A Book from the Library of Defense

Oregon Appellate Court, September 29, 2021

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by: Rankin Johnson • September 30, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

EVIDENCE - Facts outside the record
Importance: 4/5

Prosecutor's argument that stains on defendant's gloves looked like blood, but confirmatory DNA testing would take too long to produce evidence for trial, was improper reference to facts outside the record. Reversed.

On remand from the Supreme Court, the Court of Appeals reconsidered its earlier decision that the error was harmless. In concluding that the evidence was harmful, the Court of Appeals explained that the prosecutor's excuse for not obtaining DNA evidence undercut the defendant's permissible argument that the failure to obtain evidence could be held against the state. The instruction not to consider evidence outside the record exacerbated the harm by further weakening the defense argument.

The court declined to reconsider its ruling on the witness-false-in-part instruction, because it might not arise on remand.

State v. Camirand 314 Or App 791 (September 29, 2021) (Lagesen) (Lincoln County, Branford)

Importance: 2/5

U-turns are forbidden in intersections with traffic lights. Affirmed.

Defendant argued that the prohibition applied only in the part of the intersection controlled by the traffic light, and thus police had no lawful basis to stop him.

State v. Wulf 314 Or App 802 (September 29, 2021) (Lagesen) (Washington County, Crain)

DEFENDANT'S STATEMENTS - Threats and voluntariness
Importance: 5/5

Threat to arrest defendant for traffic crimes, and to have a lien placed on his towed car, rendered his statements involuntary. Reversed and remanded.

The Court of Appeals rejected prior caselaw which suggested that a threat that police can lawfully carry out is a lawful inducement. The court held that a confession made to prevent unwanted police action was involuntary.

J. Mooney, dissenting, would have held that a promise to cite defendant, rather than arresting him, was not an improper promise of leniency. J. Mooney would have held that a promise to cite rather than arrest did not compel a finding of involuntariness, and, under the totality of circumstances, would have found that defendant's statements were voluntary.

State v. Center 314 Or App 813 (September 29, 2021) (En banc, DeHoog, Mooney dissenting) (Multnomah County, Bushong)

Importance: 5/5

State v. Boyd is overruled. Reversed.

In State v. Boyd, 92 Or App 51, 756 P2d 1276, rev den, 307 Or 77 (1988), the Court of Appeals held that the word ‘attempt,’ with respect to an attempted delivery as the actus reus of a DCS, had the same meaning as an attempted crime. In overturning Boyd, the court explained that that opinion did not use standard statutory-construction methodology. When the statutes are correctly construed, an attempt to deliver a controlled substance leads to a conviction for an attempt, not the completed offense.

State v. Hubbell 314 Or App 844 (September 29, 2021) (James) (Washington County, Sims)

SENTENCING - Special probation conditions
Importance: 1/5

Trial court plainly erred by imposing probation condition requiring defendant to submit to searches upon request from his probation officer. Reversed and remanded.

State v. Jensen 314 Or App 874 (September 29, 2021) (Per curiam) (Washington County, Bailey)

SENTENCING - Special probation conditions
Importance: 1/5

Trial court plainly erred by imposing probation condition but not doing so in open court. Reversed and remanded.

The court rejected the state's argument that the error was moot because, in subsequent probation judgments, the court reimposed the disputed probation condition. The judgments were silent as to the disputed condition.

State v. Hall 314 Or App 876(September 29, 2021) (Per curiam) (Crook County, McLane)