State v. Shields

Decision Date29 November 1977
Citation280 Or. 471,571 P.2d 892
PartiesSTATE of Oregon, Respondent, v. James Dennis SHIELDS, Petitioner.
CourtOregon Supreme Court

Richard Maizels, of Maizels & Marquoit, P. C., Portland, argued the cause and filed the briefs for petitioner.

[280 Or. 472-A] Thomas H. Denney, 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.

TONGUE, Justice.

This is a criminal case in which the state made a motion to consolidate for trial four charges against the defendant which admittedly arose from the same transaction or "criminal episode." That motion was made on the date assigned for the trial of two of the charges. It was resisted by defendant and was denied as "untimely." Defendant was then tried and found guilty of one of the two charges, the other being dismissed.

Defendant then moved to dismiss the remaining two charges "based upon double jeopardy." That motion was allowed. On appeal from that order by the state, the Court of Appeals reversed the trial court. 28 Or.App. 719, 560 P.2d 690 (1977). We allowed defendant's petition for review to consider two questions:

1. Whether the motion by the state to consolidate the charges for trial was "timely," as held by the Court of Appeals;

2. Whether opposition by the defendant to that motion constituted a waiver of defendant's "double jeopardy" right to a single trial on all charges arising from the same transaction or "criminal episode," as also held by that court.

A criminal defendant who is charged with two or more offenses which arguably were committed as part of the same transaction or "criminal episode," has the following rights which may place the prosecutor (and sometimes the defendant) in a dilemma:

1. He may have the right to insist that all such charges be prosecuted in a single proceeding. ORS 131.515(2) provides:

"No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court."

Although this right is provided by statute, it is of constitutional dimension as a protection against double jeopardy. State v Brown, 262 Or. 442, 458, 497 P.2d 1191 (1972). It is enforced, in cases in which it applies, by an absolute bar to subsequent prosecutions. State v. Boyd, 271 Or. 558, 566, 533 P.2d 795 (1975).

2. He has the right to object to the joinder of charges in a single indictment, or to the consolidation of separate indictments for trial, if the charges do not arise out of the same act or transaction. ORS 132.560(2) provides:

"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." 1

In State v. Fitzgerald, 267 Or. 266, 272-73, 516 P.2d 1280 (1973), this court said that although a two-count indictment is not demurrable for failure to comply with this section when it alleges that the two charges did arise out of the same transaction, the trial court should, on defendant's motion, require the state to elect upon which charge it wishes to proceed when it becomes apparent that the two offenses were not in fact part of the same transaction. 2

3. He may also have the right to have consolidated charges severed for trial, even though their consolidation met the test of ORS 132.560(2), if a consolidated trial would be unduly prejudicial to his defense. See State v. Fitzgerald, supra, at 274, 516 P.2d 1280. See also State v. Boyd, supra, 271 Or. at 569-70, 533 P.2d 795. 3

All of these rights may, however, be waived by the defendant.

As previously stated, the existence of these rights by the defendant in a criminal case may confront the prosecutor with a dilemma. 4 To relieve the prosecutor from the risks resulting from such a potential dilemma, this court in State v. Boyd, supra (at 568, 533 P.2d 795), approved the procedure proposed by the Court of Appeals in State v. Bishop, 16 Or.App. 310, 314, 518 P.2d 177, 179 (1974), as follows:

" * * * (P)rosecutors * * * (should) 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 (State v. Brown, 262 Or. 442, 497 P.2d 1197 (1972)) rights to a single trial, or waiver of Fitzgerald (State v. Fitzgerald, 267 Or. 266, 516 P.2d 1280 (1973)) rights to separate trials." 5

In this case, defendant faced four charges which are admittedly part of the same transaction or "criminal episode." The charges were instituted by three complaints filed in the district court on December 6, 1975. One complaint charged defendant with driving under the influence of intoxicating liquor, one with operating a motor vehicle with a blood alcohol content of .15 per cent or more, and one with assault in the third degree and resisting arrest.

Trial on the last two charges was set in district court for January 22, 1976, at 1:30 p. m. Some time that morning a deputy district attorney told defendant's counsel that he intended to move for consolidation of all four charges. Such a motion was then submitted to the court immediately prior to trial.

Defendant resisted that motion and it was denied solely on the ground that it was untimely. The trial on the assault and resisting arrest charges proceeded before a jury. The assault charge was dismissed and defendant was found guilty of resisting arrest.

On February 24, 1976, defendant moved to dismiss the two remaining charges on double jeopardy grounds. That motion was denied by the district court. Thereafter he was found guilty of both charges, based on stipulated facts, and appealed to the circuit court. There he again moved to dismiss those charges on grounds of double jeopardy. The circuit court allowed that motion in an order which included the following conclusions of law:

"1. The State's motion to consolidate was not timely filed in the District Court. The actions of the District Attorney in this matter did not afford the defendant any real choice in regard to whether to oppose the motion."

