Oregon Appellate Ct - April 8, 2015

Revision as of 11:02, April 10, 2015

Coercion – A Person Has a Legal Right to Abstain From Returning Property They Have a Right to Use

For the purposes of coercion, a person has a legal right to abstain from returning property that they have a right to use. Here, the Defendant argued on MJOA that the complainant had no right to abstain from giving the Defendant back his car keys. Because the complainant had: 1) been given permission from Defendant’s father, the owner of the car, to use the car; 2) it was the customary practice for the complainant to use the Defendant’s car keys; and 3) the Defendant testified that the complainant didn’t need his permission to drive the car, there was sufficient evidence for a reasonable person to believe that complainant had a legal right to use the keys. Thus, the Defendant’s MJOA was correctly denied. State v. Luxford, 270 Or App 275 (2015).

Vouching – Social Worker in Sex Abuse Case Can’t Testify That There Were No Indications of Suggestion or Coaching

It is impermissible vouching for a “social worker to testify that she did not see any indications that the child complainants were subjected to suggestion or coaching.” Here, the Defendant was on trial for sexual abuse of two children. During the direct of a social worker who had worked with the two children, the prosecutor asked: “[a]nd did you find—you’ve testified—told us some time ago about the kinds of indications you saw [sic] suggestion or coaching. And did you see any of those indications in either of these two?” The social worker replied, “[a]bsolutely not.” Because the social worker did not testify about the children’s demeanor in a way “that would have allowed the jury to draw the ultimate credibility determination,” the social worker’s statements were direct, impermissible vouching. State v. Pergande, 270 Or App 280 (2015).

Character Evidence – Prosecutor Can’t Comment on Defense Failure to Present Evidence That Is Barred By the Evidence Code

“When a defendant is prohibited from presenting an item of evidence as a matter of law, the prosecutor cannot comment on the defendant’s failure to present that evidence to bolster the state’s case.” Here, the Defendant presented three defense witnesses that testified to their opinion about the complainant’s character for truthfulness. During the state’s closing the prosecutor stated “defendant had not given ‘one single good example of what exactly’ a reputation for being a liar meant.” The defense was barred from introducing specific instances under OEC 405(1) and 608, by suggesting otherwise, the prosecutor “invited the jury to speculate that, had the defense witnesses actually known of examples when the complainant had lied, they would have said so at trial. . . .” Given the “central role of the complainant’s credibility in [the] case,” prejudice was great, reversed and remanded. State v. Logston, 270 Or App 296 (2015).

Inevitable Discovery – State Must Identify Lawful Means

To prevail on the inevitable discovery doctrine, the state must prove that despite the police misconduct, the evidence would have been obtained through lawful means. Here, officers exploited an unlawful extension of a stop to obtain consent to search. The state argued inevitable discovery but did not identify the lawful means through which the evidence would have been discovered. Thus, inevitable discovery does not apply. State v. Quigley, 270 Or App 319 (2015).

Former Speedy Trial Statute – Seven Month Failure to Provide Discovery is Unreasonable

Under former ORS 135.747, unjustified delay of 7 months out of a total delay of twenty months is unreasonable for a DUII case:

Defendant concedes that the first 30-day setover was attributable to him to prepare for trial and obtain discovery. However, the record does not reflect any response from the state over the next seven occasions when defendant requested discovery; the state nowhere communicated that records did not exist or had been destroyed, were not within the state’s control, or would not be used at trial. The state also failed to communicate that some of the requested discovery was not within the state’s control at the July 11, 2011, and August 8, 2011, hearings at which the court and defense counsel debated whether a motion to compel or a subpoena was the proper method of obtaining discovery. Instead, the September 12, 2011, hearing was the first time that the state communicated that certain records did not exist, had been destroyed, or were not within its control. Thus, the state’s failure to communicate with defendant about discovery resulted in a seven-month delay which is attributable to the state

In light of the lack of explanation provided by the DA following eight total discovery requests by the Defendant, the seven month delay was unreasonable. Case reversed and remanded for judgment of dismissal. State v. Driver, 270 Or App 287 (2015).

