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Oregon Appellate Court, May 1, 2019

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by: Rankin Johnson IV • May 8, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

POST-CONVICTION RELIEF - Failure to investigate

Trial counsel's failure to investigate prison informant's allegations about murder-for-hire plot was ineffective assistance. Reversed.

Petitioner, a prison inmate, stabbed and killed another inmate. He argued that the victim had previously threatened him and he wanted the victim to be transferred to another institution for his protection.

The state offered the testimony of another inmate that petitioner was paid by a Native American prison gang to kill victim. The inmate, who was white, said that he was the "War Chief" of the gang.

At the post-conviction trial, petitioner offered evidence that the inmate was not a member of the gang and was not trustworthy.

The post-conviction court found that counsel's failure to investigate was reasonable, because prison inmates were not cooperative witnesses and the jury would probably have convicted regardless of the murder-for-hire scheme. The Court of Appeals disagreed.

Cox v. Premo 297 Or App 302 (May 1, 2019) (Ortega) (Marion County, Abernathy)

CORPUS DELICTI RULE - Matters for court and jury

Trial court correctly found that defendant's statements were admissions, not confessions, and defendant was not entitled to submit the question to the jury. Affirmed.

Defendant was charged with DUII. When police investigated, defendant obliquely admitted to driving, but not to being intoxicated, and evidence of that statement was admitted before the jury. The trial court decided that defendant's statement was an admission, not a confession. In affirming, the Court of Appeals held that the corpus delicti rule was an evidence rule, not a substantive rule of criminal law, and thus could be decided by the court rather than the jury.

State v. Barbero 297 Or App 372 (May 1, 2019) (James) (Tillamook County, Tichenor)

SEARCH AND SEIZURE - Extension of traffic stop

Police had a valid basis to extend traffic stop to ask about controlled substances and seek consent to search. Affirmed.

Police stopped defendant for a traffic infraction. Defendant seemed intoxicated and struggled to answer simple questions. The investigating officer asked if he had been drinking or taking any medications, and defendant said he had just woken from a nap. The officer asked if defendant had any alcohol or controlled substances in the car, and, when defendant said he was not sure, the officer asked for permission to search. Defendant picked up a jacket from the seat next to him, under which was a meth pipe. The Court of Appeals found that the questioning and search request about alcohol and controlled substances was reasonably related to a legitimate investigation of DUII.

State v. Williams 297 Or App 384 (May 1, 2019) (Powers) (Multnomah County, Silver)

MERGER - Findings regarding separate victims

Although the information did not identify multiple different victims, defendant's guilty plea to multiple counts of encouraging child sex abuse supported multiple convictions. Affirmed.

The Court of Appeals explained that, although the information did not specify any victim, the state's sentencing memorandum included an affidavit from the detective describing thousands of images and videos possessed by the defendant, and describing ten separate videos corresponding to ten separate counts in the information. The court further explained that it was the defendant's obligation to object to vague terms in the indictment.

State v. Slagle 297 Or App 392 (May 1, 2019) (Garrett) (Lane County, Merten)

SENTENCING - Restitution

Although evidence supporting restitution must be presented within 90 days of sentencing, the restitution hearing and subsequent judgment are not subject to that limitation. Affirmed.

State v. Taylor 297 Or App 398 (May 1, 2019) (Garrett) (Crook County, Williams)

SENTENCING - Consecutive probation terms

Sentencing court plainly erred by imposing consecutive five-year probation terms. Reversed and remanded.

State v. Hutchinson 297 Or App 404 (May 1, 2019) (Per curiam) (Curry County, Beaman)