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Oregon Court of Appeals 11-24-10

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by: Abassos • November 23, 2010 • no comments

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

  • Impeachment for Bias - Initial Showing
  • Upward Departure - Persistent Involvement
  • DUII Diversion Eligibility - Prior Similar Program
  • Merger - Attempted Theft and UEMV
  • Multiple Fines - Compensatory Fine and Court Fine Impermissible
  • Interrogation - Assertion of Right to Counsel
  • Preservation - Jury Instructions
  • Civil Commitment - Speculation
  • Stop - Free to Leave


Contents

Impeachment for Bias - Initial Showing

At issue in this assault case is a statement made by defendant to his mom from custody after the trial had started, that he was going to "catch [the alleged victim] on fire when I get out". The state argued, and the trial court found, that the statement was an initial showing of bias against the victim under ORE 609-1 which comes in regardless of how prejudicial or probative the evidence is. The Appellate Court reverses, finding that the statement was not offered as an initial showing of bias because all it showed was that defendant was angry at the alleged victim at the time of the trial, a bias which would not have eluded the jury's attention regardless of the statement's admission. State v. Fish

Upward Departure - Persistent Involvement

A reasonable juror could find persistent involvement even though the most recent similar crime was 14 years prior to the current offense. For the departure factor of persistent involvement, the factfinder must determine, from the number and frequency of the defendant's prior similar offenses, whether the defendant's involvement was so continuous or recurring as to be persistent. Here, there were seven prior similar offenses. It is up to the jury to decide whether a high number but low recent frequency is sufficiently persistent to qualify. State v. Skaggs

DUII Diversion Eligibility - Prior Similar Program

An alcohol or drug treatment program imposed as a condition of probation is sufficiently similar to disqualify a person from DUII Diversion. It's similar because performance in a program as a condition of probation is required by a governmental actor in order to avoid the imposition of a substantial adverse consequence. State v. Bentley

Merger - Attempted Theft and UEMV

Unlawful Entry into a Motor Vehicle does not merge with an attempted theft of the vehicle that occurs at the same time. Each crime contains an element the other does not. UEMV requires entry into a vehicle. Attempted theft has both a value element missing from UEMV as well as the intent to deprive another of property (UEMV only requires entry to commit a crime). State v. Medley

Compensatory Fine

The court could not impose both a fine of $100.00 and a compensatory fine of $1485.00 to reimburse victim. Only one statute, ORS 161.625(1) authorizes the court to impose a fine. ORS 137.101(1) allows a court to take a certain portion of the fine and redirect it from its normal course so that it goes directly to the victim. Here, the court imposed a $100.00 fine. It had no authority to impose a "compensatory fine" separately. Remanded for reconsideration. State v. Moore

Interrogation - Assertion of Right to Counsel

Where defendant asserts his right to counsel and right to remain silent while he is out of custody, the police are free to interrogate defendant without counsel a few hours later once he is arrested and in custody. "The governing constitutional principle for our purposes is that, if a criminal suspect unambiguously invokes the right to counsel while in custody-i.e., "during custodial interrogation," Edwards v. Arizona (1981)-police cannot subject the suspect to "further interrogation * * * until counsel has been made available. . . Here, the essential prerequisite of that principle was not satisfied." This case is infuriating. State v. Roberts

Preservation - Jury Instructions

It's worth saying over and over: in order to preserve an objection to a jury instruction (or the failure to give a jury instruction) counsel must take exception immediately after the jury is instructed. Here the defense in a DUII trial wanted a perfectly valid instruction on the definition of driving which the judge refused to give. However, despite submitting the instruction, making the argument and excepting prior to the instructions being given, counsel did not preserve the exception because nothing was said immediately after the instructions were given. ORCP 59 H(1). State v. Guardipee

Civil Commitment - Speculation

AMIP was committed on the grounds that if she was released she would (1) be unable to find shelter and, therefore, (2) suffer hypothermia or other harm from the freezing weather at that time and, therefore, (3) suffer a risk of serious harm or death be cause she'd be unable or unwilling to seek help for such harm. All three of these grounds are speculative. AMIP had a mental disorder that caused her to be hospitalized multiple times in the E.D. and the psych ward. However, she had previously been staying in a hotel and she was in the hospital for the current commitment hearing because she had sought help for apparent hypothermia. State v F.C.

Stop - Free to Leave

Defendant reasonably felt he was not free to leave where, after the car in which he was a passenger was stopped, he got out and tried to walk to a nearby store. While the police car's overhead lights were still on, the officer approached and asked defendant whether he was in possession of a crack pipe or anything illegal, called for backup (so that a different officer could talk to the driver) and then asked to search in response to defendant's silence to the question of possession. As a result, defendant could have reasonably believed he was under investigation. This case should be read for it's careful weighing of the various cases that deal with the question of when conversation becomes a stop. State v. Levias