462
On motion to determine jurisdiction, filed October 6, considered and under
advisement on November 30, 2021;* state’s motion to determine jurisdiction
granted, court determines that it has jurisdiction of appeal March 31, 2022
STATE OF OREGON,
Plaintiff-Appellant,
v.
JASON VAN BRUMWELL,
Defendant-Respondent.
(CC 04C46225) (SC S068918)
507 P3d 258
In defendant’s death penalty proceeding, after remand to the trial court following a post-conviction court ruling ordering a new penalty-phase proceeding,
the trial court granted defendant’s motion to preclude the death penalty in light
of Senate Bill 1013 (2019), which significantly changed the aggravated murder
statutes and narrowed the crimes punishable by death. The state then initiated
appeals to challenge the trial court’s order in both the Court of Appeals and
in the Supreme Court, and it moved the Supreme Court to determine whether
it could appeal a trial court order that granted defendant’s motion to preclude
imposition of the death penalty and, if so, whether the appeal must be brought
in the Supreme Court or in the Court of Appeals. Held: The state may appeal the
trial court’s order precluding the death penalty and the appeal must be brought
in the Supreme Court.
The state’s motion to determine jurisdiction is granted. The Court determines that it has jurisdiction of the appeal.
Jennifer S. Lloyd, Assistant Attorney General, Salem,
filed the motion for appellant. Also on the motion were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Ernest G. Lannet, Chief Defender, Office of Public
Defense Services, Salem, filed the response to the motion for
respondent.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, and Garrett, Justices, and Nakamoto, Senior Judge,
Justice pro tempore.…
______________
* Appeal from Marion County Circuit Court, Audrey J. Broyles, Judge.
… DeHoog, J., did not participate in the consideration or decision of this case.
Cite as 369 Or 462 (2022) 463
DUNCAN, J.
The state’s motion to determine jurisdiction is granted.
The court determines that it has jurisdiction of the appeal.
464 State v. Brumwell
DUNCAN, J.
This criminal case is before us on the state’s motion
to determine whether it may appeal a trial court order
that granted defendant’s motion to preclude imposition of
the death penalty and, if so, whether the appeal must be
brought in this court or the Court of Appeals. For the reasons we explain below, we hold that the state may appeal
the order and that the appeal must be brought in this court.
In this case, defendant was charged with two
counts of aggravated murder. Following a jury trial, the
trial court entered a judgment of conviction and sentence,
imposing the death penalty. Defendant later brought a
post-conviction relief action, and the post-conviction court
ordered a new sentencing proceeding. Consequently, this
case was reopened in the trial court, where—because of a
law enacted while defendant’s post-conviction case was on
appeal, Senate Bill (SB) 1013 (2019)—the parties disagreed
about whether defendant was subject to the death penalty.
To provide necessary context for the parties’ arguments, we
begin with a brief explanation of (1) the statutes that governed the death penalty when defendant was charged and
convicted, (2) the indictment and judgment in defendant’s
case, and (3) how SB 1013 changed the statutes governing
the death penalty.
Aggravated murder is the only Oregon crime subject to the death penalty. Prior to the enactment of SB 1013,
Oregon had two categories of murder: “murder” and “aggravated murder.” “Murder” was defined to include certain
forms of criminal homicide, and “aggravated murder” was
defined as “murder … committed under, or accompanied
by,” any one of 12 enumerated aggravating circumstances.
ORS 163.115(1) (2017), amended by Or Laws 2019, ch 635,
§ 4 (defining “murder”); ORS 163.095 (2017), amended by Or
Laws 2019, ch 635, § 1 (defining “aggravated murder”).
In 2003, while defendant was serving a prison
sentence for the aggravated murder of a convenience store
employee, defendant and another inmate killed a third
inmate, DP. In 2004, a grand jury indicted defendant on
two counts of aggravated murder for killing DP. Each count
alleged a different aggravating circumstance:
Cite as 369 Or 462 (2022) 465
“COUNT 1—The defendants, on or about 09/02/03 in
Marion County, Oregon, did unlawfully and intentionally
cause the death of [DP], another human being, defendant
having been convicted previously of Aggravated Murder on
01/24/96 in Lane County Circuit Court of Oregon.
“COUNT 2—As part of the same act or transaction,
as alleged in COUNT 1 above, the defendants on or about
09/02/03, in Marion County, Oregon, did unlawfully and
intentionally, while defendant was confined in the Oregon
State Penitentiary, a correctional facility, cause the death of
[DP], another human being.”
