Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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Oregon Appellate Ct - June 11, 2014
by: Abassos, Samantha Robell, Courtney Lynch, Lisa Fitzgerald, Katie Watson and Evan Ottaviani • June 11, 2014 • no comments
- Surcharges Are Only Allowed If They're Authorized By Statute
- Carrying a Concealed Weapon - Catchall Provision Only Includes Items Designed and Intended Primarily as Weapons
- Dependency - A Parent May Not Use a Foster Placement to Argue That The Children Do Not Present a Current Risk of Harm
- Actual Bias is Required to Invalidate a Search Warrant Based on a Judge's Personal Conflict
- Hearsay Impeachment - If an Exculpatory Statement is Elicited by the Defendant at Any Point in the Trial, Even if Already Elicited by the State, the Defendant is Subject to Impeachment
- Criminal Mistreatment Appropriate for Leaving Children With Abusive Boyfriend
Oregon Appellate Ct - June 4, 2014
by: Abassos and Tim OConnor • June 4, 2014 • no comments
- Racketeering - Identities of Unnamed Members of an Enterprise Not Required
- Dependency - Jurisdiction May Not Be Based on the Contested Admissions of the Other Parent
- A private search becomes a state action when an involved officer understands what is being proposed, knows he couldn't do it himself and offers support, encouragement or the modification of official procedure
Oregon Supreme Ct - May 30, 2014
by: Abassos and Lisa Fitzgerald • May 30, 2014 • no comments
- An Objection to the Appellate Remedy on Remand Must Be Made to the Appellate Court
- School Safety Exception Permits a Warrantless Search of Backpack in Official’s Possession
- OEC 503(4)(c) Exception is Limited to Information Necessary for a Lawyer’s Defense During Post-Conviction Proceedings
Oregon Appellate Ct - May 29, 2014
by: Abassos, Courtney Lynch, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • May 29, 2014 • no comments
- Dependency - Court Does Not Need to Reference Specific Evidence in Reunification Hearings
- Prior Bad Acts - Intent - Prior Stabbing Against Same Victim 9 Months Prior Is Admissible in Murder by Stabbing Trial
- Net Delay of 12 Months is Reasonable When 6 Months is Attributable to Lack of Judicial Resources
- Harmless Error - Improper Exclusion of Defense Statement
- Particularity Requirement of OEC 803(18a)(b) is Met Where Defendant Can Discern the Substance of the Statement
- Under former ORS 135.747 a delay of 643 days was an unreasonable delay.
- Defendant’s Knowledge of a Warrant is One Factor in Determining a Seizure
- Defendant’s Drug History, Drug-Using Friends, and Trip to the Coast Do Not Reasonable Suspicion Make
- Prior Illegal Search Does Not Invalidate a Warrant if There's Independent PC
- Concurrence Instruction Only Required For Multiple Occurrences of the Same Crime When an Essential Factual Element Differs
Oregon Appellate Court - May 21, 2014
by: Abassos and Samantha Robell • May 22, 2014 • no comments
- Consent Given in Response to a Stop Extension Does Not Create Attenuation
- Preservation – Right to Counsel
- Walking Stops May Not Be Extended; Just Like Vehicle Stops
- Attorney Contribution Orders Are Judgments that Start the 30 Day Appellate Clock
- No Show of Authority when Defendant Consented to a Records Check
- Facts to Support Separate Criminal Episodes May Not Be Found By a Judge to Reconstitute Criminal History
Oregon Appellate Court - May 14, 2014
by: Abassos, Alarson, Cmaloney and Samantha Robell • May 14, 2014 • no comments
- FTA on a Criminal Citation - Proof of the Type of Citation is Required, Not Proof That the Citation Was Done Correctly
- FTA on a Criminal Citation - Mistaken Belief as to the Necessity of Appearance is Relevant
