Blog:Case Reviews/Oregon Supreme Court 09-22-11 - Revision history

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''Read the full article for details about the following new cases:''
* Search - Emergency Aid
* Legal Malpractice - PCR - Grounds for Dismissal
* Parole Determinations - Juvenile Aggravated Murderers Sentenced Between 1990 and 1995

===Search - Emergency Aid===

An emergency aid exception to the Article I, Section 9 warrant requirement is justified when officers have an objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to render immediate aid or to assist persons who are imminently threatened with serious physical injury. Here, officers appropriately used the emergency aid exception where a neighbor called 911 and reported hearing yelling and screaming and the use of a code word by the woman in the house, set up with the neighbor, which meant that something was seriously wrong and that the neighbor should immediately call the police. Once police were in the house legally they saw marijuana plants in plain view and seized them.

The appellate court had also found that there was evidence of an emergency when the police arrived but that such evidence dissipated when the police looked through a side window and saw a non-violent argument between two people. However, the Supreme Court refuses to consider dissipation because Defendant didn't make that argument at the trial court. At the trial court, Defendant only argued that the emergency aid exception didn't apply at the point when the officers arrived at the house. Not to put too fine a point on it, but the Oregon Supreme Court just slapped down the Appellate Court for being insufficiently harsh on preservation. Weird. ''[http://www.publications.ojd.state.or.us/S058967.pdf State v. Baker]''

===Legal Malpractice - PCR - Grounds for Dismissal===

The [http://scholar.google.com/scholar_case?q=stevens+v+bispham&hl=en&as_sdt=2,38&case=7145760046085725382&scilh=0 Stevens exoneration rule] doesn't apply to post-conviction relief cases. Stevens says that a criminal defendant has only suffered a legally cognizable harm as a result of his trial lawyer's negligence when he has successfully challenged the conviction through the appeal or PCR process. Here the lawyers being sued for malpractice were hired on a PCR case. Unlike a criminal trial where there are multiple ways to seek post-conviction corrective action, there is no express statutory mechanism in Oregon for obtaining "exoneration" from a denial of PCR caused by legal malpractice. Thus, applying the Stevens rule would create an insurmountable and arbitrary bar to relief.

The Court also makes it clear that a plaintiff in a PCR malpractice case must allege (and prove) that he would have won the PCR case and then would have won the underlying criminal case. It is legally insufficient to merely allege (or prove) that plaintiff lost the opportunity for Post-Conviction Relief. Reversed and remanded for further proceedings. [http://www.publications.ojd.state.or.us/S058839.pdf ''Drollinger v. Mallon'']

===Parole Determinations - Juvenile Aggravated Murderers Sentenced Between 1990 and 1995===

