Oregon Appellate Ct - Oct 12, 2016
by: Sara Werboff • October 14, 2016 • no comments
Exculpatory Evidence - Complainant Was Required to Comply with Subpoena Duces Tecum for her Computer
In this rape case, the court concludes that the trial court erred in not compelling the complainant, J, to comply with a subpoena duces tecum for her computer. Following a date with the defendant, J returned home and performed google searches about rape. Defendant ultimately was charged with rape. Before trial, he sought the google searches that J had performed and other electronic data from Google. Under the Electronic Communications and Privacy Act (ECPA) Google was not permitted to give defendant the records, but may give those records to law enforcement if requested. Defendant moved to compel the state to obtain the records from Google, and the trial court so ordered. The state deliberately avoided complying with that order, contending it was unlawful. Defendant moved to dismiss the case citing prosecutorial misconduct. Defendant also subpoenaed J's computer. J refused to produce it and the trial court denied defendant's motion to compel her to do so. For the purposes of the appeal, the parties (and the trial court) agreed that the evidence sought was exculpatory.
The court first addresses the prosecutorial misconduct, rebuking the state for its actions in this case. However, the court concludes that the prosecutorial misconduct did not require dismissal because the trial court's order compelling the state to obtain records from Google was unlawful, therefore the state's refusal to comply with the order did not deny defendant a fair trial. Next, the court explains that the trial court exceeded its authority when it ordered the state to obtain the Google records. That is because the Google records were not in the possession or control of the state. The state therefore did not have a statutory or constitutional obligation (under the Due Process Clause) to seek out and disclose evidence in the possession of a private entity. The court also rejects defendant's Wardius v. Oregon argument, that because the state could access the records, due process requires that the defense have access as well. The court concludes that there "was reciprocity and even-handedness in the sense that neither the defense nor the prosecution accessed J's Google information."
Finally, the court concludes that the trial court erred in failing to compel J to produce her computer in response to a trial subpoena duces tecum. Although J had a privacy interest in her computer, that interest did not supersede defendant's right to subpoena evidence for his defense. The court notes that there is a distinction between pretrial subpoenas, where the trial court has discretion, and a trial subpoena, where it does not. Defendant's subpoena was sufficiently limited in scope, relevant in purpose, and specific in directive so it was not unduly burdensome. The trial court also erred in applying the incorrect analysis to defendant's request for an in camera inspection. Defendant met the first hurdle, by producing evidence supporting a reasonable belief that the in camera review might yield exculpatory evidence. The court therefore remands for the trial court to consider the second step - whether it should exercise its discretion as to whether to review and disclose the records.
State v. Bray, 281 Or App 584 (2016) (Schuman, S.J)
Interrogation of Represented Defendant was Unlawful and His Confession to Multiple Robberies Should Have Been Suppressed
The court concludes that the state erred in denying defendant's motion to suppress evidence obtained from an interrogation of defendant, while defendant was represented by counsel on a different charge. Defendant was represented by counsel for a felon in possession charge. Without notifying counsel, police interrogated defendant about an armed robbery. Ultimately, defendant confessed to the robbery, the FIP and additional robberies. The state conceded that it was unlawful for police to interrogate defendant about the first robbery, but argued that the evidence of the additional robberies inevitably would have been discovered. The court first accepts the state's concession. The FIP charge and the robbery were linked by overlapping evidence, and a reasonable questioner would have foreseen that questions about the robbery would elicit evidence about the FIP. The court also rejects the state's inevitable discovery argument, concluding that there was insufficient evidence that proper and predictable police procedures would have caused defendant to confess to the other robberies. The state was required to establish not only the precise procedures they would have used, but also that defendant's responses to those procedures would have been essentially the same.
State v. Hensley, 281 Or App 523 (2016) (Garrett, J.)
State Presented Insufficient Evidence that Defendant "Harbored or Concealed" for Purposes of Hindering Prosecution
The court concludes that the state failed to prove that defendant hindered prosecution. Police responded to Ruby's house for a distress call involving a sick man, police discovered that Monty, Ruby's son who resided on a shed on her property, had a warrant for a felony probation violation. Police went to the shed and, not wanting to reveal they were police, asked the occupants - a man and a woman (defendant) - whether they knew the sick man. One of the police radios went off, and the police then revealed that they were police and ordered the occupants to come out. The police believed that the man was Monty but were not certain because neither identified themselves. Police ultimately had to break down the door. Defendant was arrested and charged with hindering prosecution for "harboring and concealing" Monty.
