Oregon Appellate Court - April 30, 2014

by: Abassos and Samantha Robell • May 1, 2014 • no comments

Testimony is Presumptively Tainted by the Admission of an Unconstitutional Confession

A defendant's prior trial testimony is presumptively "tainted by the admission of unconstitutionally-obtained pretrial statements." Thus, such testimony is inadmissible at retrial unless the court determines that the defendant's prior testimony did not "refute, explain, or qualify the pretrial statements.” See State v Moore/Cohen, 349 Or 371 (2011). Here the defendant's first conviction was reversed due to a mistrial. At the second trial, the state wanted to use the testimony from the first trial, even while conceding that statements made to officers needed to be suppressed. Remanded for the court to decide whether or not the testimony was tainted due to the police officers’ actions. State v Dalessio, 262 Or App ___ (2014)

A Confession is Involuntary if Induced by Calculated Fear

A confession is involuntary if it is induced through fear calculated to put the defendant in a vulnerable state. This is true even where the statement is willingly made in a situation where the suspect is clearly not under arrest. Here, officers suspected defendant of physically abusing his baby who he brought to the hospital. While at the hospital, the defendant offered to speak with the officers who were in plain clothes and told the defendant he was not under arrest. However, during the ensuing series of interviews over the next two days they repeatedly told defendant that unless he admitted shaking his daughter, the child would not receive proper medical attention and they repeatedly implied leniency if the defendant said that he accidentally shook his child:

"Having made clear that G had serious medical issues that could be ameliorated by a confession--an assertion that, as a matter of medical fact, is without any support in the record - the officers also appealed to defendant's paternal responsibilities, his religion, stated that defendant was the only one who could help G, and stated, in effect, that the way to provide that help was to tell the officers that he had accidentally shaken her. Those statements, taken in the circumstances in which they were made, constituted an "inducement through * * * fear" that was specifically calculated to capitalize on what the trial court recognized as defendant's acute vulnerability."

As to the promises of leniency:

"That the officers never explicitly made a promise of leniency or immunity is not dispositive; the effect of their approach was to tell defendant: "the only way to avoid having the police conclude that you are a child abuser is to tell us that you accidentally shook your daughter. . . The precise form of words in which the inducement is presented to the prisoner's mind is immaterial. It is sufficient if they convey to him the idea of temporal benefit or disadvantage, and his confession follows in consequence of the hopes thereby excited." State v Ruiz- Piza, 262 Or App ___ (2014).

An Inventory Policy Must Restrict the Scope of the Inventory

An inventory policy is defective if it does not contain restrictions on the scope of the inventory. Here, the Lane County Sheriff's Office inventory policy was defective because it authorized the search of all “pocket property”. “The policy's terms do not purport to impose any sort of limitation--or even guidance--on when an officer may open a closed container as part of an inventory.” Reversed and Remanded. State v Davis, 262 Or App ___ (2014).

It is Vouching Where the DA Asks the Defendant Whether the Cops are Lying

It is objectionable vouching where a defendant is asked repeatedly, by the DA on cross-examination at trial, whether or not he is saying that police officers have lied in their testimony. However, it is not the sort of vouching where a judge is required to sua sponte intervene. While such questions are objectionable, it does not involve the same concerns as "true vouching" where a party is offering a comment on another witness's credibility. Here, "the credibility of the officers was not the point of the prosecutor's cross-examination of defendant." The point was to undermine defendant's credibility. Affirmed. State v Corkill, 262 Or App ___ (2014)

Forfeiture Cannot Be a Condition of Probation

Forfeiture cannot be imposed as a condition of probation. No statute authorizes it, including ORS 137.540(2). Here, the defendant was ordered by the trial court to forfeit 18 gold discs that had been previously seized as a condition of his probation for methamphetamine possession. Reversed and Remanded with instructions to delete special probation condition requiring forfeiture of gold discs; otherwise affirmed. State v Miller, 262 Or App ___ (2014)

Hearsay - Prior Consistent Statements Must Be Made Prior to the Motive to Fabricate

To be admitted under OEC 801(4)(a)(B), prior consistent statements that are otherwise hearsay must have been made prior to the time when the witness's motive to fabricate arose. Here, defendant called witnesses to say that, in June 2009, a year prior to the incident at issue in the trial, the complainant implied to them that she made up allegations in a restraining order against defendant in order to qualify for immigration benefits. In response, the state called police officers, DHS workers and friends from complainant's support group to testify about what she told them about the incident at issue in the trial. On appeal the state concedes that statements made after the motive to fabricate arose were not admissible as prior consistent statements. The court finds that the error was not harmless because the victim's credibility was central to the state's case and the jury's verdict was not unanimous. Reversed and remanded. State v. Villanueva-Villanueva, 262 Or App ___ (2014)

Per Curiams

• Probable cause is not a warrant exception. State v Groling
• A court may not order fees unless there is evidence that he "is or may be able" to pay them. Here, defendant was 64 years old, sentenced to 186 months in prison and there was no evidence adduced of his ability to pay. Thus, ordering defendant to pay $11, 760 in attorney fees was an error. State v Strong
• A Miles instruction is inappropriate where there is no evidence from which the jury could find that the defendant's physical condition exacerbated the effects of alcohol. Here, "the state presented evidence that defendant took pain medication on the day of his arrest, but the state failed to identify that medication or offer evidence that the medication made defendant more susceptible to the effects of alcohol." A Miles instruction is where the jury is instructed in a DUII case that where a physical condition exacerbates the effect of alcohol, it is still a DUII. State v Berning