How'd we do?
by: Ryan • February 2, 2013 • no comments
Each year, I'm putting up a post that -- modeled on William Safire's traditional end of year column -- anticipates possible changes in the case law in the year ahead. How'd we do last year?
The first question of 2012 was:
(1) The Oregon Supreme Court has under advisement State v. Lawson, potentially the most significant Eyewitness ID case in Oregon since State v. Classen. The court will:
- (A) Make mild improvements to the Classen analysis to reflect our greater understanding of eyewitness ID reliability.
- (B) Undermine Classen.
- (C) Doesn't matter. SCOTUS will eliminate any due process protections from unreliable eyewitness IDs.
Right out of the gate, we did pretty well. (A) is the closest to correct, although it certainly understates the significance of the Lawson/James opinion. Next!
(2) Under both statute and case law (St v. Wedge), the "gun minimum", aka the firearm enhancement, is an element of the crime it's attached to. This arguably means that, if the gun minimum is attached to a Felon in Possession, then the crime of Unlawful Use of a Weapon is a lesser-included offense. Consequently, the Court of Appeals will conclude that in such a situation, the two crimes of UUW and Felon in Possession (gun minimum) will merge into just a conviction for Felon in Possession.
- (A) True
- (B) False
The short answer is Pending, since the COA hasn't ruled on this issue yet. However, it has oral argument on this issue in two weeks. So I imagine we'll know by the end of 2013.
(3) The Court of Appeals will also find that the following pair of crimes merge. Pick all that apply.
- (A) MCS and PCS (relying on State v. Blake)
- (B) MCS and PCS, but only when MCS also has the enhancement fact of "possession of substantial quantities."
- (C) MCS and DCS, since both address "one unified legislative objective ."
- (D) ECSA and ECSA , even if different children are depicted.
The only one the appellate courts have addressed in the past year is (D), and it was not favorable to the defense. However, there's a big unanswered question involving the merger -- or lack thereof -- of two or more counts of ECSA. The argument is based on the following 3 propositions: (1) for some crimes, there can either be a specific victim or the victim can be the state at large (e.g., recklessly endangering, which the COA has said could be a real person threatened by the defendant's actions, or the public generally, in a case of. say, very bad driving); (2) some children depicted in ECSA photos were no longer alive when the pictures were viewed by your client. Gruesome, but fact of life. The same porn people are looking at now, they'll be looking at 100 years from now. Anyone who died before the crime was convicted can't be a victim, because it is beyond the power of any defendant to hurt a dead person. (3) The burden is on the prosecution to prove actual living victims. Put those three things together, and you can get merger of multiple counts of ECSA if the state fails to meet its burden.
As for the drug counts, getting the appellate courts to revisit the merger issues will require us to preserve the issues. Go to the Ryan page at the link above to find blog posts on all the merger issues mentioned above. If anyone has preserved those merger issues, let me know.
(4) The Oregon Supreme Court will grant review in order to address the following issues.
- (A) Whether multiple counts of hit and run merge.
- (B) When multiple counts of ID Theft merge.
- (C) When multiple counts of Felon in Possession merge.
No, no, and no. Denial of the first two was disappointing. Denial of the third was good, because that means the great St v Torres opinon stands. We still have lots of work to do. ID Theft -- with its imaginary victims -- still has the same merger issue as ECSA, described just above.
(5) State v. Mallory seemed to hold that a finding of separate criminal episodes was, sometimes, a Blakely fact, but it has never been reaffirmed. In 2012, the COA will finally reaffirm it.
- (A) True
- (B) False
It's been years and years, and still no appellate cases affirming or disavowing Mallory. And we know there are defendants who would benefit from the issue being raised and preserved.
(6) Which of the following dramatic developments will occur in 2012? Pick all that apply.
- (A) The COA will apply the Moreno defense to ID Thefts.
- (B) The OSC will finally address whether offense-specific enhancement facts are elements under the Oregon Constitution.
- (C) Trial courts will start accepting special jury instructions that limit the application of felony murder to co-defendants in certain situations, in light of the discussion in Lopez-Minjarez.
Well, (A) happened, but indirectly. Applying the Moreno defense was implicit in the holding, but it will probably never win as a motion for judgment of acquittal. It needs a special jury instruction.
As for (B), a small subset of this question is going to be answered this year: whether offense-specific aspects of Dangerous Offender must be pled. The case is St v Reinke, and it was argued in May, 2012. Expect it soon. Will it win? If it does win, will it encompass all offense-specific enhancement facts? Who knows?
And as for (C), I haven't heard. At least one felony murder case will be going to trial this year, where the language from Lopez-Minjarez will play a big role in crafting multiple jury instructions. You could say there's nothing new in Lopez-Minjares on the topic of felony murder, but I don't know that that's quite true. Regardless, a special jury instruction is called for, raising defenses to felony murder that might not otherwise exist.
All in all, I'd say we did pretty well. Still a lot of unanswered questions. Maybe we'll have better luck in 2013 in getting answers one way or the other. Come back later for the 2013 Criminal Law Quiz.
