Oregon Appellate Court 04-20-11

by: Abassos • April 19, 2011 • no comments

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

• Stop (Hall) - Taking ID or information can be a stop under Ashbaugh
• Aiding and Abetting - Concurrence
• Stop - Reconsideration in light of Ashbaugh
• Self-Incrimination - Compelling Circumstances
• Coercion - Attempt
• Attempted Aggravated Murder - Intent Instruction
• Exploitation/Attenuation - Minimal Factual Nexus
• Restitution Within 90 Days - Good Cause to Extend

Stop - Hall - Taking ID or information can be a stop

On remand based on Ashbaugh, the Court reconsiders this case and still finds there was a stop. The lesson from Ashbaugh is that:

calm and nonconfrontational questioning about illegal activity is not alone sufficient to reasonably create the impression of authoritative restraint.

However, Ashbaugh did not disavow Hall or Thompkin. The lesson from those cases is that:

taking a person's identification for the purpose of checking on the person's status is one way in which a police officer can show authority that, in combination with other circumstances, can convey to the person whose identification has been obtained that he or she is not free to leave.

Here, the officer wrote down defendant's name and date of birth and asked defendant if she was carrying anything illegal. Thus:

she was not only being questioned about illegal activity, she was under the impression that the police had begun an investigation of her and had not given her any reason to believe that it had ended. Under Hall and Thompkin, those facts add up to a seizure.

State v. Radtke

Aiding and Abetting - Concurrence

A concurrence instruction (aka a Boots instruction) is not necessary where the state is arguing that the defendant could have been either the principal or an accomplice. It is sufficient in an Assault III for five jurors to believe defendant assaulted the victim and for 5 jurors to believe that defendant aided the assault. Of course, you can't be an accomplice to an Assault III "while being aided by another actually present" (see Merida-Medina). But that issue wasn't preserved because while defense counsel moved for an MJOA, there was no exception made to the accomplice jury instruction. See Ryan Submitting Jury Instructions in a Bench Trial . State v. Phillips

Stop - Ashbaugh

Reconsidering this case in light of Ashbaugh, the court finds that a reasonable person in defendant's circumstances would believe he was the subject of a police investigation. Defendant was a passenger in a vehicle stop who tried to walk away. A reasonable person would believe that defendant was (a) under investigation and (b) had his freedom significantly restricted where:

• the vehicle stop was made at night in a high crime area
• the police car's lights were flashing
• defendant tried to walk away and was called back with investigative questions
• the officer called for cover and two more police cars responded
• an additional officer arrived, police lights flashing, and started asking investigative questions.

State v. Levias

Compelling Circumstances

Defendant was not in compelling circumstances where the officer walked up to defendant's parked truck and started a conversation. The officer repeatedly told defendant he was "free to go", that it was not a stop, that it was just a conversation and "I'm not running you on the radio or anything". Despite the fact that the officer was investigating suspicious activity, defendant was neither in custody nor in compelling circumstances such that his statement "maybe I should have an attorney present" had any legal effect. State v. Nieman

Coercion - Attempt

Where defendant points a gun at an officer to prevent the officer from writing a ticket, it is not coercion if the officer never intended to write the ticket. The officer is not actually induced to do (or not do) something. However, the victim's intent is not necessary to the question of whether defendant took a substantial step toward the crime. Thus, such facts can support an attempted coercion if defendant intended to induce the officer not to act. State v. Pederson

Attempted Aggravated Murder - Intent Instruction

Following the Supreme Court in Woodman, the court finds that it is not reversible error to use the old standard jury instruction for "intentionally" in relation to Attempted Aggravated Murder. This is true even though the instruction seems to say that one can intend either the result (death) or the conduct which results in death. Note that the Supreme Court clearly disapproves of the instruction and says that a clearer one would be more preferable. However, with murder (and attempted murder) it is otherwise obvious that the defendant must intend to kill. Such is not true with the mental state element for most other crimes. See Crosby. State v. Pederson

Stop - Minimal Factual Nexus

This is the rare case where the court finds that there was a seizure but there was not a minimal factual nexus between the illegal police action and the evidence sought to be suppressed. Defendant passenger was seized when he was told to "stay where you are" while the officer dealt with the driver. But there was no minimal factual nexus between the suspicionless stop and the two meth pipes that rolled out of the car in plain view when defendant was asked to get out of the car:

The only factual connection that we discern in this case between defendant's unlawful seizure and the discovery of the methamphetamine pipes is that the latter occurred after the former began and while the former was ongoing. It was [the officer's] own action in opening the car door, not any action of defendant's that precipitated the discovery of the pipes. That police conduct, however, neither effectuated defendant's unlawful seizure, nor was investigatory in nature. Instead, defendant was removed from the car so that it could be towed. That removal was unrelated to defendant's seizure.

State v. Courtney

Restitution - Within 90 Days - Good Cause to Extend

ORS 137.106 requires that restitution be determined within 90 days of the judgment unless there is good cause to extend the time. The fact that the District Attorney inadvertently and temporarily lost the file is not good cause for an extension. Nor was it relevant that the matter of restitution was initially held open at the request of defendant and the victim. Since there was not good cause to extend the time period, the court no longer had jurisdiction to determine restitution at the 150 day mark. See State v Biscotti. State v. Murrell