A Book from the Library of Defense

Oregon Appellate Court, November 14, 2019

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by: Rankin Johnson IV • November 15, 2019 • no comments


Summarized by Rankin Johnson, OCDLA

EVIDENCE - Rule of Completeness

Evidence that defendant sought to withdraw his plea was not required to be included by proponent when the plea itself was offered in evidence. Affirmed.

Defendant was accused in two counties of offenses against the same victim. The parties reached a global agreement, pursuant to which defendant pleaded guilty in one county. Thereafter, he sought to withdraw his plea in the first county and went to trial in the second.

At trial, the state sought to offer evidence of defendant's guilty plea. He argued that his attempt to withdraw the plea was admissible under the Rule of Completeness, and under that rule the state was the proponent and thus it did not render defendant subject to impeachment. The trial court disagreed.

In affirming, the Court of Appeals explained that the Rule of Completeness was not a basis to admit defendant's attempts to withdraw his plea, and if he offered that evidence himself, he could be impeached as a hearsay declarant.

State v. Smith 300 Or App 485 (November 14, 2019) (DeHoog) (Washington County, Knapp)

JURY INSTRUCTIONS - Self-defense and provocation

Jury instruction about availability of self-defense following provocation by defendant was not proper, but also was not harmful. Affirmed.

State v. Longoria 300 Or App 495 (November 14, 2019) (Aoyagi) (Multnomah County, Wittmayer)


Closing argument, in which defense counsel suggested that defendant was not credible and that the state had a strong case, was constitutionally inadequate. Reversed and remanded.

Mitchell v. State 300 Or App 504 (November 14, 2019) (Aoyagi) (Linn County, Murphy)


Record did not establish that appellant was unable to care for her basic needs, when she was found naked in the street, lacked income, housing, or food stamps, and suffered from delusions. Reversed.

State v. M.B. 300 Or App 522 (November 14, 2019) (Aoyagi) (Multnomah County, Herranz)


Trial counsel was ineffective for failing to seek a witness. Reversed and remanded.

Petitioner was convicted of kidnapping and other offenses against his girlfriend. The events started at a bar, and in the post-conviction proceeding, petitioner presented testimony from a bar patron and a bartender who testified, inconsistently with the victim, that the victim had been intoxicated and the conflict between her and defendant had not been serious.

Defense counsel explained that she had focused her attention on events at the park, after petitioner and victim left the bar, because the most serious offenses had occurred there.

The trial court found that defense counsel's failure to include the bartender in the investigation had been ineffective, but the error was harmless. The Court of Appeals disagreed that the error was harmless; the victim had been an uncooperative witness and gave varying accounts to various people.

The Court of Appeals also held that the trial court had erred in denying petitioner's request to file an amended petition.

Vasilash v. Cain 300 Or App 542 (November 14, 2019) (Hadlock, pro tem) (Pratt County, Malheur)