Child endangerment - authorizing minors' access
Failure to take action to prevent minors from remaining in a home where illegal drug activity is taking place does not "authorize or affirmatively make possible a minor's presence" under ORS 163.575(1)(b). Defendant moved into his friend's house to assist with a marijuana grow operation and act as caretaker of two minors living there. The owner had given the minors permission to stay in the house before defendant moved in. In the absence of actual authority to prohibit access to the home, defendant's failure to take action to prevent the teenagers from remaining in the home did not violate the statute. State v. McBride.
Capital Sentencing- Error Limited to the Form of a Judgment in Capital Cases Does Not Require Resentencing
An error limited to the form of the judgment issued by a trial court in a capital case does not limit the trial court to the sentencing options provided by ORS 138.012 on remand. The Supreme Court had previously affirmed defendant's convictions for aggravated murder and the imposition of the death penalty, but concluded that the trial court should have merged two aggravated murder verdicts and one intentional murder verdict into a single conviction set out in a single judgment. In addition, the final judgment should list the aggravating factors underlying the aggravated murder charges. On remand, the trial court entered the new single judgment but did not list the aggravating factors.
Defendant argued that under ORS 138.012, if a reviewing court finds a prejudicial error in the original sentencing, the trial court must either sentence defendant to life in prison without the possibility of parole or commence a new sentencing proceeding before a jury. The Court denies this argument, holding that the remand was limited to entry of a corrected judgment and did not involve a prejudicial error.
The defendant also argued that convictions should have been merged before sentencing to eliminate the possibility of inconsistent sentencing. However, because the jury imposed the death sentence for each of the convictions independently, there was no chance that the sentence would have been shorter had the convictions been merged before sentencing.
However, the final judgment still did not include a list of aggravating factors. Therefore the case is remanded to the trial court to enter these factors. State v. Bowen.
Administrative Searches > Writs of Execution
A defendant has a protected privacy interest in his office. Thus, in order to conduct an administrative search of the office pursuant to a writ of execution, the sheriff must have a court order under ORS 18.887(1) to enter the enclosure. Here, mushrooms discovered during a warrantless search of defendant's safe had to be suppressed. State v. Mast.
Stop > Extension
A defendant's prior arrest for possession of a concealed handgun does not provide reasonable suspicion that a defendant is currently engaged in illegal conduct nor does it create a reasonable officer safety concern. Likewise, an officer's belief that defendant was lying about the number of times he was arrested does not justify a search as an officer safety measure. Where the defendant was relaxed, unconcerned, and cooperative during the stop, and did not make any furtive movements or other signs of hostility, officers unlawfully extended the traffic stop when they inquired about weapons and searched defendant after collecting all the information necessary to issue a citation. State v. Steffens.
Stop > Unavoidable Lull
In an unlawful extension of stop case, in order to carry its burden of proof, the State must demonstrate that the search occurred within the timeframe that they claim was an unavoidable lull. Here, where the officers requested that defendant, a jaywalker, remove a container from his pants pocket, the state failed to demonstrate that the request coincided with the estimated 30-second wait time to run defendant's information with dispatch. State v. Dennis.
Vouching > Witness Cannot Vouch for Herself
A witness does not vouch for her own testimony by stating that her plea agreement included a "contract to tell the truth" where the prosecutor does not suggest that that she "believed" the witness's testimony. A witness cannot vouch for herself.
To preserve error, defense counsel must object to prosecutor's misstatement of law about the presumption of innocence. The trial judge did not abuse his discretion in failing to cure a prosecutor's misstatement sua sponte with a curative instruction. The prosecutor stated in closing that, "at this point in the trial, the presumption of innocence will evaporate." State v. Joel Sanchez-Jacobo.
Jury Instructions > Preserving Objections
In order to preserve an objection to a court's refusal to give a proposed jury instruction, defendant must specify "with particularity" why his proposed instruction would be helpful to the jury's deliberations and otherwise a correct statement of law.
In order to preserve an objection to a given jury instruction, the defendant must except to that instruction. Offering a special jury instruction that clarifies a standard jury instruction is not enough.
