Oregon Appellate Court 09-21-11

by: Abassos • September 20, 2011 • no comments

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

• Expert Qualifications - Police Officers
• Impeachment - Witness on Probation
• Appeals - Supplemental Judgments
• Diagnosis of Sex Abuse (Southard) - Plain Error
• Criminal Episodes - Increasing Criminal History Score
• Civil Commitment - Basic Needs
• Stop - Free to Leave - Seizure
• Compensatory Fine - Plain Error
• DUII Breath Test - Exigent Circumstances - Machucha

Expert Qualification - Police Officers

During the trial in this Cattle Dispute/Murder case, the trial court erred in allowing a police officer to testify as an expert in memory recall to explain why the story of the state's star witness had changed. Specifically, the officer testified that memory after traumatic events improves over time. First, the court finds that whether a witness qualifies as an expert is reviewed for legal error, not for abuse of discretion. Second, the officer's personal experiences as a police officer and as a marine were irrelevant to the determination of expertise because they were neither detailed nor extensive enough. This was true despite the fact that his experience was so vast he was an instructor on use of force and police officer experiences after deadly shootings. Third, the fact that the officer had read a lot of research articles was relevant but hardly sufficient:

In the final analysis, his expertise derived from reading some material by one author and one institute and from familiarity with one or two public documents. That is not the stuff of expertise; if it were, any literate person with access to a library or an internet connection could become an expert in anything over one long weekend. Our standards are higher.

Reversed. State v. Dunning

Impeachment - Witness on Probation

Defendant was appropriately barred from asking the state's key witness about being on probation where the probation was from Idaho; there was no evidence that it was possible for the witness to have an effect on the probation by currying favor with Oregon prosecutors; and there was no evidence that the witness was possibly in violation of his probation. This case is distinguishable from State v. Shelly, another impeachment/probation case. State v. Dunning

Appeals - Supplemental Judgments

An appeal from a supplemental judgment must be made by appealing the supplemental judgment within 30 days. Not by appealing the initial judgment. Even if the appellate attorney didn't find out about the appellate judgment until more than 30 days have passed. See State v. Fowler. State v. Mullins

Diagnosis of Sex Abuse (Southard) - Plain Error

The issue of whether there was physical evidence to support a diagnosis of sex abuse was reasonably at doubt where (1) the state's doctor testified that hymenal notches were significant to her diagnosis and (2) notches were consistent with the state's theory that there was penetration. This is different from State v. Lovern, where the doctor did not testify that hymenal notches were an important part of the diagnosis and, in any case, they wouldn't support the state's theory of touching without penetration. State v. Vidal

Criminal Episodes - Increasing Criminal History Score

Multiple convictions do not result in an increasing criminal history score on the sentencing guidelines if they arise from the same criminal episode. Here, a fight between inmates at a prison was part of the same criminal episode as the assault on the guard that occurred while he tried to break the fight up. "The circumstances are so interrelated that a complete account of one offense cannot be related without relating details of the other." The State conceded the issue. State v. Bryant

Civil Commitment - Basic Needs

Where nothing on the record indicates an imminent threat to survival, the State's basic needs case is legally insufficient. AMIP's need to prepare his own food, combined with probable homelessness, did not amount to such evidence. State v. M.J.

Stop - Free to Leave/Seizure

On reconsideration in light of Ashbaugh, the court finds that defendant was seized. That is, there was a show of authority such that a reasonable person would feel seized. Here, defendant told the officer that he was concerned he might have a warrant and the officer did a warrant check. Upon returning, she did not tell defendant he was free to leave, but rather directed him to stand by the patrol car. At that point, consent to search was requested. Reversed. State v. Zaccone

Stop - Free to Leave/Seizure

On reconsideration in light of Ashbaugh, the court finds that defendant was seized. A reasonable person in defendant's situation would believe she was the subject of an investigation where, as a passenger in a stopped car, the officer focused his actions on whether she was in possession of drugs, rather than continuing the traffic stop in the normal course. Specifically, after returning from a warrant check, the officer asked defendant to step out of the car, told her he knew she was on probation for a drug offense and asked her to remove her sunglasses so he could observe her pupils. Then he obtained consent to search her person and her purse. State v. Singer

Compensatory Fine - Plain Error

A compensatory fine may not be imposed in the absence of evidence of pecuniary loss. Here, compensation for mental health treatment was imposed as a fine in the absence of any evidence that the victim incurred or would incur any mental health expenses. The state argued that it was not plain error because perhaps a strategic decision was made not to object in order to make the defendant seem more remorseful. The court quickly dispenses with the state's argument, saying it would apply to every failure of objection involving fines, which is irreconcilable with the court's long history of reviewing unpreserved claims of error based on unsupported compensatory fines. State v. Martino

DUII Breath Test - Exigent Circumstances - Rare Case per Machuca

Where there was only 58 minutes between DUII arrest and breath test and the testimony established that it would take at least 90 minutes to obtain a warrant, the evidence established that exigent circumstances existed. Stated in the inverse, the evidence did not establish that this is one of the rare cases, referred to in Machuca, in which it would be significantly faster to obtain a warrant than the process used in this case. State v. Amos