Oregon Appellate Ct - March 9, 2016
by: Aalvarez and Crystal Maloney • March 10, 2016 • no comments
Search and Seizure - Relinquishment of Possessory and Privacy Interests
A passenger does not relinquish his possessory or privacy interest in a container found in a car by removing other items from the car, while leaving the container behind. Here, officers stopped a car on suspicion of car prowling. After receiving consent to search the vehicle from the driver, the officer asked the passenger (the defendant), if “anything in the car belonged to him.” The defendant did not give a verbal response, and instead, removed only a bag of candy from the car. While searching the car, officers located a bag on the floor board where the defendant had been seated, searched it, and found incriminating evidence. The defendant filed a motion to suppress the search and seizure of the bag as well as statements made as a result of the bag’s discovery. The state argued that the evidence should not be suppressed, because the defendant relinquished his rights when he removed the bag of candy and not the other bag when officers asked him whether anything in the car belonged to him. The trial court denied the motion and the defendant appealed his resulting conviction. On appeal, the appellate court reverses the trial court, holding that in order to relinquish a person’s constitutionally protected interests in an object, the person must unequivocally manifest an intent to do so. In removing the candy from the car, the defendant clearly communicated to the police that the candy belonged to him, but that act did not unequivocally communicate to the police that he had no interest in anything else in the car. Reversed and remanded. State v. Pilgrim, 276 Or. App. 747 (2016)
Prior Bad Acts - 403 Balancing After State v. Williams
A court fails to properly conduct 403 balancing when it improperly determines the basis for the evidence’s relevancy during the balancing. Here, the defendant was charged with multiple counts of sex abuse based on allegations that he sexually abused his girlfriend’s daughter, B. According to B, the defendant sexually abused her for several years, from the approximate ages of 7 to 15. B testified that although the abuse initially began as minor touching, it escalated into sexual intercourse, where the defendant would repeatedly compare B’s body with her mother’s body. Prior to trial, the state sought to admit uncharged misconduct evidence from B, as well as another witness, A, concerning prior sexual crimes the defendant supposedly committed against them. A, the daughter of one of the defendant’s prior girlfriends, testified that the defendant abused her from the age of 10 till around 13-14. Like B, she testified that the abuse started as mere touching but eventually escalated to intercourse, and she also testified that the defendant would compare her body to her mother’s during the abuse.
Pre-Williams, the trial court admitted the acts sought by the state under 404(4), stating that the acts were relevant for three non-propensity purposes: Identity, intent, and “bolstering the credibility of the victim.” After a jury trial, the defendant was convicted on multiple counts. On appeal, after "Willams" was decided, the defendant contended that under Williams, the trial court erred in admitting the prior acts by failing to properly conduct 403 balancing as Williams requires.
Here, the Court of Appeals reverses the trial court, finding that it did not engage in proper 403 balancing. The court noted that in conducting an OEC 403 analysis the court must first consider why the evidence was relevant. Contrary to the trial court’s finding, the evidence was not relevant for the purpose of identity, because there was nothing novel or unique to “earmark the acts as the handiwork of the accused,” as identity evidence requires. Moreover, as to using the evidence to bolster the credibility of the victim, the admission of evidence for that purpose amounts to the admission of evidence for a propensity purpose, because it rests on the inference that the defendant acted consistently with his character to sexually abuse young girls. Lastly, although the evidence met the Johns test for relevancy of intent evidence and thus was probative of the defendant’s intent, because the court erred in ruling the evidence relevant for the purposes of identity and for bolstering the credibility of the victim, it did not “correctly consider the ‘quantum of probative value of the evidence,’” as required by 403 and Williams. In the absence of proper balancing under 403, it was reversible error to admit the evidence. Reversed and remanded. State v. Baughman, 276 Or. App. 754 (2016)
403 Balancing - Pre-Williams - Balancing Requested by the Defense
Under Williams, It is error for the court to admit prior acts evidence without first conducting the balancing test under OEC 403 where a defendant requests the trial court perform the balancing test. Here, the defendant was charged with Failure to Perform the Duties of a Driver and Reckless Driving, among other things. Pre-trial, the state offered evidence of the defendant’s prior convictions for Eluding and Reckless Driving. Although this case occurred pre-Williams, the defendant nonetheless requested that the court engage in 403 balancing prior to ruling on the admissibility of the evidence. The court failed to engage in 403 balancing and admitted the evidence. The defendant was convicted and he appealed.