Apparently there was a period between 1990 and 1995 in which Oregon had switched over to a determinate sentencing scheme but the scheme did not apply to juveniles sentenced for aggravated murder. So the parole board promulgated rules that, the supreme court finds in this case, were not legal. Of particular importance is the rule that such folks have to go through an intermediate review process before a parole board release decision. The intermediate review process in the underlying cases put off the potential release decisions for 15 to 20 years. Now the two prisoners at issue will receive a release decision. I think. This is an incredibly complicated case, procedurally and legally. Suffice it to say that if you're challenging a parole board decision for someone who was a juvenile convicted of aggravated murder in the early 90s, you should read this case. And talk to one of the fantastic attorneys involved: Andy Simrin or Kristina Hellman. [http://www.publications.ojd.state.or.us/S058311.pdf ''Engweiler v. Felton'']
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 ''Read the full article for details about the following new cases:''
-* Lay Opinion Testimony - Child Abuse
+* Search - Emergency Aid
-* Victim's Prior Abuse - Shaken Baby
+* Legal Malpractice - PCR - Grounds for Dismissal
-* Appellate Jurisdiction - Due Process - Guilty Plea
+* Parole Determinations - Juvenile Aggravated Murderers Sentenced Between 1990 and 1995
-===Lay Opinion Testimony===
+An emergency aid exception to the Article I, Section 9 warrant requirement is justified when officers have an objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to render immediate aid or to assist persons who are imminently threatened with serious physical injury. Here, officers appropriately used the emergency aid exception where a neighbor called 911 and reported hearing yelling and screaming and the use of a code word by the woman in the house, set up with the neighbor, which meant that something was seriously wrong and that the neighbor should immediately call the police. Once police were in the house legally they saw marijuana plants in plain view and seized them.
-Witnesses may give lay opinions about what they perceived, so long as it is based on personal experience, relevant and helpful to the jury. Here, the mother of a child who suffered a brain injury should have been allowed to testify in this shaken baby case that she saw the victim 3 days before the alleged shaking and she looked like her daughter when her daughter was suffering from dehydration or pressure on the brain. Such opinion evidence is qualitatively different from a simple description of observed symptoms in the same way that lay opinion testimony of intoxication is different from saying someone looked disheveled and glassy eyed. And her opinion that the victim looked like she was suffering from dehydration or pressure on the brain was not speculative. She knew something was wrong that looked like her child's experience. She just couldn't give an expert opinion.
+The appellate court had also found that there was evidence of an emergency when the police arrived but that such evidence dissipated when the police looked through a side window and saw a non-violent argument between two people. However, the Supreme Court refuses to consider dissipation because Defendant didn't make that argument at the trial court. At the trial court, Defendant only argued that the emergency aid exception didn't apply at the point when the officers arrived at the house. Not to put too fine a point on it, but the Oregon Supreme Court just slapped down the Appellate Court for being insufficiently harsh on preservation. Weird. ''[http://www.publications.ojd.state.or.us/S058967.pdf State v. Baker]''
-The fact that the friend told the victim's mom her opinion, however, was irrelevant. Victim's mom's knowledge of the friend's opinion did not make it more or less likely that the victim's injuries were caused on the day of her death, as charged or, alternatively, several days earlier.
+===Legal Malpractice - PCR - Grounds for Dismissal===
-In deciding whether to reverse or affirm, the appellate court must ask whether "there is little likelihood that the error affected the jury's verdict." Here, the excluded testimony would have been important evidence supporting defendant's theory and buttressing defendant's experts. More importantly, by excluding the testimony regarding potential brain injury and the friend's experience with her child but allowing the same testimony regarding dehydration, the evidence misleadingly supported the state's theory that the child was merely dehydrated several days before, not suffering from a brain injury. Reversed.
+The [http://scholar.google.com/scholar_case?q=stevens+v+bispham&hl=en&as_sdt=2,38&case=7145760046085725382&scilh=0 Stevens exoneration rule] doesn't apply to post-conviction relief cases. Stevens says that a criminal defendant has only suffered a legally cognizable harm as a result of his trial lawyer's negligence when he has successfully challenged the conviction through the appeal or PCR process. Here the lawyers being sued for malpractice were hired on a PCR case. Unlike a criminal trial where there are multiple ways to seek post-conviction corrective action, there is no express statutory mechanism in Oregon for obtaining "exoneration" from a denial of PCR caused by legal malpractice. Thus, applying the Stevens rule would create an insurmountable and arbitrary bar to relief.
-[http://www.publications.ojd.state.or.us/S058641.pdf ''State v. Davis'']
-===Victim's Prior Abuse - Shaken Baby===
+The Court also makes it clear that a plaintiff in a PCR malpractice case must allege (and prove) that he would have won the PCR case and then would have won the underlying criminal case. It is legally insufficient to merely allege (or prove) that plaintiff lost the opportunity for Post-Conviction Relief. Reversed and remanded for further proceedings. [http://www.publications.ojd.state.or.us/S058839.pdf ''Drollinger v. Mallon'']
-Experts are allowed to give the basis of their opinions. Here, defense experts testified that they believed the child did not die from injuries caused on the charged date, but from abuse caused days earlier. A crucial basis of that expert opinion was the medical and other evidence that the child suffered from chronic child abuse. Experts are allowed to give the basis of their opinion, even if it would not otherwise be relevant. Just as with the evidence above, the trial court's error was not harmless. The expert opinions were at the heart of defendant's case and the excluded evidence was at the heart of their opinion. Reversed.
+===Parole Determinations - Juvenile Aggravated Murderers Sentenced Between 1990 and 1995===
-''[http://www.publications.ojd.state.or.us/S058641.pdf State v. Davis]''
-===Appellate Jurisdiction - Due Process Claim - Guilty Plea===
+Apparently there was a period between 1990 and 1995 in which Oregon had switched over to a determinate sentencing scheme but the scheme did not apply to juveniles sentenced for aggravated murder. So the parole board promulgated rules that, the supreme court finds in this case, were not legal. Of particular importance is the rule that such folks have to go through an intermediate review process before a parole board release decision. The intermediate review process in the underlying cases put off the potential release decisions for 15 to 20 years. Now the two prisoners at issue will receive a release decision. I think. This is an incredibly complicated case, procedurally and legally. Suffice it to say that if you're challenging a parole board decision for someone who was a juvenile convicted of aggravated murder in the early 90s, you should read this case. And talk to one of the fantastic attorneys involved: Andy Simrin or Kristina Hellman. [http://www.publications.ojd.state.or.us/S058311.pdf ''Engweiler v. Felton'']
+{{wl-publish: 2011-09-01 21:00:00 -0700 | abassos }}
-A guilty/no contest plea is not appealable unless the defendant can show that the sentence "exceeds the maximum allowable by law" or was cruel and unusual. The phrase "exceeds the maximum allowable by law" in the statute allowing post-plea appeals refers to a quantitative, dispositional maximum, not the procedure. Here, the judge essentially punished the defendant for pleading no contest by adding an additional $100.00 fine. Such a fine was well within the allowed range. The fact that the judge may have imposed the fine through an unconstitutional process or for an unconstitutional reason does not create an avenue for appeal where none otherwise exists.
-''[http://www.publications.ojd.state.or.us/S059039.pdf State v. Cloutier]''
-−
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-{{wl-publish: 2011-09-21 21:00:00 -0700 | abassos }}