Oregon Appellate Ct - Mar. 18, 2015

Revision as of 09:45, March 24, 2015

Mistrial – Prosecutor May Not Comment on an Unadmitted Video During Closing

The state may not “invite the factfinder to consider” a video that was never admitted as evidence. Here the prosecutor failed to introduce a recorded interview between the complainant and a child interviewer. Because the defense never said anything about the video, there were no grounds for the prosecutor to bring it up in closing. By mentioning the video, the prosecutor invited the jury to openly speculate as to its contents. Without any curative instruction by the judge, this was prejudicial error and defendant’s motion for a mistrial should have been granted.State v. Spieler, 269 Or App 623 (2015).

Mistrial - A Prosecutor Must Intend to Cause a Mistrial For Prosecutorial Misconduct to Bar Retrial

Double jeopardy does not attach merely because an inexperienced prosecutor makes mistakes that cause a mistrial; even if those mistakes are egregious. To bar retrial the prosecutor must intend for her conduct to cause a mistrial. Here, the prosecutor made several missteps that resulted in a mistrial: 1) aggressive pre-trial communication with a defense witness; 2) an “attempt to elicit testimony in violation of the court’s prior rulings”; 3) failing to connect introduced evidence to an alleged sentencing factor; and 4) commenting on the defendant’s right to counsel in closing. Because the COA gives deference to the trial court’s observations that the prosecutor, although inexperienced, did not intentionally cause a mistrial, there was no error in denying the motion to dismiss. State v. Mays, 269 Or App 599 (2015).

Prosecutorial Misconduct - Prosecutor Is Not Allowed to Cause the Loss of a Defense Witness, Regardless of Intent

Where a prosecutor’s conduct has resulted in the loss of a defense witness, there is a violation of the defendant’s right to a fair trial “regardless of the prosecutor’s intent.” Here, the prosecutor unintentionally scared away a defense witness by telling the witness that if he came to court and testified untruthfully, he could be arrested for perjury. Because the defense only alleged that the prosecutor intentionally tried to deprive them of a witness, the trial court “had no occasion” to determine if the defendant’s rights were violated by the prosecutor’s unintentional misconduct. Faced with a claim that was limited to intentional misconduct, the trial court did not err in denying the Defendant’s motion to dismiss. State v. Mays, 269 Or App 599 (2015).

Police Interrogation – Art. I § 12 Permits an Officer to Say That a Quick Confession Will Make Defendant Appear Better in Court

A confession is voluntary even when the interrogating officer tells the defendant that it will look better in court if the defendant confesses quickly. Here, the Defendant was interrogated concerning sexual abuse and sodomy. After reiterating the Miranda warnings, the officer said that it "would look bad on you that you, you know, you’d lie up and down" if the officer had "to tell a judge that, you know, it took a half an hour to’ get defendant to confess.” Because the officer did not impliedly promise (or even suggest) that the confession would preempt or prevent a prosecution, the confession was not involuntary under Art. I § 12 of the Oregon Constitution. State v. Spieler, 269 Or App 623 (2015).

Interrogation – Harmless Error to Admit Polygraph Statements if Other, Similar Inculpatory Statements Given

State v Harberts says that inculpatory statements are inadmissible when they express “only a belief in the truthfulness of a [polygraphers] representation or interpretation of what the polygraph test showed.” Here, the Defendant voluntarily submitted to a polygraph test. After follow-up questioning by the polygrapher, the Defendant admitted to touching her daughter’s vagina. The defendant was then interviewed by a detective to whom she reiterated what she had already told the polygraph examiner. Although the statements to the examiner were likely inadmissible, because the identical statements given to the detective were properly admitted, any error was harmless. State v. Underhill, 269 Or App 647 (2015).

Incapacity to Consent to Sex Can Be Caused By Severe Mental Illness

A rational finder of fact could find that a complainant is incapable of consenting to sex as a result of mental illness and a high level of care. Here, the victim received 24/7 care at a group home with a 2:3 caregiver to resident ratio. Her demeanor during a CARES interview and at trial was nonresponsive and often unintelligible. And, Defendant stated that he did not believe the victim understood what happened between them. In total, the evidence was sufficient for a rational finder of fact to find that the victim could not consent to sexual activity and the court was correct in denying the Defendant’s MJOA. State v. Tilly, 269 Or App 665 (2015).

