Oregon Appellate Court 01-04-11

by: Abassos • January 3, 2011 • no comments

Read the full article for details about the following new cases:

• Eyewitness ID - Suggestive Procedure Outweighed
• Probation Hearing - Hearsay/Confrontation
• Sex Cases - Uncharged Misconduct Evidence
• Stalking Order - Sufficiency

Eyewitness ID - Suggestive procedure outweighed

An unduly suggestive eyewitness identification procedure is still admissible at trial if the other aspects of the identification substantially excluded the risk of misidentification. See State v. Classen. Here, there was a detailed description of the defendant, including height, weight and distinctive clothing, given to the police within minutes of the crime and an identification made within hours of the crime. This was enough to exclude the risk that the identification was a result of the suggestive procedure, rather than witness memory. State v. James

Probation Hearing - Hearsay - Confrontation

As the Court recently said in Wibbens, a defendant has a Constitutional right to confront witnesses at a probation hearing. Here, the state's failure to call the police officer whose testimony was coming in through the P.O., severely impaired defendant's right to refute the evidence. Thus, the state was required to show why the witness could not have been called. The P.O. testified that the officer said that defendant confessed to violating a no contact order. Defendant objected pursuant to the Due Process Clause of the 14th. The DA argued "[W]e have always had hearsay in these hearings. This is no different." While such an argument is often effective at the trial level, the Appellate Court appears unmoved by the extra-legal rhetoric:

Although a probationer is afforded fewer procedural safeguards than a defendant in a criminal trial, some due process protections attach to probation violation proceedings. Morrissey v. Brewer, 408 US 471, 489, 92 S Ct 2593, 33 L Ed 2d 484 (1972) (articulating requirements for parole revocation hearings); Gagnon v. Scarpelli, 411 US 778, 782, 93 S Ct 1756, 36 L Ed 2d 656 (1973) (extending requirements to probation revocation proceedings). Those protections include 'the right to confront and cross-examine adverse witnesses,' unless the government shows good cause for not producing the witnesses. Morrissey, 408 US at 489. That right, at its core, requires that a probationer 'receive a fair and meaningful opportunity to refute or impeach the evidence against him in order to 'assure that the finding of a [probation] violation will be based on verified facts.'

Reversed. State v. Terry

Uncharged Misconduct Evidence - Sex Cases

Where defendant was charged with three incidents of rape, a fourth similar rape was admissible to rebut a defense of consent and establish a method defendant had developed for luring women into a vulnerable situation. This case plays out as remarkably similar to State v. Momeni. Except instead of being a landlord, the defendant was responding to internet advertisements for erotic services. Because of the strength of the inference, no M.O. style fact matching was required. And, because of OEC 404(4), no balancing test was required. State v. Leistiko

Stalking Order - Sufficiency

Where respondent sent petitioner a whole lot of annoying letters followed by a single arguably physical confrontation, the necessary prerequisites for a stalking protective order are not met. There must be at least two contacts that instill in the respondent a fear of personal and imminent violence. Even if the physical confrontation counts, annoying letters aren't even arguable. Thus, there is, at most, one qualifying contact. Quoth the Court: "It takes two. We therefore reverse." Johnson v. McNamara