Oregon Supreme Court 06-30-11
by: Abassos • June 29, 2011 • no comments
Read the full article for details about the following new cases:
- Non-Enumerated Aggravating Factors Aren't Unconstitutional (Mostly)
- No Right to Counsel Before Criminal Proceedings Begin
Non-Enumerated Aggravating Factors Aren't Unconstitutional (Mostly)
Non-enumerated aggravating factors, as a general proposition, violate no Constitutional or statutory provisions. (See Jess Barton's article here for why defense counsel should continue challenging some non-enumerated factors).
They don't violate the separation of powers clause of the Oregon Constitution because in using a non-enumerated aggravating factor to impose an upward departure, a trial court is "acting within the limits the legislature has set. . . and it is exercising a trial court's traditional authority".
The guidelines for using unlisted aggravating factors are not vague under the Oregon Constitution because they provide an ascertainable standard to the DA in determining which factors to request as a basis for upward departing. The DA's decision is neither standardless nor unfettered because (1) there is a list of enumerated factors pointing the way; (2) the factors must be substantial and compelling and (3) the factors can't duplicate elements. Defendant's argument that the Sentencing Guidelines don't provide fair notice ignores recent case law finding that "fair notice is not an aspect of state constitutional vagueness analysis." See State v. Illig-Renn.
Non-enumerated factors don't violate the 14th Amendment of the Federal Constitution because defendant had been put on notice by appellate cases that had identified each of the four factors on which the court relied in this case. State v. Speedis
No Right to Counsel Before Criminal Proceedings Begin
A defendant who has clearly asserted his right to remain silent may still have his conversations manipulated, monitored and recorded by the police. Here, defendant had an attorney who sent the police a letter clearly asserting defendant's right to remain silent and directing police to go through counsel. The police then set up and recorded defendant's conversations with the complainant without defendant's knowledge, obtaining incriminating statements which the State offered at trial. Officers created the persona for the complainant to play and told her what to say during multiple instant message and phone conversations.
The right against self-incrimination (Article I, Section 11) only applies when a person is in custody or compelling circumstances.
The right to counsel (Article I, Section 12) only applies when criminal proceedings have begun.
Here, defendant was not in compelling circumstances since he didn't even know the police were recording the conversation. And, criminal proceedings had not begun because defendant had not even been arrested. State v. Davis