Automobile Exception Does Not Apply Unless Officers See the Vehicle Moving

For a car to be considered “mobile” under the automobile exception to the warrant requirement, officers must see the car being driven when they first encounter it. Here, the Defendant’s Jeep was parked when the officers encountered it. Even though the Jeep had just arrived in the lot, had its engine running, was occupied by a driver, and would have presumably driven away “had the officers not intervened, the Jeep was not moving when the officers encountered it, but rather, was movable or capable of moving. It follows that the Jeep was not mobile for the purposes of the Oregon automobile exception and, hence, was not subject to a warrantless search under the exception.” State v. Andersen, 269 Or App 705 (2015).

Probable Cause – Dumping a Backpack is a Furtive Gesture

Under the totality of the circumstances, officers have probable cause to stop someone for burglary where the person matches the description, is near where the burglary occurred, and tries to dispose of a backpack that could contain the item allegedly taken. Here, officers had probable cause to stop a youth for burglary where the youth matched the description given by the complainant, was within ten minutes of where the burglary occurred, carried a backpack that would have easily concealed the allegedly stolen Xbox and dumped the backpack behind a fence when he saw the police. Given the totality of the circumstances, the officers had an objectively reasonable basis to believe that the youth had committed a crime. State v. D.C., 269 Or App 869 (2015).

UUV Requires a Mental State of Knowledge, Not Negligence

It is error to instruct a jury that Unauthorized Use of a Vehicle requires a mental state of criminal negligence instead of knowing. Here, the Defendant used a truck that had been temporarily lent to his brother by the complainant. The Defendant, not knowing the limits of that permission, drove the truck to Portland before returning it. The trial court instructed the jury that the state only had to prove that the Defendant was criminally negligent. Because the requisite element is knowing, the trial court was in error. State v. Simonov, 269 Or App 735 (2015).

Miranda – Transportation to Detox is Not A Compelling Circumstance

Secure transport to a detox facility, without more, is not a compelling circumstance requiring Miranda warnings. Here, an officer told Defendant that he was going to take him to a detox facility and asked whether Defendant had anything that he shouldn’t have. The Defendant said that he had drugs on him. Because the Defendant was not suspected of a crime and would only be temporarily under the officers control, the fact that defendant was handcuffed as part of the secure transport process did not create compelling circumstances. Thus, Defendants motion to suppress was properly denied. State v. Stone, 269 Or app 745 (2015).

Best Evidence Rule Does Not Apply to Observations of a Live Video Feed

Testimony about what a person sees on a live video feed (without offering the actual video) is not barred by the best evidence rule. Here, a security guard observed, through a live video feed, the Defendant exchange price tags on merchandise and then purchase the items for the reduced price. Although a recording was made of the feed, because a live feed is instantaneous and similar to viewing something with one’s own senses, a live feed is not like a photograph or a recording for the purposes of the best evidence rule. Furthermore, even though the guard’s observations are made through the video, a witness is not barred “from testifying about his or her simultaneous observations of the sound or image.” Because the guard was not testifying about the contents of a recording, but about what he observed when the events occurred, the testimony was not barred by the best evidence rule. State v. Pierce, 269 Or App 780 (2015).

Confrontation – Video of Witness Interview Admissible Where Witness Also Testifies

Admission of a videotaped interview of a victim is properly admitted under ORS 136.420 when the victim also testifies in court. Here, the defendants were charged with several sex crimes against children. They each moved to exclude a videotaped interview of the child victim. Because the victim testified at trial and was subject to cross-examination there was no violation of defendants’ confrontation rights. State v. Rascon, 269 Or App 844 (2015). State v. McMullin, 269 Or App 859 (2015).

