Oregon Court of Appeals 11-03-10
by: Abassos • November 2, 2010 • no comments
Read the full article for details about the following new cases:
- Preservation - Foundation/Vouching
- Search and Seizures - Emergency Aid Exception
- Merger - Aggravated Murder
- Consecutive Sentencing - PV Revocations
- Failure to Appear - MJOA
- Disproportionate Sentencing/Cruel and Unusual Punishment
Contents |
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Preservation===
The correct objection when the state's doctor testifies that the burn mark on the child victim was intentional child abuse is not "speculative". The correct objection is that:
1) there was no foundational evidence that [the doctor] was qualified to render a scientific opinion about whether the child's injury was intentionally or knowingly inflicted, and (2) in any event, such a scientific opinion would constitute an improper comment on the credibility of defendant's statements about how the injury occurred.
Unfortunately, "speculative" doesn't preserve the correct arguments for appeal. Note that we only know what the correct objection is from an appellate case that came out after the trial on this case. So it's one of those situations where you don't really know what to argue until the court later tells you what you should have done. Ugh. Preservation sucks. State v. Bigelow
Emergency Aid
Where police overhear a loud argument, unaccompanied by any sounds of physical struggle or other indications that an act of violence has occurred, they are not justified in entering the house (or hotel room) to make sure everyone is okay.A warrantless entry into a defendant's residence is not authorized by the emergency aid doctrine unless there is a true emergency. ORS 133.033, the community caretaking statute, would seem to indicate otherwise. But an entry pursuant to that statute must satisfy both the requirements of the statute and the requirements of Article I, section 9. Article I, section 9 requires that:
(1) The police must have reasonable grounds to believe that there is an emergency and an immediate need for their assistance for the protection of life; (2) The emergency must be a true emergency, - the officer's good faith belief alone is insufficient; (3) The search must not be primarily motivated by an intent to arrest or to seize evidence; (4) The officer must reasonably suspect that the area or place to be searched is associated with the emergency and that, by making a warrantless entry, the officer will discover something that will alleviate the emergency." State v. Follet
Merger - Aggravated Murder
Multiple counts of aggravated murder merge when they arise out of the murder of a single individual. In fact, it's plain error for the court not to merge. State v. Thomas
Consecutive Sentencing - PV revocations
A judge may impose consecutive sentences on multiple probation revocations from the same incident without making the normal findings necessary for consecutive sentences. ORS 137.123, the consecutive sentencing statute, has no application in the context of a probation violation proceeding. A probation judge may impose concurrent or consecutive sentences as he or she sees fit, so long as there are as many violations as there are cases the judge wants to run consecutively. State v. Newell
Failure to Appear - MJOA
The state can satisfy the standards of MJOA in a failure to appear trial by simply submitting the citation and the bench warrant into evidence. It suffices for MJOA because a reasonable factfinder could find that the defendant knew what was on the citation she was served. The warrant is admissible as a public record under OEC 803(8)(a) without putting the judge on the stand because the issuance of warrants is a regular activity of the courts and it is a non-testimonial statement that doesn't implicate the confrontation clause. State v. Carter
Disproportionate Sentencing/Cruel and Unusual Punishment
A 300 month sentence for Rape I/Sodomy I/Sex Abuse I does not "shock the moral sense of all reasonable persons" where defendant sexually abused his 11 year old stepdaughter for over a year and had prior convictions for Robbery and Assault. The fact that this was defendant's first sex abuse conviction is relevant but not dispositive. State v. Wiese
