Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Keith

Court of Appeals of Oregon

September 11, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIEL MORGAN KEITH, Defendant-Appellant.

          Washington County Circuit Court C150616CR; James Lee Fun, Jr., Judge.

         On respondent's petition for reconsideration fled November 14, 2018, and appellant's response to respondent's petition for reconsideration fled December 12, 2018. Opinion fled October 3, 2018. 294 Or.App. 265, 431 P.3d 94 (2018).

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, for petition.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, for response.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: The state petitions for reconsideration of the Court of Appeals' decision in State v. Keith, 294 Or.App. 265, 431 P.3d 94 (2018), wherein the court reversed defendant's convictions on Counts 6, 8, 9, and 10 due to improper joinder under State v. Poston, 277 Or.App. 137, 145, 370 P.3d 904 (2016), and otherwise affirmed. In its petition, the state argues that the court failed to fully apply the harmless error analysis to the improper joinder conclusion. After the state fled its petition, the Oregon Supreme Court issued its opinion in State v. Warren, 364 Or. 105, 430 P.3d 1036 (2018), in which the court discussed harmless error in the context of improper joinder. Held: Given Warren, the Court [299 Or.App. 356] of Appeals allowed the petition for reconsideration, modified its opinion as to the harmless error analysis, and affirmed the original disposition reversing Counts 6, 8, 9, and 10, but modified the disposition to remand for entry of judgment allowing the demurrer.

         [299 Or.App. 357]JAMES, J.

         The state petitions for reconsideration of this court's decision in State v. Keith, 294 Or.App. 265, 431 P.3d 94 (2018), wherein we reversed defendant's convictions on Counts 6, 8, 9, and 10 due to improper joinder under State v. Poston, 277 Or.App. 137, 145, 370 P.3d 904 (2016), adh'd to on recons, 285 Or.App. 750, 399 P.3d 488, rev den, 361 Or. 886 (2017), and otherwise affirmed. In its petition, the state does not challenge our holding that the indictment was improperly joined. However, the state argues that this court failed to fully apply the harmless error analysis to the improper joinder conclusion. Specifically, the state argues that "[t]his court rejected the state's harmless-error argument based solely on the ground that the evidence would not have been admissible in separate trials. In doing so, it did not consider the state's argument that, as the particular evidence unfolded at trial, defendant in fact was not harmed by the admission of the evidence." After the state filed its petition, but before defendant filed his response, the Oregon Supreme Court issued its opinion in State v. Warren, 364 Or. 105, 430 P.3d 1036 (2018), in which the court discussed harmless error in the context of improper joinder. Given Warren, we allow the petition for reconsideration, modify our opinion as to the harmless error analysis, reaffirm our original disposition reversing Counts 6, 8, 9, and 10, but modify our disposition to remand for entry of judgment allowing the demurrer.

         In Poston, we held that "whether improper joinder of charges affected the verdict depends on whether joinder led to the admission of evidence that would not have been admissible but for the joinder * * * and, if so, whether that evidence affected the verdict on those charges." 277 Or.App. at 145. Poston's evidentiary cross-admissibility focus was employed in numerous subsequent joinder cases by this court. Then, in Warren, the Oregon Supreme Court endorsed that cross-admissibility inquiry, but clarified that harm from improper joinder extends beyond just evidentiary concerns.

"Certainly, the disallowance of a demurrer based on improper joinder can be prejudicial. The Court of Appeals recognized that in Poston I, when it held that the disallowance of a demurrer based on improper joinder is harmful if [299 Or.App. 358] the improper joinder resulted in the admission of unfairly prejudicial evidence. But to the extent that Poston I's harmless-error test is limited to whether unfairly prejudicial evidence was admitted, it is incomplete. As the primary proponent to the 1989 amendment of the joinder statute explained to the legislature, improper joinder can prejudice a defendant in several ways, including if the defendant would testify regarding some charges but not others, if the defendant's defenses to the charges could be viewed as inconsistent, if the evidence of one charge might improperly influence the jury's verdicts on other charges, or if the evidence could confuse the jury. Therefore, if the disallowance of a demurrer allows charges to be tried together improperly and the joint trial affects the defense in any of those ways, the disallowance may be prejudicial."

Warren, 364 Or at 132-33 (internal citations omitted).

         With Warren in mind, we now turn to this case. As we noted originally,

"our review of the record does not show that all of the evidence admitted in the improperly joined counts would have been admissible in stand-alone trials. It is highly unlikely that evidence of assault and domestic violence would have been admissible in a trial for possession of methamphetamine, nor ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.