Dependency – Jurisdiction - Spouse Being a Sex-Offender, By Itself, Is Speculative As to Harm to Children

There was insufficient evidence for DHS jurisdiction where the harm posed by a mother’s mental health and her husband’s status as a sex-offender was speculative. Mother admitted to certain mental health issues and had attempted suicide when the child was removed from her care at a prior incident. Mother’s husband was convicted of raping an 18-year-old woman and had not completed his sex offender treatment. Husband's sex offender status was unduly speculative because

• the child did not fit into the husband’s class of victims;
• there was no evidence that the husband had ever harmed the child;
• the husband’s probation officer permitted contact between the husband and his minor nieces and nephews; and
• there was no evidence that the "no contact with minors" provision of husband’s supervision was particularized to the husband.

Dept. of Human Services v. D.H., 269 Or App 863 (2015).

Escape II – Flight From Arrest for a Post-Prison Supervision Sanction Is Not Escape II

Escape II does not apply to flights from new periods of custody that arise “after the person has served his or her sentence of incarceration for a felony and has been released from that custody” on supervised release. Here, the Defendant had served his time on an underlying felony and was released from incarceration in order to serve a period of post-prison supervision. Subsequently, the State Board of Parole and Post-Prison Supervision issued an order for the Defendant’s arrest for failing to comply with his conditions of supervision. Following a car chase, the Defendant was charged with Escape II. Because the sanction was to “punish the conduct constituting the probation violation, not to punish the crimes of conviction,” the Defendant did not escape from custody as a result of a felony conviction as Escape II requires. State v. Patterson, 269 Or App 885 (2015).

Accomplice Liability – Natural and Probable Consequences Is Not the Law

The trial court permitted an aiding and abetting instruction under the theory that the offenses were the natural and probable consequences of the Defendant encouraging his accomplice to commit robbery at knifepoint. Because this ignored whether the Defendant actually intended to aid or abet the crimes of Attempted Murder and Assault II, the instruction was harmful error. State v. Valerio, 269 Or App 770 (2015)

UUV – Honest Claim of Right is Not a Defense

The defense of honest claim of right does not apply to unauthorized use of a vehicle. The defense applies to theft crimes where it is used to negate the element of intending to permanently deprive. Unlike theft, UUV requires only that the Defendant know that the vehicle is another person’s and that they are temporarily depriving the owner of the vehicle. Because the intended result, i.e. permanent vs. temporary deprivation, is different between UUV and theft, the defense of honest claim of right does not extend to UUV. State v. Pusztai, 269 Or App 893 (2015).

Probation – Prohibiting a Probationer From Being in Areas Where Hunting Might Occur is Overbroad

A probation condition that prohibits the Defendant from being anywhere where a person might engage in hunting is overbroad. Here, the Defendant was found guilty of killing a deer without a license. As part of his probation, the trial court prohibited the Defendant from driving, walking, or hiking in an area where a person might engage in hunting. Because this could apply to almost all non-urban areas in the country, the condition was overbroad given that the trial court achieved the same objective by prohibiting the Defendant from obtaining a fire arm and prohibiting the acquisition of a hunting license for five years. State v. Bassett, 269 Or App 701 (2015).

Appellate Procedure - An Error is Not Plain if Consistent With Defense Strategy

Not giving a limiting instruction for prior act evidence—in accordance with State v. Leistiko—is not plain error if the failure might have been consistent with the defense strategy. Here, the Defendant was charged with possessing methamphetamine and did not request a limiting instruction for the evidence of his prior act of possessing methamphetamine. Because the Defendant relied on the prior act evidence in closing argument as affirmative support for his defense, there was a plausible inference that defendant may have strategically chosen not to request a limiting instruction. State v. Schnur, 269 Or App 850 (2015).

Preservation – Must Specify Rulings for Appeal, No Matter How Many Motions Filed

To preserve an argument for an appeal, the appellant must make the argument with sufficient particularity to allow the trial court to rule on the argument and correct any error. Here, the petitioner submitted 140 motions before entering a conditional plea. Because the petitioner’s plea did not specify which rulings within the 140 pretrial motions should have been reserved for appellate review, the arguments were unpreserved. Johnson v. Premo, 269 Or App 686 (2015)