(Emphases added.) Thus, defendant was charged with two
counts of aggravated murder for the same killing: one alleging that defendant had been convicted of aggravated murder previously and the other alleging that defendant had
been confined in a correctional facility at the time of the
charged killing.
Aggravated murder trials proceed in two phases:
a guilt phase and a penalty phase. ORS 163.150. During
the penalty phase, a jury must answer questions, prescribed
by statute, including whether the defendant should be sentenced to death. Id. Defendant’s case was tried to a jury and,
at the conclusion of the guilt phase, the jury found defendant guilty of both counts of aggravated murder. The case
proceeded to the penalty phase, at the conclusion of which
the jury determined that defendant should be sentenced to
death. Thereafter, the trial court entered a “Final Judgment
and Sentencing Order” stating that defendant was “convicted of 2 Counts of AGGRAVATED MURDER as charged
in Counts 1 and 2” (uppercase in original), which it set out
in full. The judgment also stated that the counts “merge for
the purpose of this sentencing order” and that defendant
was “sentenced to death.”
On direct review, this court affirmed the trial
court’s judgment. State v. Brumwell, 350 Or 93,
249 P3d
965 (2011). Defendant then brought a post-conviction relief
action, challenging both his convictions and his sentence.
The post-conviction court rejected defendant’s arguments
regarding his convictions but accepted his argument that
his trial counsel had failed to provide adequate representation in connection with his sentencing. Accordingly, in 2015,
466 State v. Brumwell
the post-conviction court entered a judgment denying defendant’s request for a new guilt phase but granting his request
for a new penalty phase.
Both parties in the post-conviction case appealed
the judgment. The Court of Appeals affirmed, and this court
denied review. Brumwell v. Premo, 297 Or App 498, 501,
443
P3d 661, rev den,
365 Or 819 (2019).
While the post-conviction case was on appeal, the
legislature enacted SB 1013, which, among other things,
revised Oregon’s murder statutes to narrow the crimes that
can be punished by death. Or Laws 2019, ch 635; see also
State v. Bartol, 368 Or 598, 602-05,
496 P3d 1013 (2021)
(reviewing the legislative history of SB 1013). SB 1013 reclassified the various forms of murder in three ways. First, it
redefined “aggravated murder” in ORS 163.095 by deleting
the list of forms of murder in the statute and replacing it
with a shorter list consisting of forms of murder that the legislature regarded as the most serious. Or Laws 2019, ch 635,
§ 1; Bartol,
368 Or at 623. Second, it converted all the forms
of murder that had previously constituted “aggravated murder” to a new, less serious crime: “murder in the first degree.”
Or Laws 2019, ch 635, §§ 1, 3. And, third, it converted all the
forms of murder that had previously constituted “murder” to
a new, less serious crime: “murder in the second degree.” Or
Laws 2019, ch 635, § 4.
As relevant here, under SB 1013, the form of murder alleged in Count 1 of defendant’s indictment—that is,
murder after having been convicted of aggravated murder
previously—is now classified as “murder in the first degree,”
ORS 163.107(1)(c), and the form of murder alleged in Count 2—
that is, murder committed while confined in a correctional
facility—is also now classified as “murder in the first
degree,” ORS 163.107(1)(h).1 But a murder committed with
1
ORS 163.107 provides, in part:
“(1) ‘Murder in the first degree’ means murder in the second degree as
defined in ORS 163.115 which is committed under, or accompanied by, any of
the following circumstances:
“…
“(c) The defendant committed murder after having been convicted previously in any jurisdiction of any homicide, the elements of which constitute the
Cite as 369 Or 462 (2022) 467
both of those aggravating circumstances is now classified as
“aggravated murder.” ORS 163.095(2)(a).2
The changes SB 1013 made to the definitions of the
different forms of murder apply to “crimes committed before,
on or after the effective date of [SB 1013, September 29,
2019,] that are the subject of sentencing proceedings occurring on or after” that date. Or Laws 2019, ch 635, §§ 30, 31.
The parties agree that, because the post-conviction court
ordered a new penalty-phase hearing that has yet to occur,
SB 1013’s changes to the definitions of the different forms
of murder apply to this case. But the parties disagree about
the effect of those changes.
