Oregon Appellate Ct - March 30, 2016

by: Aalvarez • March 31, 2016 • no comments

Improper Joinder – State Required to Allege Basis for Joinder - Ryan Scott Wins!

ORS 132.560 requires a charging instrument that charges multiple crimes to allege the basis for joinder or facts that would permit the court to determine the basis for joinder on the face of the charging instrument. Here, the defendant was charged with 16 counts of promoting prostitution and 26 counts of identity theft. He demurred to the indictment, contending it was legally defective because it did not expressly allege a legal basis for joining the charges or facts sufficient to support the joinder. The trial court denied the demurrer, the defendant was convicted of multiple counts, and he appealed.

On appeal, the Court agrees with the defendant that the state’s failure to allege a basis for joinder or facts sufficient to support it is fatal to the indictment. Under ORS 135.630, a defendant may demur to a charging instrument when “it appears on the face thereof *** that it does not substantially conform to the requirements of *** ORS 132.560.” Implicit in that statute is the requirement that a charging instrument must show on its face that it meets the requirements of ORS 132.560. Moreover, in 1989 the legislature amended ORS 132.560 to mimic a federal rule that the required the government to allege the basis for joinder in the charging instrument and the legislators who passed that amendment intended ORS 132.560 to be construed consistently with the federal rule and its requirement that the basis for joinder appear on the face of the charging instrument. Because no such basis was alleged in this indictment, the indictment was fatally flawed under ORS 132.560 and the trial court erred in denying the defendant’s demurrer.

Although the trial court erred in denying the defendant’s demurrer, the error only affected the verdict with regard to the identity theft counts, because evidence bearing on the promoting prostitution counts would not have been admissible in a trial in which the defendant was charged with only identity theft, but in a trial only for promoting prostitution, all of the evidence supporting the defendant’s convictions for identity theft would have been admissible to prove his mental state in the promoting prostitution trial. Convictions for identity theft reversed. State v. Poston, 277 Or. App. 136 (2016)

Special congratulations to Ryan Scott who developed this issue and has been encouraging defense attorneys around the state to litigate this issue for years. Good job, Ryan!

Search and Seizure-Extension-Asking about Weapons During a DUII Stop

The fact that a defendant has a concealed carry permit does not justify an officer questioning the defendant about weapons during an unrelated stop. Here, the defendant was being investigated for DUII. The evidence presented at trial showed that the defendant was polite, cooperative, and deferential throughout the entirety of the stop. Prior to asking the defendant to perform field sobriety tests, the officer ran the defendant’s license and discovered he had a concealed-carry permit for firearms. The officer returned to the defendant, asked if he had any weapons, and the defendant revealed he had a switch-blade hidden in his boot. Ultimately the defendant was charged with carrying a concealed weapon and convicted on that charge after the trial court denied the defendant’s motion to suppress.

On appeal, the Court determines that the state did not prove that the officer’s question about weapons was reasonably related to the stop and reasonably necessary to carry it out. Moreover, the officer did not have an objectively reasonable basis for officer safety such that the questioning could be justified. Nothing about the defendant’s conduct during the stop indicated he posed a danger to the officer. Further, nothing about the defendant’s past conduct, including his concealed weapons permit, indicated any danger: "Having a concealed handgun license is not, in and of itself, an indication of dangerousness. In fact, having a concealed handgun license indicates that a person does not have a history of engaging in dangerous or threatening behavior." Lastly, nothing about the setting of the stop would have created a reasonable belief that the defendant posed a danger to the officer. For example, there was no evidence that it occurred in a high crime area or that any other potential dangerous persons were present. As such, the officer’s questioning constituted an unlawful extension of the traffic stop and all evidence discovered as a result should have been suppressed.