Here, defense counsel offered a special instruction related to self-defense in a resisting arrest case. In proposing his special instruction, defense counsel stated that the instruction would "detail" the law on the self-defense issue. However, defense counsel did not except to the standard jury instruction, USCrJI 1227, that the trial court gave to the jury. Because defense counsel did not (1) state his basis for the proposed instruction with sufficient particularity - i.e., give the specific basis of law that necessitated the instruction, or (2) except to the erroneous standard instruction, the issue was not preserved under ORCP 59 H(2).
J. Schuman dissented, arguing that the majority misapplied the ORCP 59 H(2) standard and that defendant stated his exception with particularity. State v. Vanornum.
Sentencing- Sentencing Court Has Discretion to Impose Longer Sentence than Mandatory Minimum
A court may impose a sentence that is longer than the mandatory minimum without a jury finding where the sentence is within the presumptive gridblock. Defendant was convicted of conspiracy to commit murder, and was given a line 11 gridblock. The court holds that the sentence was not a departure because it did not increase a statutory maximum. The sentence was within the presumptive range of the ranking. State v. Ibarra-Ruiz.
Hearsay- Officer Testimony Based on Translator's Statements Permitted as an Exception to Hearsay
Defendant challenged police officer's testimony as hearsay because it was based on a translator's statements. The court holds that the officer's testimony had adequate foundation because the translator's qualifications fulfilled the requirements of Oregon's hearsay exception statute OEC 803(28). The translator was a fluent Spanish speaker, spoke Spanish every day, received a bonus for his Spanish skills and frequently served as an interpreter. These qualifications ensured that the interpreter's translation was reliable and trustworthy Therefore, the admission of the translated statement was not qualitatively different from the admission of the defendant's own statement. State v. Montoya-Franco.
Expert Witness Cannot Testify on Credibility of Witness
An expert witness may not testify as to the credibility of a witness. The CARES nurse, unsolicited, testified that she believed victim was telling the truth about being sexually abused by defendant. The court finds that it does not matter that the challenged testimony was not explicitly elicited.
The state also argued that the testimony didn't qualify for plain error review because the defendant may have acquiesced to its admission in order to secure evidence that the victim had previously recanted other allegations against the defendant. The court rejected that argument and stated that it was not required to make such inferences because the legal error was so obvious. State v. Hollywood.
Inventory > Closed Containers
A closed container may not be searched during a jail inventory merely because the container "could" contain valuables. This is doubly true where the inventory policy requires a search of containers "designed to typically carry" valuables. Here, the container was a lipstick sized metal canister attached to defendant's belt. State v. Cruz-Renteria.
Speedy Trial
Where defendant's trial is delayed by 2,119 days through no fault of her own and without her consent, defendant's constitutional right to a speedy trial is violated. In State v. Adams, 339 Or. 104, 112 (2005), the Oregon Supreme Court used the statute of limitations as a basis for the outer edge of delay. Here, that limitation period equaled 730 days, therefore the 2,119 day delay far exceeded a reasonable amount of time.State v. Danford.
Dependency > Permanency Plan > Order Required Under ORS 419.B476(5)(b)
ORS 419B.476(5) requires the court to make findings within 20 days of a permanency hearing, and defense counsel does not have to preserve the issue. Where the record showed that the case was set for a permanency hearing, the court erred in failing to make a "determination of the permanency plan for the ward" within 20 days of the hearing, as required by ORS 419.B476(5)(b). Additionally, the court's factual determination that the proposed guardian was suitable and willing had a sufficient evidentiary basis where the father never raised the issue of fitness, and the finding was supported by an affidavit provided by DHS counsel. Department of Human Services v. SA.
Dependency > Change of Permanency Plan > Reasonable Efforts & Sufficient Progress
In order to change a permanency plan from reunification to placement with a fit and willing relative, the juvenile court must determine that (1) DHS has made reasonable efforts to make it possible for the child to return safely home, and (2) despite those efforts, the parent has not made sufficient progress to allow the child to return safely home. Here, where father's mental health evaluations suggested that his mental issues controlling his anger were not treatable, DHS made reasonable efforts by providing 3 different referrals for psychological evaluations with different psychologists, a 10-week parenting class, and weekly supervised visits. Although the father eventually completed the evaluation and did well in the parenting class and most visits, father's personality disorder was untreatable and was likely to aggravate his daughter's PTSD and hyper-vigilance to sound. Thus, the juvenile court did not err in changing the permanency plan. Department of Human Services v. SN.
