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Oregon Appellate Ct - April 12, 2017

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by: Sara Werboff • April 14, 2017 • no comments

Defendant Was Not Entitled to Grand Jury Notes – Court Will Not Exercise Discretion to Correct Sentencing Error

The court upholds defendant’s convictions for murder by abuse and concludes that defendant was not entitled to grand jury notes taken during the testimony of his girlfriend, Smith. Defendant and Smith lived with A, the victim, and their other children. A died from severe neglect. Smith gave statements to the police that, defendant contended, did not really implicate him in the murder. Smith testified at the grand jury, which indicted him for murder. Defendant sought notes from the grand jurors contending that Smith must have given inconsistent testimony. Defendant renewed his request after Smith testified at trial. Defendant also requested in camera review.

The court rejects defendant’s argument that he was entitled to the grand jury notes. First, the court explains that case law entitling a defendant to a tape recording of grand jury does not also entitle defendant to notes. Second, the court concludes that defendant is not entitled to the notes under the due process clause because he failed to establish that the notes would be exculpatory or that they would have made a difference in his trial. Finally, for those reasons, defendant failed to make a showing that he was entitled to in camera review.

The court also declines to review as plain error defendant’s claim that the trial court erred in sentencing him on merged counts. The trial court noted in the judgment that the three counts were three alternative theories of murder by abuse, the three convictions merged, and defendant was given a determinate life sentence. The court concludes that even if that was error, it declines to exercise its discretion to review it because the error is not grave and the judgment does show that the counts merge.

State v. Cockrell, 284 Or App 674 (Sercombe, P.J.)


Post-Conviction Relief – Petitioner Failed to Meet Burden to Show Evidence Would Be Admissible

The court rejects petitioner’s challenge to the denial of post-conviction relief because petitioner did not prove that evidence – a handwritten note from the victim – would have been admissible at his trial. Petitioner was charged with sexual offenses against his step-daughter. Petitioner offered his trial counsel a handwritten note, that he asserted was from the victim, in which the victim admits to a sexual relationship with her boyfriend. The note was not introduced at trial.

The court upholds the post-conviction court’s conclusion that petitioner failed to establish the authenticity of the note, so the post-conviction court could not conclude that the note would have been admitted at trial.

Siefken v. Premo, 284 Or App 692 (2017) (Sercombe, P.J.)


Post-Conviction Relief – Successive Petition is Procedurally Barred

The court rejects petitioner’s argument that his successive petition for post-conviction relief could not have raised the constitutionality of his indeterminate life sentences earlier. Here, petitioner was convicted of murder and kidnapping when he was 16 and given two indeterminate life sentences followed by 280 months of incarceration. Petitioner had earlier brought two post-conviction relief actions alleging that his sentence was unconstitutional. Then, the United States Supreme Court decided Miller v. Alabama, prohibiting life sentences for juveniles. Petitioner brought another petition, asserting that he could not have anticipated the new rule of law announced in Miller and accordingly his petition was not procedurally barred. The court concludes otherwise, because petitioner had raised essentially the same claim before.

Cunio v. Premo, 284 Or App 698 (2017) (Sercombe, P.J.)


Evidence – Prior Acts Admissible to Prove Hostile Motive

The court concludes that evidence of defendant’s prior disputes and violence towards his wife was admissible in his prosecution for her murder. At defendant’s trial for shooting his wife, the state introduced testimony from a neighbor that four days before the shooting, defendant was screaming at his wife because he had been locked out of the house, and a week before the shooting defendant had slapped his wife.

Defendant argued that the evidence was inadmissible under the Johns test, but the court concludes that the Johns test is not required when evidence is offered for reasons other than the doctrine of chances. Here, the evidence was relevant to establish that defendant had a hostile motive towards his wife, and rebutted his defense that he shot her by accident.

State v. Hagner, 284 Or App 711 (2017) (Sercombe, P.J.)


