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Oregon Supreme Ct - Aug 3, 2017

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by: Sara Werboff • August 4, 2017 • no comments

State May Present Both Interfering With a Peace Officer and Resisting Arrest Charges to the Jury

The court rejects defendant’s argument that, under ORS 162.247(3)(a), the state may not charge a defendant with both interfering with a peace officer and resisting arrest based on the same underlying acts. The court explains that while a defendant may not be convicted of both, the state is permitted to present both charges to the jury. Defendant was charged with interfering and resisting following her efforts to “unarrest” her boyfriend during a protest. The charges were based on the same underlying facts. Defendant, relying on ORS 162.247(3)(a), which provides that a person does not commit interfering with a peace officer based on conduct that constitutes resisting arrest, moved for a judgment of acquittal. The trial court denied the motion and all charges were submitted to the jury. The jury acquitted defendant of resisting, but convicted her on one count of interfering.

On review, the court analyzes the text, context, and legislative history of the statutes. Although defendant’s argument that the state may not double-charge is a plausible reading of the legislative history, the court concludes that it is inconsistent with the text. Instead, the court explains that the legislature intended to prevent the state from obtaining a conviction on both charges, but not to preclude the state from charging both. The court sets forth a procedure for trial courts to follow when the state submits both charges to the jury based on the same acts. The trial court must instruct, or use a special verdict form, that the jury should address the resisting arrest charge first, followed by the interfering charge only if the jury does not find the defendant guilty of resisting arrest.

State v. Garcia, 361 Or 672 (2017) (Nakamoto, J.)


Post-Conviction Relief – Petitioner Entitled to Post-Conviction Relief for Counsel’s Failure to Investigate Overdose Theory of Victim’s Death

In this post-conviction case, petitioner challenges his conviction for aggravated murder and death sentence. Petitioner was sentenced to death for killing a 15 year-old girl, HF. The state’s theory at trial was that petitioner drugged, raped, and strangled HF to death in Washington County, and then disposed of her body by throwing it off the Astoria Bridge in Clatsop County. At trial, defense counsel put forward the following defense: petitioner killed HF by throwing her off the bridge in Clatsop County where she drowned, and the state failed to prove venue in Washington County. The defense was based on expert testimony that HF had died by drowning. Petitioner had told his attorneys however that HF died from a morphine overdose. Defense counsel did not hire a toxicologist or explore the overdose theory further. At the post-conviction trial, petitioner presented two experts who opined that HF had a potentially lethal dose of morphine in her system.

The court concludes that trial counsel was ineffective. The court notes that there was no real dispute that petitioner caused the victim’s death, but the manner of her death was highly disputed. Because of the conflicting forensic evidence, defense counsel should have been on notice to use great care in developing a trial strategy. The court concludes that trial counsel had not undertaken an adequate investigation of the overdose theory before making a tactical choice to abandon it. And, the overdose defense was the most advantageous one for defendant because a jury could have concluded that defendant did not intentionally kill the victim, or, if the jury found him guilty of aggravated murder, it would have potentially led the jury to conclude that a death sentence was inappropriate.

Johnson v. Premo, 361 Or 688 (2017) (Brewer, S.J.)