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Oregon Appellate Court, July 1, 2020

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by: Rankin Johnson • July 6, 2020 • no comments


Summarized by Rankin Johnson, OCDLA

POST-CONVICTION RELIEF - Ineffective assistance of counsel

Counsel was not ineffective in failing to offer evidence in support of a motion-to-suppress argument that petitioner's injuries and painkillers invalidated her consent to search her property. Affirmed.

Petitioner was convicted of the murder of her husband. She claimed that they had been assaulted and her husband had been kidnapped, and she had broken bones and other injuries. While she was in the hospital, police obtained her consent to search her house and found evidence incriminating her.

Trial counsel filed a motion to suppress. In support of the motion, trial counsel subpoenaed a treating physician to trial, but did not seek funding to pay the physician as an expert. The physician thus testified reluctantly and unhelpfully to the defense case, and the trial court found that petitioner's consent was voluntary.

In post-conviction court, petitioner argued that trial counsel was ineffective in failing to offer expert testimony or to seek a continuance or otherwise address the subpoenaed doctor's expectation of payment. Petitioner also offered evidence from another medical expert that medications may have affected the voluntariness of petitioner's statements.

In rejecting petitioner's claims, the Court of Appeals noted that voluntariness of consent was a legal question, not subject to expert testimony, and the court held that counsel's actions in calling the physician were reasonable. The court also held that petitioner failed to show prejudice, because the expert in post-conviction court did not establish that petitioner's consent was involuntary.

Stomps v. Person 305 Or App 47 (July 1, 2020) (Armstrong) (Washington County, Penn)

SEARCH AND SEIZURE - Lost property

Although police officer said he searched purse as lost property, intending to identify the owner, the officer subjectively believed that the purse belonged to defendant, and thus could not search it as lost property. Reversed and remanded.

Defendant was arrested on a warrant while in a restaurant, and the purse was near her at that point. Although she denied ownership of the purse, she did not 'abandon' the purse for constitutional purposes.

State v. Bunch 305 Or App 61 (July 1, 2020) (Armstrong) (Coos County, Stone)

SEARCH AND SEIZURE - Third-party consent

Social worker lacked authority to invite police into defendant's home. Reversed and remanded.

Because the trial court summarily rejected argument that third parties cannot issue invitations to police, it did not address other important issues.

State v. Alatorre 305 Or App 71 (July 1, 2020) (Armstrong) (Multnomah County, Kantor)

RESTITUTION - Victim's rights

Following plea bargain which provided for restitution to be determined within 90 days, trial court erred by imposing restitution sought after that time. Reversed.

The majority and dissent disagreed over whether the victim's right to restitution under the Oregon Constitution was violated.

The majority held that the 90-day time limit in the plea agreement was clear and enforceable, and defendant had a federal due process right to enforce it. In choosing to enforce the agreement (rather than merely permitting defendant to withdraw his plea) the majority noted that other victims had also received restitution, and they had an interest in finality.

James, dissenting, would have held that an agreement between the defendant and the prosecutor could not extinguish the victim's right to restitution.

State v. Lynch 305 Or App 122 (July 1, 2020) (Lagesen, James dissenting) (Multnomah County, Kantor)

CONTEMPT - Willfulness

Defendant's failure to read entire FAPA order, including list of locations from which he was excluded, did not prevent a court finding his failure to obey order was willful. Affirmed.

The court reversed an award of attorney fees, following the state's concession.

State v. Guzman-Vera 305 Or App 161 (July 1, 2020) (Lagesen) (Washington County, Pagan)

SEARCH AND SEIZURE - Officer safety

When, during a stop, defendant asked for permission to put his phone in his backpack, doing so did not create officer-safety concerns justifying handcuffing defendant. Reversed and remanded.

The Court of Appeals held that the knife strapped to defendant's arm, revealed when he was handcuffed, was subject to suppression. But because defendant gave a false name and was later arrested for doing so, the search of his backpack was incident to arrest.

State v. Ramirez 305 Or App 195 (July 1, 2020) (James) (Yamhill County, Stone)

SEARCH AND SEIZURE - Search incident to arrest

During warrant arrest for unspecified misdemeanor, officer lacked lawful basis to pull plastic bag from defendant's pocket. Reversed.

State v. Martinez 305 Or App 220 (July 1, 2020) (Aoyagi) (Washington County, Butterfield)

DUII - Bicyclists

Defendant, who was riding a bicycle while intoxicated, was not a 'pedestrian' by virtue of being in a crosswalk. Affirmed.

State v. Boekelheide 305 Or App 239 (July 1, 2020) (Landau) (Lane County, Cascagnette)