Oregon Appellate Ct - April 13, 2016

by: Aalvarez and Cmaloney • April 14, 2016 • no comments

Trial Procedure – ORS 136.570 Does Not Provide Exclusion of Witnesses as a Remedy

ORS 136.570, the statute requiring the state or the defendant to notify the court when either party wishes to subpoena more than 10 witnesses does not provide for an exclusionary remedy when a party subpoenas more than the witnesses they submitted to the court and the defendant. Here, the state submitted its intent to subpoena more than 10 witnesses to the defendant’s trial under ORS 136.570. However, the state wound up subpoenaing more than 10 people. The defendant sought to exclude the additional witnesses as a violation of ORS 136.570. The trial court refused to exclude those witnesses and the Court of Appeals upheld that ruling, stating:

Assuming, without deciding, that the state failed to comply with the requirements of that statute, we conclude that a violation of ORS 136.570 does not provide a basis for exclusion of the challenged witnesses. The statute does not provide for an exclusionary remedy, and defendant does not point to any other authority requiring exclusion under that statute. Without such authority, the trial court could not have excluded the challenged witnesses based on a violation. State v. Summers, 277 Or. App. 412 (2016)

Discovery Violation – Failure to Include Witnesses on a State’s Pre-Trial Witness List

Where the state commits a discovery violation through late disclosure of witnesses to the defense, the trial court does not err in failing to exclude those witnesses from testifying where it takes other, less extreme measures, to eliminate any prejudice that may be caused to the defendant.

Here, the state conceded that it failed to follow its obligations under the discovery statutes by failing to notify the defendant of two witnesses it intended to call. The defense moved to exclude those witnesses testimony at trial and the trial court denied that motion. On appeal, the Court of Appeals affirmed the trial court’s decision not to preclude the state’s two witnesses from testifying because the trial court took other, less extreme, measures to eliminate any prejudice that the defendant may have endured because of the discovery violation.

As to the first witness, the trial court limited his testimony to what had previously been disclosed to the defendant and adjourned early to allow defense counsel to meet with the witness about any undisclosed matters before testifying. As to the second witness, the court allowed the witness to be recalled to clarify testimony as necessary to address defendant’s concerns that he had not received adequate notice of the scope of her testimony. Because the defendant did not propose any solutions other than witness exclusion and because the trial court took other measures to eliminate any prejudice caused to the defendant due to the discovery violation, the trial court did not err in refusing to exclude the two witnesses. State v. Summers, 277 Or. App. 412 (2016)

Chain of Custody – Evidence Re-Tested by the State Crime Lab

Gaps in the chain of custody of a piece of evidence will not result in exclusion of that evidence where the defendant does not show why that gap indicates that evidence was no longer in substantially the same condition as it was when obtained by police.

Here, a methamphetamine pipe that had been previously sent to the state crime lab was sent out for retesting when the state discovered the original lab tech who performed the first testing would be unavailable to testify at the defendant’s trial. The defendant argued that the pipe should have been excluded because, according to the defendant, the initial testing of the pipe when it was first sent to the crime lab could have significantly altered the substances on the pipe before it was returned and eventually sent back to the crime lab for retesting. Further, he argued that the gap in information about what happened to the pipe when it was first sent out to the crime lab could have an impact on the testimony of the lab tech who did the retesting. The trial court refused to exclude the pipe as evidence.

On appeal, the Court of Appeals affirms the trial court, stating:

“In this case, although the lack of testimony about what happened when the pipe was first sent out to be tested represents a gap in the chain of custody, defendant has not explained why that gap implies that the evidence was no longer in substantially the same condition and, therefore, would have required its exclusion. The fact that the pipe had to be retested due to the unavailability of the scientist who first tested it does not, alone, indicate that the pipe had been changed in important respects.” State v. Summers, 277 Or. App. 412 (2016)