Restitution – No Good Cause for Delaying Restitution Hearing 203 Days After Judgment

The court reverses a supplemental judgment imposing restitution. Defendant was convicted of assault and resisting arrest after a guilty plea and left restitution open for 90 days. The restitution hearing was initially set 86 days after the judgment but was canceled due to an ice storm. The prosecutor did not realize for 74 days that he was responsible for rescheduling the hearing, and the trial court set the hearing for 22 days after the prosecutor requested it. At the hearing, the prosecutor was suddenly called away by a family emergency and the substitute prosecutor and defense attorney were unable to continue without him because he did not provide any of the supporting documentation as to damages. The trial court reset the hearing again, another 21 days later.

The court concludes that while good cause existed to extend the hearing beyond 90 days due to the ice storm, there was no good cause excusing the prosecutor’s failure to timely set the hearing. Nor was there good cause to extend the hearing an additional 21 days after the prosecutor failed to provide restitution documentation to the parties.

State v. Aguilar-Ramos, 284 Or App 749 (2017) (Tookey, J.)


Evidence – Any Error in Admitting Curative Testimony was Harmless

The court concludes that if the trial court erred in admitting evidence under the curative admissibility doctrine, that error was harmless. Defendant was tried for rape and sexual abuse of his young niece. During trial, defense counsel asked a DNA expert whether there was any DNA evidence linking defendant to the child’s clothing. The expert said no. The state sought to ask the expert whether they found unidentified male touch DNA on the clothing and the trial court allowed that testimony over defendant’s objection. The state explained that because the child spent a lot of time at defendant’s home, the presence of touch DNA on her clothing would not be indicative of guilt. However, the expert never explained that but also did not link the DNA to defendant.

Nonetheless, the court concludes that any error was harmless. The state never suggested that the DNA was probative of defendant’s guilt, and its presence was consistent with defendant’s defense because it was explained by the child’s presence in defendant’s home. The court rejects defendant’s argument that the DNA evidence bolstered the child’s credibility.

State v. Flores, 284 Or App 754 (2017) (DeHoog, J.)


Post-Conviction Relief – Remand Required on Shackling Claim – Petitioner Not Entitled to Subpoena Victim

The court reverses one of the post-conviction court’s rulings denying petitioner post-conviction relief. Petitioner was convicted of rape. During his trial, he was made to wear a leg shackle under his pants. Trial counsel did not object and there was no evidentiary hearing and factual findings made to justify the restraint. The post-conviction court denied relief because the jury was not able to see the restraint and petitioner was not prejudiced. The court reverses and remands for additional fact-finding because petitioner presented evidence that he was prejudiced for other reasons even if the jury could not see the restraint. The court rejects petitioner’s stand-alone constitutional claim as procedurally barred, and decides the issue under the ineffective assistance of counsel standard.

The court, addressing an issue that might arise on remand, affirms the post-conviction court’s denial of a subpoena to depose the victim. Petitioner asserted that the victim recanted. The court explains that in order to subpoena the victim, the victim’s testimony must be material to a post-conviction claim. Here, the victim’s recantation is not material to any of his post-conviction relief claims and petitioner was not entitled to subpoena her.

Clark v. Nooth, 284 Or App 762 (2017) (Flynn, J., pro tem)


Search and Seizure – Extension of Stop Justified by Reasonable Suspicion of DUII

The court concludes that police were justified in extending a traffic stop of defendant because they had reasonable suspicion of DUII. Police stopped defendant for driving unsafely because one of her tires was flat and she was driving well under the speed limit. Police also suspected that defendant’s vehicle had left the scene of an earlier accident. Police detained defendant so another officer, who was investigating the accident, could look at the car. That officer determined that the car was not involved in the accident. However, the officers had noted the odor of alcohol coming from defendant’s car, and that her eyes were glassy. Although the original purpose of the stop dissipated when the officer concluded that her car was not involved in the accident, the other facts – the odor of alcohol, defendant’s glassy eyes, and her unsafe driving – gave rise to reasonable suspicion of DUII.

State v. Craig, 284 Or App 786 (2017) (Flynn, J., pro tem)