- An Officer Must Have an Objectively Reasonable Belief that an Item is Lost before Reviewing Its Contents
- Dependency - ORS 419B.325(2) Does Not Apply to a Jurisdictional Determination
- Article 1, Sec. 11 – Testimony During Case in Chief Must Be Sworn
Oregon Appellate Court - May 7, 2014
by: Abassos • May 7, 2014 • no comments
- A Jail Booking Policy is Invalid If It Authorizes the Opening of All Closed Containers
- A Parole Revocation Appeal is Moot Upon Release
- Preservation - Dependency
Oregon Appellate Court - April 30, 2014
by: Abassos and Samantha Robell • May 1, 2014 • no comments
- Testimony is Presumptively Tainted by the Admission of an Unconstitutional Confession
- A Confession is Involuntary if Induced by Calculated Fear
- An Inventory Policy Must Restrict the Scope
- It is Vouching Where the DA Asks the Defendant Whether the Cops are Lying
- Forfeiture Cannot Be a Condition of Probation
- Hearsay - Prior Consistent Statements Must Be Made Prior to the Alleged Fabrication of Statements
Oregon Supreme Ct - April 24, 2014
by: Abassos • April 24, 2014 • no comments
- Dependency - DHS Has the Authority to Immunize Children Who are Wards of the Court
Oregon Appellate Ct - April 23, 2014
by: Abassos • April 23, 2014 • no comments
- Stop - Reasonable Suspicion - Unreasonable Inferences
- "I Wish You Were Dead" Is Not a Qualifying Contact for a Stalking Order
- Forcible Compulsion - Attempted Sex Abuse - Very Aggressively Grabbing Victim's Arm is Enough
- Coercion - A National Guard Recruiter is a "Public Servant"
- Miranda - An Invocation of Counsel Followed by Illegal Interrogation, a Long Break and a New Interrogation Initiated by Defendant
- Traffic Stop - Extension by Asking About Weapons - Dissipation of Reasonable Suspicion Regarding Officer Safety
- "Reversed and Remanded" For Denial of a Basic Trial Right Means Reversed for a New Trial
- Dependency - Denial of Attorney's Withdrawal Motion Left Parent Without Representation
- Pre-Indictment Delay' of 58 Months For No Good Reason Plus the Unavailability of an Impeachment Witness Is a Due Process Violation
Oregon Supreme Ct - April 17, 2014
by: Abassos • April 17, 2014 • no comments
The court rejects a series of (mostly) unpreserved arguments in this death penalty case:
1. It is neither obvious nor beyond dispute that
- a. For felony murder, the felony must precede the murder. In fact, State v Rose, 311 Or 274 (1991), indicates otherwise.
- b. For felony murder, the intent to commit a felony must precede the murder. There is a split of authority nationwide on the issue and the Oregon Supreme Court has never had the opportunity to take up the issue. The court does point to an argument worth making though: "It may be, as Professor La Fave suggests, that 'it would seem that the homicide, done without thought of a felony, could not be in the commission of a felony'".
- c. For felony murder, the deaths must be a foreseeable result of the felony. The court points out that this concept is one that addresses unintended deaths related to a felony. Where, as here, the murders were alleged to be personal and intentional, the concept wouldn't apply. In any case, the Oregon courts have not adopted such a concept as yet. See Ryan’s post here for more on this potential argument.
Oregon Appellate Ct. - April 16, 2014
by: Abassos • April 16, 2014 • no comments
- Testing of a Dog During an Animal Neglect Investigation is an Article I, Sec 9 Search
- A Search Incident to Arrest for Failure to Display a License is Limited to Weapons
- It's Hard Out Here for a Pro Se Defendant
Oregon Appellate Ct - April 9, 2014
by: Abassos • April 11, 2014 • no comments
- A court is almost never required to impose sentences consecutively.
