Oregon Appellate Ct - July 1, 2015

Revision as of 10:21, July 6, 2015

Probable Cause – A Party’s “Host” Is Not Especially Likely to Have Furnished Alcohol to Minors Found in Possession

Officers lacked objectively reasonable probable cause to believe the crime of furnishing alcohol to minors was occurring inside a house when they encountered minors drinking alcohol on a lawn. Although the minors identified the defendant as the “host” of the party, they responded with “ambivalence” when asked who provided the alcohol. Under Barraza, it is not objectively reasonable to assume a nearby adult furnished alcohol to a minor when it is equally likely that the minor obtained the alcohol elsewhere. Thus, regardless of any exigent circumstances, officers lacked the probable cause necessary to conduct a warrantless search of the home, and the trial court erred in failing to suppress evidence obtained from the unlawful search. Reversed and remanded. State v. McHenry, 272 Or App 148 (2015).

Court Appointed Attorney Fees – Recent Employment ≠ Ability to Pay

Defendant’s statement that he broke his hand “at work” was not evidence of his ability to pay court appointed attorney fees. While it indicated that the defendant was recently employed, the statement provided no information about his present employment, future prospects, or ability to pay fees upon release from prison. It is the state’s burden to present evidence of a defendant’s ability to pay attorney fees, and a plain error when the record is silent, as it was here. The court uses its discretion to reverse this error, which it considers grave in light of Hunt and Baco. Portion of judgment requiring defendant to pay attorney fees reversed and remanded; otherwise affirmed. State v Nickerson 272 Or App 155 (2015).

Merger - It Is Not Obvious That Unlawful Use of a Weapon-Firearm and Felon in Possession of a Firearm Merge

As it was charged in this case, Unlawful Use of a Weapon-firearm (UUW-firearm) contains an element that Felon in Possession of a Firearm (FIP-firearm) does not: the defendant's intent to use the weapon against another person. FIP-firearm also contains a non-overlapping element: that the defendant was previously convicted of a felony. Thus, it is not obvious beyond reasonable dispute that the verdicts should merge. Accordingly, the trial court did not commit a plain error by failing to merge the guilty verdicts into a single conviction. Affirmed (though the court reverses the order for court appointed attorney fees because the record was silent as to his ability to pay). State v. Dentel 272 Or App 130

Parole - An Inmate Is Not Entitled to a Psych Eval for a Murder Review Hearing

The federal Due Process Clause does not require the Parole Board to grant an inmate’s request for a psychological evaluation in a “murder review hearing”. A murder review hearing is an opportunity for an individual who was convicted of murder and sentenced to life imprisonment “to be served without the possibility of parole for 20 years,” to prove by a preponderance of evidence that he or she is likely to be rehabilitated within a reasonable period of time. Here, the requirements of the Due Process Clause were satisfied by the procedures used: the petitioner received notice of his 2010 murder review hearing, prehearing access to his records, the right to present evidence in his favor and to make a statement to the board, and a complete explanation of why the board declined to declare him eligible for parole. Though a psychological evaluation might have proved useful, what matters is “the process that petitioner received in conjunction with his murder review hearing, not what additional procedures might have benefited either him or the board in making its determination.” Affirmed. Maney v. Board of Parole 272 Or. App. 116