Oregon Appellate Court 12-21-11

by: Abassos • December 20, 2011 • no comments

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

• Assault III - Aided by Another
• Oregon State Hospital - Involuntary Medication Hearings - Less Intrusive Options
• Habeas - Right Not to Have Attorney Mail Opened by Prison Officials
• Assault II - Dangerous Weapon
• Civil Commitment - Failure to Read Rights
• Restitution - Remand for Resentencing - State v. McLaughlin
• Attorney-Client Privilege - Testifying Does Not Waive the Privilege - DUII

Assault III - Aided by Another

Physical presence plus verbal encouragement constitutes "aid" for the purposes of Assault III. Here, defendant beat the crud out of victim while defendant's friend stood in the background and cheered. " A jury can legitimately infer aiding from the proximity of another person to the defendant and that person's capability to assist the defendant in exerting force upon the victim." State v. Hesedahl

Oregon State Hospital - Involuntary Medication Hearings - Less Intrusive Options

In order for the State Hospital to involuntarily medicate a person in their care, the patient is entitled to a hearing where the Hospital must prove that:

1. The person is unable to consent to medications. For example because of an inability to weigh the risks and benefits.
2. Medications will likely restore or prevent the deterioration of the person's mental or physical health.
3. Medications are the most appropriate treatment and all less intrusive possibilities have been considered.
4. The Hospital made a conscientious effort to obtain informed consent.

The court addresses prongs one and three. First, it is reasonable to find that a person is unable to weigh the risks and benefits of medications if the person does not believe the illness exists and minimizes both the symptoms and danger to others.

Second, if the Hospital has not considered transferring the person to a higher security ward, the Hospital has not considered all less intrusive possibilities than medication. Here, defendant did fine while unmedicated for over two years on a high security ward. Problems developed when he was transferred to a more chaotic medium security ward. Because the Hospital did not consider the option of transferring wards, even though it was suggested by the patient, DHS did not meet their burden in the involuntary medication hearing. Reversed and remanded. D.T. v DHS

Habeas - Right Not to Have Attorney Mail Opened by Prison Officials

There is apparently no Constitutional right of an inmate to have attorney mail kept private in a PCR or Habeas proceeding. There is no right to counsel in Habeas Corpus or Post-Conviction Relief proceedings. Thus, the opening of attorney mail by prison officials cannot implicate the Oregon or Federal Constititutional Right to Counsel. It doesn't trigger an access to courts Due Process issue because there are other remedies available like injunction, mandamus and an action for declaratory judgment. And it's not an equal protection issue because inmates are not a class for purposes of Article I, section 20. Barrett v. Williams

Assault II - Dangerous Weapon

To establish the element of a dangerous weapon in an Assault II case, the state must do more than prove that, because of the nature and gravity of the injury, it was likely caused by a dangerous weapon of some sort:

We reject the state's logic. To survive a motion for judgment of acquittal on a charge of second-degree assault under ORS 163.175(1)(b), there must be evidence that what caused the injury was a dangerous weapon. Necessarily, there must be evidence of a dangerous weapon. Here, there was none.

State v. Delaportilla

Civil Commitment - Failure to Read Rights

It is plain error for the court to fail to read the allegedly mentally ill person (AMIP) her rights required by ORS 426.001. That error is only harmless if it is clear that the AMIP received all the information from another source, like her attorney. Here, the record merely shows that AMIP and her attorney discussed the options. The record does not show that her attorney told her she had a right to subpoena witnesses, for example. Reversed. State v. SJF

Restitution - Remand for Resentencing

In this revisitation of State v. McLaughlin, the court finds that the proper remedy is to remand for resentencing, as opposed to simply reversing the judgment of restitution. Where the court does not meet it's statutory obligations to submit information on restitution, the court loses its authority to impose restitution. However, on remand the court is allowed to impose a compensatory fine as a substitute for restitution. [This is a strange case. A compensatory fine is for when the court is otherwise imposing a fine but wants to direct it toward the victim. Here, no fine was imposed - which is pretty good evidence that the court would not otherwise impose a fine. But this case specifically allows for a compensatory fine to be imposed simply because the state failed to meet their statutory requirements regarding restitution.] State v. McLaughlin

Attorney-Client Privilege - Testifying Does Not Waive the Privilege - DUII

A defendant does not waive attorney-client privilege merely by testifying. To waive attorney-client privilege, the defendant must divulge some portion of the attorney-client communication. This case was a DUII, in which defendant testified that he had acid reflux within the 15 minute observation period, even though he told the officer he had not regurgitated. Defendant testified on cross that he didn't say anything to the officer because he was afraid the officer would put it down as a breath test refusal. The trial prosecutor latched onto the idea that defendant could not have known about refusals by himself so he must have concocted the story after talking with his attorney. So the prosecutor asked him, on cross, about whether he talked about refusals with his attorney (an objection was overruled) and then hammered it in closing. On appeal, the AG concedes that defendant did not waive attorney-client privilege by testifying. But, the AG argues, the defendant waived it under the crime fraud exception because the services of his defense attorney aided him in committing perjury. The appellate court rejects the argument in their understated way:

As a matter of law, the insinuations that defendant conferred with his trial attorney to learn how to lie and to change the facts at trial and, concomitantly, that defendant's trial attorney helped him to commit perjury, fall well short of what is needed to terminate the lawyer-client privilege. . . nothing in the evidence code suggests that the mere fact of a prior inconsistent statement constitutes a basis for invoking the crime-fraud exception to the lawyer-client privilege.

The court also finds that the error was not harmless since the breathalyzer was important evidence in the state's case, the defense case was supported solely by defendant's credibility and the state used the violation of attorney-client privilege to go after defendant's credibility on cross and in closing. Reversed and remanded. State v. Taylor