Oregon Appellate Court - March 6, 2013

by: Jwestover and Abassos • March 6, 2013 • no comments

“I Hate Cops Now” Does Not Automatically Mean “I Hated Cops Then”

An inmate’s recorded phone conversations with his mother about how much he hates police officers were not, in any way, probative of his mental state at the time of his arrest. (Defendant was accused of knowingly ramming a police officer’s cruiser.) The statements demonstrated only “defendant’s anger as a result of his arrest and subsequent events.” (emphasis added). The court finds that the statements were not relevant, and were therefore inadmissible. State v. Painter, 255 Or App ___ (Mar. 6, 2013).

Admission of Irrelevant Statements Not Harmless Error

Reversible error occurs when the erroneously admitted evidence is both “qualitatively different” from other evidence presented, and is “presented to the jury as bearing directly on the central issue of the case.” Here, recorded phone conversations between defendant and his mother contained expletive laden threats and statements about hating all police. No other similar evidence was presented, and during closing the prosecutor commented on the defendant’s mens rea, “I think [the statements] give[] you a very, very clear insight into [defendant’s] mind, what he was thinking at the time of this incident.” (final alteration in original). Finding that this likely affected the verdict, the court reverses and remands defendant’s conviction. State v. Painter, 255 Or App ___ (Mar. 6, 2013).

“Factually Related” Burglaries Under Article I, section 11

Burglaries can be “factually related” for purposes of a defendant’s right to counsel under Article I, section 11, meaning that a defendant’s lawyer must be notified and present for interrogation on either. Here, the court finds two burglaries to be factually related because the burglaries:

• were committed by the same suspects;
• occurred within close temporal proximity (eight days);
• occurred within close geographical proximity (same neighborhood, approximately one mile apart);
• were investigated by the same detective; and
• involved overlapping evidence.

Finally, while being interrogated for the second burglary, defendant “made an admission that was relevant to both” crimes. The court reverses the conviction for the second burglary. State v. Plew, 255 Or App ___ (Mar. 6, 2013).

Application of State v. Mullins to Find Appeal of Supplemental Judgment Timely

ORS 138.071(4) states that notice of appeals regarding supplemental judgments must be filed “not later than 30 days after the defendant receives notice that the judgment has been entered.” Here the trial court entered a supplemental judgment on February 24, 2009, but defendant’s appellate counsel did not receive notice until June 30, 2010. In light of the Oregon Supreme Court’s decision in State v. Mullins, 352 Or. 343 (2012), which held that 1) receipt of notice to the “defendant” includes notice to defendant’s counsel, and 2) there is no requirement that defendant independently attempt to determine whether supplemental judgment has been entered, the court finds that defendant’s July 14, 2010 appeal from supplemental judgment was timely. State v. White, 255 Or App ___ (Mar. 6, 2013).

PER CURIAM OPINION

• No Commitment Without Advising on Rights—Under ORS 426.100(1), the court must adequately advise an individual of his or her rights before committing the individual as a mentally ill person. Here, the court committed plain error by failure to advise defendant of her rights before committing her. State v. S.N., ___ Or App ___ (Mar. 6, 2013).