Oregon Court of Appeals 02-17-10

by: Abassos • February 16, 2010 • no comments

Read the full article for details about the following new cases:

• Sentencing - Disproportionality
• Felony Elude/Resisting Arrest - Indian Trial Officers
• Prosecutorial Comments on Right to Remain Silent
• Dependency - Relinquishment

Sentencing - Disproportionality

180 months prison for a case where defendant had sex with his 17 year old biological daughter many times was not Constitutionally disproportionate. Defendant pled to 5 counts each of sex abuse II and incest but was originally charged with 21 counts of sex abuse and 54 counts of incest. Additional details were that his daughter became pregnant and had his child/grandchild; the sexual relations continued even after police made their investigation known; and defendant had previously had sex with an underage girl. The court then turns to the 3 factors for disproportionality and finds each of them lacking: severity of the penalty vs gravity of the crime; penalties for similar, unrelated crimes; and criminal history of the defendant. State v. Baker

Felony Elude/Resisting Arrest

An Indian tribal police officer is not a "peace officer" for the purposes of ORS 162.315 - resisting arrest. Nor is a tribal police officer a police officer for the purposes of ORS 811.540 - felony attempt to elude. A tribal police officer is not a "peace officer" for resisting arrest because he is not one of the law enforcement officers listed in ORS 161.015(4) and he has not been designated by the Governor or the legislature as a peace officer. A tribal police officer is not a "police officer" for felony elude because he is not an agent of an Oregon governmental entity as required by ORS 801.395. So, despite the uniform, weapons, police car and all the trappings of a police officer, a tribal police officer is not an officer for either resisting arrest or felony elude. State v. Kurtz

Prosecutorial Comments on Right to Remain Silent

It was improper for DA to say in closing that:

"Officer Palmer testified that he found the controlled substance in the backpack, and while he may not have shown the little blue baggie to the Defendant, Officer Palmer testified that he told the Defendant what had happened. Controlled substances, or [what] he supposed to be controlled substances, based on his training and experience, were found in the backpack. There was no testimony that the Defendant disputed that, claimed that someone else owned it, claimed that it wasn't hers."

The appellate court finds, as did the trial court, that it was unlikely that the jury would see such comments as referring to a failure to testify at trial. The context of the statement made it clear that the DA was referring back to the time of the arrest. The comment was improper in that it referred to defendant's right to remain silent during arrest - but it doesn't rise to the level requiring mistrial because defense counsel opened the door to the comment by asking the Officer on cross: "And you didn't confront her with this and try to obtain a statement; is that correct as well?" This was part of a line of cross attempting to show that the officer did not follow proper procedures and, because he did not, the defendant never had a chance to deny that the backpack was hers. State v. Clark

Dependency - Relinquishment

The juvenile court did not err in placing child with father despite the fact that father had previously signed a relinquishment of his parental rights. Here is the money quote:

"Thus, [ORS 418.270(4) provides a mechanism for parents to relinquish both custody of their children and the right to consent to the adoption of those children and also restricts the ability of such parents to revoke such a relinquishment. Importantly, no provision of the statutes at issue purports to limit the juvenile court's jurisdiction or authority over a child who is the subject of a release like that executed by father in this case. Furthermore, a surrender does not, itself, effect a termination or severance of a child's relationship with his or her parent. Rather, such a severance can be accomplished only by way of a court order. . . The proper role of the juvenile court in this case was to protect the child and, where possible and in child's best interest, promote the return of child to her parent." DHS v. JLJ