Pointing a Firearm At Another – MJOA – “Within Range of the Firearm

A person can still be found guilty of “Pointing a Firearm at Another” under ORS 166.190 even if the firearm the defendant is pointing at another person is inoperable. ORS 166.190 prohibits the purposeful pointing of a firearm at any other person “within range of the firearm” except in self-defense. Here, the evidence presented showed that the defendant pointed an inoperable firearm at officers. He argued an MJOA, contending that a person cannot be “within range” of a firearm for the purposes of ORS 166.190 when the gun is inoperable. The trial court rejected the defendant’s argument and the Court of Appeals affirmed the trial court, explaining that range refers to “the distance to which the firearm’s shot or projectile may be propelled, i.e. its intended range,” regardless of whether the weapon, due to mechanical problems at the time of the incident, could actually shoot that far (or at all). State v. Summers, 277 Or. App. 412 (2016)

Sex Abuse I – Proportionality – Buck/Rodriguez

A mandatory minimum sentence of 75 months is not constitutionally disproportionate where the defendant, even though he had no prior criminal history, caused an 11 year old child to manually touch his bare penis and rubbed his unclothed penis against the child’s closed genital area and buttocks. Although the contact occurred only once and was relatively brief, the “skin to skin” contact in this case convinces the Court of Appeals that the conduct at issue was not on the “lesser end of the spectrum of first – degree sexual abuse,” especially because the defendant, who had known the victim since she was a very young child, breached his relationship of trust with the child by committing the sexual abuse.

Justice De Muniz dissents, contending that an application of the factors set forth in Buck/Rodriguez demonstrate that the mandatory sentence of 75 months was constitutionally disproportionate given the defendant’s behavior. Although the physical contact here can be considered more invasive/intense than the abuse that occurred in Rodriguez/Buck, it “nevertheless falls on the lower end of any first-degree sexual abuse sexual abuse severity scale.” Further, the same 75 month mandatory minimum sentence is imposed for crimes involving penetration or oral and genital contact, even though neither of those were present in this case. Lastly, given that the defendant has no criminal history and that the contact only occurred once, Justice De Muniz argues that the 75 month mandatory minimum sentence is constitutionally disproportionate to the defendant’s behavior. State v. Padilla, 277 Or. App. 440 (2016)

Appellate Procedure – Preservation – Failure to use the Words “I Object”

A defendant does not fail to preserve an objection to a trial courts ruling by failing to use the specific words “I object,” or “objection,” when she otherwise clearly communicates to a trial court that she disagrees with the trial court’s actual or potential ruling. Here, although defense counsel failed to say “I object” when the trial court, based on the state’s objection, excluded one of her witnesses after she called her to the stand, she preserved the issue by calling the witness in the first place, thereby asserting that the evidence was admissible. Further, she verbally responded to the states claim that she had committed a discovery violation by calling the witness. Lastly, she made an offer of proof in response to the trial court’s order to exclude the witness, thereby communicating her disagreement with the trial court’s ruling. In light of all of the steps that the defendant took to preserve the issue, no additional “magic words” were needed for preservation purposes. State v. Montwheeler, 277 Or. App. 426 (2016)

Trial procedure – Exclusion of Witnesses – Failure to Read Witness Name to Jury

The trial court may not exclude relevant witness testimony merely because the jury panel was not questioned as to whether they knew the specific witness because such a ruling was not grounded in any case rulings, statutes, or constitutional authority. State v. Montwheeler, 277 Or. App. 426 (2016)

Attorney Fees - Court Must Make the Predicate Determination That a Defendant "Is or May Be Able to Pay" the Fees

