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Oregon Appellate Ct - Aug 30, 2017

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by: Sara Werboff • September 5, 2017 • no comments

Evidence – Use of Force Policies Relevant for Impeachment of Officers for Motive/Bias

The court concludes that use of force policies were relevant to impeach officers for motive and bias in this menacing case. Defendant was charged with menacing for allegedly pointing an air-gun at police officers responding to his home. He was shot by the officers. Defendant acknowledged holding the air gun but claimed that it was at his side. Before trial, defendant moved to introduce the use of force policies and a tort claim notice he had filed. The trial court admitted the tort claim notice but not the policies.

The court first concludes that defendant’s motion was sufficient to preserve the issue for review because he repeatedly explained that he would use the policies to show that the officers had a motivation to lie about defendant pointing a weapon at them. The court then concludes that the policies were relevant to “whether the officers involved in the shooting had a personal interest in providing a particular version of events.” And, the court concludes, the error in excluding the policies was not harmless because the use of force policies were qualitatively different than the tort claim notice that was admitted. The policies were relevant to whether or not the officers lied to avoid consequences with their employment. It was also stronger evidence than the tort claim notice because the threat of negative effects from violating the policy was more immediate than a tort claim that may never actually be filed, and it was more specific in providing a description of behavior that matched the officers’ story. And the policies were not subject to the same challenges as the tort claim, which allowed the state to argue that defendant was motivated by greed to fabricate his version of the events.

Judge Armstrong dissents arguing that defendant failed to preserve the claim of error. In his view, the trial court excluded the policies themselves as substantive evidence and did not make a ruling as to whether the policies would be relevant as impeachment evidence.

Judge Egan, joined by Judges Tookey and Hadlock, also dissents arguing that if the trial court erred in excluding the evidence, any error was harmless. In his view, the use of force policies were not qualitatively different than the tort claim evidence and there was other evidence corroborating the officers’ version of events.

State v. Crum, 287 Or App 541 (2017) (en banc) (Duncan, J.) (Armstrong, J., dissenting) (Egan, J., dissenting)

Trial Court Procedure – Motion to Suppress Met Requirements of UTCR

The court reverses the trial court’s order striking defendant’s motion to suppress after concluding that the motion did not violate UTCR4.060 because it adequately apprised the trial court of the issues. Defendant moved to suppress the fruits of the seizure of defendant and the search of his residence and room. Defendant asserted that he had been subject to a warrantless search, which was per se unreasonable, and “the state has the burden of proving otherwise.” The motion cited the constitution and State v. Miller, 269 Or 328 (1974). The trial court struck the motion as insufficient under UTCR 4.060.

The court concludes that the motion was sufficient as it cited the authority on which defendant relied and apprised the court of the issue because it asserted that the state conducted a per se unreasonable warrantless search of defendant’s residence and room and sought suppression of the evidence obtained as a result.

Judge DeHoog dissents, arguing that the majority opinion appears to allow for a motion to merely assert that a search was warrantless in order to be sufficient. Here, he argues, it was not clear from the motion which of several searches defendant intended to challenge and, in his view, the trial court did not err by striking the motion.

State v. Oxford, 287 Or App 580 (2017) (Sercombe, P.J.) (DeHoog, P.J., dissenting)

Trial Court Procedure – Motion to Suppress Did Not Meet Requirements of UTCR

The court affirms the trial court’s order striking defendant’s motion to suppress as insufficient under UTCR 4.060. Defendant filed a motion to suppress fruits of a warrantless search and cited State v. Miller, 269 Or 328 (1974) but did not attach any memorandum in support. The court concludes that the motion is insufficient under UTCR 4.060 because it did not cite any legal authority for suppression such as the constitution, statutes, or case law (other than Miller which did not provide a legal basis for suppression).

Judge DeHoog concurs, arguing that defendant’s motion was also insufficient because it raised several issues and did not apprise the court or the state of his arguments.

