Oregon Appellate Ct - Aug. 20, 2014

Latest revision as of 12:31, August 25, 2014

THE FOLLOWING SUMMARIES ARE STILL BEING EDITED:

Defendant with Viable Theory of Self-Defense Entitled to Self-Defense Jury Instruction in Resisting Arrest Charge

Defendant charged with resisting arrest is entitled to a self-defense jury instruction where his theory at trial was that he was protecting prior injuries and there was evidence the officer used force that the defendant thought was unnecessary. Here, defendant had two torn rotator cuffs. After handcuffing him for DUII, the officer ignored defendant’s statements about his injuries, pushed him into the patrol car, and directed him around by putting pressure on defendant’s shoulder. Video from the jail that showed defendant asking why the officer wanted to hurt him evidenced defendant’s reasonable, subjective belief that unnecessary force was used. Resisting arrest conviction reversed and remanded; otherwise affirmed. State v. Ramirez, 265 Or App ___ (2014).

Consent to Blood and Urine Samples- Influence of Pain Medication does not Make Consent Involuntary; Probable Cause not Necessary for Request

Merely being under the influence of pain medication is not enough to invalidate consent to give blood and urine samples. Probable cause is not necessary for officer to request these samples. Defendant was hospitalized after drifting over the center line and colliding with another vehicle. After talking with him at scene of accident and in hospital, officer arrested defendant for DUII. Officer notified defendant, who was currently on pain medication, of his rights under implied consent law. Defendant consented to blood and urine samples. No evidence indicated that defendant was materially impaired by the pain medication given to him at the hospital, and consent was voluntary. Reversed and remanded. State v. Moore, 265 Or App ___ (2014).

Tampering with Physical Evidence- ORS 162.295(1) “Official Proceeding” Requirement not met when Defendant Merely Believes a Future Proceeding Might Occur

The possibility that a future proceeding might be triggered does not satisfy the “knowledge” of a proceeding “about to be instituted” language of ORS 162.295(1). Here, defendant told police that the subject of a restraining order had destroyed a lamp in her trailer. An officer visited the trailer while defendant was gone and saw the lamp undamaged. Defendant later destroyed the lamp on her own. Although defendant likely intended to trigger a future contempt proceeding, “a ‘belief’ about a proceeding that ‘might’ occur is not the same as ‘knowledge’ of an actual proceeding that is ‘about to be instituted.’” Reversed. State v. Austin, 265 Or App ___ (2014).

No Exigent Circumstances when Possibility of Imminent Harm is Speculative and No Evidence that Obtaining Warrant Would Have Led to Destruction of Evidence

The state must show that obtaining a warrant would have led to dissipation of evidence of alcohol intoxication to show exigent circumstance. Imminent harm must be more than speculative. Here, officers attempted to stop a DUII suspect who “urged or pushed” his 7 year-old son into his home. Defendant, who had a concealed weapons permit, and his son then turned off the lights and closed the blinds. This was insufficient evidence to conclude that defendant intended to harm his child. Depending on the time it could have taken to get a warrant, the alcohol in defendant’s blood stream might have entirely dissipated or not at all. Without a showing, the destruction of evidence exigent circumstance did not apply. Holding in Machuca limited to warrantless blood draw of lawfully seized person. Reversed and Remanded. State v. Sullivan, 265 Or App ___ (2014).

State Not Held to Plea Agreement When Defendant Absconds

The state is not held to the terms of a plea agreement when defendant absconds and fails to appear at sentencing hearing. Here, defendant pleaded guilty to sex abuse and sodomy. He then believed the state was on course to breach the agreement after it “made no commitments for a recommendation” in a presentence investigation report. Defendant fled, was arrested 9 years later and returned to the state. He then received a prison sentence much longer than the plea agreement. State was not required to recommend the sentence it agreed 9 years before because defendant breached the plea agreement by absconding. Second assignment of error dismissed; otherwise affirmed. State v. Clements, 265 Or App ___ (2014).

