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Oregon Appellate Court--January 17, 2018

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by: Mary A. Sofia • January 22, 2018 • no comments

Summarized by Erin Severe, OPDS | Edited by Mary Sofia, OCDLA


Evidence—OEC 403—Racial slur

Probative value of evidence that defendant repeatedly called a black police officer a “nigger” in resisting arrest case not outweighed by danger of unfair prejudice.

Defendant appeals from a judgment of conviction for resisting arrest and assigns error to the trial court’s ruling admitting evidence over his OEC 403 objection that he repeatedly used the word “nigger” when speaking to a police officer. The state charged defendant with resisting arrest and assaulting a public safety officer after defendant engaged in a physical altercation with a white police officer after the officer took defendant into custody for an unrelated offense. While being transported to jail, defendant called the transporting officer—who was black—a “nigger” and made other hateful remarks about the police. Defendant also called the arresting officer a “nigger.” Defendant later explained that he used the racial slur to refer to a person’s behavior, not their skin color. Defendant argued that the evidence that he used the slur should be excluded under OEC 403. The state argued that the slur was probative of defendant’s state of mind shortly after his arrest, which helped establish his motivations and intent for the charged offenses. The Court of Appeals concludes that the trial court had discretion to admit the evidence although defendant’s racist views were not an issue in the case. Defendant’s animus was relevant to prove his intent for the charged crimes and defendant’s use of the racial epithet was qualitatively different than the other evidence on that issue, and although the use of the slur was inflammatory, it was not unfairly so. Judge Garrett, dissenting, would have held that the trial court erred in admitting the evidence because its slight probative weight was not outweighed by the danger that the jury would misuse the evidence.

State v. Lipka, 289 Or App 829 (2018) (Powers, J.)


PCR—Reversed and Remand for Further Proceedings—Scope of remand

Post-conviction court had discretion to reopen the record on remand. Petitioner/defendant appeals from the post-conviction court’s denial of her request to reopen the record following a remand for further proceedings. Petitioner seeks relief from convictions for assault, strangulation, and assaulting a public safety officer following a guilty plea. The post-conviction court granted relief, and the superintendent appealed, arguing that the court applied the incorrect legal standard in assessing the prejudice that resulted from trial counsel’s deficient performance. This court granted relief and reversed and remanded for further proceedings. On remand, petitioner sought to introduce additional evidence relevant to the prejudice assessment, but the post-conviction court denied that request, concluding that it lacked the authority to take additional evidence. The Court of Appeals concludes that the post-conviction court erred in concluding that it lacked the discretion to take additional evidence on remand. The Court of Appeals thus vacates and remands to the post-conviction court to exercise its discretion.

Cox v. Persson, 289 Or App 825 (2018) (Lagesen, J.)

PCR—Dismissal of Petition—Basis for dismissal

Vacating and remanding to the post-conviction court because it is unclear whether post-conviction court dismissed petition as meritless or because it failed to comply with the attachment requirement of ORS 138.580.

Dawson v. Nooth, 289 Or App 839 (2018) (Per Curiam)