State v. Jacinto-Leiva, 287 Or App 574 (2017) (Sercombe, S.J.) (DeHoog, P.J., concurring)

Search and Seizure – Seizure and Search of Defendant Not Justified by Officer Safety Exception

The court concludes that defendant’s detention and search was not justified by officer safety concerns. An officer saw defendant and another man sitting in a car in front of an abandoned house. As the officer doubled-back to investigate, then men got out of the car and started walking towards the officer. Defendant briefly walked in the roadway, and not the shoulder. The officer spoke to the men, and defendant “sharply” asked whether he needed to provide identification. The officer decided to cite defendant for walking in the roadway, and defendant provided identification. During that exchange, defendant’s companion ran away, and the officer did not think he would return. The officer then decided to detain defendant.

The court concludes that even if the officer subjectively believed that defendant posed a threat to his safety, that belief was not objectively reasonable. Even though defendant used a “sharp” voice, he thereafter was entirely cooperative with the officer. Further, there was no indication that defendant’s companion would return to pose a threat to the officer or that defendant posed a threat.

State v. Gaylor, 287 Or App 495 (2017) (Lagesen, J.)

Search and Seizure – During Inventory, Folded Paper Did Not Announce its Contents

The court concludes that the trial court erred when it denied defendant’s motion to suppress the results of an inventory. Defendant was arrested. An officer searched defendant’s wallet pursuant to an inventory policy. The officer found two folded pieces of paper. One contained a computer memory stick. The other felt like it contained a granulated, crystal like substance. The officer believed it might contain methamphetamine but was not “100 percent” certain. The court concludes that the officer erred in opening the folded paper because it did not announce its contents, even though it was highly probable that it contained methamphetamine.

State v. Garcia-Cruz, 287 Or App 516 (2017) (Shorr, J.)

Sentencing – Trial Court Erred in Calculating Criminal History Score for Predicate Offense – Trial Court Did Not Err in Imposing Consecutive Sentences

The court concludes that the trial court erred when it calculated defendant’s criminal history scores for two predicate offenses after considering defendant’s conviction for racketeering. Defendant was convicted of racketeering (Count 1) and delivery of methamphetamine (Count 6 and 7) which were also predicate offenses for Count 1. The trial court used the conviction on Count 1 to calculate defendant’s criminal history score for Counts 6 and 7. The trial court also imposed consecutive sentences on those counts. The court concludes that Counts 6 and 7 were part of the same criminal episode as Count 1 and could not be used to calculate defendant’s criminal history score. But, the court concludes that the trial court did not err in imposing the sentences consecutively.

State v. Ortega-Gonsalez, 287 Or App 526 (2017) (Shorr, J.)

Post-Conviction Relief – Judgment Did Not Conform to Requirements

The court remands the post-conviction court’s judgment denying relief because it did not conform to the requirements of Datt v. Hill, 347 Or 672 (2010).

Kulhavy v. Taylor, 287 Or App 503 (2017) (Tookey, J.)

Per Curiam – Disorderly Conduct - Evidence Insufficient to Prove Defendant Made “Unreasonable Noise”

The court reverses defendant’s conviction for disorderly conduct after the state concedes that the evidence was insufficient to establish that defendant made “unreasonable noise.” Defendant was part of a group of 30-40 protestors and briefly yelled on his own. The evidence was insufficient to show that defendant personally made unreasonable noise.

State v. Hitchens, 287 Or App 597 (2017) (per curiam)

Per Curiam – Petition for Reconsideration Denied

The court denies defendant’s petition for reconsideration, requesting a remand for balancing the probative value of evidence against its prejudicial effect, because defendant could have raised that claim in his original briefing.

State v. Duenaz, 287 Or App 599 (2017) (per curiam)

Per Curiam – Plain Error Attorney Fees

The court accepts the state’s concession that the trial court plainly erred in imposing court-appointed attorney fees. The court exercises its discretion to correct the error in light of the other fines and fees that defendant was ordered to pay.

State v. Swartz, 287 Or App 601 (2017) (per curiam)