Oregon Appellate Ct - Oct. 1, 2014
by: Abassos and Francis Gieringer • October 1, 2014 • no comments
PCR - It's Not IAC to Not Request a Lesser Included When Theory is That Crime Never Occurred
It is not ineffective assistance of counsel to fail to request a jury instruction for a lesser included offense when the defense theory is that the offense never occurred in the first place. Here, defendant was convicted of 1st Degree Sex Abuse. Defense counsel failed to ask for a jury instruction asking for the lesser included offense of 3rd Degree Sex Abuse. Because defense had made a decision to seek acquittal and argue that the offense never factually occurred, it was reasonable to not ask for a lesser included that would conflict with defense’s narrative for acquittal. Flores-Salazar v. Franke, 265 Or App ___ (2014).
Inevitable Discovery Only Applies Where Other Means for Obtaining Evidence Were Inevitable
The inevitable discovery exception to the warrant requirement does not apply merely because there were other possible means for the police to obtain incriminating information. The state's burden is to show inevitability, not mere possibility. Here, police seized a jeep through an unlawful administrative seizure. Burglary unit was notified and connected jeep to prior burglaries by comparing a 4x4 decal left at one of the burglaries to the seized jeep and used this as grounds for a warrant to search the interior of the jeep. Because the government did not show that a search of the interior would have inevitably resulted apart from the information obtained through the unlawful administrative seizure, the resulting warrant was invalid. State v. Lambert, 265 Or App ___ (2014).
When Evidence Is Scientific and Requires Foundational Expert Testimony
Evidence requires a foundational showing of scientific validity through expert testimony when 1) the technology at issue involves the interaction of multiple components, 2) those “components operate according to certain scientific principles to generate specific test results,” 3) the item requires training to operate. Here, Trustgram technology, a method of verifying authentic Sony batteries, required expert testimony when it involved the interaction of a holographic sticker and a tool called a Handy Viewer to reveal the sticker, the sticker and Handy Viewer operated on scientific principles to determine if a product was authentic or counterfeit, required training to operate. Based on those factors Trustgram drew on scientific principles and required expert foundational testimony. State v. Truong, 265 Or App ___ (2014).
Impoundment Policy - Community Caretaking
Officers lack a good faith reliance about the lawfulness of a particular policy where prior case law, arising from similar situations, in the same jurisdiction, have determined that that policy is unlawful. Here, a Cornelius police officer could not rely on Cornelius’s impoundment policy to justify a community-caretaking search of a car that was impounded from defendant’s driveway. The Ninth Circuit had already determined in a prior case that the community-caretaking exception did not extend to cars impounded by the Cornelius police department from the car owner’s driveway. Because the Ninth Circuit had already ruled that the community-caretaking exception was inapplicable to Cornelius’s driveway impoundment policy, Cornelius police officers could not rely, in good faith, on such a policy to justify their search. State v. Gonzales, 265 Or App ___ (2014).
Failure to Appear – Improper Jury Instruction
A court may not give a jury instruction that tells the jury how specific evidence relates to a particular legal issue. Here, for the offense of “Failure to Appear on a Criminal Citation,” the court’s instruction read: “To establish defendant had knowledge of mandatory court appearance, and thereby failed to appear, the state must prove he received notice of that mandatory appearance.” The instruction was an improper comment on evidence because it advised that if the state proved defendant had received a citation (which he had), then the jury should infer that he knew the date and knowingly decided not to appear. State v. Newcomer, 265 Or App ___ (2014).
Necessity Defense Jury Instruction – “Reasonable Belief” Must Apply to Both Elements in Instruction
Under the necessity defense, a defendant avoids liability for Driving While Revoked if the defendant (1) reasonably believed that an injury or threat of immediate injury to a human or animal existed and (2) reasonably believed that the urgency of the circumstances made it necessary for him to drive. Accordingly, a proper jury instruction under that defense should state that the defendant’s reasonable belief applies to both the “injury” prong and the “urgency” prong of the necessity defense. Here, the court erroneously instructed the “reasonable belief” language to only apply to the first prong, which created the impression that “reasonable belief” was not relevant to the second prong. State v. Vanderzanden, 265 Or App ___ (2014).
