The issue, then, is whether the offenses joined with the failure to appear charge are "[b]ased on two or more acts or transactions connected together or constituting parts of a common scheme or plan" under ORS 132.560(1)(b)(C). In State v. Johnson, 199 Or App 305, 111 P3d 784 (2005), this court interpreted ORS 132.560(1)(b)(C) to preclude joinder of controlled substance and felony murder charges because the joined counts were not "logically related" and did not involve a "large area of overlapping proof." 199 Or App at 317.
We have previously addressed the legislative intent of ORS 132.560(1)(b)(C) ; specifically, what the phrases "connected together" and "common scheme" mean. State v. Johnson , 199 Or. App. 305, 315-17, 111 P.3d 784 (2005). In Johnson , the defendant was charged with felony murder in relation to the robbery and shooting death of a man.
Before trial, defendant raised two distinct procedural challenges. First, he asserted that “improper joinder” was a basis for a demurrer under ORS 135.630, arguing that, because there was no legal basis to join the various charges under ORS 132.560(1)(b)(A)–(C), the indictment should be dismissed. Defendant argued particularly that, under our decision in State v. Johnson, 199 Or.App. 305, 314–18, 111 P.3d 784, rev. den., 339 Or. 701, 127 P.3d 1203 (2005), various charges were neither “connected together” nor “constitute[ed] parts of a common plan or scheme,” so as to be amenable to permissive joinder under ORS 132.560(1)(b)(C). See Johnson, 199 Or.App. at 317, 111 P.3d 784 (holding that ORS 132.560(1)(b)(C) is satisfied where “the joined counts are logically related, and there is a large area of overlapping proof” between them).
Then, "either party may move the court to sever the offenses [or charging instruments] on a showing that it is 'substantially prejudiced' by the joinder. The court may then exercise discretion to order separate trials or 'whatever other relief justice requires.' " State v. Johnson, 199 Or App 305, 314, 111 P3d 784, rev den, 339 Or 701 (2005) (citations omitted).
More specifically, we conclude that the charges in Cases 675 and 862 were misjoined, at which point joining Case 608 did nothing to ameliorate that problem. In State v. Johnson , 199 Or. App. 305, 307, 111 P.3d 784, rev. den. , 339 Or. 701, 127 P.3d 1203 (2005), the defendant was charged with felony murder after an incident in which he allegedly robbed the victim of methamphetamine and money and then killed him. Three weeks after the murder, the police found marijuana growing in the defendant's apartment, and he was charged with drug manufacturing.
Gray, 523 US at 196. In applying those cases in State v. Johnson, 199 Or App 305, 312-13, 111 P3d 784, rev den, 339 Or 701 (2005), we concluded that the defendant's confrontation right was violated by the admission of the redacted statements of a non-testifying codefendant. In Johnson, the codefendant's confession repeatedly referred to the defendant specifically and described his criminal conduct in detail.
Our review of the denial of a motion for a mistrial is limited to determining whether the court abused its discretion in making that decision. State v. Johnson, 199 Or App 305, 311, 111 P3d 784, rev den, 339 Or 701 (2005). The decision is committed to the discretion of the trial judge because the trial judge "is in the best position to assess the impact of the complained-of incident and to select the means (if any) necessary to correct any problem resulting from it."
On remand, defendant reiterates his challenges, on federal Confrontation Clause grounds, to both the denial of his motion to sever and the admission of the redacted version of Hudson's statements. Specifically, defendant argues that, when the trial court allowed Hudson's redacted statements into evidence, it then erred in failing to sever defendant's trial from that of Hudson and Benson; conversely, he argues, when the trial court denied his motion to sever the trials, it erred in admitting Hudson's redacted statements. Relying on Bruton v. United States, 391 US 123, 88 S Ct 1620, 20 L Ed 2d 476 (1968), as further developed in Richardson v. Marsh, 481 US 200, 107 S Ct 1702, 95 L Ed 2d 176 (1987), and as applied by this court in State v. Johnson, 199 Or App 305, 312-13, 111 P3d 784, rev den, 339 Or 701 (2005), defendant argues that, notwithstanding the trial court's instructions to the jury to consider Hudson's various redacted statements only in determining Hudson's guilt or innocence, the references in the statements to "other persons present" and "accomplices" were insufficient to hide defendant's identity and existence and therefore allowed the jury to infer that the anonymous persons referred to were defendant and Benson. He argues that the statements therefore amounted to statements against him that are subject to the newly announced constitutional rule in Crawford that uncross-examined testimonial hearsay cannot be used against a criminal defendant. Defendant also argues that that rule cannot depend on the jury's ability to follow the trial court's instruction to ignore the testimony.
December 28, 2005. (A114694) ( 199 Or App 305). Petition for review denied.
See State v. Dewhitt, 276 Or.App. 373, 383, 368 P.3d 27, rev den, 359 Or. 667 (2016) ("[J]oinder under ORS 132.560(1)(b)(C) is appropriate if 'the joined counts [or charges] are logically related, and there is a large area of overlapping proof between them." (Quoting State v. Johnson, 199 Or.App. 305, 317, 111 P.3d 784, rev den, 339 Or. 701 (2005).)).