Oregon Appellate Ct - Dec. 9, 2015

by: Abassos and Alisa Larson-Xu • December 9, 2015 • no comments

Assault IV - Physical Injury - That the Victim Was Slapped and Felt a Sting Is Not Enough to Establish Substantial Pain

Some pain does not establish substantial pain for the purposes of the element of physical injury in an Assault IV. Here, the victim testified that she was slapped and that she felt a sting. The word "sting" indicates neither the degree of pain nor whether or not it was a fleeting sensation. Even if some pain can be inferred, there is no evidence that the degree or duration was sufficient to constitute substantial pain. Assault IV conviction reversed. State v Johnson, 275 Or App 468 (2015).

Scope of Consent to Search - Consent to "Search the Vehicle" for "Anything Concerning" Does Not Include the Search of a Fanny Pack Inside the Vehicle (Unless the Officer Requests a More Invasive Search)

A search based on consent may not exceed the scope permitted by the consent. The first step in determining the scope of consent is to look at the request for consent to search: "a general request for consent to search a car does not extend to closed containers in the car if no other circumstances reasonably indicate that the officers are searching for something that could be hidden in those containers." Here, defendant was stopped for a traffic infraction; the officer asked whether there was anything in the car that the police should be concerned about; and defendant said "no" and told the officer he could "search the vehicle". The officer searched the vehicle as well as a fanny pack found under the passenger seat, in which there were drugs. Since there was no actual request for consent (only a vague and open-ended question), "a reasonable person would not have understood the scope of the [officer's] interest in the car to extend to the contents of the zipped fanny pack found under the passenger’s seat". Since there weren't any contextual circumstances indicating that officers wanted to look for small items and there wasn't anything about defendant's statement indicating consent to meticulously search all closed containers, the scope of consent was limited and the trial court should have granted the motion to suppress. Also, the Miranda warnings that immediately followed the search did not purge the taint from defendant's admissions to possessing the drugs found in the search. The police conduct was purposeful and flagrant and:

"The illegal search put defendant in the no-win position of confessing to owning the fanny pack and drugs or incriminating, by process of elimination, the other passenger in the car. Without the illegal search, defendant would not have been in that position. Therefore, the police exploited the illegal search to gain an advantage over defendant"

Reversed and remanded. State v DeLong, 275 Or App 295 (2015).

Exploitation - The Unlawful Seizure of Defendant By Ordering Him to Get Medical Treatment Was Attenuated From HIs Later Consent to Search Given to A Different Officer at the Hospital

Defendant was unlawfully seized when an officer persuaded defendant to get medical treatment after a bike crash by telling him that he could either voluntarily go to the hospital with the paramedics or involuntarily go in a police car. However, that illegal seizure was attenuated from a later consent-based search at the hospital with a different officer in which drug evidence was found because:

1. The first officer had a non-investigative community care taking based purpose

2. Defendant was dropped off at the hospital by the paramedics and then voluntarily chose to seek treatment

3. The second officer's reasonable suspicion arose at the hospital after smelling a strong odor of marijuana

4. The second officer fully informed defendant of his right to refuse consent

State v Lowell, 275 Or App 365 (2015).

The Search of a Cell Phone Generally Requires a Warrant - Search Incident to Arrest Does Not Apply

An officer's search of defendant's cell phone generally requires a warrant and, in any case, is categorically not permitted pursuant to a search incident to arrest under the 4th Amendment. See Riley v California. 134 SCt 2494 (2014). Nothing new here. Just a good reminder. State v Lowell, 275 Or App 365 (2015).

Incriminating Statements - Statements to an Undercover Officer Will Not Generally Violate Either the Fifth or Sixth Amendments - PCR

Neither the Fifth nor the Sixth Amendment was violated when defendant tried to set up a murder for hire, from his jail cell, with an undercover officer he thought was a hit man. The Fifth Amendment doesn't apply because defendant didn't know the person he was talking to was an officer. The Sixth Amendment is charge-specific and nobody spoke to defendant about the charges on which he was being held in jail. Thus, the post-conviction court properly denied the claim that trial counsel was constitutionally inadequate for failing to file a motion to suppress defendant's statements. Gutierrez v Nooth, 275 Or App 171 (2015).

