Oregon Appellate Ct - Jan. 29, 2014

by: Abassos, Cmaloney, Alarson and Alex Collins • January 29, 2014 • no comments

Attorney fees cannot be imposed when the record is silent regarding defendant’s ability to pay

A court cannot impose attorney fees based on a record that is silent regarding defendant’s ability to pay those fees. There must be some information from which the court can find the statutorily required factual predicate to attorney fees: that the defendant ‘is or may be able to pay’. ORS 151.505(3); ORS 161.665(4). Here, defendant was ordered to pay $8,000 and was sentenced to 375 months in prison. Since the record contains no evidence of any financial resources available to defendant the court holds it was a plain and grave error. State v. Coverstone, 260 Or App ___ (2014).

Consent to Search Can Be Invalidated by a Miranda Violation

When consent to search is given during a custodial interrogation in which Miranda warnings are not given, the consent is invalid because it is obtained by exploiting the violation of Article I, section 12, of the Oregon Constitution. Here, defendant was handcuffed in a patrol car when the officer asked him whether there was anything in the defendant’s vehicle that police should be concerned about. The defendant answered “no” and then spontaneously gave consent to search. The court held that the officer was interrogating the defendant in custody without informing him of his Miranda rights. Therefore, the evidence derived from the search must be suppressed. State v. Delong, 260 Or App ___ (2014).

Denial of Corroboration Instruction for Accomplice-Witness Constitutes Error

The question of whether the testimony of an accomplice-witness is corroborated by evidence – regardless of how slight or circumstantial – is one for the trier of fact. Accordingly, a trial court must give a requested corroboration instruction where an accomplice-witness testifies for the state. Here, the court determines that the failure to give a corroboration instruction was not harmless because there was conflicting evidence that was equivocal as to the accomplice-witness’s testimony. Additionally, the instruction could have affected the jury’s verdict, as the jury convicted on only three of the eleven counts. State v. Egeland __ 260 Or App __ (Jan., 28, 2014).

Recklessness - Insufficient Evidence to Prove Mental State

The court reverses this juvenile delinquency case for criminally negligent homicide, where the juvenile court relied on a faulty transcription to find recklessness. Youth had fallen asleep while driving and crashed into a motorcyclist. With the correct transcription of her post-crash interview regarding her mental state, the court finds that the evidence was insufficient to show that the youth disregarded a known and substantial risk that she would fall asleep while driving home from school. State v. S.N.R __ 260 Or App __ (Jan., 28, 2014).

90 Day Speedy Trial Request: “typical delays inherent in scheduling trials” is not good cause

Under ORS 136.763 (2), if no trial occurs within 90 days after a speedy trial motion is received, the case must be dismissed absent the defendant’s express consent or a specific reason why the trial cannot happen within the statutory window. Here, trial was re-scheduled to a day after the expiration of the 90 day window because neither the court nor the state noticed a speedy trial motion had been filed. The court dismisses the case because the state pointed to no reason for the delay except a general reference to “typical delays inherent in scheduling trials.” State v. Neal, __ 260 Or. App. __ (1/29/2014)

Per Curiam

• A conviction for felon in possession of a firearm with a firearm and a conviction for unlawful use of a deadly weapon with a firearm merge into a single conviction of felon in possession of a firearm with a firearm. See State v. Flores, Or App 141, 313 P3d 378 (2013). Per Curiam. State v. Amaya, __ 260 Or. App. ___ (1/29/2014)

• Prior bad acts require a high degree of similarity and distinct methodology to prove identity based on modus operandi. See State v. Johnson, 313 Or. 189 (1992). Per Curiam. State v. Rushton, __ 260 Or. App. ___ (1/29/2014)