Defendant’s position is that, although he was
charged with two counts of aggravated murder as the crime
was defined at the time, the conduct he was charged with
now constitutes first-degree murder. Consequently, when
this case was reopened in the trial court, defendant filed
a motion titled “Motion to Preclude Death Penalty,” which
asked the court for an order “setting this case for a sentencing hearing,” as opposed to a penalty-phase proceeding with
a jury, as would be required if defendant were subject to
the death penalty. See ORS 163.150 (governing sentencing
for aggravated murder). In his motion, defendant asserted
that, as a result of the enactment of SB 1013, his convictions had been “reclassified as first-degree murder—crimes
crime of aggravated murder as defined in ORS 163.095, murder in the first
degree under this section, murder in the second degree as defined in ORS
163.115 or manslaughter in the first degree as defined in ORS 163.118.
“…
“(h) The defendant was confined in a state, county or municipal penal or
correctional facility or was otherwise in custody when the murder occurred.”
2
ORS 163.095 provides, in part:
“As used in ORS 163.105 [(governing sentencing for aggravated murder)]
and this section, “aggravated murder” means:
“…
“(2) Murder in the second degree, as defined in ORS 163.115, that is:
“(a)(A) Committed while the defendant was confined in a state, county or
municipal penal or correctional facility or was otherwise in custody; and
“(B) Committed after the defendant was previously convicted in any
jurisdiction of any homicide, the elements of which constitute the crime of
aggravated murder under this section or murder in the first degree under
ORS 163.107[.]”
468 State v. Brumwell
not subject to the death penalty.” Therefore, he further
asserted, “a sentence of death and all of the associated procedural necessities that go along with that, [was] no longer
available.”
Anticipating that the state would argue that his convictions “contain the necessary elements for one of the newly
enacted crimes constituting aggravated murder,” defendant
argued that he had not been “charged in one count with
what now constitutes aggravated murder”; instead, he had
been charged with “two counts of what now constitutes first-degree murder.” Defendant further argued that his case
had been returned to the trial court “for only one function—
resentencing,” and, therefore, the state could not “seek to
amend charges that have resulted in conviction[s] which
have been affirmed.”
The state opposed defendant’s motion to preclude
the death penalty. As defendant had anticipated, the state
sought to amend the indictment. The state argued that,
when the counts in the indictment were considered together,
defendant had been convicted of aggravated murder as it is
currently defined. Therefore, the state proffered a “proposed
amended indictment” that would convert the two counts into
a single count by deleting all of the second count except the
portion describing the aggravating circumstance. As authority for its proposed amendment, the state invoked Article VII
(Amended), section 5(6), of the Oregon Constitution, which
allows a district attorney to file an amended indictment
“whenever, by ruling of the court, an indictment … is held
to be defective in form.” The state contended that its proposed amendment was permissible because it was merely
one of “form.”
In addition, the state argued that the trial court
should proceed as if defendant already had been convicted
of a single count because, “[b]y law, merger of the two convictions was required” under State v. Barrett, 331 Or 27,
10 P3d
901 (2000), overruled in part on other grounds by Martinez v.
Cain,
366 Or 136,
458 P3d 670 (2020). In Barrett, this court
held that, when a defendant is convicted of multiple counts of
aggravated murder based on one killing, a trial court should
“enter one judgment of conviction reflecting the defendant’s
Cite as
369 Or 462 (2022) 469
guilt on the charge of aggravated murder” that separately
enumerates “each of the existing aggravating factors.”
Id. at 37.
Defendant filed a reply, addressing both of the state’s
arguments. Regarding the state’s proposed amendment,
defendant argued that the time had passed for an amendment; specifically, he argued that the state could not “alter
the indictment in any way after a jury [had] returned a verdict on that indictment and judgment [had been] entered.”
Defendant also argued that the indictment could not be
amended pursuant to Article VII (Amended), section 5(6),
because the indictment was not defective in form; according to defendant, the state had made a permissible choice to
charge him with two counts of aggravated murder and could
not “restart [the] case and rewrite history for purposes of
[his] sentencing.”
Regarding the state’s merger argument, defendant
argued that his convictions had never merged. As mentioned, the judgment stated that defendant had been convicted of both counts and it set the counts out in full. In
addition, the judgment stated that the counts merged for
the purposes of sentencing, which is insufficient to merge
counts for the purposes of conviction. See State v. Lyons, 324
Or 256, 282 n 32,
924 P2d 802 (1996) (noting that, where a
judgment provided that counts of aggravated murder and
murder merged for the purposes of sentencing, the Court of
Appeals had “remanded for entry of an amended judgment
merging the murder counts for purposes of conviction and
sentencing” (emphasis in original)). Defendant did not dispute that his convictions should have merged under Barrett;
instead, he pointed out that, “[j]ust as a defendant can waive
a merger argument, so can the state.” Moreover, he continued, the trial court lacked authority to alter the convictions
because they had become final and the case was before the
court only for sentencing.
