Oregon Appellate Ct - March 2, 2016
by: Breinhard, Jonathan Heritage, Matthew Watkins and Joseph Hampton • March 3, 2016 • no comments
Contempt – Proceedings Initiated as Civil Contempt Proceedings Could Not result in Probation or a Fine The trial court was reversed in a contempt case where it imposed punitive contempt sanctions of 12 months of probation and a $500 fine. The proceeding began when a creditor of a defendant successfully moved for a show cause order that imposed a $500 fine for each day of continued contempt as well as jail. The bench probation and $500 fine was imposed after defendant “pled guilty”, but the Court of Appeals, citing a similar holding in Altenhofen and Vanden-Busch, 271 Or App 57 (2015), held the matter should have never been punitive, and that the trial court abused its discretion by imposing sanctions that could not be cured if the defendant remedied her contempt. State v. Cortez Miranda Kay Austin, 276 Or App 648 (2016)
Miranda/Article I section 12 – Sex Abuse Admissions Not Made Under Compelling Circumstances A police officer’s questioning of defendant at his house did not constitute compelling circumstances where the officer stated “they needed to talk about some stuff”, continued questioning defendant despite repeated denials of wrongdoing, told defendant honesty would make him feel better and that he should make disclosures for the victim’s sake. The questioning took place in a side yard of defendant’s house while defendant’s wife sporadically came out and screamed at him, and it lasted roughly an hour and a half. The court held this was a “close case” but, like in State v. Saunders II, 221 Or App at 120, (2008) the pressure and the officer’s repeated assertions of defendant’s guilt did not arise to compelling circumstances. State v. Courville, 276 Or App 672 (2016)
Civil Commitment – Delusions, Inappropriate Behavior, and Resisting Arrest Insufficient for Danger to Self or Others The trial court relied on insufficient evidence when it found an allegedly mentally ill person to be a danger to himself and others and unable to provide for his basic needs. The evidence showed the AMIP was removed from a flight at the airport when he argued with the flight attendant. Police arrested him with some struggle and he suffered a slight rug burn. After release, the AMIP was soon in a bank staring at people and speaking nonsensically. He calmly refused to leave but physically struggled again when police tried to remove him. While in an isolation cell, the AMIP refused food because he thought it was poisoned. He also refused to leave his cell because he thought people outside were trying to kill him. The delusions and inappropriate behavior, along with the resisting arrest and receiving a rug burn, posed no particularized and highly probable threat to safe survival, nor a high likelihood that he would engage in future violence. Refusing to eat jail food for fear of poison, and fearing to leave his cell because he thought people would kill him did not demonstrate that he could not provide for his basic needs. The possibility of homelessness did not pose a threat to his near term survival. Reversed. State v. M.A., 276 Or App 624 (2016)
Vouching – Harmless Error Where the Court Presumes the Jury Follows Curative Instructions The court presumes that jurors follow jury instructions unless there an “overwhelming probability that they would be unable to do so.” In this case the trial court did not find evidence of such overwhelming probability. The jury had heard a recorded interview in which a police officer said he could tell through body language that the defendant was not being entirely honest. The defense objected to the jury hearing this vouching but the court overruled the objection saying it was a police interview technique. The court denied the defendant’s motion for a mistrial and instead gave a curative jury instruction, and the Court of Appeals found that the instructions were sufficient to mitigate any harm and that admitting the recording in the first place was not reversible error. State v. Williams, 276 Or App 688 (2016)
Evidence – Potential Plain error When Court Failed to Conduct 403 Balancing Test on Prior Bad Acts The Court of Appeals remanded a defendant’s conviction on sex abuse charges and ordered the trial court to conduct a 403 balancing test on an unpreserved error where the state had admitted prior bad acts evidence that defendant had sexually abused victim at a different time. This opinion was issued after a petition for reconsideration based on the Oregon Supreme Court’s OEC 403 holding in State v. Williams, 357 Or 1 (2015), and the trial court was directed to determine whether the evidence was unfairly prejudicial. State v. Zavala, 276 Or App 612 (2016)
Dependency – Excusable Neglect Claim Controverted by Mother’s Inconsistent Statements Regarding Her Mistake The appellate court affirmed mother’s termination of parental rights when she failed to appear for court, despite her attorney moving to set aside the judgment later that day based on a claim that mother was mistaken regarding the trial date. The trial court had made findings that mother did not show up despite having sent her attorney an e-mail at 12:30 that morning that she was in town and would be appearing for the trial date. But the court of appeals ruled the circumstances did not constitute excusable neglect 419B.923(1)(b) based on mother’s inconsistent statements, the court held. Dept. of Human Services v. T. M. B., 276 Or App 641 (2016)
Search and Seizure - Arrest Warrant Did not Sufficiently Attenuate Police Illegality In light of State v. Bailey, 356 Or 486 (2014) and State v. Benning, 273 Or App 183 (2015), a valid warrant for defendant’s arrest did not prevent suppression of the initial illegal seizure of defendant and subsequent illegal search of defendant’s vehicle after the warrant was discovered. Those two cases rejected the court’s previous per se analysis under State v. Dempster (1967) that arrest warrants always breaks the nexus between police illegality and suppression of evidence under the Fourth Amendment. In the present case, the state conceded there was not sufficient attenuation, and the Court of Appeals accepted the concession and reversed. State v. Batistia, 276 Or App 634 (2016)