In a dissent, Judge Hadlock argues that the facts in this case (a traffic stop, late at night, on the side of the road, where the officer suspected that the defendant may be under the influence of alcohol and was going to request the defendant to perform field sobriety tests, and where the officer testified he would have been negligent in failing to ask the defendant if he had any weapons on him prior to performing the tests) supported a finding that the officer perceived a circumstance-specific danger and decided that a question about weapons was necessary to address that danger and that the officer’s decision was objectively reasonable, as necessary to find that the questioning was reasonably related to the traffic stop. State v. Miller, 277 Or. App. 147 (2016)

Post-Conviction Relief - IAC - Failing to Object to Improper Closing Argument

It is not ineffective assistance of counsel for defense counsel to fail to object to a prosecutor’s improper closing argument when said failure to object is part of an overall strategic decision. Here, the defendant was convicted of sexual abuse and furnishing alcohol to a minor. During the trial, multiple events occurred which the defendant now contends constituted ineffective assistance of counsel. 

• During closing argument, the prosecutor mischaracterized the testimony of a critical witness, and defense counsel failed to object to that misstatement;
• Defense counsel failed to object to the prosecutor questioning the defendant about his invocation of his right to be silent and in closing argument, failed to object when the prosecutor commented on how the defendant never provided an interview to police once he had obtained counsel; and
• Defense counsel failed to object during closing argument when the prosecutor argued to the jury that by failing to return a conviction they would return the defendant to the lake where “where girls are given alcohol and taken advantage of sexually, at least one that we know of.”

As to the first contention, the Court of Appeals finds, based on defense counsel’s affidavit, that although the prosecutor did mischaracterize the testimony of a critical witness, that the defense counsel’s failure to object was part of an overall strategic decision, and that more importantly, the jury had been repeatedly instructed by the court that the attorney’s arguments were not evidence and there was no evidence that the prosecutor’s behavior affected the jury’s ability to follow those instructions. As to the second contention, the Court finds, again based on defense counsel’s affidavit, that the defendant’s failure to object was a reasonable strategic decision, especially in light of the fact that during the defendant’s testimony, he, unprompted by the prosecutor or defense counsel, discussed hiring counsel and the invocation of his constitutional rights. Further, although defense counsel did not object to the prosecutor’s line of questioning and closing argument, he did not sit idly by while it occurred. Rather, he attempted to use that same evidence to argue for the defendant’s advantage. Lastly, the Court found that defense counsel’s failure to object to the prosecutor’s inflammatory statement during closing argument to be a reasonable decision, given counsel’s overall strategy during closing argument, and the fact that the prosecutor’s reference “to the lake” came in response to “defense counsel’s own metaphor about reasonable doubt and the obstacles that had to be overcome to reach the ‘lake of conviction.’” Affirmed. Grant v. Coursey, 277 Or. App. 165 (2016)

Revocation of Driving Privileges Under ORS 809.235(1)(b) - Sixth Amendment Implications - Prior Uncounseled Convictions

The fact that a permanent revocation of a defendant’s driving privileges rests on the occurrence of a prior uncounseled conviction does not implicate the Sixth Amendment because the revocation of driving privileges is not punishment and was not used to support guilt. Here, the trial court permanently revoked the defendant’s driving privileges under ORS 809.235(1)(b) after a third DUII conviction. At sentencing, the defendant argued that one of his earlier convictions should not be considered for the purposes of ORS 809.235(1)(b) because he was not represented by counsel and did not validly waive his right to counsel. The trial court disagreed and the defendant’s driving privileges were revoked.

On appeal, the Court affirms the trial court’s decision, refusing to consider the defendant’s arguments under Article I, section 11 and holding that Sixth Amendment is not implicated by a permanent revocation of the defendant’s driving privileges. The Sixth Amendment precludes the collateral use of invalid convictions to support guilt or to enhance punishment. For example, it violates the Sixth Amendment to deny the defendant the right to participate in DUII diversion based on an earlier uncounseled DUII conviction because the state sought to use a defendant’s uncounseled DUII conviction to effectually enhance the sentence for his second conviction.

