subsequent trial for incest after sexual assault conviction was prohibited under the statutory “criminal episode” or “same transaction” test for procedural reasons
How later courts described this case
- subsequent trial for incest after sexual assault conviction was prohibited under the statutory “criminal episode” or “same transaction” test for procedural reasons
Written by the judges who cited it.
The opinion
RICHARDSON, J.,
concurring.
While I think State v. Mancuso, 25 Or App 785 , 551 P2d 110 , Sup Ct review denied (1976), presents the outer limits of the "criminal episode” test, I agree this case falls within that limit and the charges should have been joined for trial.
I wish, however, to note a troublesome point in the majority’s analysis. The Boyd-Bishop procedure was designed to relieve the prosecution from the risk of an improper joinder decision. A motion to consolidate also relieves the court from the task of deciding when and how to apply the same criminal episode test of ORS 131.515 (2). If the prosecutor fails to make such a motion the court is still faced with the decision as to whether charges that were not joined should have been.
The Boyd-Bishop procedure, which was first a suggestion, now seems to have become the Boyd-Bishop rule and a prime ingredient of the joinder decision. That decision is a function of statutory construction and should be made independent of whether the state has complied with the Boyd-Bishop rule. If we desire to enforce the Boyd-Bishop procedure by ruling against the state on "close” joinder questions, perhaps the rule should be restated to require that the state forego prosecution of charges that could have been joined by a motion to consolidate. Such a rule seems to be the import of the opinion in Mancuso and the majority’s opinion in this case.
I have no quarrel with repeatedly notifying prosecutors that the Boyd-Bishop procedure is the better approach, however, I do not think failure to follow that procedure should be a part of the analysis in determining if multiple charges should have been joined for trial.