A Book from the Library of Defense

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by: Rankin Johnson IV • June 14, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

  • CRIMES-Unlawful possession of a weapon

Firearm in driver’s side door pocket in vehicle was ‘concealed’ for purposes of unlawful possession of a firearm statute. Affirmed.

Defendant argued that, when the car door was opened, the firearm was visible. The court observed that the firearm was nonetheless concealed at some point and thus the court properly denied the defense MJOA.

Further, defendant’s proposed jury instructions did not accurately state the law.

State v. Harrison 292 Or App 232 (June 6, 2018) (Hadlock, J.)

  • EVIDENCE-Authentication

911 call was not adequately authenticated. Reversed.

The 911 recording was offered in evidence along with with a certificate purporting to authenticate it. In order to offer a recording, the court explained, the proponent must show that the recording is what it purports to be and that the recording was accurate. Although the certificate established that the digital file offered by the state was an accurate copy of the original recording, the certificate did not purport to establish that the original recording was an accurate recording of real-world events. The state advanced two other arguments: that the content and surrounding circumstances authenticated the call, and that the 911 call could be authenticated as a public record. The Court of Appeals declined to address either, holding that the arguments were undeveloped.

State v. Noorzai 292 Or App 248 (June 6, 2018) (James, J.)

  • EVIDENCE-Hearsay
  • APPEALS-Preservation of error

CARES report was not admissible as medical record. Reversed.

State failed to offer evidence that sixteen-year-old complainant believed that CARES interview was for the purposes of medical diagnosis or treatment. Rather, evidence showed that she believed it was part of a criminal investigation.

In response to the state’s preservation argument, the court noted that an unfocused objection was “understandable” when new charges were added and the disputed evidence provided the day before trial.

State v. Gonzales 292 Or App 274 (June 6, 2018) (James, J.)

  • TRIAL PROCEDURE-Juror qualification

Trial court abused discretion in failing to strike for cause a former DHS worker who would give weight to the testimony of CARES employees. Reversed.

Although appellate review is deferential to the trial court and the court had broad latitude to interpret contradictory statements, the juror in this instance never said that he could be fair. The juror’s responses raised a question about the juror’s bias, and there was no evidence in the record to show that the juror could be impartial.

State v. Gollas-Gomez 292 Or App 285 (June 6, 2018) (Aoyagi, J.)

  • POST-CONVICTION RELIEF-Advice of immigration consequences

Trial counsel’s failure to advise about DACA eligibility specifically was not inadequate assistance. Affirmed.

In connection with entering a plea, petitioner was advised that his plea would lead to deportation unless ICE chose not to do so. At the time of his plea, petitioner told counsel that he planned to retain immigration counsel, and wanted to accept a plea bargain that would lead to his immediate release. Counsel was not obligated to provide more specific advice about the application of DACA.

Aguilar v. State 292 Or App 309 (June 6, 2018) (Powers, J.)

  • CONTEMPT-Judgment or order

Settlement agreement, read into the record but not reflected in any court order or judgment, was not enforceable through contempt proceedings. Reversed.

Air Rescue Systems Corp v. Lewis 292 Or App 294 (June 6, 2018) (Aoyagi, J.)

  • EVIDENCE-Expert witnesses

Trial court erred by excluding plaintiff’s expert. Reversed.

Plaintiff sought to offer testimony of a licensed chiropractic physician with certifications in biomechanics, accident reconstruction, and related fields. The trial court ruled, with minimal explanation, that the witness did not appear to be an expert. The Court of Appeals disagreed.

Mall v. Horton 292 Or App 318 (June 6, 2018) (Powers, J.)