After a hearing, the trial court granted defendant’s
motion to preclude the death penalty. The state subsequently
filed a motion asking the court to modify its order by clarifying “the effect of that order on the proceedings moving
470 State v. Brumwell
forward.” Specifically, the state asked the court to confirm
that it intended
“(1) to sentence the defendant for two counts of first-degree
murder as opposed to aggravated murder; and (2) to proceed in that manner because it concluded that[,] based on
the passage of Senate Bill 1013 and its amendments to the
aggravated murder statute, the defendant now stands convicted of first-degree murder and thus should be sentenced
in accordance with ORS 163.107 [(defining and governing
sentencing for first-degree murder)].”
Defendant did not object to the state’s motion, and the trial
court subsequently entered an order confirming the state’s
description of its ruling and that it intended “to sentence
defendant for two counts of first-degree murder as opposed
to aggravated murder.”
The state then initiated this appeal to challenge the
trial court’s order granting defendant’s motion to preclude
the death penalty. Because the state was unsure whether to
bring the appeal in this court or in the Court of Appeals, it
filed a notice of appeal in each court. It then filed a motion
to determine jurisdiction in this court, and a motion to stay
the proceedings in the Court of Appeals.
We write to resolve the state’s motion to determine
jurisdiction. To do so, we must determine whether the state
can appeal the trial court’s order and, if so, whether the
state must bring the appeal in this court or in the Court of
Appeals.
Whether a party can appeal a trial court ruling in
a criminal case is controlled by statute. ORS 138.010 (“The
only mode of reviewing a judgment or order in a criminal
action is that prescribed by ORS 138.010 to 138.310.”). State’s
appeals in criminal cases are governed by ORS 138.045. The
legislature enacted ORS 138.045 in 2017, when it amended
the statute that had governed state’s appeals, former ORS
138.060. Or Laws 2017, ch 529, § 4.
As relevant here, ORS 138.045 provides:
“(1) The state may take an appeal from the circuit
court, or from a municipal court or a justice court that has
become a court of record under ORS 51.025 or 221.342, to
the Court of Appeals from:
Cite as 369 Or 462 (2022) 471
“(a) An order made prior to trial dismissing or setting
aside one or more counts in the accusatory instrument;
“(b) An order allowing a demurrer;
“(c) An order arresting the judgment;
“(d) An order made prior to trial suppressing evidence;
“…
“(i) An order made after a guilty finding dismissing or setting aside one or more counts in the accusatory
instrument;
“…
“(2) Notwithstanding subsection (1) of this section,
when the state chooses to appeal an order described in
subsection (1)(a), (b) or (d) of this section, the state shall
take the appeal to the Supreme Court if the defendant is
charged with murder or aggravated murder.”
The state’s primary argument is that the trial
court’s order granting defendant’s motion to preclude the
death penalty is appealable under ORS 138.045(1)(a) because
the order is “[a]n order made prior to trial dismissing or setting aside one or more counts in the accusatory instrument.”
(Emphasis added.) The state’s alternative argument is that
the order is appealable under ORS 138.045(1)(i) because it
is “[a]n order made after a guilty finding dismissing or setting aside one or more counts in the accusatory instrument.”
(Emphasis added.) The timing of the order matters because,
if the order was made “prior to trial,” then the appeal is to
be brought in this court, but, if the order was made “after a
guilty finding,” then the appeal is to be brought in the Court
of Appeals. ORS 138.045(2).
Before addressing the timing of the trial court’s
order, we must first determine whether the order is an order
“dismissing or setting aside one or more counts in the accusatory instrument,” which is a requirement for both of the
paragraphs of ORS 138.045 on which the state relies.
ORS 138.045 does not specify what constitutes an
order “dismissing or setting aside” one or more counts in
an accusatory instrument. In State v. Robertson, 293 Or
402,
649 P2d 569 (1982), this court explained that the references to such orders were added to the then-existing statute
472 State v. Brumwell
governing state’s appeals in order to “broaden the state’s
ability to appeal orders that invalidate accusatory instruments.”