The court first notes that both defendant and Monty spoke to police and so defendant did not conceal the existence of another person in the shed, since police already were aware that there was another person. Additionally, the court concludes that because defendant was a guest in the shed, she could not therefore "harbor" her host because harboring requires that the defendant mist allow the fugitive into the space in order to provide him with protection from law enforcement. Contrary to that plain meaning, a guest cannot harbor a host. Finally, the court concludes that defendant did not conceal the fugitive by refusing to tell police the fugitive's identity. "Conceal" under the hindering prosecution statute requires concealment of a person, not just attempting to obscure his identity.
State v. Hutchins, 281 Or App 495 (2016) (Sercombe, P.J.)
Consecutive Sentences Unwarranted When No Evidence to Show Defendant Intended to Commit Multiple Crimes
The court concludes that the trial court erred in imposing consecutive sentences on two convictions for UUV that occurred as part of the same criminal episode, rejecting the state's argument that defendant willing committed more than one criminal offense because it was unsupported by the evidence. Defendant and his codefendants took five ATVs from a trailer and hid them. The following day, they returned, rode the ATVs, and eventually sold two of them. Defendant pleaded guilty to five counts of UUV. Because the record "lacks any discrete fact evincing defendant's willingness to commit more than one criminal offense" the trial court erred.
State v. Norris, 281 Or App 512 (2016) (Tookey, J.)
Merger - Third-Degree Rape and Second-Degree Sexual Abuse Counts Should Merge
Defendant was convicted of third-degree rape and second-degree sexual abuse for having sex with a 13-year-old. The issue in this case was whether those crimes each required proof of an element the other does not. Because there were multiple ways of charging the offenses, the court looks to the charging instrument. Second-degree sexual abuse requires proof of 1) sexual intercourse, and 2) lack of consent. Third-degree rape requires proof of 1) sexual intercourse and 2) the victim is under 16 years of age (and therefore cannot legally consent). The court concludes that the crimes involved the same elements because lack of consent refers to both lack of actual consent and lack of capacity to consent. Proof that a victim is under 16 years old necessarily establishes that the victim does not consent to sex, and proof of third-degree rape will necessarily prove the elements of second-degree sexual abuse as charged here.
State v. Breshears, 281 Or App 552 (2016) (Garrett, J.)
Attorney Fees - No Plain Error when Evidence of Defendant's Employability in Record
The trial court did not plainly err in imposing attorney fees when there was evidence in the record that defendant was "laid off" but "still employed to the labor union" and that he was likely to work again. Defendant also received a probationary sentence. That evidence supported a nonspeculative inference that defendant was readily employable and might be able to pay fees imposed by the court.
State v. Musgrave, 281 Or App 473 (2016) (Ortega, P.J.)
Juvenile Dependency - Juvenile Court Lacked Authority to Order DHS to Undo DHS's Administrative Actions
The court reverses a juvenile court order requiring DHS to reverse a "founded disposition" for child abuse and to reinstate certification for a child's foster parents as part of the judgment in a permanency hearing. The court explains that the foregoing are administrative actions and are subject to the Administrative Procedures Act (APA). The parties were required to challenge those DHS decisions through the APA's review procedures. Because the parties did not do so, the juvenile court could not undo those administrative decisions as part of a permanency judgment.
DHS v. P.A., 281 Or App 476 (2016) (Ortega, P.J.)
Juvenile Dependency and Delinquency - Juvenile Court Lacked Authority to Order Youth to OYA Custody
Youth appealed in parallel juvenile dependency and delinquency proceedings the juvenile court's order that awarded custody of the youth to the Oregon Youth Authority (OYA). The youth was not adjudicated delinquent. The state conceded that because youth was not adjudicated delinquent, and because no statute authorized OYA to take custody of a dependent youth, OYA lacked authority to exercise custody and control over the youth. The court agrees and reverses the order. The court also finds that in light of the disposition in the dependency case, the parallel delinquency case is moot.
DHS v. S.R.R., 281 Or App 619 (per curiam)
State v. S.R.R., 281 Or App 621 (per curiam)