For the imposition of court appointed attorneys fees to be upheld on appeal, the record must affirmatively support the inference that the trial court made the statutorily required finding that a defendant "is or may be able to pay" the fees. In this case, defense counsel pointed out that the court needed to make the required findings. However, the court did not state that it had made the findings or proceed to make them. The Court of Appeals examined the record to determine if there was any evidence, at the time of sentencing, that would permit the finding that defendant "is or may be able to pay" the fees. At sentencing defendant referred to "having a job" and, at one point, described himself as a "labor-oriented employee." The Court of Appeals found that those references were contained in defendant's explanation as to why he had failed on probation in the past, and did not speak to defendant's current or future employment status, let alone what sort of income or other financial resources might be available to defendant. Moreover, other evidence at sentencing suggested that defendant was not working at the time and was, instead, either incarcerated or in residential treatment. The Court of Appeals held, the record contained no indication that the trial court complied with the statutory requirement that it determine that defendant "is or may be able to pay" attorney fees before imposing them. Judgment requiring defendant to pay attorney fees reversed; otherwise affirmed State v. Mickow, 277 Or App 497 (2016)

DNA Testing - A Post-Conviction Motion for DNA Testing and Appointment of Counsel Must Satisfy the Statutory Requirements

A motion for post-conviction DNA testing and appointment of counsel must include an affidavit that satisfies the requirements of ORS 138.692 and ORS 138.694. In this case, the Court of Appeals applied the 2011 version of the statutes governing post-conviction DNA testing and appointment of counsel. However, these statutes have since been amended. Here, the defendant did not satisfy the statutory requirements in making his motion. The Court of Appeals affirmed the trial court's order denying defendant's motion for DNA testing and the appointment of counsel State v. Couch, 277 Or App 566 (2016

Statement Against Interest – The Declarant Must Appreciate the Statement's Potential Detrimental Impact for the Hearsay Exception to Apply

Before a hearsay statement may qualify as a statement against interest, there must be some evidence, or at least an inference that could be drawn from that evidence, which indicates that the declarant realized that the statements were against his pecuniary or proprietary interest at the time they were made. In this case, defendant was convicted of multiple counts of theft, aggravated theft, and forgery, all arising from her employment as the alleged victim’s bookkeeper. Defendant’s theory at trial was that she and her husband had been partners in the alleged victim’s automobile dealership and, therefore, was entitled to its assets. To counter that theory, the state introduced a tape recording of statements of defendant’s husband, in which, the state argued he effectively denied the existence of any such partnership or any claim of right that defendant might have had. On appeal, defendant argued that those statements were inadmissible hearsay. The state responded that the husband’s statements were statements against his pecuniary or propriety interest and, therefore, admissible. The Court of Appeals held, that the statements were hearsay to which no exception applied. The evidence at trial indicated only that the husband believed that he did not have a partnership interest. Thus, any supposed interest that he may have been motivated to protect was speculative and remote and, therefore, could not warrant admission of his statements over defendant’s hearsay objection. As a result, the trial court erred in admitting the tape recording of the husband’s statements under the hearsay exception for statements against pecuniary or proprietary interest and the admission of that evidence prejudiced the defendant. Reversed and remanded. State v. Kaino-Smith, 277 Or App 516 (2016)

Search and Seizure – Reasonable Suspicion of Drug Activity

An informant’s conclusion that a drug deal is taking place, even absent evidence that the subject of the informant’s report was a matter of common knowledge--can still contribute an officer’s reasonable suspicion analysis.

Here, an identified informant called police and told them that a bicyclist met a person in a parking lot, entered into the person’s van, pulled something from his pocket and smoked something with the van’s driver. In describing those facts, the informant concluded that the two people were engaging in a drug deal. The Court of Appeals concludes that the officer was entitled to rely on the informants conclusion in forming reasonable suspicion that the bicyclist was engaging in a drug deal, even though the officer observed none of the activity and none of the activity was going on when the officer arrived on scene in response to the call. “In light of his training and experience regarding how drug deals happen, [the officer] could reasonably rely on both the informant’s description of the events he had observed and the unsurprising conclusion that the informant reached from those observations in developing a suspicion that defendant was engaged in criminal activity.”

Judge Tookey dissents, arguing that the informant’s conclusion was insufficient to provide reasonable suspicion that the defendant was engaging in drug deals because the officer never observed anything suspicious, there was no evidence that the informant was competent to identify illegal drug activity. State v. Walker, 277 Or. App. 397 (2016)