Oregon Supreme Court, February 21, 2020

by: Rankin Johnson • February 26, 2020 • no comments

Summarized by Rankin Johnson, OCDLA

SENTENCING - Merger

Attempted aggravated murder based on the attempt to commit robbery merges with robbery. Reversed and remanded.

The court held only that the convictions merge, not that counsel had been inadequate in failing to object.

Martinez v. Cain 366 Or 136 (February 21, 2020) (Nelson) (Umatilla County, Temple)

EVIDENCE - Hearsay and unavailability

Witness was not unavailable, because state did not seek a material witness warrant or remedial contempt order. Trial court affirmed, Court of Appeals reversed.

Defendant, a member of the Mongol motorcycle gang, was charged with several violent offenses, and threatened to kill the victim if she spoke with the police. The victim spoke with police initially, but thereafter refused to cooperate with police and prosecutors. Police subpoenaed the victim to trial, spoke with her several times about the importance of her attending trial, and offered to pay for a hotel room, but she did not attend.

On the day before trial, the state filed a motion in limine, seeking to admit the victim's statements under the forfeiture-by-wrongdoing hearsay exception. The state declined the court's invitation to seek a material witness warrant or remedial contempt order, and the court held that the state had not proved the elements of the hearsay exception.

The Court of Appeals disagreed, holding that the state had exhausted all reasonable measures to secure the victim's attendance.

In holding otherwise, the Supreme Court observed that the state was aware of the victim's recalcitrance. In light of the importance of her testimony, the severity of the charges, and the court's express invitation, the state's efforts had not been adequate.

State v. Iseli 366 Or 151 (February 21, 2020) (Garrett) (Lane County, Zennaché)