Despite dicta found in City of Pendleton v. Standerfer, 297 Or 725, 688 P2d 68 (1984), which stated that “[t]he state cannot use an invalid prior conviction in a subsequent prosecution if to do so would lead to a disposition of the subsequent offense less favorable to defendant than that which would obtain in the absence of the prior invalid conviction,” the Court of Appeals rejects the idea that because the revocation of driving privileges is a less “favorable disposition than defendant would have received if the earlier uncounseled conviction was not considered for the purposes of ORS 809.235(1)(b)” that the revocation of defendant’s driving privileges violated the Sixth Amendment. Despite that language, the Court reaffirms that the issue is whether the convictions are used to increase a defendant’s punishment or to support guilt. Here, the revocation of the defendant’s driving privileges is not punishment (see State v. Phillips) and the defendant’s uncounseled DUII conviction was not used to support guilt. Thus, there was no Sixth Amendment Violation. Affirmed. State v. Dawson, 277 Or. App. 187 (2016)

Juvenile Courts’ Jurisdictional Determinations - The Hearsay Rule

OEC 802, the hearsay rule, applies in a juvenile court’s jurisdictional determination in a motion to dismiss. Here, father appeals the juvenile court’s denial of his motion to dismiss jurisdiction on the grounds that the juvenile court erred in admitting a report prepared by a child welfare agency in Mexico because the report contained inadmissible hearsay. The Court of Appeals agrees with father, noting that the legislature “did not intend for relaxed evidentiary standards to apply to [a] juvenile court’s jurisdictional determination in a motion to dismiss,” and therefore, OEC 802, the hearsay rule, applies in these hearings. Here, the report that was offered by the state for the truth of the matter asserted and relied upon by the court, contained a number of out of court statements. DHS did not, either at the trial level or on appeal argue that any hearsay exceptions applied. Thus, the trial court erred in admitting the report over father’s objection. Further, the error was not harmless because the record does not allow the Court of Appeals to determine whether the juvenile court would have reached the same conclusions, that is, whether the court would have found that the conditions that were originally found to endanger the child would have persisted in the absence of the report. Thus, the error is not harmless. DHS v. J.V.G, 277 Or. App. 201 (2016)

Appellate Procedure - Preservation - Motions to Suppress

Defendant’s argument that the trial court should suppress physical evidence found in his backpack as derivative of a Miranda violation was not preserved where he did not raise the issue regarding the evidence in the backpack in his written motion to suppress evidence and where his initial arguments at the hearing on the issues did not alert the court to the fact that the defendant sought to suppress the physical evidence in the backpack. Although the defendant’s arguments at the hearing eventually alerted the court that the defendant sought to suppress the evidence in the backpack, no basis for that suppression was highlighted and thus his request that the physical evidence be suppressed expanded the scope of the suppression motion in an ambiguous way. State v. Anderson-Brown, 277 Or. App. 214 (2016)

Miranda - Refusal to Suppress Statements Was Harmless Error

Even if the trial court erred when it refused to suppress certain statements made by the defendant as a Miranda violation in a possession of heroin trial, the error was harmless for the following reasons. 

• The strongest evidence of the defendant’s guilt was that heroin was found in a backpack that the defendant asked police to give to his friend, and neither the heroin nor that specific statement made were otherwise suppressable.
• The statements themselves (that the defendant reported that he was “freaking” and was “startled]” were not probative of the primary issue at trial: whether the defendant possessed heroin.
• The most incriminating statement that the court did not suppress (that the defendant’s intentions were to get high) was not admitted at trial.
• The fact that the defendant answered “yes” to an officer’s question regarding defendant’s ownership to the backpack was also unlikely to affect the verdict because, even if that evidence would have been suppressed, the defendant’s later request to give his backpack to a friend identified the backpack as his. Affirmed. State v. Anderson-Brown, 277 Or. App. 214 (2016)

PCR - IAC - Failure to Hire an Expert

In a prosecution for aggravated murder, defense counsel failed to provide adequate assistance of counsel by failing to seek out a toxicologist who could have opined as to whether the cause of the death of the victim was an accidental morphine overdose as opposed to murder where the state’s theory of the case was that the defendant strangled the victim and threw her into the water. Although there was extensive evidence connecting the victim (and the defendant) with drug use, a high amount of morphine found in the victim's system, and although trial counsel knew about the defendant’s belief that he found the victim dead from an overdose in his house in Washington County, defense counsel failed to contact an expert who could have opined as to the plausibility of a morphine defense. Instead, defense counsel put on an expert who testified that the victim drowned and pursued an improper venue defense under the theory that the defendant threw the victim, while she was still alive, off a bridge in Clatsop County and did not commit the murder in Washington County. The post-conviction court, and the Court of Appeals agreed, that although the improper venue defense was not impossible, that it was “unlikely in the extreme” since “there was virtually little chance that any jury would acquit upon petitioner’s defense which acknowledge that petitioner killed [the victim].”