"2. In these circumstances, defendant's objection to the State's motion to consolidate did not constitute a waiver of his rights under State v. Brown * * * to raise the issue of former jeopardy at a later date.

"3. Former jeopardy applies and acts as a bar to prosecution of the defendant on both charges * * * ."

The Court of Appeals reversed, holding that a motion for consolidation is timely if filed at any time prior to trial. It also held that by declining to consent to that motion defendant waived his right to subsequently seek the dismissal of the remaining charges for the following reasons:

" * * * We do not understand a defendant's right to be free from multiple prosecutions to also incorporate a right to preserve the conditions which would allow him to seek subsequent dismissal of charges based on the doctrine of Brown (State v. Brown, 262 Or. 442, 497 P.2d 1197 (1972)). If defendant makes a tactical choice to oppose consolidation whatever reason he may have, expressed or undisclosed, he by the objection waives rights accrued under the doctrine of Brown. * * * ." 28 Or.App. at 723, 560 P.2d at 692 (Emphasis added)

Chief Judge Schwab, dissenting, would have held that a motion for consolidation, to be timely, must be filed at such time as will "allow the defendant to make an informed and calculated response." He also would have held that:

" * * * A waiver of a right 'must amount to an intentional relinquishment or abandonment of a known right or privilege.' Church v. Gladden, 244 Or. 308, 312-13, 417 P.2d 993 (1966). It is not likely that a defendant confronted for the first time with a motion to consolidate filed on the eve of trial can make an informed and knowledgeable response that constitutes a waiver in this sense." 28 Or.App. at 724, 560 P.2d at 692.

It is also our opinion, for the reason stated by Judge Schwab, that a motion to consolidate is not "timely" when not filed until the day set for trial on some, but not all, of the charges against a defendant. We need not in this case undertake to state a test to be applied in determining whether such a motion is "timely" if filed at some time prior to the date set for trial on some of such charges. Instead, we leave that question to be decided in a more appropriate case.

We also agree that opposition by a defendant to a motion to consolidate when made under such circumstances on the ground that such a motion is not timely does not constitute a waiver of defendant's right to subsequently move to dismiss the remaining charges on grounds of double jeopardy. The procedure suggested in Bishop, and approved in Boyd, which requires defendants to choose which rights they will waive and which they will assert, was not granted to defendants as a matter of grace. That procedure was suggested as a means by which prosecutors could force the choice upon the defendant in a way which avoids the necessity of the state proceeding at its peril.

If the defendant is to be forced to make the choice, he should be given the opportunity to make it after proper deliberation. If charges have been filed separately, and if no motion for consolidation has been made within a reasonable time in advance of the trial date, defendant may justifiably assume that the prosecutor has assumed the risk of making the choice himself.

If the defendant resists the motion for consolidation on the ground that the charges do not arise out of the...

To continue reading

Request your trial
14 cases
  • State v. Linthwaite, s. 80-281-C
    • United States
    • Oregon Court of Appeals
    • May 26, 1981
    ...should normally be accepted unless clearly improper, State v. Boyd, 271 Or. 558, 569, 533 P.2d 795 (1975). See also, State v. Shields, 280 Or. 471, 571 P.2d 892 (1977). An exception to the general rule is recognized by ORS 132.560(2), which "When there are several charges against any person......
  • State v. Warren
    • United States
    • Oregon Supreme Court
    • December 6, 2018
    ...explained, deciding whether to join charges "may place the prosecutor (and sometimes the defendant) in a dilemma." State v. Shields , 280 Or. 471, 473, 571 P.2d 892 (1977). On the one hand, if the prosecutor improperly joins charges, the joinder may result in reversal on appeal. On the othe......
  • State v. Miyazaki
    • United States
    • Hawaii Supreme Court
    • May 27, 1982
    ...517 F.Supp. 390, 400-401 (S.D.W.Va.1981); Adkins v. Leverette, 264 S.E.2d 154, 156-57 (W.Va.1980).7 State v. Shields, 280 Or. 471, 475-76, 571 P.2d 892, 894 (1977).8 Koch v. State, 401 So.2d 796, 799 (Ala.Crim.App.), cert. denied, 401 So.2d 801 (1981).9 See, e.g., United States v. Arzate, 5......
  • State v. Dulfu
    • United States
    • Oregon Supreme Court
    • September 20, 2018
    ...jeopardy context. See, e.g. , Boyd , 271 Or. at 563-571, 533 P.2d 795 (discussing meaning of criminal episode); State v. Shields , 280 Or. 471, 473, 571 P.2d 892 (1977) (noting that a defendant may not be serially prosecuted for crimes arising out of the same criminal episode). Thus, the dr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT