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Oregon Court of Appeals 03-10-10

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by: Abassos • March 9, 2010 • no comments

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

  • Felony/Agg Murder - Burglary
  • Speedy Trial
  • Voluntary Intoxication - Disordered Mental State (Diminished Capacity)
  • Stop - Free to Leave
  • Waiver of Supervision Fees


Felony/Agg Murder - Burglary

You can be convicted of felony murder when the underlying felony is burglary with the intent to commit murder. The issue is whether the death occurs "in furtherance of" the burglary. Which it does: the murder furthers the burglary by acting on the intent which propelled the burglary. So there you have it.

You can also be convicted of aggravated felony murder for the same burglary with intent to commit murder if you commit the murder "personally and intentionally". It is not bootstrapping the intent element for burglary into an aggravating factor because one can enter a home with the intent to commit murder but then have a death which doesn't occur intentionally. For example, if there's a struggle after the home is entered and the gun goes off accidentally. Then it wouldn't be aggravated murder. Thus, the two intents are "functionally and analytically different." State v. Dasa

Speedy Trial

The state is responsible for a 101 day delay initially caused by their discovery violation, where the state isn't able to show that defendant either (1) was unwilling to participate in a hearing at a sooner date (as opposed to unable to participate) or (2) consented to a date that far out. Adding in the 101 days, the total 15 month delay attributable to the state is unreasonable and requires dismissal. The fact that a large portion of the 101 days was due to judicial schedules, defense attorney's vacation and DA turnover does not establish "sufficient reason" under ORS 135.750 not to dismiss. State v. Allen

Voluntary Intoxication - Disordered Mental State (Diminished Capacity)

A jury is not allowed to consider evidence of voluntary intoxication for the question of the reasonableness of defendant's belief in self defense. At issue was the following instruction prompted by a jury question:

You have asked whether the term reasonable in the definition of self-defense is to be judged according to the standpoint of the jury, or according to the standpoint of the defendant in his impaired condition. "Voluntary intoxication is not to be considered by you to change the standard of reasonableness. The law provides that reasonableness must be judged by the jury from the standpoint of a reasonable man in the situation of the defendant at the time under all the circumstances surrounding him."

While this was the first Oregon opinion addressing this issue, the law in other states and jurisdictions was uniformly in favor of the State's position: that it would be contradictory to determine a defendant's objectively reasonable belief from the perspective of an intoxicated (or objectively unreasonable) person. Understanding this dilemma, the defendant tried to argue that disproving self defense is an element of the crime and the defendant can't be denied evidence which negates an element of the crime. The Appellate Court rejects this notion, finding that a defense is not an element of the crime; that the writers of the 1971 criminal code specifically rejected a broader definition of "element" which might have included affirmative defenses. State v. Bassett


Defendant was a back seat passenger in a car that was stopped for a traffic violation. Defendant gave a false name which the officer ferreted out. Defendant was then advised there were no warrants under the correct name. The car was to be towed for the driver's suspended license so the passengers were ordered out of the car and told to go stand by the police car. During the inventory search, defendant gave consent to search his backpack. Held: defendant reasonably could believe he was not free to leave where (1) he was ordered out of the car; (2) ordered to stand in a particular place; and (3) knew he was under investigation for false information. The fact that defendant was told there were no warrants was not sufficient to inform the defendant of his freedom. State v. Zaccone

Waiver of Supervision Fees

ORS 423.570 authorizes a judge to waive supervision fees (including on a DUII probation) in cases of financial hardship or for the defendant's rehabilitation. State v. Curtis