Oregon Appellate Ct - May 20, 2015
by: Abassos and Kit Taylor • May 20, 2015 • no comments
Attorney Fees - The Court Must Determine Ability to Pay
Before imposing attorney fees, a judge must determine whether the defendant has the ability to pay such fees. Here, the judge neither engaged in a colloquy with the defendant nor put facts on the record to support ability to pay. Thus, it was a plain error. The court decides to correct the error because defendant received prison time (as opposed to probation) and the record contained no evidence of another source of income or "that he has or will have the capacity to pay the fees." In contrast, the court recently chose not to correct the same error in State v Baco because the defendant received probation (and therefore was not prevented from working) and the defendant agreed to attorney fees on another case being sentenced at the same time. State v Hunt, 271 Or App 347 (2015).
Sex abuse – A Trial Court Cannot Preempt Putative Offer of Proof Testimony during Cross-Examination of Complainant
“The mere fact that testimony elicited via an offer of proof may be inadmissible before the trier of fact is not a basis to preempt that putative testimony” (absent exceptional circumstances, e.g. privilege), State v Cervantes, especially when the “preemption of an offer of proof [is] in the context of criminal defense counsel’s cross-examination of the complaining witness.” See Cf. Chambers v. Mississippi.
Here, defense counsel sought to cross-examine complainant as to whether he had engaged in consensual sex with defendant. That putative testimony was material to the defense because it could overcome actual consent (complainant was over the age of 16), and therefore support defense’s theory that defendant was reasonably mistaken about complainant’s age with respect to the second and third degree sexual abuse charges. Additionally, the putative testimony could overcome forcible compulsion with respect to the first degree sodomy and sexual abuse charges. The court finds that the trial court impermissibly barred defense counsel from questioning complainant about the possible voluntariness of sex when the trial court restricted the offer of proof questioning only to whether complainant had lied about his age. State v Cervantes, 271 Or App 234 (2015).