Id. at 407. As Robertson illustrates, such orders
include orders ruling that an accusatory instrument fails to
state facts that constitute an offense.
In Robertson, the defendant demurred to the indictment, claiming that the statute that defined the charged
crime, coercion, was unconstitutionally vague. Such a claim
is a claim that the indictment fails to state facts that constitute an offense. See State v. McKenzie, 307 Or 554, 560,
771
P2d 264 (1989) (explaining that, “[i]f a statute is constitutionally too vague, then the facts alleged in an indictment under
such a statute do not and cannot constitute an offense”). The
trial court entered an order allowing the demurrer, and the
state appealed. On review, this court considered whether the
state could appeal the trial court’s order. At the time, the
statute governing state’s appeals did not expressly authorize
appeals from orders allowing demurrers but did expressly
allow appeals from orders “setting aside” indictments. Based
on the history and purpose of the statute, this court concluded that a trial court’s order allowing a demurrer constitutes an order “setting aside” the indictment and, therefore,
may be appealed by the state. Robertson,
293 Or at 407.
Similarly, in State v. Parker, 299 Or 534,
704 P2d
1144 (1985), the defendant demurred to an indictment “on
the ground that it [did not] state a crime.”
Id. at 537. The
trial court issued an order allowing the demurrer, and the
state appealed. On review, this court held that the state
could appeal the trial court’s order allowing the demurrer
because it “set[ ] aside one count of the accusatory instrument.”
Id. at 539.
Thus, under Robertson and Parker, if a trial court
issues an order ruling that an accusatory instrument, or a
count in an accusatory instrument, fails to state facts that
constitute an offense, the state can appeal the order as an
order “setting aside one or more counts in the accusatory
instrument.”
We note that a claim that a count does not actually
charge the crime it purports to charge is a claim that the
count fails to state facts that constitute an offense. State v.
Cite as 369 Or 462 (2022) 473
Hankins,
342 Or 258, 262-64,
151 P3d 149 (2007) (holding
that a defendant may demur to an indictment on the ground
that it fails to state facts that constitute an offense if the
indictment does not allege all the elements of the offense it
purports to charge, even if it alleges all the elements of a
lesser-included offense).3 We also note that a claim that an
indictment or a count fails to state facts that constitute an
offense may be raised through a demurrer, ORS 135.630(4),4
or a motion in arrest of judgment, ORS 136.500,5 and the
state can appeal trial court orders on demurrers and motions
in arrest of judgment, ORS 138.045(1)(b), (c).
3
In Hankins, the defendant was charged with delivery of marijuana to a
minor. To commit that crime, the person who delivered the marijuana had to be
18 years of age or over and at least three years older than the minor to whom the
marijuana was delivered. After the close of the state’s case-in-chief, the defendant moved for a judgment of acquittal, asserting that the indictment was deficient because it did not allege either that he was 18 or older or that he was at least
three years older than the person to whom he allegedly delivered the marijuana.
The trial court denied the defendant’s motion on the ground that the defendant
should have raised his challenge to the indictment through a demurrer. On
review, the defendant argued that he could not have demurred to the indictment
because, under ORS 135.630(4), a defendant may demur when it appears that the
“facts stated [in the indictment] do not constitute an offense”; specifically, the
defendant argued that he could not have demurred to the indictment because,
even if the indictment did not state facts constituting the offense of delivery of
marijuana to a minor, it did state facts constituting the lesser-included offense
of delivery of marijuana. This court rejected that argument, holding that, even if
the indictment stated facts that constituted an offense, the defendant could have
demurred to it “on the ground that the facts stated did not constitute the offense
that the indictment purported to charge.” Hankins, 342 Or at 264 (emphases
added).
In addition to his motion for judgment of acquittal, the defendant had filed
a post-verdict motion challenging the indictment on the same ground, which the
trial court also denied. On review, this court declined to address whether the
trial court’s ruling on that motion was error, because the defendant had not challenged that ruling on appeal. Id. at 267.
4
ORS 135.630 provides:
“The defendant may demur to the accusatory instrument when it appears
upon the face thereof:
“…
“(4) That the facts stated do not constitute an offense[.]”
5
ORS 136.500 provides:
“A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a plea or verdict of guilty. It may be
founded on either or both of the grounds specified in ORS 135.630 (1) and (4),
and not otherwise. The motion must be made within the time allowed to file a
motion for a new trial, and both such motions may be made and heard as the
court directs.”
