Oregon Appellate Ct - April 6, 2016

by: Aalvarez • April 7, 2016 • no comments

PCR - IAC - Natural and Probable Consequences Jury Instruction

A defendant is still entitled to post-conviction relief due to ineffective assistance of counsel even where he confesses to the charged crime at a hearing that occurred post-trial, because a criminal defendant has a constitutional right to adequate assistance of counsel regardless of whether he or she committed the acts constituting the crime or not.

Here, defendant was convicted of a number of crimes, including aggravated murder, based on crimes he committed at the age of 14. He was convicted under an accomplice liability theory and his trial counsel failed to object to the, now known to be erroneous, “natural and probable consequences” instruction regarding accomplice liability. He applied for post-conviction relief and alleged ineffective assistance of counsel. He was denied relief. He later testified at a second look hearing that he was personally responsible for the crime and was conditionally released. Post-Brockamp, the case holding that it was ineffective assistance of counsel to fail to object to the “natural and probable consequences” instruction post-Anlauf, he filed for reconsideration of his ineffective assistance of counsel claim.

On reconsideration, the Court of Appeals rules that the attorney committed ineffective assistance of counsel by failing to object to the instruction. Although the defendant confessed post-trial, the Court of Appeals noted that was irrelevant for the purposes of determining whether he received effective assistance of counsel.

"Although his admission— sworn before the trial court—would appear to pose insurmountable odds to achieve an acquittal on charges related to the killing of the victim, we cannot foresee the panoply of circumstances extant in a retrial of the charges against petitioner. Thus, we cannot conclude that petitioner’s admission would, as a matter of law, mean that a new trial could have no practical effect, i.e., that it would necessarily result in convictions for the charged crimes. Accordingly, our task here is confined to deciding whether the post-conviction court erred in determining that petitioner’s trial counsel was not constitutionally inadequate by failing to object to the “natural and probable consequences” instruction."

Lastly, trial counsel’s arguments for why he did not provide ineffective assistance of counsel (that the experts who testified at the PCR trial were not familiar with the local practices of his county and that objecting to the instruction would have been unsuccessful) were not persuasive to the Court of Appeals:

"To begin with, trial counsel’s familiarity with local practices and judges of Jackson and Josephine Counties has no bearing on the validity of his opinion that it was unreasonable of petitioner’s trial attorney to fail to object to the “natural and probable consequences” instruction. The deficiency of the instruction was that it did not accurately reflect Oregon law, not that it did not comport with the rules or customs of the local trial courts. Moreover, whether an objection to the instruction would have been successful with a particular trial judge is also irrelevant; an objection would have, as [trial counsel] pointed out, preserved the error, which, in this instance, would have likely yielded a reversible error on appeal, as happened in Lopez-Minjarez…"Walraven v. Premo 277 Or. App. 264 (2016)

Sixth Amendment – Apprendi – Jury Trial Not Required for Restitution Determination

The jury trial right does not require that the jury determine the facts underlying the basis for restitution because Oregon’s restitution statute does not allow a court to increase the penalty for a crime beyond the statutory maximum. Here the defendant was convicted of certain crimes and a judge determined the amount of restitution she owed under ORS 137.106. The defendant appealed, argument that under Apprendi et. al, that a jury was required to find the facts underlying the basis of the restitution amount. Specifically, the defendant relied on the Supreme Court’s decision in Southern Union Co. v. U.S., 132 S Ct. 2344 (2012), which held that the Sixth Amendment right to jury trial extended to criminal fines where the jury’s verdict did not specifically reflect the basis for the fine. For example, the fine at issue in Southern Union was based on the number of days a company knowingly violated a federal law. However, the jury was not asked to specifically find the number of days the company violated the fine and instead the judge based the fine on his own fact finding as to the number of days the company violated the rule.

On appeal, the Court of Appeals finds Southern Union inapplicable to restitution because, unlike the fines at issue in Southern Union:

"Restitution in the full amount of the victim’s economic damages does not exceed the “prescribed statutory maximum” because restitution for the full amount of the victim’s economic damages is the only “restitution outcome that is consistent with a jury’s verdict.” The jury found that defendant committed the crime and, in doing so, found that defendant was liable for the full amount of the victim’s economic damages. (internal citations omitted)" Restitution award affirmed. State v. Deslaurier, 277 Or. App. 288 (2016)

Sentencing – Shift to I

The state concedes and the Court of Appeals accepts that the trial court erred when it failed to apply the “shift to I” rule before imposing consecutive sentences. The only record at the time of sentencing was that the two convictions involved the same victim and were part of the same criminal episode. Thus, the court erroneously calculated her sentence on Count 4 by sentencing her as a C on the grid rather than by shifting to I. Remanded for resentencing. State v. Deslaurier, 277 Or. App. 288 (2016)

Search and Seizure – Pat Downs - Officer Safety Exception

There was no reasonable suspicion of an immediate threat to the officer’s safety to justify a pat down after the officer discovered the defendant and four other men illegally shooting at trees and planned to issue them a non criminal citation for damaging the trees. Although the men were engaging in target practice with rifles, that fact did not support the inference that, after the defendant and his friends put the rifles away at the officer’s commands, that the men were more likely to also be carrying concealed weapons. The Court of Appeals reinforces that “the presence of a weapon is insufficient evidence, by itself, of reasonable suspicion that the suspect might possess another weapon.” To the contrary, all the other behavior the defendant and his friends displayed (they were cooperative, did not display any threatening or furtive movements, and all men placed their weapons in a secure location at the officer’s request) suggested that they posed no threat to the officer’s safety. Thus, the pat down that the officer performed that lead to the discovery of a methamphetamine pipe was unlawful.

