Oregon Appellate Court 08-10-11
by: Abassos • August 9, 2011 • no comments
Read the full article for details about the following new cases:
- Right to Counsel - Invocation on a Different Case - "Factually Unrelated"
- Preservation - Plain Error - Southard
- Restraining Order - "Abuse"
Where defendant has an attorney who invokes his right to counsel at arraignment, the police may not question defendant about a "factually related" case without violating Article I Section 11 of the Oregon Constitution. Factually related cases are ones which have factual links or overlapping facts. The two cases do not need to be inextricably intertwined, as the State was arguing here. In this stolen check/ID Theft case, the two cases were:
- remarkably similar
- in close temporal proximity
- had overlapping evidence (like defendant's computer)
- the detectives on each case were working collaboratively.
Thus, where defendant had already been charged in one of the cases and had an attorney who invoked counsel, the detectives needed to contact the attorney before they interviewed defendant about the other case. Reversed. State v. Potter
Preservation - Plain Error - Southard
The gravity of the error and the interests of justice weigh heavily in favor of correcting a plain Southard error where the trial comes down to a credibility contest between the victim and the defendant. The State's argument that evidence of a sexualized relationship sufficiently corroborated the State's story to make the error not worth correcting is quickly rejected by the Court. Also rejected is an implied argument that because the jury acquitted on some charges the error cannot have made that much of a difference. Reversed. (Southard stands for the proposition that a diagnosis of child sexual abuse is inadmissible unless there is physical evidence to support the diagnosis). State v. Wedel
Restraining Order - "Abuse"
Threatening to reveal that someone has herpes is not abuse under the Restraining Order statute, even where the threats become increasingly vague. For example, "You messed with the wrong mother f'er" and "Payback is coming soon". "Abuse" means that a person was placed in fear of imminent bodily injury. Here, there may have been fear but it was not of bodily injury. Thus, the ex parte restraining order should not have been continued. Per Curiam. Reversed. Sacomono v. Burns
