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Oregon Appellate Ct - Jan 25, 2017

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


Eyewitness ID - Trial Court Did Not Err in Admitting Eyewitness ID

The court upholds the admission of an eyewitness identification of defendant, as it did the same identification in his co-defendant's case, State v. Haugen, 274 Or App 127 (2015), rev allowed, 359 Or 527 (2016). Defendant and Haugen were members of a motorcycle club and were convicted for assaulting the witness in a bar. The witness identified defendant from photos, both older and more recent photos. The photos identified defendant as a member of the motorcycle gang. The officer also showed the witness surveillance photos taken a few days earlier and identified defendant by name and nickname. Applying the Lawson/James framework, the court concludes that the witness had sufficient personal knowledge under OEC 602, as he had ample opportunity to observe defendant and was not impaired that night. The court then concludes that the lineup was not suggestive. Although the photo array differed from a standard lineup, the procedure did not steer the witness toward identifying a particular person as his attacker. Finally, even if assuming that the procedure was suggestive, the probative value of the evidence outweighed the prejudicial effect and the trial court did not abuse its discretion in admitting it.

State v. Rives, 283 Or App 431 (2017) (Ortega, P.J.)


Right to Counsel - Waiver of Right to Counsel During Sentencing Was Not Knowingly Made

The court concludes that defendant did not knowingly waive his right to be represented by counsel during a portion of his sentencing and reverses and remands for resentencing. Defendant was convicted of five counts of ID theft during a bench trial. The state sought 96 months of incarceration and defendant wanted AIP so he could enter into an intensive drug treatment program. Defendant had other open cases in other counties. At sentencing, the parties initially agreed to enter into a global plea where defendant would get 96 months with no AIP and the other pending charges would be dismissed. Defendant backed out of the deal. Defendant then asked for different counsel and accused his attorney of being drunk. The attorney withdrew. The trial court asked defendant if he understood that he would be sentenced on the five ID theft counts that day. The trial court sentenced defendant to 80 months of incarceration with AIP.

The court determines that the trial court erred in allowing defendant to make an unknowing waiver of counsel during his sentencing. The trial court did not warn defendant that he would be at a disadvantage without counsel and did not express any reservations about sentencing defendant without counsel. The record also does not permit an inference that defendant knowingly waived his right to counsel, even though defendant's prior criminal experience indicated he may have a general understanding of the risks of self-representation. The court also rejects the state's argument that the error was harmless because the court is unable to determine what the outcome of defendant's sentencing hearing would have been had counsel been present.

State v. Haines, 283 Or App 444 (2017) (Ortega, P.J.)


Self-Incrimination - Court Erred in Compelling Defendant to Testify to His Identity

The court reverses defendant's contempt judgments because the trial court erred in finding defendant in contempt for invoking his Fifth Amendment privilege against self-incrimination and refusing to testify to his identity. The state brought charges in six different cases for differently named individuals but contended that all were defendant. The trial court ordered defendant to testify under oath to his name for each case. Defendant gave his name in the first case, but then refused to answer in the subsequent cases, invoking the Fifth Amendment. The trial court summarily found defendant in contempt and sentenced him to 60 days of jail.

The court first concludes that the case is not moot because defendant served a term of confinement as a punitive sanction. The court then concludes that defendant did not waive his Fifth Amendment rights by testifying to his identity in the first case, noting that defendant did not make a choice to testify but that the trial court overruled his Fifth Amendment objection and ordered him to testify. Finally, the court concludes that defendant's Fifth Amendment rights were violated because the trial court ordered him to testify against himself in the criminal cases against him. Defendant's identification would have tended to incriminate him in cases where identity was an issue and where the trial court also threatened to bring charges for "using false names."

State v. Martinez-Garcia, 283 Or App 473 (2017) (Lagesen, J.)


Per Curiam - Evidence Insufficient to Support Criminal Forfeiture

The court accepts the state's concession that there was insufficient evidence in support of a criminal forfeiture judgment because there was no evidence connecting the cash seized from defendant when he was arrested to unlawful delivery of heroin.

State v. McWoodson, 283 Or App 482 (2017) (per curiam)


Per Curiam - Court Erred in Imposing Attorney Fees

The court accepts the state's concession that the trial court plainly erred in imposing $240 in attorney fees where the record is silent as to defendant's ability to pay and exercises its discretion to correct the error because the amount was substantial in light of defendant's family obligations and circumstances.

State v. Lea, 283 Or App 484 (2017) (per curiam)


Per Curiam - Court Erred in Failing to Record Civil Commitment Proceedings

The court accepts the state's concession that the trial court erred when it stopped recording the civil commitment proceeding after appellant was advised of his rights and was questioned about his understanding of what was occurring.

State v. R.N.J., 283 Or App 486 (2017) (per curiam)


Per Curiam - Court Erroneously Included "Constituting Domestic Violence" in Judgment - Attorney Fees

The court accepts the state's concession that the judgment in this case erroneously included the phrase "constituting domestic violence" in light of the parties' stipulation not to pursue that element. The court also accepts the state's concession that the trial court plainly erred in imposing court-appointed attorney fees and exercises its discretion to correct the error.

State v. Neighbors, 283 Or App 488 (2017) (per curiam)


Per Curiam - State Concedes that Evidence Derived from Unlawful Stop

The court accepts the state's concession that evidence derived from an unlawful extension of a traffic stop should have been suppressed.

State v. Lyons, 283 Or App 490 (2017) (per curiam)