State v. RoachState v. Roach
- Reporters:
- , ,
- Before:
- Tanzer
On June 20, 1973, defendant was indicted for possession of a stolen motor vehicle. He was thereafter identified as the person who had earlier kidnapped the victim and robbed him of his car. On June 29, 1973, defendant was charged by a second indictment with robbery and kidnapping. ① Pleas of not guilty were *150 entered to all the charges and the two indictments were separately set for trial.
On October 9, 1973, a deputy district attorney notified defendant’s attorney of the state’s intention to move for consolidation of the two indictments. Defendant’s аttorney replied that he would oppose any such consolidation. Later the same day defendant’s attorney notified the docket clerk of the circuit court that defendant wished to change his plea to guilty on the charge of possеssion of a stolen motor vehicle. The docket clerk in turn notified the deputy district attorney handling the case.
On October 10, 1973, dеfendant changed his plea to guilty on the possession charge. In response to questioning by the court, defendant’s attorney at least implied that the plea would not affect the pending charges of robbery and kidnapping. ② A different deputy district attorney represented the state at this hearing and the subject of consolidation was not raised. Defendant was subsequently triеd and convicted on the second indictment and given consecutive sentences for each of the three crimes аlleged in the two indictments. This is a consolidated appeal from both judgments.
Since there is no assignment of error asserting the sentence following defendant’s guilty plea to pos
*151
session to be excessive, there is no issue for us to review,
In State v. Clipston, 3 Or App 313, 328, 473 P2d 682 (1970), this court quoted with approval People v. Coltrin, 5 Cal 2d 649, 660, 55 P2d 1161 (1936):
“ * * If the act invоlved in one charge is necessarily involved in the other and is merely incidental to that charge but one offense is committеd and it cannot be carved into two offenses * * *.’ ”
The indictments in this case indicate that possession of the stolen motor vеhicle was incidental to and necessarily involved in the robbery of that same vehicle. ③ Possession, therefore, merges intо robbery and defendant’s single criminal act cannot be the basis for two separate convictions. Therefore the rоbbery conviction was barred by the possession conviction and it is reversed.
*152 Had the state desired to prosecute dеfendant for robbery, the proper procedure would have been to proceed on that charge alone. The prosecution’s remedy in this case was dismissal, not consolidation.
Possession of the stolen motor vehicle, although factually related in this case, was not necessarily involved in the act of kidnapping ④ and those two crimes do not merge. State v. Clipston. We must nevertheless consider whether dеfendant’s conviction for kidnapping was barred under the Supreme Court’s decision in State v. Brown, 262 Or 442, 497 P2d 1191 (1972).
State v. Brown held that separate prosecutiоn of separate charges is prohibited under the double jeopardy clause of the Oregon Constitution ⑤ if: (1) the charges аrise out of the same act or transaction; (2) the charges would have been tried in the same court; and (3) the proseсutor knew or reasonably should have known of the facts relevant to the charge subsequently tried at the time of the original prosecution.
The affirmative of the Brown bar against successive prosecutions is a grant to the defendant of an almost absolute right to a cоnsolidated trial of related charges. Conversely, the Supreme Court made clear *153 in State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1974), that the defendant is entitled almost absolutely to have consolidated charges severed for separate trials. The combined functional result of Brown and Fitzgerald is to tаke from the court and give to the defendant the discretion to try related charges separately or jointly. See State v. Bishop, 16 Or App 310, 518 P2d 177 (1974).
Here, the dеfense made its choice. Defense resistance to consolidation of related charges is a clear exercise of tactical choice which constitutes a waiver of any right he may have to consolidate under Brown. State v. Rook, 14 Or App 211, 511 P2d 1245, rev den (1973). See also, State v. Browne, 16 Or App 177, 517 P2d 1224 (1974). This is no less true where the resistance is manifested in communications between counsel, as is shown by the stipulated facts of this case, thаn where it is done in the more formal setting of open court as in Booh.
We hold, therefore, that defendant’s motion to dismiss the kidnapрing charge of the second indictment based upon his plea of former jeopardy was properly denied.
Therefоre, we affirm the judgment based upon the conviction for possession of a stolen motor vehicle (No. 72 2499) and that for kidnapping (No. 73 2650), but reverse the conviction for robbery (No. 73 2650).
Affirmed in part; reversed in part.
Notes
A third count charging theft was abandoned.
At the hearing on the change of plea the following colloquy toоk place:
“THE COURT: You said this was not a negotiated plea and I take it there’s no deal with the D.A.’s office on other chargеs?
“MR. CHEZ: No.
“THE COURT: Nobody’s promised you they’ll be dismissed or anything of that kind?
“MR. CHEZ: No, no promises.”
Indictment 73 2499 states in pertinent part:
“The said SAM STEVEN ROACH on or about the 12th day of June, 1973, * * * did then and there, wilfully, knowingly and unlawfully have in his possession a stolen 1973 Porsche automobile, * * * the said defendant then and there well knowing said motor vehicle to be stolen * *
Count I of Indictment 73 2650 states:
“The said SAM STEVEN ROACH on or about the 28th day of March, 1973, * * * with the intent of preventing and overcoming resistance by Michael Gary Robson to theft оf the 1973 Porsche automobile of Michael Gary Robson, did knowingly and unlawfully threaten Michael Gary Robson with the immediate use of рhysical force by pointing a hand gun, a dangerous weapon, at and toward Michael Gary Robson while the said defendant was then and there engaged in the course of committing theft of said automobile * *
Count II of Indictment 73 2650 states:
“* * * [T]he said Sam Steven Roach on or about thе 28th day of March, 1973, * * * with intent to interfere substantially with the personal liberty of Michael Gary Robson, and without consent or legal authority, did take Michael Gary Robson from the carport of the residence located at 530 River Road, Eugene, Oregon, to a private driveway north off Fleck Road * * *, Eugene, Oregon, for the purpose of terrorizing the said Michael Gary Robson * *
The indictment for possession is set out in note 3, supra.
Article 1, Section 12 of the Oregon Constitution provides:
“No person shall be put in jeopardy twice for the same offense * * * ”