State v. Poston

• Decision Date: 01 June 2017
• Docket Number: A152933
• Citation: 399 P.3d 488,285 Or.App. 750
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Latrell Earvin POSTON, Defendant-Appellant.
• Court: Oregon Court of Appeals

285 Or.App. 750

399 P.3d 488

STATE of Oregon, Plaintiff-Respondent,

v.Latrell Earvin POSTON, Defendant-Appellant.

A152933

Court of Appeals of Oregon.

June 1, 2017

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, for respondent's petition.

Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

ARMSTRONG, P. J.

The state has petitioned for reconsideration of our decision in this case in which we held that ORS 132.560 requires the state to allege in a charging instrument the basis for joinder of the crimes charged in it. State v. Poston , 277 Or.App. 137, 144-45, 370 P.3d 904 (2016). It contends that we erred in our construction of the statute and in our disposition of the case. We grant the state's petition but adhere to our decision on reconsideration.

As we recognized in our original opinion, ORS 132.560 specifies the grounds on which charges may be joined in a charging instrument. The requirements that the statute imposes for joinder, in turn, are enforceable by demurrer under ORS 135.630(2), which tests whether an indictment shows on its face that the joinder requirements have been met. Taken together, those provisions specify what the state must allege in an indictment to show that the charges contained in it have been lawfully joined.

In that light, we readily reject the state's contention on reconsideration that we misunderstood State v. Huennekens , 245 Or. 150, 420 P.2d 384 (1966). The court held in Huennekens that an indictment that joined rape and sodomy charges against the defendant survived a demurrer because the indictment alleged that the charges were part of the same act and transaction, which is one of the grounds in ORS 132.560 under which charges can be joined. See id. at 154, 420 P.2d 384. In the state's view, Huennekens established that an allegation that shows that the joinder requirements have been met is sufficient to show that the charges have been lawfully joined under ORS 132.560, but the case did not establish that such an allegation is necessary to show that the charges have been lawfully joined.

The state's argument ignores that the legislature made ORS 132.560 —the statute that specifies the grounds under which charges may lawfully be joined—a statute that is subject to challenge by demurrer under ORS 135.630(2). The demurrer statute, in turn, serves to test whether an indictment shows on its face that it conforms with the requirements of the statutes that are subject to challenge by demurrer. See ORS 135.630(2) ; State v. Molver , 233 Or. App. 239, 243-49, 225 P.3d 136, rev. den. , 348 Or. 291, 231 P.3d 795 (2010). An indictment that is silent on whether the requirements for joinder specified in ORS 132.560 have been met cannot be said to be one that shows on its face that it conforms with those requirements.

As Huennekens held, one way to show compliance with the joinder statute is to include in the indictment the applicable statutory language that authorizes the state to join the charges in a single charging instrument. As we recognized in our original opinion, another way to do that is to allege facts in the indictment sufficient to establish compliance with the joinder statute. Poston , 277 Or.App. at 145-46, 370 P.3d 904. However, as we held, an indictment that does neither of those things is not one that shows on its face that the charges in it have been lawfully joined and, hence, is an indictment that can be successfully challenged by demurrer.

The state also contends that we erred in our understanding of the federal rule that the Oregon legislature emulated when it amended ORS 132.560 in 1989, FRCrP 8. In construing the 1989 amendment, we relied on federal cases that predated the amendment, which we understood to have established that the government is required to allege in the charging instrument the basis on which the charges have been lawfully joined. Poston , 277 Or.App. at 144, 370 P.3d 904. According to the state, we erred in relying on the cited cases for that principle because the cases involved the propriety of joinder under FRCrP 8(b) —which governs the joinder of defendants—and not the propriety of joinder under FRCrP 8(a) —which governs the joinder of charges. In its view, the federal courts have distinguished between FRCrP 8(a) and FRCrP 8(b) regarding the pleading requirements that they impose, and we erred in failing to recognize that distinction.

Although the cases on which we relied that predated the 1989 amendment happened to have involved joinder under FRCrP 8(b) rather than under FRCrP 8(a), the principle that the cases established—viz ., that the propriety of joinder is determined by the allegations in the charging instrument—was not limited to FRCrP 8(b) and did not turn on the language of that rule. The cases based their discussion of the pleading requirement for joinder on FRCrP 8, that is, on the rule that governs joinder, and not on the specific requirements of either of the subdivisions of the rule. See United States v. Lane , 474 U.S. 438, 447, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) ; United States v. Harrelson , 754 F.2d 1153, 1176 (5th Cir.), cert. den. , 474 U.S. 908, 1034, 106 S.Ct. 277, 599, 88 L.Ed.2d 241, 578 (1985); United States v. Bledsoe , 674 F.2d 647, 655 (8th Cir.), cert. den. , 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982).

Moreover, contrary to the state's contention, the federal courts have not distinguished between FRCrP 8(a) and FRCrP 8(b) with respect to whether they impose a pleading requirement. We acknowledge, however, that the federal cases are more equivocal than we recognized on whether the propriety of joinder under FRCrP 8 is determined solely on the basis of the allegations in the indictment. Some federal circuits applied that principle in cases decided before 1989, see, e.g. , United States v. Diaz , 876 F.2d 1344, 1356 (7th Cir.1989) ; United States v. Friedman , 854 F.2d 535, 561 (2d Cir.1988), cert. den. , 490 U.S. 1004, 109 S.Ct. 1637, 104 L.Ed.2d 153 (1989), some circuits did not, see, e.g. , United States v. Perry , 731 F.2d 985, 990-91 (D.C. Cir.1984) ; United States v. Saldivar , 710 F.2d 699, 702 (11th Cir.1983), and some circuits were internally divided on the issue, see, e.g. , United States v. Grey Bear , 863 F.2d 572 (8th Cir.1988) (en banc). Notwithstanding that conflict among the federal circuits on the pleading requirement imposed by FRCrP 8, we are not persuaded that the Oregon legislature intended the 1989 amendment of ORS 132.560 to alter the preexisting requirement that the basis under which charges are joined must be alleged in the charging instrument.

Finally, the state contends that we erred in deter-mining the extent to which defendant was prejudiced by the trial court's denial of his demurrer challenging the joinder of the charges in the indictment. In resolving that issue, we recognized that ORS 132.560(1)(b)(A)...