Oregon Supreme Ct - Sept 22, 2016
by: Sara Werboff • September 23, 2016 • no comments
Custodial Interrogation - Police Unconstitutionally Reinitiated Interrogation After Defendant Invoked Right to Counsel
The court concludes that police violated Article I, section 12, when they asked questioned designed to elicit an incriminating response after defendant had invoked his right to counsel. Police arrested defendant after defendant’s girlfriend was found dead. Detective Myers questioned defendant. Defendant became agitated and was in disbelief that his girlfriend was dead. Defendant admitted to arguing with her that evening. Defendant then stated “I don’t know why I’m here, so - please don’t talk to me anymore on that aspect until you bring me a lawyer.” Police stopped questioning defendant and he was put in a holding cell. Later, Detective Lewis, who was present during Myers’ questioning of defendant, went to defendant’s cell. Defendant asked Lewis, “Is anybody going to tell me why I’m here?” and told Lewis he needed to call his “baby girl” to tell her where he was. Lewis asked defendant if defendant remembered his earlier conversation with Myers and also asked defendant if “baby girl” referred to defendant’s girlfriend. Lewis reminded defendant that his girlfriend was dead and defendant was under arrest for killing her. At that point, defendant again became agitated and asked to speak to Myers. During that continued interrogation, defendant made additional incriminating statements.
On review, defendant argued that he did not reinitiate interrogation, rather, the police did when Lewis questioned him about the earlier conversation defendant had with Myers. The court determines that police reinitiate an interrogation when they ask questions that are reasonably likely to elicit an incriminating response. The court concludes that defendant did not reinitiate conversation with Lewis because his questions about why he was in custody did not indicate that he was willing to enter into a generalized discussion of the substance of the charges without the assistance of counsel. The court further concludes that Lewis reinitiated the interrogation by asking defendant about his memory of the assault and posing questions that he knew would likely agitate defendant. Those questions were reasonably likely to elicit incriminating responses by either cornering defendant into a far-fetched theory of defense or provoking him to make inconsistent statements that could be used for impeachment. And because Lewis’ interrogation led defendant to ask to speak to Myers again, there was a causal connection between the unconstitutional interrogation and defendant’s incriminating statements.
State v. Boyd, 360 Or 302 (2016) (Landau, J.)
Vouching - Out-of-Court Statements on Credibility Not Categorically Inadmissible if Offered for Relevant, Non-Opinion Purpose
The court rejects defendant’s vouching challenge to statements made by a police officer during a recorded interrogation of defendant , played during defendant’s trial on sex abuse charges, where the officer repeatedly expressed her opinion that defendant was lying and the victim was telling the truth. The court holds: “when a person makes an out-of-court statement about the credibility of a witness or a non-witness complainant, that statement is subject to the categorical prohibition against vouching evidence only if the statement is offered for the truth of the credibility opinion it expresses.” In other words, an out-of-court statement as to credibility is not categorically inadmissible if the statement is offered for a relevant, non-opinion purpose. In this case, the officer’s statements were not offered for the truth of her credibility determinations, but rather had probative value in the context they provided for defendant’s responses.
However, a statement may be excluded because it does not meet the evidentiary requirements of OEC 401 and 403. In this case, the court concludes that defendant’s OEC 403 prejudice argument is unpreserved. Defendant only made a vouching argument, and the court concludes that a vouching argument is insufficient to alert the trial court that defendant also seeks 403 balancing. A party must specifically raise a 403 objection in order to preserve the argument.
State v. Chandler, 360 Or 323 (2016) (Baldwin, J.)
Sentencing - LWOP Sentence Unconstitutional As Applied to Third Conviction for Felony Public Indecency
The court affirms defendant's convictions but concludes that the life without parole sentence imposed for his third felony public indecency offense, under ORS 137.719(1), was unconstitutionally disproportionate. Defendant, an incorrigible masturbator, was convicted of public indecency after he was seen masturbating by a woman and her family in a park, and then later found masturbating by the police looking into the same park. Defendant had three prior convictions for public indecency, two of them felonies.
Before addressing defendant's sentencing arguments, the court rejects defendant's argument that he was entitled to an attempt instruction. The court determines that the attempt instruction is not applicable in this case. Instead of arguing that he had taken a substantial step towards committing public indecency, defendant argued that the state was required to prove that he intended to arose himself by being observed exposing himself in public and the state failed to prove that intent. Because an attempt instruction would not further that theory, the court did not err in failing to give the instruction.
For defendant's sentencing arguments, the court applies the framework it announced in Althouse. That analysis compares the first and third Rodriguez/Buck factors - "severity of the penalty and the gravity of the crime" and "the criminal history of the defendant." The court notes that public indecency is generally a high level misdemeanor or a low level felony, it does not involve physical contact with another person, it is not as serious as a sexual offense involving nonconsensual sexual contact or targeting children, and the penalty involved is the second most serious penalty available under Oregon law. Although defendant had a lengthy criminal history, comprised almost exclusively low level offenses. Although defendant had not been deterred by his prior run ins with the law, that is but one consideration and the other factors indicated that the sentence was disproportionate. The court then applies the second Rodriguez-Buck factor - penalties imposed for other similar crimes - which further indicated that the sentence was disproportionate. The gravity of public indecency is relatively minor compared to other sexual offenses, including those that are not defined as "sex crimes" for purposes of the recidivist sentencing statute.
State v. Davidson, 360 Or 370 (2016) (Brewer, J.)
Sentencing - LWOP Sentence Constitutional for Recidivist Sex Offender
Applying the rule announced in Althouse and Davidson, the court concludes that defendant's life without parole sentence for a third felony sex offense under ORS 137.719(1) was not unconstitutionally disproportionate. Defendant was convicted of first-degree sex abuse for fondling the hips and buttocks of an eight-year-old girl he encountered at a public library. Defendant had been convicted of two similar offenses, and had admitted to many others, including the forcible rape of a 10-year-old, during sex offender treatment.
The court applies the Althouse framework. The court first disagrees with defendant's characterization of the gravity of his offense because first-degree sex abuse is not a minor sex offense. And, like Althouse, defendant had an extensive history of committing sexual offenses against young children. Defendant also had considerable sex offender treatment but continued to reoffend. The court concludes that defendant's criminal history and the circumstances of his current crime indicate that he would pose a significant danger to children in the community. Finally, comparing the penalties for similar offenses, the court notes that other offenses against children carry significant penalties. The sentence was not disproportionate.
State v. Sokell, 360 Or 392 (2016) (Brewer, J.)