Post-conviction but pending appeal, Williams was decided. Under Williams, due process requires the court to perform 403 balancing when determining the admissibility of prior bad acts. On appeal, the state argued that the appellate court should find that the trial court implicitly engaged in 403 balancing. In the alternative, the state argued that the appellate court could conduct the balancing test. In rejecting the state’s arguments, the Court of Appeals noted that there was no evidence that the court implicitly engaged in 403 balancing, as the trial court made no findings regarding the probative value or prejudicial effect of the evidence. Further, it is not appropriate for the appellate court to engage in 403 balancing for the first time because OEC 403 balancing requires an exercise of discretion by the trial court before it can be reviewed. In light of Willams, the trial court erred in failing to conduct 403 balancing at the defendant’s request. Reversed and remanded. State v. Mazziotti, 276 Or. App. 773 (2016)
Dependency - Risk of Harm - Father's Failure to Protect Children from Mother
There is sufficient evidence that a father presents a risk of serious harm to a child where the evidence shows that the father knew the mother had caused serious injuries to another child and failed to intervene and where the father had previously assaulted mother while she was caring for the child while he was under the influence of alcohol. Here, the trial court found that there was sufficient evidence that the father was likely to fail to protect child from mother and that father’s alcohol use interfered with his ability to safely parent the child based on the following circumstances:
- It was undisputed that mother caused serious physical injury to another child, S, and that father would have been aware of her causing the injuries. Further, he took no action to protect S after seeing the injuries caused by mother and also continued to deny that there were issues with mother’s parenting that could have caused the injuries to S.
- Community reports showed that father, who was convicted of domestic violence charges 8 months prior based on an incident where he was intoxicated and attacked mother, continued to have a problem with alcohol.
On appeal, father contended that because he and mother separated and mother now lived in a different state, that father would be able to protect child from mother. Further, father contended that because the domestic violence incident occurred 8 months prior, that it was an insufficient basis to provide jurisdiction. The Court of Appeals affirmed the trial court’s ruling, noting that the parents' current separation did not alleviate the risk that the father will fail to protect A in the future, because there was no evidence in the record indicating that the father had taken any steps to protect the child from future abuse by her mother. For example, father did not seek sole custody of child, did not enter a voluntary agreement to protect the child from the mother, and did not represent that he would not allow the child to have unsupervised contact with mother. Lastly, although father had engaged in an alcohol abuse assessment, evidence that he continued to have problems with alcohol in the community also justified the trial court taking jurisdiction over the child, because alcohol was a large part of father’s previous domestic violence charges. Affirmed. DHS v. K.V., 276 Or. App. 782 (2016)
Termination of Parental Rights - Notice of Hearing Under ORS 419B.820
Failing to provide proper notice under ORS 419B.820 of a TPR hearing is plain error. Here, the state filed a petition to terminate mother’s parental rights. The summons required mother to file a written answer to the petition within 30 days, and noted that if mother failed to appear at any subsequent court ordered hearing, the court could proceed in her absence, including terminating her parental rights. Mother filed a written answer and the court issued a “notice of trial” indicating the trial was set for March 6th and 7th. Although evidence suggested that mother knew of the trial date and was in contact with her attorney, she failed to appear for the March 6th trial date and the court proceeded in her absence, with counsel’s consent. After a trial, the court entered a judgment terminating mother’s parental rights. Mother filed an appeal in late May. After she filed for appeal, she also filed a motion to set aside the judgment under ORS 419B.923, based on excusable neglect. This original appeal was held in abeyance while the motion to set aside was decided. Ultimately, the trial court denied the motion to set aside the judgment and that order was affirmed by the Court of Appeals. Shortly thereafter, the original appeal was re-instated.
On appeal, mother argues and the state concedes that the court did not give mother proper notice of the trial date under ORS 419B.820, which required that when the court send notice of its trial date that it inform mother that if she fails to appear personally, the court could terminate her rights in her absence. Although the trial court informed mother that her rights may be terminated in her absence, this notice was written in the original summons, not with the notice of the trial date that the court later provided. Although not preserved, the appellate court found this lack of notice to be plain error and exercised its discretion to correct it by reversing the judgment.
In a dissent, Judge Armstrong contended that although he agreed that the court failed to provide adequate notice under ORS 419B.820, that the court should not have used its discretion to correct the error. Mother filed a motion to set aside the judgment and chose not to raise the notice issue in that motion. Would she have raised the issue, she would have been questioned about her understanding of the consequences of her failure to appear at the termination trial and would have been forced to admit what she knew about the consequences of failing to appear at the hearing. Based on counsel’s statements at trial (noting that he had contact with mother) and the original summons sent by the court, Judge Armstrong believes that had mother raised the issue at the trial level, she would have likely admitted that she understood her parental rights could have been terminated without her presence. The strategic choice to limit the set aside motion and to present the ORS 419B.820 issue as plain error leads Judge Armstrong to the conclusion that the majority should not have exercised their discretion to correct the error. D.H.S. v. K.M.J, 276 Or. App. 823 (2016)
Emergency Aid Warrant Exception – Scope of the Exception Depends on the Type of Emergency and the Type of Aid That Would Alleviate It
When a particular emergency dissipates depends on the particular type of emergency and the type of aid that would alleviate that emergency. Here, officers obtained incriminating evidence against the defendant after a warrantless entry and search of his home and without his consent. The defendant moved to suppress the resulting evidence and the trial court denied that motion. The defendants was convicted and he appealed. On appeal, the court examined the officer’s justification for entering the defendant's home without a warrant. According to the state, the officers entered the defendant’s home to render emergency assistance based on a reasonable belief that defendant’s wife was inside and unconscious or injured to the point that she could not respond or request assistance. The Court of Appeals held that the emergency dissipated once the officer observed that defendant’s wife had only been crying, did not have any serious physical injuries, did not request any assistance, and only stated that she had been in an argument with defendant. Because the officer did not leave at that time, any observations made or evidence gathered by the officers after the emergency dissipated was subject to suppression.