- Officer Safety Frisk - Agitation and Odd Behavior Does Not Amount to Reasonable Suspicion of the Threat of Serious Physical Injury
- Criminal Mistreatment II - Very Dark Bruising, By Itself, Does Not Establish That Medical Care Was Necessary
Oregon Appellate Ct - April 2, 2014
by: Abassos, Alarson, Cmaloney and Alex Collins • April 4, 2014 • no comments
- Incriminating Statements – Article I, Sec. 11 Rt to Counsel Extends to Factually Related Criminal Episodes
- Burglary II – A Structure Can Be Adapted for Carrying on Business Even if the Purpose is Storage
- Preservation – OEC 404 Issue Not Preserved By OEC 403 Argument
- Exclusionary Rule Doesn't Apply to Evidence Discovered for Reasons Unrelated to Illegality
- Prior Bad Acts to Prove Identity Require a Signature Element Only Attributable to the Accused
- Identity Theft – Identity Theft – Signing and Submitting a False Name at Booking is Conversion and Uttering
- Permanency - Cause of Child's Injury Relevant
- Destruction of Records - 1987 Dangerous Offender Appeal
Oregon Appellate Ct - Mar. 26, 2014
by: Abassos and Megha Desai • March 27, 2014 • no comments
- DMV Suspension Hearing - Setover - Jury Duty is Not an Official Duty Conflict
- Merger – Sufficient Pause – Assault III (aided by another) and Misdemeanor Assault IV
- ECSA - Nudity Alone May Be a Lewd Exhibition
- Disproportionality - Remand for Re-Sentencing to Consider Buck/Rodriguez
- Severance of Joined Charges - Substantial Prejudice - "Sufficiently Simple and Distinct"
- Warrantless Seizure - Exigent Circumstances - Imminent Destruction of Computer Evidence
- ECSA - MJOA - Intent to Duplicate or Display by Sharing
- Resisting Arrest - Self-Defense Jury Instructions Must Refer to Defendant's State of Mind, Not the Officer's
- Motion to Dismiss on Double Jeopardy Grounds must be made Prior to Trial
- The Denial of a Day-of-Trial Continuance Request is Unlikely to be an Abuse of Discretion
- Denial of a Motion for Continuance - Harmless Error - Defense Forced to Trial Without Completing Forensic Testing
- Interfering With a Peace Officer - A Lawful Order is One that is Legally Justified, Not One Made While the Officer is Lawfully Present
- The Exclusionary Rule Does Not Apply to Crimes That Are Threatening to Police During an Illegal Stop or Entry
- Dependency - Jurisdiction - Lack of a Custody Order - DHS Must Prove A Risk of Serious Loss or Injury
- Parole - Agg Murder - Authority to Recalculate Matrix Release Date
- Diagnosis of Sex Abuse Where There IS Physical Evidence - 403 Balancing Test Required
- Dependency - Jurisdiction - A Motion to Terminate Wardship May Not Be Made By A Collateral Attack on the Initial Jurisdictional Decision
- PCR - Appellate Counsel Was Not Inadequate for Failing to Raise a Southard Issue Before the Opinion but After Review was Granted
- Civil Commitment - It's Plain, Reversible Error When A Judge Fails to Give the ORS 426.100(1) Rights
Oregon Supreme Ct - March 20, 2014
by: Abassos and Megha Desai • March 20, 2014 • no comments
- Sell Orders - A Judge May Order a Defendant Involuntarily Medicated to Restore Competence
- Ineffective Assistance of Counsel - Isolated Failures in A Capital Case Do Not Spoil Extensive Mitigation Investigation
Oregon Appellate Court - March 19, 2014
by: Abassos and Alarson • March 19, 2014 • no comments
- Child Neglect - Failed But Meaningful Efforts Do Not Constitute Negligence
- Hearsay is Still Hearsay Even If It's Used for Impeachment
Oregon Appellate Court - March 5, 2014
by: Abassos, Alarson, Cmaloney and Alex Collins • March 5, 2014 • no comments
- Discovery: No Duty on State to Acquire DOC Records
- Civil Compromise – Only the Directly Injured Victim Needs to Assent, Not the Insurance Company
- Preservation - Amended Indictment Morning of Trial - Correct Arg is Grand Jury, Not Notice
- Defendant’s Pre-Mills Venue Challenge Via MJOA Does Not Waive an Appropriate Challenge to Venue on Remand
- An Error in Imposing Restitution Requires a Remand for Resentencing
- Dependency - Lack of a Custody Order Alone is Not Enough to Continue Jurisdiction
Oregon Appellate Court - Feb 26, 2014
by: Abassos • February 28, 2014 • no comments
- Dependency – Order to Participate in a Psych Eval Need Only Bear a Rational Relationship to Bases of Jurisdiction
- Dependency Jurisdiction – Sufficient evidence
- Speedy Trial - Delay caused by IAD Procedures Was Reasonable
- Possession with Intent to use a Firearm is Neither Use nor Threatened Use
Oregon Appellate Court - Feb 20, 2014
by: Abassos, Alarson and Jwithem • February 20, 2014 • no comments
- Failing to Instruct the Jury on an Element is Plain Error
- Stalking Protective Order - Expressive Conduct May Inform the Context for a Nonexpressive Contact
- Inventory Exception - Officer Must Have Lawful Authority To Seize
- Unlawful Possession of a Firearm - Place of Residence Exception
