Oregon Appellate Court 07-13-11
by: Abassos • July 12, 2011 • no comments
Read the full article for details about the following new cases:
- Timeliness of Appeal
- Probation Violation Hearing - Right of Confrontation
- Merger - Assault - Sufficient Pause
- Stop-Free to Leave
- Juveniles-Termination of Parental Rights
- Self Incrimination-Compelling Circumstances
Contents |
Timeliness of Appeal
A notice of appeal is filed when it is given to a court clerk with the intent that it be filed. Here, defendant properly attempted to file a notice of appeal from municipal court with the circuit court. But the circuit court clerk refused service and told defendant to file the notice with the appellate court. The attempted filing counts as a filing in determining whether the notice of appeal was timely. State v. Faust
Probation Violation Hearing - Right of Confrontation
It violates Due Process to find a probation violation based on what the probation officer testifies she read in a police report. That defendant possessed drugs. In this case, none of the following factors weighed in favor of admitting such evidence: (1) the hearsay was crucial to the court's finding, (2) the probationer had no meaningful opportunity to refute the evidence, (3) no evidence was presented that it would not have been difficult for the state to get the police officer there, and (4) there is little in the way of traditional indicia of reliability because the police report was not offered as evidence - only the probation officer's memory of what she had read. Reversed. State v. Monk
Merger - Assault - Sufficient Pause
It is plain error not to merge two counts of attempted assault I (and menacing) when there was not a sufficient pause between the two menacing/attempted assaults. Here, the AG concedes that there was no sufficient pause where:
defendant pulled a knife from his pocket and slashed at the victim. The victim jumped backward to avoid the knife. Defendant immediately slashed at the victim again, and the victim was again able to avoid the knife. When the victim yelled that defendant was trying to stab him, defendant put the knife back in his pocket and walked away.
Stop - Free to Leave
On remand in light of Ashbaugh, the court finds that a reasonable person would believe he was under investigation and not free to leave when:
defendant arrived to pick up his nieces after every adult at the residence had been either arrested on drug charges or detained for immigration violations. After defendant informed Hillsboro police officers at the scene that he was there to take custody of the children, the officers called Billison-an ICE officer who, though in plain clothes, was wearing a badge identifying himself as a federal immigration officer-to talk to defendant. Although defendant produced an Oregon identification card in response to Billison's initial request for identification, the officer did not proceed to release defendant's nieces to him. Instead, Billison asked defendant where he was from and,upon hearing that defendant was from Mexico, asked whether he had additional identification. Furthermore, Billison did not inform defendant that he was not in trouble.
Juveniles - Termination of Parental Rights
Five years incarceration, including three after the TPR trial, is not, without more, sufficiently detrimental to support a termination of parental rights. Here, while the children had attachment issues, there was no clear connection between those problems and mother's incarceration. Nor was there a sufficient prediction of future problems from the incarceration that would follow. DHS v. CMP
Self-Incrimination - Compelling Circumstances
The circumstances were compelling where (1) it was late at night, (2) on a remote road, (3) in cold weather, (4) the stop lasted an hour, (5) a spotlight was on the whole time, (6) the officer repeatedly pressured defendant to divulge information, (7) using false evidence of guilt. Thus, the absence of Miranda warnings violated Article I, Section 12 of the Oregon Constitution. State v. Ford
