demurrer because the basis for joining those offenses was not expressly alleged. Instead of seeking another indictment from the grand jury, the district attorney obtained leave from the trial court to amend the indictment by adding allegations specifying the statutory basis for joinder, without adding factual allegations about the crimes. Defendant was convicted on some of the charges at trial, and the Court of Appeals affirmed. State v. Haji , 293 Or. App. 202, 207, 426 P.3d 680 (2018).

The question on review is whether a district attorney may add allegations specifying the statutory basis for joinder of multiple offenses to an indictment instead of resubmitting the case to a grand jury. We conclude that neither the statute permitting joinder of multiple offenses in a single indictment nor Article VII (Amended), section 5(6), of the Oregon Constitution precludes a district attorney, with approval of the trial court, from amending an indictment to add allegations specifying the statutory basis for joinder of multiple offenses. We affirm the decision of the Court of Appeals, based in part on different reasoning, and affirm the judgment of the circuit court.

I. BACKGROUND

As background, the state's theory of the case was that defendant twice entered the apartment where the victim lived, committing crimes. The first time he entered the apartment, defendant took a tablet computer and threatened the victim with a gun and then a kitchen knife, which he took when he left. Several hours after the first incident, the victim returned and found defendant inside the apartment again. The victim called the police, who soon found and arrested defendant, still in possession of his firearm.

The salient facts are procedural. The state charged defendant with seven offenses in a single indictment returned by a grand jury: one count of first-degree robbery and one count of first-degree robbery with a firearm, ORS 164.415 ; two counts of first-degree burglary with a firearm, ORS 164.225 ; one count of unlawful use of a weapon and one count of unlawful use of a weapon with a firearm, ORS 166.220 ; and one count of felon in possession of a firearm, ORS 166.270. The indictment stated that the charged conduct occurred "on or about January 14, 2016" and described each offense in the language of the applicable criminal statutes. The indictment did not expressly state any statutory basis for joinder of the counts. Nothing on the face of the indictment linked any of the counts specifically to either the first or the second entry into the victim's apartment or, for that matter, indicated that the charges stemmed from two incidents.

Not long after that, the Court of Appeals held in State v. Poston , 277 Or. App. 137, 144, 370 P.3d 904 (2016), adh'd to on recons , 285 Or. App. 750, 399 P.3d 488, rev den , 361 Or. 886, 403 P.3d 761 (2017), that a charging instrument is required to allege "the basis for the joinder of the crimes that are charged in it." Anticipating a demurrer by defendant, the state moved for leave to amend the indictment to comply with the holding in Poston . Specifically, the state sought to add to each count an identical allegation stating two of the three permissible statutory bases for joinder:

"This count constitutes part of a common scheme or plan based on two or more acts or transactions with the other counts of this indictment. This count is of the same and similar character as the conduct alleged in the other counts of this indictment. This count is connected together by two or more acts or transactions with the other counts of this indictment."

(Emphases added.) See ORS 132.560(1)(b)(A), (C) (permitting joinder of offenses "[o]f the same or similar character" or "[b]ased on two or more acts or transactions connected together or constituting parts of a common scheme or plan").

The state contended that those were amendments of "form" and, therefore, authorized by Article VII (Amended), section 5(6). That provision states that a "district attorney may file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be defective in form." Defendant filed a written objection to the state's motion, asserting that the district attorney could not add the allegations stating the statutory bases for joinder without resubmission of the case to the grand jury, because such amendments would be of substance rather than "form."

At the hearing on the state's motion, the trial court granted defendant leave to file a demurrer to bring the case into the correct legal posture, instructed the state to file a short factual background of the charged conduct, which the state did, so that the court could determine the nature of the evidence as to each count, and took the matter under advisement. Accordingly, defendant filed a demurrer, asserting that the indictment on its face failed to meet the joinder requirements of ORS 132.560(1)(b) and should be dismissed under Poston . Ultimately, the trial court granted the state's motion for leave to amend the indictment and, consequently, denied defendant's demurrer.

After a jury trial, defendant was convicted of one count of first-degree burglary with a firearm, unlawful use of a weapon with a firearm, and felon in possession of a firearm. The jury acquitted him of the remaining four counts.

Defendant appealed and, as relevant here, assigned error to "the trial court's allowance of the state's motion to amend the indictment and its consequent denial of his demurrer." Haji , 293 Or. App. at 205, 426 P.3d 680. The Court of Appeals upheld the trial court's rulings. Id . at 207, 426 P.3d 680.

In reaching its conclusion, the Court of Appeals focused on "whether the omission of th[e] allegations [stating the statutory basis for joinder] from the original indictment was a defect of ‘form’ within the meaning of Article VII (Amended), section 5(6)." Haji , 293 Or. App. at 205-06, 426 P.3d 680. It resolved that question by turning to three considerations that this court had articulated in State v. Wimber , 315 Or. 103, 843 P.2d 424 (1992), to determine whether additional allegations limiting the date range of some of the charged crimes were amendments of "form" for purposes of Article VII (Amended), section 5(6):

"(1) Did the amendment alter the essential nature of the indictment against defendant, alter the availability to him of defenses or evidence, or add a theory, element, or crime? * * *

"(2) Did the amendment prejudice defendant's rights to notice of the charges against him and to protection against double jeopardy? * * *

"(3) Was the amendment itself sufficiently definite and certain?"

Haji , 293 Or. App. at 206, 426 P.3d 680 (quoting Wimber , 315 Or. at 114-15, 843 P.2d 424 ).

Analyzing the considerations from Wimber , the Court of Appeals concluded that the joinder allegations that the district attorney had added to the indictment were matters of "form" and, thus, constitutionally permissible. Haji , 293 Or. App. at 206-07, 426 P.3d 680. First, the court determined that the amendments did not alter the " ‘essential’ nature" of the indictment; the amendments only "demonstrate[d] that the charges met the statutory procedural standard for being tried as part of a single case," and they neither changed the defenses available to defendant, altered the charges in a way that would affect the availability of evidence, nor added a new theory, element, or crime. Id . As to the second consideration, the court concluded that the amendments did not prejudice defendant's right to notice or implicate double jeopardy. Id . at 207, 426 P.3d 680. Finally, the Court of Appeals determined that the amendments, by tracking the wording of the joinder statute, were "sufficiently clear and definite" under Poston to properly allege the basis for joinder. Id .

The Court of Appeals also concluded that, because the amended indictment comported with Poston , the trial court's denial of defendant's demurrer was proper. Id . We allowed defendant's petition for review to address whether the trial court erred in allowing the district attorney to amend the indictment to add allegations specifying the statutory bases for joinder of multiple felony charges.

II. ANALYSIS

Under ORS 132.560(1), an indictment generally must charge only one offense, but the state may charge a defendant with multiple offenses in a single indictment when the offenses "are alleged to have been committed by the same person or persons" and those offenses are "[o]f the same or similar character"; "[b]ased on the same act or transaction"; or "[b]ased on two or more acts or transactions connected together or constituting parts of a common scheme or plan." We recently confirmed the Court of Appeals’ conclusion in Poston : An indictment charging a defendant with multiple offenses must contain the basis for joinder of multiple offenses under ORS 132.560(1)(b). State v. Warren , 364 Or. 105, 127, 430 P.3d 1036 (2018). As we explained in Warren , "it usually is sufficient for the state to allege the basis for joinder by using the language of the joinder statute." 364 Or. at 120, ...