474 State v. Brumwell
Having concluded that an order ruling in a defendant’s favor on a claim that a count does not state an offense
is an order “setting aside” the count, we turn to the question
of whether defendant made such a claim in this case. As
noted, defendant filed a motion titled “Motion to Preclude
Death Penalty.” He did not title his filing as a demurrer, a
motion in arrest of judgment, or a motion to dismiss or set
aside the indictment.
This court has construed the statute governing
state’s appeals strictly, in that it has held that the statute
does not authorize the state to appeal orders other than
those listed in the statute. See, e.g., State v. Sieckmann,
251 Or 259, 261,
445 P2d 599 (1968) (dismissing the state’s
appeal of a trial court’s order that was “erroneous” because
the order was “not one of those orders specified by the legislature from which an appeal can be taken”). But, when
determining whether an order is one of the types listed, this
court has looked beyond the title of the filing that prompted
the order; it has looked to the nature of the filing. See,
e.g., McKenzie,
307 Or at 560-61 (explaining that, when a
defendant makes a motion for judgment of acquittal before
a verdict on the ground that the indictment fails to state
an offense, the motion should be construed as a “premature
motion in arrest of judgment”); State of Oregon v. Berry and
Walker,
204 Or 69, 72,
267 P2d 993 (1954) (holding that
the defendant’s objection to testimony on the ground that
the statute he was accused of violating was unconstitutionally vague was “in effect a demurrer” on the ground that
the indictment did not state facts sufficient to constitute a
crime); see also State ex rel Schrunk v. Bonebrake,
318 Or
312, 314 n 2,
865 P2d 1289 (1994) (holding that a defendant’s motions to “quash” indictments were properly treated
as motions to “set aside” the indictments).6
6
The Court of Appeals has done similarly. E.g., City of Toledo v. Richards,
40 Or App 71, 75,
594 P2d 422, rev den,
287 Or 149 (1979) (holding that an order
vacating a sentence due to the unconstitutionality of an ordinance “necessarily holds that the facts stated do not constitute an offense as there is no longer
an ordinance to be violated” and, therefore, is “by its nature an order arresting judgment from which the city may appeal”); State v. Cannon/Clark/Green/
Donnelly,
17 Or App 379, 384,
521 P2d 1326 (1974) (holding that the trial court’s
post-verdict ruling on the defendants’ pretrial demurrers “was, essentially, an
order arresting judgment on the permissible ground of failure of the indictment
to state facts constituting a crime”).
Cite as
369 Or 462 (2022) 475
Here, defendant’s motion to preclude the death penalty depends on what defendant has been convicted of, which
in turn, depends on what the indictment charges. Defendant
correctly focuses on the body of the indictment, which controls over the caption of the indictment and the titles of
the counts. See State v. Trueax, 315 Or 396, 398, 400,
845
P2d 1291 (1993) (holding that, where the indictment was
captioned “Sodomy in the Second Degree,” but the body of
the indictment alleged facts that constituted sodomy in the
third degree, the trial court erred in convicting the defendant of sodomy in the second degree).7 Essentially, defendant’s argument is that, although the indictment purports
to charge two counts of aggravated murder, in the wake of
SB 1013 it actually charges two counts of the lesser-included
crime of first-degree murder, and, therefore, the trial court
must sentence him for two counts of that crime, which does
not carry the death penalty.
Functionally, that argument is a claim that each
count of the indictment fails to state facts that constitute
an offense; more specifically, it is a claim that each count
fails to state facts that constitute the offense it purports
to charge. It is the type of argument that can be raised
through a demurrer or a motion in arrest of judgment to
prevent the state from proceeding on a charge when it has
failed to allege all the elements of that charge (even if it has
alleged all the elements of a lesser-included charge). And, as
discussed above, when a trial court issues an order ruling
in a defendant’s favor on a claim that a count fails to state
an offense, that order is an order “setting aside” the count,
which can be appealed by the state. Therefore, we conclude
that the state can appeal the trial court’s order granting
defendant’s motion to preclude the death penalty.
7
In Trueax, the defendant did not challenge the indictment. The state raised
the issue of the discrepancy between the caption and the body of the indictment
when the case was on appeal. As this court recounted,
“[w]ith commendable candor, the state brought the discrepancy in the
indictment to the attention of the Court of Appeals, pointing out that,
even though defendant had not raised the issue at trial or on appeal, the
indictment could not support defendant’s conviction for sodomy in the second degree, and that it was an error of law apparent on the face of the
record.”
