Oregon Appellate Ct - July 8, 2015

Revision as of 16:42, July 10, 2015

Resisting Arrest - The Officer’s Subjective Belief About Use of Force Is Not at Issue In a Self-Defense Case

Where a defendant charged with resisting arrest claims he acted in self-defense against the officer’s unlawful use of force, the court may not instruct the jury to consider whether “the officer reasonably believe[d] physical force [was] necessary to make an arrest.” Here, the defendant was charged with resisting arrest after he fought back against an officer who had placed him in a headlock without warning. Because the defendant was not told he was being placed under arrest, a jury could have found that he believed the officer’s use of force to be unlawful. Further, since the self-defense claim rests upon the defendant’s subjective belief about the lawfulness of the force employed against him, the court erred when it instructed the jury to consider the officer’s subjective belief as to the necessity of the use of that force. Conviction for resisting arrest reversed and remanded; otherwise affirmed. State v. McNally, 272 Or App 201 (2015)

Search and Seizure - It Is Not a Search for Police to Use a Peer to Peer Network to Find Child Porn

It was not a search where police used "a computer program that constantly searches peer-to-peer computer networks for suspected child pornography, logs any computers that respond, and logs and geolocates the IP [Internet Protocol] addresses of those computers and *** other software to isolate defendant’s IP address and down- load child pornography from his computer.” See State v Combest. Also, evidence that a person downloaded child pornography is sufficient to satisfy an MJOA on the element of "duplicating". See State v Pugh. State v Holland, 272 Or App 211 (2015)

Dependency – DHS Must Be a Party to Have Standing to Challenge a Guardianship Judgment

Pursuant to ORS 419B.875, DHS must have “temporary custody of the child” to have standing to file a motion to set aside a guardianship judgment. The court holds that “the state itself has no entitlement to due process or standing to challenge the application of a state statute to it on constitutional grounds.” Therefore, DHS has no right to seek relief from the judgment as a non-party. Here, without filing a new dependency petition, DHS removed a child from its legal guardian after wardship had already been terminated, when the child was under the juvenile court’s jurisdiction, and when the court had ordered that the child shall not be “placed with any other person without the express approval of the Court.” DHS then filed a motion under ORS 419B.923 to set aside the guardianship judgment without first filing a new dependency petition. The court holds that DHS lacked standing to do so because it was not a party. Permanency judgment vacated. Dept. of Human Services v. B. M. C., 272 Or App 255 (2015).

Parole-Exit Interview – A Prisoner Does Not Have a Right to Call Witnesses or Cross-Examine the Board's Witnesses

The defendant challenged the Board of Parole's Rule that a prisoner “may not call witnesses or cross-examine anyone who provided information to the Board.” The defendant argued that this violated due process by depriving him of a meaningful opportunity to be heard. The Court of Appeals, citing several United States Supreme Court cases, holds that “the procedures to which prisoners are constitutionally entitled for a parole-exit interview do not include the ability to call witnesses or cross-examine people who have provided information to the board.” Affirmed. Rivas v. Board of Parole 272 Or App 248 (2015).

Parole Hearing – Murder Review Hearing - The Board's Decision About Whether a Prisoner Has a PSED Must Be Supported by an Evaluation; It Need Not Follow the Evaluator's Diagnostic Conclusion

For purposes of a parole board determination at a murder review hearing (for an old sentence for murder of life in prison with the possibility of parole after 20 years), whether a person has a “present severe emotional disturbance” (PSED) is a board decision. The board may reject the expert’s conclusion that a person does not have a PSED if there is substantial evidence to support the board's conclusion. Here, the psychologist found that the prisoner did not have a PSED, but the report contained substantial evidence that the prisoner had an emotional disorder that was present, severe and dangerous. Thus, the board's decision was supported by substantial evidence. Affirmed. Edwards v. Board of Parole 272 Or App 183

Appellate Procedure - Right For the Wrong Reason Doesn't Apply Where the Record Would Have Developed Differently Had the Right Reason Been Raised

The "right for the wrong reason" doctrine of appellate affirmance does not apply where the record could have developed differently had the right argument been raised. Here, the state argued at trial that reasonable suspicion supported what the state conceded on appeal was an unlawfully extended stop. On appeal, the state argued that defendant's consent to search was attenuated from the unlawful stop. However, had the state raised attenuation at trial the record could have developed differently. Reversed and remanded. State v. Booth 272 Or App 192 (2015)

Appellate Procedure - Harmless Error - PCR Court's Denial Of Petitioner's Request to Call Live Witnesses

The trial court's denial of defendant's request to call live witnesses was harmless. Even if the witnesses were completely believed (which it appears they were, by affidavit), the witnesses did not affect the determination of the merits of the case. Petitioner neither alleges that the witnesses would have provided additional testimony nor that the added credibility of live testimony could have made a difference. Thus, the denial was harmless and under Oregon law, the appellate court "may not reverse a judgment if the error was harmless". See Tracy v Nooth. Sanchez v State of Oregon, 272 Or App 226 (2015).