Oregon Appellate Court - August 15, 2012

by: Sduclos • August 15, 2012 • no comments

Character Evidence of Truthfulness - Laying the Foundation

In order to lay a proper foundation for character evidence as to a witness's propensity for truthfulness or untruthfulness, there must be adequate contacts for the witness to have a current personal opinion. Here, there were adequate contacts where the witness testified that he had known the complainant his whole life, including seeing her after the incident in question. State v. Colon.

Prosecutorial Misconduct - Right to Remain Silent - Prejudice

The court finds that even though at trial the prosecutor intentionally violated defendant's right to remain silent by asking questions to the officer about defendant's invocation, the violation was harmless. A violation is harmless where it is unlikely that the jury drew a prejudicial inference. Defendant was acquitted on the charge of resisting arrest, to which he devoted the overwhelming majority of his defense. The remaining count, PCS, was never 'at issue' in that defendant neither argued that he didn't possess the pipe nor that the pipe did not contain cocaine. Thus, it is unlikely that the jury drew any inferences from defendant's invocation of his right to remain silent at the scene. State v Dalby

Merger - Theft by Receiving

Two charges of theft by receiving merge where the charges are for separate items received during one criminal episode without evidence of a sufficient pause between thefts. State v Jay

Reversal on Remand - Prejudice

This case is a reconsideration in light of Lopez-Minjarez, the S.Ct.'s rejection of the natural and probable consequences instruction. Defendant had argued that he withdrew from the crimes of robbery and burglary before his codefendant shot the victim. The court decides that the jury could have found that the murder was a natural consequence of the robbery but that it did not occur in the course of and furtherance of the robbery because defendant withdrew. Ergo, the verdict could have been based on the illegal instruction and must be reversed. State v Perez-Chi

Compensatory Fine - Preservation

A compensatory fine may not be used to reimburse a witness for travel expenses to attend a trial. Here though, defendant told the court that restitution may not be imposed for such a purpose. As a result of that objection, the court imposed a compensatory fine instead, to which there was no objection. Thus, the argument on appeal that the compensatory fine was illegal was insufficiently preserved. State v Choat

PCR > Issues on Remand

Where Court of Appeals "reverses and remands," the case is returned to its original pretrial posture unless the court specifies that only certain claims are to be retried. Thus, where the court reversed and remanded in Allen I, the post-conviction court erred by not exercising its discretion to allow petitioner to amend his petition for post-conviction relief. Allen v. Premo

PCR > No Review for Dismissals as Meritless

"[PCR] petitions that fail to state a claim are meritless, and a judgment dismissing a petition as meritless is not appealable." Young v. Hill. Here, both parties agreed that the post-conviction court dismissed the petition for failure to state a claim. Thus, the appellate court could not review the court's decision. Pedroso v. Nooth