A Book from the Library of Defense

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by: Rankin Johnson IV • April 10, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

  • RIGHT TO COUNSEL -- Waiver

Trial court erred in ruling that defendant had waived his right to counsel.

Defendant repeatedly asked for substitute appointed counsel. After twice providing substitute counsel, the court declined to provide a third. Defendant said that he planned to hire new counsel, but did not do so. The court found that there was a potential conflict, removed the appointed attorney, and did not appoint a substitute. The Court of Appeals held that defendant was not advised of the risks of self-representation and did not understand them, and accordingly any waiver was invalid. Reversed and remanded for new trial.

State v. Borba 290 Or App 787 (March 21, 2018) (Egan, J.)

  • SENTENCING -- Merger

Trial court plainly erred by failing to merge convictions for sex abuse for touching different body parts during a single encounter. Reversed and remanded.

State v. Loving 290 Or App 8 (March 21, 2018) (Armstrong, J.)

  • SEARCH AND SEIZURE -- Reasonable suspicion

Defendant’s presence during a drug deal provided reasonable suspicion that he was a participant.

Defendant was a passenger in a surveilled car driven to a drug deal. After police stopped the car, they directed defendant out of the car, summoned a drug dog, and found drugs on defendant. The Court of Appeals held that defendant’s presence at a planned drug deal provided reasonable suspicion to extend the stop. Affirmed.

State v Rhyne 290 Or App 827 (March 21, 2018) (DeVore, J.)

  • SENTENCING -- Merger

Trial court plainly erred by failing to merge convictions that arose from the same conduct but were charged as separate theories. Reversed and remanded.

State v. Lantz 290 Or App 841 (March 21, 2018) (Lagesen, J.)

  • TRIAL PROCEDURE -- Closing argument

Trial court did not err by precluding defense counsel from arguing that the victim’s testimony was fueled by fear that DHS would take the victim’s children.

Defendant was accused of domestic violence offenses against his wife. Police learned of the incident through a DHS report after a child who witnessed the offense reported it to someone at the child’s school. There was no evidence that DHS was investigating child abuse or that the victim was afraid of DHS involvement. Accordingly, the trial court did not err by preventing defense counsel from making that argument. Affirmed.

State v. Manning 290 Or App 846 (March 21, 2018) (Tookey, J.)

  • EVIDENCE -- Eyewitness testimony

Trial court did not err by failing to give special jury instruction on eyewitness identifications.

State v. Lawson/James, 352 Or 724 (2012) lists factors affecting the trustworthiness of eyewitness identifications. Defendant submitted a special instruction listing only some of those factors. The court concluded that defendant was not entitled to the instruction; it was biased because it only listed factors favorable to the defense and framed them favorably to the defense. Affirmed.

State v. Martin 290 Or App 851 (March 21, 2018) (Tookey, J.)

  • CIVIL COMMITMENT -- Requirements for hearing

Reaffirms State v. M.M., 288 Or App 111 (2017) (In a civil commitment hearing, judge’s failure to advise the person of all five elements from ORS 426.100(1) is plain error.) Reversed.

State v. JRB 290 Or App 858 (March 21, 2018) (Tookey, J.)

  • SELF-INCRIMINATION -- Compelling circumstances

Telling defendant that he was under investigation for theft and displaying security video of him committing theft constituted compelling circumstances, requiring Miranda warnings before interrogation. Reversed and remanded.

State v. Schmidtke 290 Or App 880 (March 21, 2018) (Shorr, J.)

  • SEARCH AND SEIZURE -- Reasonable suspicion

Police had reasonable suspicion to stop defendant, and officer-safety concerns justified frisking defendant, handcuffing him, and putting him in the back of a police car.

Police were investigating a possible gathering of gang members. When police appeared, defendant, a known gang member, fled in a vehicle driven by another and then ran up a driveway, but returned immediately thereafter, leading police to suspect that he had hidden a firearm or other contraband. Affirmed.

State v. Bradford 290 Or App 889 (March 21, 2018) (James, J.)

  • SEARCH AND SEIZURE -- Staleness

Evidence of two recent controlled buys at a residence where the drug dealers did not live did not provide probable cause to search the residence.

A search warrant affidavit said that there had been two controlled buys in a house where defendant lived. Defendant was in the house for some of the drug buys, but not alleged to have been in the room. Accordingly, there was no basis to suspect ongoing drug activity. Although the state argued that the affidavit provided probable cause for the offense of frequenting a place where drugs are used, the affidavit did not suggest that anyone with control over the premises knowingly permitted drug activity to occur there. Reversed and remanded.

State v. Van Osdol 290 Or App 902 (March 21, 2018) (James, J.)

  • EVIDENCE -- Written reports and lack of memory

Trial court did not err by permitting police officer with no memory of incident to testify based on written report.

Defendant was arrested for possession of a controlled substance following a routine traffic stop in 2005, absconded, and was tried in 2016. Defendant complained that cross-examination was meaningless because the police officer did not remember the encounter. The Court of Appeals disagreed, ruling that, under Crawford and other federal Confrontation-Clause cases, cross-examination of a forgetful witness is sufficient. Affirmed.

State v. Townsend 290 Or App 902 (March 21, 2018) (James, J.)

  • SENTENCING -- Compensatory fines

Sentencing court erred by imposing $150,000 compensatory fine when a punitive fine had already been imposed and in the absence of evidence of pecuniary damages. Reversed.

State v. Toth 290 Or App 902 (March 21, 2018) (Per curiam)