No per curiams this week.
60-Day Pretrial Custody Rule Does Not Renew After Dismissing Original Indictment and Reindicting Defendant on Same Charges [edit]⇲
The OSC held today that the state cannot renew the 60-day time limit in ORS 136.290 for pretrial custody by releasing defendant from custody and dismissing the original charging instrument (here, because defendant was held beyond the 60-day limit originally) then recharging and arresting defendant for the same crime.
In a unanimous opinion by J. Landau, the Court held that if the state could use the second arrest as the relevant arrest for beginning the 60-day period, the "obvious purpose of the statute***to limit the amount of time that a defendant may be held in custody pending trial," would be frustrated. Furthermore, the court noted that the legislature clearly contemplated potential interruptions of custody in enacting ORS 136.295(5), which tolls, but does not renew, the statutory period when there is an interruption.
The OSC issued a mandamus to Washington County Circuit Court Judge Kirsten Thompson to release the defendant from custody. State v. McDowell.
The Supreme Court explicitly finds that an expert may project backwards from blood alcohol content at the time of a breath or blood test to the likely blood alcohol content at the time of driving. I.e., testify about the rate of dissipation in what is commonly known as retrograde extrapolation. Allowing such testimony is consistent with the requirement that the state establish .08% BAC or greater because the relevant point in time for the BAC is the time of driving, not the time of the test. In this case, the state used a BAC of .064 plus expert testimony to prove that defendant had a BAC of .08 or more at the time of driving.
Below the jump is a DeMuniz dissent as well as a must-read comment by Rich Oberdorfer that starts:
The expert's "unchallenged" idea that human beings "peak" in BAC within 5-10 minutes is absolutely unsupported by the past century worth of research.
J. DeMuniz dissents, saying he would have found that the .08 prong of the DUII statute is a bright line rule, allowing the state to prove DUII if it has a test showing .08. Any additional evidence, extrapolating or otherwise, is beyond the scope of the statute and inconsistent with the intent of the legislature. State v Eumana-Moranchel
Miranda Violation - Later Statements Derived from Initial Violation [edit]⇲
Statements must be suppressed where they are a product of an earlier Miranda violation. Here, 16 hours after defendant gave a Mirandaless statement in compelling circumstances, the officers did a video reenactment of defendant's story where he made further statements. This second set of statements, the court says, was derived from the initial Miranda violation because:
The identity between the two sets of statements and the state's use of defendant's unwarned statements in the video reenactment persuade us that the break in time and the absence of compelling circumstances during the reenactment were not sufficient to break the causal chain.
Later that day, defendant voluntarily submitted to a polygraph. He was given Miranda warnings at that time and, indicating he understood, said "I can, at any time, decide that I would like a lawyer or not answer any further questions." Defendant failed the polygraph, was interrogated by the polygrapher and confessed to murder. The polygraph statements were not derived from the initial violation because defendant was given and clearly understood his Miranda rights. The court distinguishes today's case from one in which there's a pre-Miranda confession, followed by Miranda warnings and then a repetition of the first statement. In today's case, defendant admitted abusing his child for the first time in the post-polygraph statements. Thus, the Miranda warnings were "effective to purge the taint of the prior violation and ensure a knowing and voluntary waiver of defendant's right to remain silent."
C.J. DeMuniz writes a concurrence to urge a uniform text for criminal polygraph consent forms. The absence of such forms, says the Chief Justice, results in unnecessary litigation and expense. The takeaway for defense attorneys is that defendant could have "argued that the terms of his consent were unclear, or that he was misled by the form he signed, or that the effect of his signature had somehow been misrepresented to him."