Derivative Use Immunity - Co-Defendant's Statement Was Derived From Defendant's Statement Where the Latter Was Played to Induce the Former - PCR - Death Penalty

Where the district attorney told defendant and his attorney that “any information that we derive from what you tell us” “cannot ever be used against you”, that was derivative use immunity. In determining the scope of an immunity agreement, the courts should look to contract principles to determine the agreement between the parties. Here, the word "derive" is a legal term of art that could not have been understood by the attorneys to mean anything else besides derivative use immunity. Derivative evidence is "any evidence obtained by use of the immunized statement." Thus, when officers took defendant's recorded statement, played it for co-defendant and thereby induced a confession that he and defendant committed a rape and murder together, it fell under the immunity agreement. Had defense counsel raised the issue, the state would have had the burden of proving that co-defendant's statements "derived from a legitimate source wholly independent of defendant’s immunized statement." Counsel did not raise the issue and, since defendant's statement was used by police to induce co-defendant's statement and co-defendant simply repeated the same statement at trial, counsel was constitutionally inadequate in failing to ask for suppression of derivative statements and testimony that should have been suppressed. It was unreasonable for trial counsel not to raise the issue because there was no possible strategic reason for not raising the issue. Moreover, defendant was prejudiced by the failure to raise the issue because it was the centerpiece of the state's case and the only direct evidence against defendant. Aggravated Murder conviction and death sentence reversed and remanded. Oatney v Premo, 275 Or App 171 (2015).

Request for Pro Se Representation May Be Denied If It Would Be Disruptive to the Orderly Conduct of a Trial

The trial court did not err by denying defendant's mid-trial request to represent himself when (1) defendant had been very disruptive throughout the state's case, with the judge threatening to have defendant removed from the courtroom and (2) defendant first requested to represent himself when the state's case was almost complete and for reasons that would have been counter-productive to his case. While the judge did not make explicit findings about how disruptive self-representation would be, the record indicate that the judge made an implicit conclusion that it would be disruptive based on the repeated admonitions and the reasons for the denial. State v Hightower, 275 Or App 287 (2015).

Sentencing - Equal Protection – Does a Sentence Denying Credit For Time Served Create an Equal Protection Problem Where the Defendant Was Unable to Post Bail?

Here, after defendant admitted to violating his probation, the court revoked probation and sentenced defendant to 60 days of jail, with no credit for time served. Defendant argued that this violated equal protection because a non-indigent defendant would have bailed out and served less time. However, at the time of the hearing, defendant was serving a separate sanction in another case. Therefore, defendant did not prove, as a factual matter, that he would have been released even if he could post bail. Without that factual finding, the court refuses to address defendant’s equal protection argument. The imposition of attorney fees, however, was improper without any evidence of defendant’s ability to pay. State v. Kasper 275 Or App 423 (2015).

Sentencing – “Remand for Resentencing” Requires A New Sentencing on All Convictions

“Where an appellate court’s decision affects part of a felony sentencing package - even by doing nothing more than requiring merger of two guilty verdicts - resentencing on all convictions that form part of that package is required on remand.” The trial court then has discretion to impose the same sentence or a different sentence, so long as the sentence is legally permissible. Moreover, the defendant has an opportunity to present further evidence to change the sentence. Here, the appellate court merged two convictions and remanded for sentencing. The trial court believed that it lacked authority to revisit sentencing and that its sole job was to merge the convictions. Since the trial court misperceived the scope of its authority, defendant did not have a meaningful chance to advocate for a change in sentence. The error was plain. Remand for resentencing. State v. Zolotoff 275 Or App 384 (2015)

Evidence - Hearsay - State of Mind Exception - Defendant's Friend's Intent to Drive Defendant Home Was Admissible to Show That He Did Drive Defendant Home

Defendant's trial defense to his DUII charge was that he did not drive. At trial, the defense offered a statement made by defendant's friend to his wife that he intended to drive the car and was not going to let defendant drive. The trial court improperly excluded the statement on hearsay grounds when it was admissible under the exception for then existing state of mind. The out-of-court statement was admissible to show that defendant's friend actually did drive on the night in question. Since the state's only evidence was that defendant was in the driver's seat of a parked car (while intoxicated), exclusion of the evidence was not harmless. State v Gonzalez, 275 Or App 474 (2015).

PCR – A Written Judgment May State the Grounds On Which the Cause Was Determined By Incorporating Findings Made On the Record

A post-conviction judgement can satisfy the statutory requirements of “clearly stating the grounds on which the cause was determined” if it incorporates by reference the findings made on the record at trial. Here, the post-conviction judge orally explained why relief was being denied. The court wrote in the judgment that the conclusions and findings were made “on the record.” Because it is sufficient to have oral conclusions, and petitioner did not challenge the sufficiency of the conclusions (only their form), there was no error in the judgment. Asbill v. Angelozzi 275 Or App 408 (2015).