315 Or at 399.
476 State v. Brumwell
The question then becomes whether the state’s
appeal must be brought in this court or in the Court of
Appeals. If, prior to trial, a trial court issues an order ruling
that one or more counts fails to state facts that constitute an
offense, the order can be appealed either as an “order made
prior to trial … setting aside one or more counts in the
accusatory instrument,” ORS 138.045(1)(a), or as an “order
allowing a demurrer,” ORS 138.045(1)(b), and, in a murder
or aggravated murder case, the appeal must be brought in
this court, ORS 138.045(2). If such an order is made after a
guilty finding, it can be appealed as an “order made after a
guilty finding … setting aside one or more counts in the
accusatory instrument,” ORS 138.045(1)(i), or as an “order
arresting the judgment,” ORS 138.045(1)(c), and the appeal
must be brought in the Court of Appeals.
In most cases, it will be obvious whether a ruling
is “made prior to trial” or “after a guilty finding” for the
purposes of ORS 138.045. But, because this case involves a
bifurcated trial and the post-conviction court ordered only
a new penalty-phase hearing, it is not obvious whether the
trial court’s order on remand was “made prior to trial” or
“after a guilty finding.” As recounted above, the order was
made after the guilt and penalty phases of defendant’s
first trial but before the new penalty phase ordered by the
post-conviction court. There can be no question that the
motion was made and ruled on after defendant was found
guilty, and that would seem to suggest that the ruling can
be appealed either as post-verdict order setting aside the
aggravated murder counts or as an order arresting judgment. But this court has held that, when a death penalty
case is remanded for a new penalty phase, trial court orders
made before a jury is empaneled for the new penalty phase
may qualify as orders “made prior to trial” within the meaning of the state’s appeal statute. State ex rel Carlile v. Frost,
326 Or 607, 616,
956 P2d 202 (1998) (so holding regarding
former ORS 138.060 (1997), amended and renumbered as
ORS 138.045 (2017)).
In Carlile, the defendant’s death penalty case had
been remanded for a new penalty phase. On remand, the
defendant moved to suppress certain evidence and the trial
court granted the motion in part. To challenge the trial
Cite as 369 Or 462 (2022) 477
court’s suppression ruling, the state filed a notice of appeal
in the Court of Appeals, invoking former ORS 138.060(3)
(1997), which authorized state’s appeals of orders “made
prior to trial suppressing evidence,” as ORS 138.045(1)(d)
does today. The Court of Appeals dismissed the state’s
appeal on the ground that the trial court’s suppression ruling had not been made “prior to trial.”
On review, this court reversed, holding that “ ‘an
order made prior to trial suppressing evidence’ … includes
an order suppressing evidence before the beginning of a
penalty-phase-only retrial.” Carlile, 326 Or at 616. This
court based its holding on several considerations. To begin
with, this court looked to the text of the statute authorizing
state’s appeals, noting that the legislature had not defined
the phrase “prior to trial,” and that this court had previously
recognized that the term “trial” can “ ‘have a different meaning in different settings, and under different statutory provisions.’ ”
Id. at 612 (quoting State v. Hattersley,
294 Or 592, 595,
660 P2d 674 (1983)). This court then examined the meaning
of the term “trial” in two contexts. First, this court looked to
the statutes governing aggravated murder cases. The court
noted that the statutory scheme provides for separate guilt
and penalty phases, which can have different juries if a case
is remanded for a penalty phase only, in which case the new
penalty-phase jury is a new “trial jury.”
Id. at 614 (emphasis
in original) (construing State v. Wagner,
309 Or 5, 17-18,
768
P2d 93 (1990)).8 Second, this court looked to the statutes governing pretrial proceedings, including ORS 135.037, which
provides for omnibus hearings and requires trial courts to
rule on certain motions, including motions to suppress evidence and challenges to the accusatory instrument, “prior to
trial.” Carlile,
326 Or at 614. As this court observed in Carlile,
“[f]or that statute to apply in the context of a penalty-phase-only retrial, the phrase ‘prior to trial’ can mean only
a time before a new jury is impaneled and sworn at the
beginning of the penalty phase.”
Id. at 614-15.