State v Jarnagin
Body Wires Require an Ex Parte Order or Exigent Circumstances [edit]⇲
Before the police may listen to a conversation through an informant equipped with a body wire, they must get an Ex Parte Order pursuant to ORS 133.726. There are two exceptions: (1) If it's a drug or prostitution investigation or (2) if there are circumstances of such exigency that it would be unreasonable to get an order. This case was a theft investigation where the police did not get an order and there were no "exigent circumstances" in the constitutional sense. The court finds that exigency in ORS 133.726(7)(b) means the same thing that it does under Article I, Section 9 and the 4th Amendment: circumstances that require swift action to prevent danger, damage, escape or destruction of evidence. Here, the police merely wanted to proceed as soon as possible to stop undesirable activity. There was no immediate threat. The error was not harmless because the informant's wire recording was the primary corroboration of the informant's testimony. Thus, suppression is required by ORS 41.910(1). State v Miskell
Full summaries of the following cases below the break:
- Officer safety questions allowable during a valid stop
- Police officers may not comment on the credibility of a defendant.
- An exception to a jury instruction must be particular.
- Post-offense conduct may be used to upward depart.
- A diagnosis of sex abuse in the absence of physical evidence is inadmissible.
→ read the full summaries...Summaries of the following cases below the break:
- Burglary II - A Storage Room in a Store is a Separate Building
- Encouraging Child Sex Abuse - Downloading is Arguably Duplication
- Compelling Prostitution - Offering Gifts is Not Compelling - & Prostitution is Not a Lesser Included of Compelling
- Free Speech - Camping on the Capitol Steps & The Debate Clause
- Restitution - Still No Right to a Jury
→ read the full summaries...Read the 'full post for a summary of today's opinion
- Article I, section 11--Waiver of Counsel--Failure to Cooperate with Court Appointed Counsel
A defendant cannot waive his right to counsel under Article I, section 11 simply by failing to cooperate with his court appointed counsel.
In this death penalty case, the court allowed co-counsel to withdrawal, but not lead counsel, after both stated they could no longer work with the defendant. The court appointed substitute co-counsel, and unilaterally told the defendant that he had to proceed with the newly appointed team, or proceed pro se.
The defendant told the court he did not want to proceed with any of those choices, and that the court should direct how he must proceed. The court ordered him to proceed pro se.
The Oregon Supreme Court reversed, noting that defendant's refusal to make the choice suggested by the court did not constitute an express waiver to counsel, especially considering that he repeatedly told the court he did not want to proceed pro se.
Moreover, the Supreme Court refused to infer a waiver from the totality of the defendant's conduct, including his refusal to make the choice offered by the court and his refusal to cooperate with multiple court appointed lawyers.
A criminal defendant is under no duty to cooperate with counsel. While some state and federal courts have held that a defendant may impliedly waive his rights through non-cooperation, Article I, section 11 of the Oregon Constitution requires more than just misconduct by the defendant.
It requires, at the very minimum, an advanced warning that the defendant's behavior will result in him being forced to proceed pro se. While the defendant in this case had concededly engaged in poor behavior, the trial court never warned him that continuing that behavior would result in him proceeding pro se.
The trial court also erred in attempting to force defendant to make the choice it presented to him because "the court's submission of the choice
regarding was based on the court's mere assumption that defendant's potential complaints about his lawyers were frivolous
"
In addition, the court also erred when it refused to consider defendant's complaints about his lawyer, which contained sensitive information about trial strategy, in a non-public setting. Before a court could properly decide that the defendant's claims were frivolous, it must have allowed the defendant a reasonable opportunity to prevent his or her position on the facts in a manner that, if appropriate, permitted the safeguarding of confidential communications and trial strategy. Reversed and remanded.
State v. Langley
Read the full post for a summary of today's opinions
- Sentencing--400% Rule--Plain Error
- Dependency--Jurisdiction--Insufficient Record
- Restitution--Date of Calculation
- Sentencing--Plain Error--Refusal to Exercise Discretion
- Automobile Exception--Moving in Connection with a Crime
- Dependency--Psych Eval--Related to the Court's Jurisdiction
- Solicitation--MJOA
- Witness's Invocation of the 5th Amendment--Limitation on Cross Examination
- Preservation--Exceptions to Jury Instructions
- Restitution--Objectively Verifiable Losses
- SPO--Objectively Reasonable Alarm
- Manufacture/Possession of Marijuana--Registered Medical Marijuana Card Holders--MJOA
- Civil Commitment--Danger to Others
Sentencing--400% Rule--Plain Error
It was plain error to sentence the defendant to 208 days when the 400% rule only allowed him to be sentenced to 136 days. In using its discretion to reverse and remand, the court relied on the gravity of the error (4 extra months) as well as the fact that the trial court merely adopted the state's sentencing recommendations with absolutely no regard to the 400% rule.