"Same Criminal Episode" in ORS 131.505 Defined Broadly

For the purposes of ORS 131.505, “same criminal episode” is defined broadly to encompass multiple crimes separated by a gap in time that are committed in service of an ultimate criminal goal. Under ORS 131.505(4), “same criminal episode” means “continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.” Here, the defendant challenged his aggravated murder convictions, arguing that the separate killings of two different individuals necessarily connote multiple criminal objectives, and that the 12-hour gap between the killings demonstrated that his conduct was not continuous and uninterrupted for the purposes of ORS 131.505. The court held that defendant’s conduct was continuous and uninterrupted because he formulated the plan to kill both victims in advance of killing either one, and that he killed them for the ultimate criminal objective of usurping their drug dealing business. Affirmed. State v. Tooley, 265 Or App ___ (2014).

A Statement Made by a Third Party is Hearsay if Its Content Can Be Used as Circumstantial Evidence of the Charge.

A statement made by a third party is hearsay if the content of that statement can be used as circumstantial evidence of the alleged crime. OEC 801(3) defines hearsay as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Here, the defendant appeals from a conviction for attempting to promote prostitution, claiming that the admission of text messages from a woman to the defendant violated OEC 801(3) and the defendant’s right to confrontation under Article I, section 11 of the Oregon Constitution. The court held that the admissions of the text message were hearsay and inadmissible under OEC 801(3), because the text messages were out-of-court statements and their relevance depended on the truth of the content of the messages. Reversed and remanded for a new trial. State v. Causey, 265 Or App ___ (2014).

An Escape Attempt During an Assault is Not per se Evidence of a Sufficient Pause so as to Renounce Criminal Attempt, as Required by the Anti-Merger Statute.

An escape attempt during an assault does not automatically demonstrate that the defendant had sufficient pause so as to renounce criminal intent, as required by the anti-merger statute, ORS 161.067. ORS 161.067 requires that, in order to be separately punishable, each violation “must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce criminal intent.” Here, the defendant was charged and convicted of two counts of second-degree assault after shooting the victim in the head, then in her hand, and then, after she attempted to escape, in her leg. The court held that the two counts of assault should be merged into a single conviction, because the record did not contain sufficient evidence for a reasonable fact-finder to determine that one assault ended before another had begun. Convictions on Counts 1 and 2 reversed and remanded with instructions to enter a judgment of conviction for one count of assault in the second degree and for resentencing; otherwise affirmed. State v. Cambell, 265 Or App ___ (2014).

Questioning a Defendant who has Indicated that he is not in Need of Police Assistance does not Constitute a Seizure.

Questioning a defendant who has indicated that he is not in need of police assistance, without more, does not constitute a seizure under the Oregon Constitution. A seizure occurs when the officer engages in actions or behaviors that “reasonably convey to a person a significant restriction on the person’s freedom to terminate the encounter or otherwise go about his or her ordinary affairs.” Here, after the defendant indicated that he was not in need of police assistance, the police officers questioned the defendant about whether he was on parole, why he was nervous, and whether he possessed weapons, and they asked him to consent to a pat-down search (and conducted that search). The court held that none of the trooper’s actions constituted a show of authority so as to effectuate a seizure. Affirmed. State v. Wabinga, 265 Or App ___ (2014).

When an Inadvertent Intrusion on Defendant’s Right to Counsel Occurs, Defendant Must Show he was Prejudiced by the Violation to Obtain a Dismissal.

When an inadvertent intrusion of defendant’s right to counsel occurs, the defendant bears the burden of showing he was prejudiced by the violation in order to obtain a dismissal. Typically, in order to require a remedy, a defendant must offer some evidence that the violation of a constitutional right has resulted in some harm or prejudice. Here, five or six envelopes with the inscription “Legal Mail” were opened and resealed by jail staff, and one letter from the defendant to his attorney was inadvertently read by a detective. The court held that these facts did not justify a presumption of prejudice, and, moreover, that prejudice was not demonstrated when the intrusion into the defendant’s mail was immediately disclosed to the defense, steps were taken to isolate the prosecutor from any information, and the detective did not change his investigation or act on the information in the letter. Affirmed. State v. Russum, 265 Or App ___ (2014).