Dependency Jurisdiction – Mental Health Concerns + Not Fully Engaged in Services + Avoiding Fault for Child’s Injury = Appropriately Continued Jurisdiction

To support juvenile court jurisdiction following a motion to dismiss, the court must examine the totality of the circumstances to determine whether there is a current threat of serious loss or injury to the child and a reasonable likelihood that the threat will be realized. Here, DHS took C from parents after C sustained a tibia fracture. The following facts supported continued jurisdiction:

• Parents failed to substantially benefit from the services in which they were engaged.
• Parents had mental health issues; specifically, father failed to follow through with services related to anger management.
• Parents failed to fully engage in services related to the child's special needs.
• Parents refused to acknowledge fault for C’s injury, making it seem like the same problem could happen again

Dept. of Human Services v. J.M. 275 Or App 429 (2015)

Dependency - Change of Permanency Plan – Slow Progress in Connecting with Child and Completing Classes Justified a Change of Plan To Adoption

When the permanency plan at the time of the hearing is reunification, changing the plan away from reunification requires DHS to show that (1) it made reasonable efforts to reunite the family; and (2) despite those efforts, the parents’ progress was insufficient to make it possible for the child to return home safely. Here, C was diagnosed with autism spectrum disorder and DHS did not notify parents until six months later. While parents’ time with C, after learning of the diagnosis, was more focused on C’s special needs and parents made progress in developing a connection with C, parents did not begin the online autism spectrum disorder course until a week before their permanency hearing. Thus, despite DHS’s delay in disclosing C’s disorder, DHS’s efforts at reunification were reasonable, and evidence supported the finding that parent’s progress was insufficient. Dept. of Human Services v. J.M. 275 Or App 429 (2015)

Civil Commitment - Intellectual Disability - A Competency Evaluation Will Not Suffice for the Requisite Chapter 427 Diagnostic Evaluation

A new diagnostic evaluation is required for a chapter 427 civil commitment (for a person who is intellectually disabled.) The state argued that the phrase "further investigation, if warranted, shall include a diagnostic evaluation as defined in ORS 427.105" (ORS 427.235(3)), meant that an investigator could choose to go to a hearing without a new evaluation. In this case, there were two recent competency evaluations that were primarily diagnostic. However, "If warranted", only gives the investigator the power to drop the case without going through a diagnostic evaluation. It does not allow an investigator to proceed to hearing without the requisite evaluation. Moreover, the diagnostic evaluation must meet the requirements of ORS 427.105, which competency evaluations do not, in either form or substance. An example of the failure of form is that the evaluation must be performed collectively by a multi-disciplinary team that includes, at minimum, a psychologist, a physician and a social worker. An example of the failure of substance is that the evaluation must address whether a guardian or conservator should be appointed and whether commitment is appropriate. Reversed and remanded. http://www.publications.ojd.state.or.us/docs/A151899.pdf State v R.E.G.], 275 Or App 239 (2015)

Preservation – Where an Exhibit Contains Portions That Are Inadmissible and Portions That Are Admissible, An Objection to the Exhibit Will Not Suffice - Specific Inadmissible Evidence Must Be Identified

Where a defendant makes a general objection to the admission of an exhibit, the objection will fail if any portion of the exhibit is admissible. Here, defendant made a hearsay objection to an exhibit that consisted of approximately 200 incoming messages from defendant’s cell phone. Some of the messages consisted of duplicates of previously admitted messages. Because defendant did not differentiate between inadmissible and admissible evidence with his objection, all messages were admissible. State v. Martinez 275 Or App 451 (2015)

Plain Error - Merger – UUW and Pointing a Firearm at Another Do Not Automatically Merge

The elements of UUW do not obviously merge within the elements of Pointing a Firearm at Another such that the error is plain. Pointing a Firearm at Another does not require that the firearm be loaded; UUW requires the weapon be deadly; and arguably, a deadly fiream must be loaded. Here, the defendant was convicted of both counts and did not preserve the merger argument. On appeal defendant does not identify evidence or sources of precedent that would make it obvious that a firearm, loaded or not, is always a deadly weapon, such that UUW would subsume the elements of Pointing a Firearm at Another. The failure to merge was not plain error. State v. Kuester 75 Or App 414 (2015).