State v. Truong
Dependency--Jurisdiction--Insufficient Record
Jurisdiction over the child was improper since there was no evidence that either mother or father posed a risk of harm to the child. While the mother, who suffered from a developmental disability requiring adult support services and a variety of medications, had trouble changing diapers and holding the baby's head up on the day it was born, there was no evidence showing that these problems continued. The court bemoans the lack of a developed record, noting that "without those details--particularly when combined with the lack of evidence regarding mother's cognitive abilities generally--it is impossible to determine that mother lacks the capacity to learn the necessary skills without "special assistance," which is the theory upon which jurisdiction was based." Reversed and remanded.
DHS v. 'S.P
Restitution--Date of Calculation
Defendant was ordered to pay $888,793 in restitution arising out of an Assault II charge. Defendant advanced a variety of arguments to the appellate court, most of which were rejected as unpreserved. Defendant's preserved argument, that the court could not award restitution for lost income beyond the date of the plea agreement, was rejected on its merits. A victim is entitled to restitution for loss of income up to the date the trial court determines and awards restitution, not the date of the plea agreement. Affirmed.
State v. Jordan
Sentencing--Plain Error--Refusal to Exercise Discretion
The court refused to exercise its discretion to correct a plain sentencing error where it believed the defendant made a strategic choice not to object. Defendant signed a plea agreement consistent with the sentence imposed and acknowledged that the parties jointly recommended to the court the sentence that was imposed. Moreover, the defendant obtained a significant benefit by entering into the plea agreement (a M11 count was dropped) and was therefore in a poor position to complain to the appellate court. Affirmed.
State v. Nolasco-Lara
Automobile Exception--Moving in Connection with a Crime
On remand from Kurokawa-Lasciak, the court found that a warrantless search of the defendant's car did not fall within the automobile exception because the car was not moving "in connection with a crime" when police first saw it. The moving car was not connected with a crime until after the officer randomly ran the defendant's license plate, discovering that the car had an outstanding warrant. It was only after this finding that the defendant was stopped and drugs were discovered. Moreover, the officer could not have justified the search as under exigent circumstances or a search incident to arrest. Reversed.
State v. Groom
Dependency--Psych Eval--Related to the Court's Jurisdiction
Requiring the father to take a psychological evaluation was rationally related to the basis of the court's jurisdiction over his child. The reason for the court's jurisdiction in the first place was the father's unavailability and imprisonment for assault and riot. The court further found that the father posed a risk to the child, a finding which was supported by the record. A psychological evaluation would aid DHS in assessing father's safety risk and moreover, would actually benefit the father because he would "benefit from services to help him establish a relationship with her." Affirmed.
DHS v. B.W.
Solicitation--MJOA
The trial court correctly denied the defendant's MJOA on a solicitation charge. The defendant, a member of a biker gang called "The Outsiders," was charged with solicitation after attempting to hire a police informant (Informant #1) to kill someone. Informant #1's conversation with police was recorded on a DVD.
While in jail, the defendant asked his roommate, Informant #2, to get the DVD to the Outsiders, noting that once they got the DVD they would "get rid" of Informant #1 and make sure he didn't show up for trial.
The court found that the defendant had solicited Informant #2 to kill Informant #1, even though he didn't actually ask Informant #2 to do the killing. The court held, as a matter of law, "a person commits the crime of solicitation when that person solicits an intermediary to procure a third party to commit the intended crime, so long as the intermediary is aware of that intended crime."
State v. Everett
Witness's Invocation of the 5th Amendment--Limitation on Cross Examination
The trial court did not err in refusing to strike all of the witness's direct testimony when he invoked the 5th amendment on cross. The questions that the defendant asked him were not necessary to testing his direct testimony, nor did the witness's invocation of his rights hamper the defendant's ability to put on a defense. Affirmed.