In a dissent, Judge Tookey contends that the officer possessed the reasonable suspicion necessary to perform the pat down, because the officer was alone and encountered the defendant, who was in possession of a firearm, and with four other men who also possessed weapons. To Judge Tookey, the fact that the whole group of men initially possessed firearms, and were using them illegally, along with the officer’s lack of back up, supported the officer’s reasonable suspicion. State v. Smith, Jr., 277 Or. App. 298 (2016)

Miranda – Custody/Compelling Circumstances – Use of Restraints

There is no basis for concluding that the defendant was in “full custody” for Miranda purposes where defendant, who had just been involved in a shooting, was restrained by medical personnel in an ambulance for medical purposes. Likewise, the defendant was not in “compelling circumstances” while police officers questioning him in the ambulance. Although the defendant was in physical restraints and could not, practically speaking, terminate the encounter with the police officer, this was the product of the defendant being transported in an ambulance and not the product of the police officer’s actions. Further, there was no evidence that the officer acted aggressively or in a way that could have created a “police dominated atmosphere.” Thus, the trial court did not err in denying the defendant’s motion to suppress his statements. State v. Harryman, 277 Or. App. 346 (2016)

Jury Instructions – Self Defense

The trial court did not err in refusing to give the defendant’s instruction on self-defense because it was already adequately covered by the standard instructions and because it had the potential to confuse the jury. The defendant’s instructions included the following statements:

“It is not necessary for the defendant to actually wait for the assault to be committed before acting in self-defense. Defendant is also not required to retreat before using deadly force against what he believed to be the imminent use of force to cause serious physical injury."

“Reasonable belief is that of an ordinary person standing in the shoes of the defendant, i.e. in the defendant’s position."

“Even if you find that the introduction of a firearm by defendant into the altercation unwise, that act does not deprive defendant of the right to claim self-defense as to those matters which occur subsequently.”

As to the first two portions, the Court of Appeals held that the standard instruction covered both of them, and there were no instructions, arguments, or evidence suggesting that the jury would be inclined to erroneously believe that there was a duty to retreat or that defendant’s bringing the firearm into the conflict somehow vitiated his self defense claim. As to the third portion, the Court held that it had the potential to confuse the jury. Although the language was partially quoted from an Oregon Case (State v. Burns), the instruction had the possibility of leaving the jury with more questions than answers:

“Does the phrase “introduction of a firearm” refer to defendant’s possession, reference to, threatened use of, or actual use of his handgun? What is the legal significance of the term “unwise”? Taken out of context, defendant’s proposed instruction could have distracted the jury from its duty to decide whether defendant acted reasonably at the moment that he fired the gun." Affirmed. State v. Harryman, 277 Or. App. 346 (2016)

Hindering Prosecution & Tampering with Physical Evidence – “Physical Evidence”

After an extensive analysis of the Hindering Prosecution and Tampering with Physical Evidence statutes, the Oregon Court of Appeals rules that “physical evidence,” in that context, means an “item of physical evidence that must have at least some plausible, nonspeculative relationship to the determination of a matter of fact in a pending or immediately impending official proceeding.”

Here, the defendant was charged with Hindering Prosecution and Tampering with Physical Evidence based on allegations that he disposed of an iPod in order to prevent it from becoming evidence in a case against his friend, a police officer. In the case, it was clear the police were looking for an iPod that may have contained incriminating evidence against his friend. There were rumors that the iPod had been dropped into the ocean in May of 2011. In fall of 2011, the defendant discovered an iPod on a beach 4-5 miles away from where the device at issue was rumored to have been dropped. Although it lacked any specific characteristics typing it to the missing iPod, it was similar in general shape and characteristics to the missing device.

On appeal, the Court of Appeals holds that “[t]he state's proof of "physical evidence" was legally insufficient in that the jury could not find, without impermissible speculation, that the electronic device that defendant destroyed had any colorable connection to a pending or immediately impending official proceeding.” The Court explained further that “[t]he state’s proposition that the device that defendant found and destroyed was-or even plausibly might have been—the teenage girl’s iPod proceeded from a completely unsubstantiated premise…” Although the court reversed the defendant’s convictions for Tampering with Physical Evidence and Hindering Prosecution, it ruled that the jury necessarily found that the defendant had engaged in conduct constituting attempted tampering/hindering. Convictions for tampering with physical evidence and hindering prosecution reversed and remanded for entry of convictions for attempted tampering with physical evidence and attempted hindering prosecution, and for resentencing. State v. Martine, 277 Or. App. 360 (2016)

Merger – Felon in Possession of a Firearm

In a per curiam opinion the state concedes and the court accepts the concession that the trial court erred in failing to merge the defendant’s convictions for Felon in Possession of a Firearm, because defendant’s conduct only violated one statutory provision, only involved one victim, arose out of the same criminal episode, and because the record lacked the evidence necessary to support a finding that a “sufficient pause” existed between any of the defendant’s offenses. Reversed and remanded for sentencing. State v. Rosenstiel, 277 Or. App. 386 (2016)

Civil Commitment – Failure to Advise the AMIP of His Right to Subpoena

The state concedes and the court accepts the concession that the trial court’s erred in committing the AMIP without first advising him of his right to subpoena. Reversed. State v. T.W. 277 Or. 388 (2016)

Civil Commitment – Unable to Provide for Basic Needs

A per curiam reversal of a civil commitment where there was insufficient evidence to support the trial court’s determination that the AMIP was unable to provide for his basic needs. State v. M.L.N., 277 Or. App. 390 (2016)

Dependency – Appeal Dismissed as Moot

The court dismisses father’s appeal that argued that the juvenile court erred when it allowed DHS to place his two daughters with his mother over his objection. Because father now supports placement of the children with mother, the appeal is moot and is dismissed. DHS v. F.B., 277 Or. App. 392 (2016)