Dependency – Court Has No Obligation to Sua Sponte Terminate a Guardian Ad Litem

Under ORS 419B.237(2) (addressing review of a guardian ad litem) the juvenile court has no obligation to, sua sponte, terminate a guardian ad litem appointment. Here, the mother was institutionalized and appointed a guardian ad litem. After the mother was released from the hospital her parental rights were terminated following trial. The mother objected, arguing that the juvenile court’s continuation of the guardian ad litem created an unfair termination proceeding. Because ORS 419B.237(2) places no obligation on the court to sua sponte terminate a guardian ad litem appointment, but places the burden to raise the issue on the parties, the juvenile court was not in error to continue the appointment when no objection was made. For the same reasons, the proceeding was not unfair Dept. of Human Services v. M.U.L., 270 Or App 343 (2015).

Dependency – General No-Contact Order is Overbroad If Less Restrictive Order Would Suffice

A no contact order that forbids all contact between parents is overbroad where a less restrictive order would suffice. Here, an adult woman and her father were the parents for the children at issue and jurisdiction was based on parents' incestuous relationship with each other. Because an order preventing sexual contact between the daughter and father would have been sufficient to avoid the harm that led to DHS jurisdiction, a general no-contact order was overbroad. Dept. Of Human Services v. C.L.M., 270 Or App 308 (2015).

Preservation - Dependency - Strategic Silence Doesn’t Preserve an Objection to the Sufficiency of the Evidence

Silence during a jurisdictional hearing, even if it is made for a strategic choice, does not preserve error for appellate review. Here, both parents at a jurisdictional hearing failed to object to the sufficiency of the evidence or cross-examine DHS’s sole witness. If the parents had argued their objections to the sufficiency of the evidence at the hearing, the juvenile court would have had the opportunity to consider its ruling based on the parents’ argument. Dept. Of Human Services v. C.L.M., 270 Or App 308 (2015).

Merger - Preservation - Counts that Merge if There Is a Common Victim Do not Fail to Merge Just Because the State Names Additional Different Victims for Each Count

Where counts from the same episode merge and there is a common victim, the counts aren't stopped from merging merely because the state has listed different complainants for each of the counts on the indictment. Here, defense counsel argued on appeal that two counts of first-degree arson should merge with attempted aggravated murder stemming from the same incident. The COA declines to review for plain error because on the face of the record, each count addressed a separate victim, and thus could not “merge on a plain-error argument.” State v. Jones, 270 Or App 254 (2015).

Preservation – Waiver of Jury Trial - Must Ask Judge for Reasoning to Preserve Issue for Appeal

When the trial court rejects a defendant’s request for a waiver of jury trial, defense counsel must ask for the trial court's reasoning to preserve the issue for abuse of discretion review. Here, the trial court denied the Defendant’s jury waiver. Defense counsel did not request an explanation. On appeal the Defendant argued that the trial court abused its discretion in failing to provide an explanation. Because the trial court could have easily “made a record of its reasoning and avoided the purported error,” by failing to request an explanation, the Defendant failed to preserve the argument for appeal. State v. Jones, 270 Or App 254 (2015).

Harmless Error - Search & Seizure -Unlawfully Admitted Evidence is Harmless When Cumulative of other Admissible Evidence.

Erroneously admitted evidence that is “merely cumulative of, and not qualitatively different” than other admitted evidence at trial is generally harmless. Here, the defendant—charged with promoting prostitution—argued that the police unlawfully searched his car. The police discovered condoms, hotel room keys, gift cards, and women’s clothing in the car. Because the state offered other admissible evidence that similarly corroborated the state’s theory, the court held that the admission of the evidence found in the car was merely cumulative of the state’s separate evidence. Accordingly, its admission was harmless. http://web.archive.org/web/20150409023629/http://www.publications.ojd.state.or.us/docs/A152660.pdf State v. Stewart], 270 Or App 333 (2015).