State v. Everrett
Preservation--Exceptions to Jury Instructions
Defendant's unpreserved objection to a faulty aid-and-abetting instruction was non-reviewable by the COA. ORCP 59(H)(1) requires that the defendant except to an instruction immediately after the trial court instructs the jury in order to be reviewable.
State v. Alonzo
Restitution--Objectively Verifiable Losses
In a per curiam opinion, the state concedes that the court erred when it ordered the defendant to pay 12 percent interest on the unemployment benefits he had unlawfully received. Restitution is limited to "objectively verifiable monetary losses." The interest that the victim-the Oregon Employment Department-would receive is not such a loss. Reversed and remanded.
State v. White
SPO--Objectively Reasonable Alarm
Per curiam reversal of a SPO where the record was legally insufficient to establish the requisite objectively reasonable alarm
A.M.G v. Young
Manufacture/Possession of Marijuana--Registered Medical Marijuana Card Holders--MJOA
A per curiam reversal where the trial court improperly denied the defendant's MJOA on his manufacture and possession of marijuana charges. The state did not prove that the useable marijuana present at his address was more than he and his cousin, both registered medical marijuana cardholders, could lawfully possess.
State v. Brewer
Civil Commitment--Danger to Others
A per curiam reversal of a civil commitment where the state concedes that there is insufficient evidence to show that the AMIP was a danger to others because of her mental disorder.
State v. W.C.
Read the full post for a summary of today's opinions
- 6th Amendment--Ineffective Assistance of Counsel--Plea Bargaining
In a 5-4 split, the Supreme Court held that the 6th amendment right to effective counsel requires that defense attorneys communicate to their clients any formal plea offers from the prosecution.
In this case, the defense attorney failed to communicate an offer to the defendant, which lapsed. The defendant later submitted himself to open sentencing, where he was given a much harsher sentence than he would have received under the original plea offering.
Under the Strickland/Hill two-prong test, the court found the defense attorney's actions deficient because practically every state/federal jurisdiction requires that plea offers be communicated to the defendant.
Moreover, the court found that the defendant was prejudiced because had defense counsel communicated this plea to him, he would have accepted a plea bargain limiting his prison stay to one year, as opposed to agreeing to open sentencing, where he received 4 years. The court then re-defined the standard for prejudice in situations such as these, noting that:
Strickland's inquiry into whether "the result of the proceeding would have been different," requires looking
at
whether he would have accepted the offer to plead pursuant to the terms earlier proposed. In order to complete a showing of Strickland prejudice, defendants
must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.
Scalia, with whom Alito, Thomas, and Roberts join, dissents, noting that the "ultimate focus" of the Strickland test is the "fundamental fairness of the proceeding being challenged." Because all agree that the plea-proceedings in court were based on accurate advice from court and counsel, that should be the end of the matter. Reversed and remanded. Missouri v. Frye
In a companion case to Frye (also a 5-4 split, also a majority opinion written by Kennedy), the court held that there can be ineffective assistance of counsel arising from plea bargaining if the defendant is later convicted at a fair trial.
Here, the defendant fired a shot towards the victim's head, but somehow missed, hitting her in the waist. He was charged with, among other things, attempted murder. The prosecution twice offered to dismiss two of the charges and to recommend a sentence of 51 to 85 months. After informing the defendant of these offers, the defense attorney managed to convince him to go to trial anyway, on the theory the prosecution would be unable to prove intent because the victim was shot in the waist. The defendant was convicted on all counts and sentenced to a minimum of 185 months.
The court rejected the AG's contention that the 6th amendment does not apply to plea bargaining, reaffirming the Frye opinion.
Since all sides conceded that the attorney's actions were deficient, the only question was prejudice. Because the defendant was more than willing to accept the plea offer before the defense attorney convinced him to do otherwise, and because the defendant received a minimum sentence 3 1/2 times greater than the plea he was offered, the Strickland prejudice requirement was met.
Scalia, with whom Alito, Thomas, and Roberts join, dissents. Again, as in Frye, Scalia re-iterates his belief that the 6th amendment ensures only that the defendant be given a fair trial, and as such, the right is not infringed unless counsel's mistakes call into question the "basic justice of a defendant's conviction or sentence."
Lafler v. Cooper
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