State v. Keith

“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.” State v. Warren, 364 Or 105, 430 P3d 1036 (2018)

The state petitioned for reconsideration of the Court of Appeals' reversal of Defendant's convictions on Counts 6, 8, 9, and 10 due to improper joinder.  The State argued that the Court failed to apply the harmless error analysis to the improper joinder conclusion. “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.” State v. Warren, 364 Or 105, 430 P3d 1036 (2018). The Court held that in light of Warren, there was additional harm resulting from the improper joinder in this case. The Court held that Defendant was entitled to a judgment on the indictment, and the post-trial judgment did not suffice. Reconsideration allowed; former opinion modified and adhered to as modified; former disposition withdrawn; convictions on Counts 6, 8, 9, and 10 reversed; remanded for entry of judgment allowing the demurrer