Oregon Appellate Court 10-05-11
by: Abassos • October 4, 2011 • no comments
Read the full article for details about the following new cases:
- Equal Privileges - Prosecutorial Charging Decisions
- Merger - Possession of Multiple Firearms
Equal Privileges - Prosecutorial Charging Decisions
A prosecutorial charging policy does not violate Equal Privileges (Article I, sec. 20) where it uses a police maintained list to distinguish between those who are charged with misdemeanors and those who are charged with felonies. Such a policy is coherent, systematic and capable of being applied in a consistent manner. In the particular policy at issue, the Multnomah County District Attorney defers to a list maintained by the Portland Police for people who have multiple arrests in designated high drug crime areas. The court finds that it is not arbitrary to focus on discrete geographic areas, to use prior arrests or to defer to a secret list if the qualifying factors for the list are public. One argument Defendant apparently did not make is that the program has a racially disparate impact. That would, of course, be a different sort of Equal Privileges argument.
Such a policy also does not violate Due Process if the defendant has a right, during the criminal case, to challenge an erroneous assignment to the police list.
A charging policy based solely on "prior criminal history" may violate Equal Privileges. Here though, the district attorney in charge of the program testified (1) as to what "prior criminal history" meant to him and (2) that every charge using that criteria required his specific authorization. Since Defendant could present no evidence that the policy was being applied inconsistently, it passes constitutional muster. State v. Washington
Merger - Possession of Multiple Firearms
During a search of Defendant's residence, police found guns in 3 separate places within Defendant's house. The three ensuing counts of felon in possession do not merge because the evidence showed that the guns were acquired at separate times from separate people and stored in separate places. The possession was 3 separate acts because Defendant had 3 separate junctures at which he could have renounced his criminal intent. The facts of this case are easily distinguishable from most cases with multiple firearms since the state can't usually show that the firearms were acquired at separate times from separate people. However, the court's "analysis is informed" by an old case dealing with a defunct statute, in which the court found separate acts of possession based solely on the placement of firearms in separate areas of a vehicle. State v. Bell
