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by: Rankin Johnson IV • April 10, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

MANDATORY MINIMUM SENTENCES - Proportionality

True-life sentence for possession of child pornography following two prior felony sex offense convictions was not disproportionate under the Oregon Constitution. Affirmed.

State v. Delp 297 Or App 1 (April 10, 2019) (Egan) (Marion County, Leith)

APPEAL AND REVIEW - New-trial motions

Denial of motion for new trial based on nonunanimous verdict was not reviewable. Affirmed.

Defendant did not request a unanimous jury instruction or object to the 10-2 verdict of conviction. At sentencing, one of the jurors told the court that she was one of the two votes for acquittal and the only black juror. Defendant moved for a new trial based on the Equal Protection Clause of the Fourteenth Amendment. Although defendant had raised "serious challenges" about the verdict, the Court of Appeals held that new trial motions were only reviewable if based on juror misconduct or newly discovered evidence.

State v. Williams 297 Or App 16 (April 10, 2019) (Ortega) (Multnomah County, James)

SELF-INCRIMINATION - Invocation of the right to counsel

Police failed to honor defendant's invocation of right to counsel. Reversed and remanded.

Defendant came to the police station, believing police wanted to ask him about drug activity in a neighbor's house. He was seated in an interview room only reachable through a locked elevator and a locked door. The interviewing officers were in plain clothes, told defendant that he did not need to answer questions and could leave at any time, and read him Miranda warnings.

Police asked defendant about a time when defendant lived with his mother and his niece. Police asked about whether defendant's mother had physically abused his niece, and then asked whether defendant had sexually abused her.

When police asked about a specific incident, defendant said "it sound[ed] like he need[ed] a lawyer." Asked if he wanted to continue the discussion, he said "Without a lawyer here, I don't know." Police continued talking, and defendant made admissions.

The court concluded that defendant made either an unequivocal or an equivocal request for counsel, and the police failed to ask clarifying questions. The court declined to consider the state's right-for-the-wrong-reason argument that defendant was not in custody, because the record was not sufficient to review that issue.

State v. Dodge 297 Or App 30 (April 10, 2019) (Hadlock) (Clackamas County, Jones)

RIGHT TO SELF-REPRESENTATION- Self-representation at trial

Defendant was entitled to represent himself at trial. Reversed and remanded.

State v. Martinez 297 Or App 64 (April 10, 2019) (Per Curiam) (Marion County, Partridge)