In summation, defense counsel’s failure to seek the opinion of a toxicologist was not in the exercise of reasonable professional skill and judgment. Although there is no “categorical constitutional requirement that an attorney seek out a third expert opinion,” under the circumstances of this case, constitutionally competent counsel would have obtained an opinion from a toxicologist.

Further, that error prejudiced the defendant because at the time of the defendant’s trial, there was “believable qualified expert evidence” available to defense counsel that the victim died from a morphine overdose. Testimony from a toxicologist that the victim died from a morphine overdose could have resulted in an acquittal or would have allowed defense counsel to argue that the defendant was guilty of a difference offense, like manslaughter or felony murder, both crimes that would not merit the death penalty. Thus, the proceedings could have been different had defense counsel performed adequately. Martin Johnson v. Jeff Premo, 277 Or. App. 225 (2016)

Denial of a Motion for Continuance – Abuse of Discretion

The trial judge abused his discretion by denying defense counsel’s motion to postpone a trial when he was appointed to the case the morning the trial was supposed to begin. Here, the defendant was charged in with Possession of Methamphetamine and Theft (referred to as the 731 case based on the last three digits of the case number) based on evidence found in his home during a search in March of 2013. Six days before that trial was scheduled to begin, the state charged the defendant with Possession of Methamphetamine stemming from a totally unrelated traffic stop and subsequent search that took place in February of 2013 (referred to as the 403 case because of the last three digits of the case number). On the scheduled trial date for the 731 case, the defendant was arraigned on, and the defense counsel was appointed on, the 403 case. The two cases were consolidated by the motion of the state and the trial court judge informed the parties the consolidated trial would begin that day. Defense counsel repeatedly and strenuously moved to postpone the consolidated trials, arguing that he was completely unprepared to proceed to trial because he had just been appointed as the attorney in the 403 case, and consequently had not had an opportunity to research potential legal issues. The trial judge denied the motion, held an “omnibus hearing” during which defense counsel, while still objecting to the process, attempted to suppress the evidence in both cases. The court denied the evidence and trial was set to begin after a short break. The defendant did not appear in the courtroom when the trial was set to reconvene. Eventually he was arrested, tried, and convicted.

On appeal, the Court of Appeals reverses the defendant’s conviction in the 403 case and finds that the trial court’s denial of defense counsel’s motion to postpone was an abuse of discretion. Although the trial court has broad discretion in managing its docket “there are limits to discretion,” and the trial court’s ruling “transcended those limits.” Defense counsel had absolutely no time to prepare, research and investigate the issues in the 403 case and that lack of time prevented him from having the opportunity to be able to identify and develop additional contentions that may have been brought to the trial court’s attention in a later suppression hearing. The trial court’s decision exceeded the bounds of legally permissible discretion. State v. Kindler, 277 Or. App. 242 (2016)

Enhancement Facts – Willful Failure to Appear – Judicial Notice

The trial court erred when it took judicial notice of the enhancement fact that the defendant had “willfully failed to appear” where the only evidence of defendant’s failure to appear was that he did not return to the courtroom for his scheduled trial after a short break. A defendant’s alleged culpable mental state (i.e. willfully), is not a matter “not subject to reasonable dispute” that is either “[g]enerally known within the territorial jurisdiction of the trial court” or “[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned” as required by OEC 201(b), the rule governing judicial notice. State v. Kindler, 277 Or. App. 242 (2016)

Attorney’s Fees- Four Per Curiam Reversals

The trial court erred in imposing attorney’s fees where no determination was made as to the defendant’s ability to pay. State v. Osborn, 277 Or. App. ___ (2016) , State v. Butcher, 277 Or. App. ___ (2016), State v. Cline, 277 Or. App. ____ (2016), and State v. Berg, 277 Or. App. (2016).