8
When this court decided Carlile, ORS 163.150(5)(a) (1997) provided that,
“[i]f a reviewing court finds prejudicial error in the sentencing proceeding only,”
the trial court on remand could “[i]mpanel a new sentencing jury for the purpose
of conducting a new sentencing proceeding” to determine whether the defendant
should be sentenced to death or life in prison, with or without the possibility of
parole. That provision has since been recodified at ORS 138.052(2)(a).
478 State v. Brumwell
Finally, this court looked to its then-recent decision
in Hattersley, in which it had construed the statute authorizing state’s appeals, and concluded that the “legislature
intended to correlate the state’s opportunity to appeal in
a criminal case with a defendant’s right to avoid ‘double
jeopardy.’ ” Carlile, 326 Or at 615 (citing Hattersley,
294 Or
at 598). This court noted that the legislature intended the
state’s appeal statute “to give the state an opportunity to
obtain an answer to legal rulings limiting what it may offer
in evidence, including but not limited to such rulings that
result from an omnibus hearing, before presenting its case.”
Carlile,
326 Or at 615 (citing Hattersley,
294 Or at 597-98).
And, this court further noted, if the state were not allowed to
challenge the trial court’s suppression ruling before the penalty phase and the new penalty-phase jury answered “no”
to any of the four penalty-phase questions, then the prohibition against former jeopardy would preclude another penalty
phase, leaving the state without a remedy if the trial court’s
suppression ruling was erroneous. Carlile,
326 Or at 615-16.9
“Pulling together all those threads,” this court concluded
that the trial court’s suppression ruling, made on remand
before the new penalty-phase jury was empaneled, was made
“prior to trial” for the purposes of the state’s appeal statute.
Id. at 616.
In this case, the state relies on Carlile, asserting that
trial court orders made after a case has been remanded for
a new penalty phase and before a new jury has been empaneled are orders made “prior to trial” for the purposes of the
state’s appeal statute. Defendant does not argue otherwise.
9
In Carlile, this court explained:
“The concept of protection against former jeopardy applies, in a separate
fashion, to the penalty phase itself. Even if a defendant is found guilty (so
that the defendant can be subjected to a hearing on the appropriate penalty
without being subjected to ‘double jeopardy’ thereby), if a sentencing jury
says ‘no’ to any of the four penalty-phase questions, then the defendant cannot be subjected to jeopardy of the death penalty again. That is so as a matter
of federal constitutional law. Thus, in law, the penalty phase is a type of ‘trial’
to which the concept of ‘jeopardy’ attaches. Moreover, when a defendant faces
a penalty-phase-only retrial, the only way to assure that the state’s ‘interlocutory appeal opportunities … correlate with [the] defendant’s double jeopardy protections’ is to hold that jeopardy attaches and the state’s opportunity
to appeal ceases ‘when the [penalty-phase] jury is “impaneled and sworn.” ’ ”
326 Or at 616 (footnote and citation omitted; alterations in Carlile) (quoting
Hattersley,
294 Or at 598).
Cite as
369 Or 462 (2022) 479
Here, the trial court’s order was made at the same
point in the proceedings as the order in Carlile. When—as
in Carlile and this case—a death penalty case is reopened
only for a new penalty phase, the new penalty-phase hearing is like a new trial (albeit a limited one), in that it can be
preceded by a new omnibus hearing, a new jury is empaneled, the parties present additional evidence to the jury, and
the jury makes different fact findings, which carry former
jeopardy consequences. Thus, an order like the one in this
case, made prior to the empaneling of a jury for a new penalty phase, is an order made “prior to trial” for the purposes
of ORS 138.045. It is made prior to the point at which jeopardy would attach for the purposes of the particular proceeding. See, e.g., Parker, 299 Or at 539 (treating the trial
court’s order allowing the defendant’s demurrer to one count
of the indictment as one made “prior to trial,” even though
the effect of that order was to preclude a trial on that count).
In sum, we conclude that the trial court’s order
granting defendant’s motion to preclude the death penalty
is an order “setting aside” both counts of the indictment, in
that it reduces the crimes charged from aggravated murder to first-degree murder, and we further conclude that,
because the trial court issued its order after the case was
remanded for a new penalty phase but before a new penalty-phase jury was empaneled, the order was made “prior to
trial.” Therefore, the state may appeal the order pursuant
to ORS 138.045(1)(a) and, pursuant to ORS 138.045(2), the
appeal must be brought in this court.
The state’s motion to determine jurisdiction is
granted. The court determines that it has jurisdiction of the
appeal.