In a concurring opinion, Judge Hadlock explained that although he believed with the majority’s decision to reverse the trial court’s denial of the defendant’s motion to suppress, that he believed that the officers could have remained in the home had the defendant’s wife consented to their entry. Under {http://www.publications.ojd.state.or.us/docs/S058458.pdf State v. Faira temporary on the scene detention in a domestic assault case is constitutional when “(1) the officer reasonably believes that an offense involving danger of forcible injury to a person recently has been committed nearby; (2) the officer reasonably believes that the person has knowledge that may aid the investigation of the suspected crime; and (3) the detention is reasonably necessary to obtain or verify the identity of the person, or to obtain an account of the crime.”
Contrary to the majority’s opinion, Judge Hadlock contends that the officers still reasonably believed that the defendant’s wife was the victim of a recent domestic dispute when they encountered her. Thus, Judge Hadlock would have concluded that the material witness exception set forth in State v. Fair would be applicable and would justify their continued questioning of wife outside the home. Moreover, relying on the Supreme Court’s opinions in Fernandez and Randolph, which examined when a co-tenant's objection to police entry is/is not sufficient to override another co-tenant's consent to police entry, Judge Hadlock explained that had the defendant’s wife consented to police entry, that he believed Article I, section 9 would have allowed her consent to override the defendant’s objection to their entry.
However, because the state did not prove that the defendant’s wife consented to the officer’s continued presence in her home, once the perceived emergency that justified their initial entry dissipated, the police’s continuing presence was unlawful and the resulting evidence should be suppressed. Reversed and remanded. State v. Garcia, 276 Or App 838 (2016)
Department of Corrections – Invalidating a DOC Health Care Rule and Policy
An administrative rule is invalid when it directly conflicts with a statute. Additionally, an agency policy constitutes a rule when it is an interpretive amplification or refinement of an existing administrative rule and is invalid if the agency failed to comply with rule making procedures. Here, OAR 291-124-0016(2), adopted by the Department of Corrections (DOC), requires the clinical director of DOC’s Heath Services to appoint the chief medical officer at each DOC institution. The Court of Appeals held, that this rule is invalid because it directly conflicts ORS 179.360(1)(f), which requires the superintendent of a DOC institution to appoint the institution’s chief medical officer. Additionally, the DOC’s Health Policy and Procedure #P-A-02.1 was challenged in this case. That heath policy purports to explain levels of health care services provided to inmates as defined in OAR 291-124-0041. The Court of Appeals also he that this health policy was invalid because by refining an existing administrative rule the health policy constituted a “rule” that should have been, but was not, adopted through rulemaking procedures. Smith v. Dept. of Corrections, 276 Or App 862 (2016).
Miranda – Expressing a Clear and Present Desire to Speak With an Attorney in Response to Miranda Warnings Is an Unequivocal Invocation of the Right to Counsel
A mere reference to an attorney does not necessarily constitute an unequivocal invocation of the right to counsel. However, when a suspect expresses a clear and present desire to speak with an attorney, that suspect has invoked the right to counsel. Here, defendant was arrested and read his Miranda rights. When the officer asked if he understood those rights, defendant asked, “Can I call my mom? She’s a lawyer.” The Court of Appeals held that defendant made an unequivocal invocation of the right to counsel under Article I, section 12, of the Oregon constitution. Defendant had expressed a present desire to do the thing asked about – that is, call his mother, the attorney. Because the officers did not immediately cease questioning, as they were required to do, all statements that the defendant made after his invocation of his right to counsel were inadmissible at trial. The trial court’s error in admitting these statements was not harmless. Reversed and remanded. State v. Brooke, 276 Or App 885 (2016).
Invocation of the Right to Counsel Is Not Waived by Subsequent Statements Related to Routine Incidents of the Custodial Relationship
A suspect does not waive his invocation of the right to counsel when he makes subsequent statements related to the routine incidents of the custodial relationship. While in custody for a parole violation, defendant was approached by two detectives who intended to interview him about sexual abuse allegations. Defendant stated that he “did not want to talk to [the detective] without an attorney present.” One of the detectives said “okay,” and the detectives started to walk away. Defendant then stated that he “didn’t really know why he was in jail” and mentioned something about his parole being revoked. The detective then stated that he wanted to talk to defendant about “an allegation made against him that he may believe his false.” At that point, defendant stated that he would speak with the detective without his attorney present. The detectives read defendant his Miranda rights, confirmed he understood them, and then defendant made incriminating statements. The Court of Appeals held, that defendant’s invocation of his right to counsel was unequivocal and complete, and could not be rendered ambiguous by his subsequent statements relating to his custody. The trial court failed to suppress defendant’s post-invocation statements in violation of Article I, section 12, of the Oregon Constitution. State v. Cavallaro, 276 Or App 899 (2016).
