Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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Oregon Appellate Ct - July 16, 2014
by: Abassos, Samantha Robell, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • July 20, 2014 • no comments
- A Person Does Not Have a Privacy Interest in a Private Common Area, Even If It is Gated and Locked
- Motion to Postpone - Improperly Denied Where Insufficient Time to Prepare for Trial
- Prior Preservation Opinion is Modified As Too Harsh
- A Police Order that Limits Movement is Not a Per Se Show of Authority
- Felon in Possession of a Firearm - Merger - Going From Constructive to Actual Possession Is Not a Pause in Criminal Conduct
- Issue Preclusion – Must Be Asserted Before the Issue Is Relitigated
Oregon Supreme Ct - July 10, 2014
by: Abassos and Katie Watson • July 10, 2014 • no comments
- Resisting Arrest -Arrest for a Parole Violation is an Arrest for Resisting
Oregon Appellate Ct - July 9, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • July 9, 2014 • no comments
- Evidence That Defendant Was Not at the Location of the Incident is Not Alibi Evidence
- AIPs - “Substantial and Compelling Reasons” For Denial No Longer Necessary
- Officer Testimony Regarding Refusal to Submit to a Search - Prejudicial When Inference of Guilt Tends to Negate the Defense.
- No violation of Due Process When Probation Extended For Failure to pay Fines and Restitution
Oregon Appellate Ct - July 2, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Sam Robell, Evan Ottaviani and Tim OConnor • July 2, 2014 • no comments
- A Stop Occurs when Officer Prevents Defendant from Leaving
- A Request for Identification May Constitute an Illegal Stop Under Oregon Law
- An Officer’s Order to Exit a Restroom Constitutes a Stop
- Dependency Jurisdiction - Positive UAs During Pregnancy are Not Enough to Establish Either a Substance Abuse Problem or a Risk of Harm
- General Notice is Insufficient for Introducing Child Complainant Hearsay Statements
- Reasonable Suspicion Requires that Observations Support a Reasonable Inference as to the Elements of the Crime
- Search Warrant to Out-of-State Business is Authorized as Long as the Court has Personal Jurisdiction
- Search Warrant For All Emails in Defendant’s Email Account is Sufficiently Particular
- Reasonable Suspicion - Odor of Marijuana
- Compelling Circumstances - Casual 20 Minute Stop Not Compelling
- Vouching - Plain Error - Strategic Reason for Not Objecting
- Learned Treatise May Be Used as Impeachment But Not Substantive Evidence
- Civil Commitments - Danger to Others - One Fight Plus Vague Threats Not Enough
- Harmless Error - Witness Assertion of Rt to Remain Silent
Oregon Supreme Ct - June 26, 2014
by: Abassos and Samantha Robell • June 26, 2014 • no comments
- Solicitation - Giving Information To Someone With the Intent of Influencing Them to Commit a Crime is Solicitation
Oregon Appellate Ct - June 25, 2014
by: Abassos, Evan Ottaviani and Katie Watson • June 25, 2014 • no comments
- A Juvenile Court Can Change Its Permanency Plan Based On Findings that Can “Fairly Be Implied” from the Original Allegations.
- DUII- Consent Following Reading of DMV Implied Consent Form is Not Involuntary
Oregon Supreme Ct - June 19, 2014
by: Abassos and Lisa Fitzgerald • June 19, 2014 • no comments
- Accomplice Testimony May Be Corroborated by Evidence “Tending to Connect” Defendant to Offense
- Defendant’s History of Violence, Gang Affiliation, and Physical Ability Justified Order to Wear Stun-Belt during Trial
- Empaneling Anonymous Jury—Court Must Consider Particular Security Concerns and Take Precautions to Protect Impartiality of Jury
- Questioning the Jury—Only if there is Reason to Believe Process has been Compromised
- Jury Instructions—Mercy Alone cannot be the Basis of Jury Decision
- Victim Impact Evidence in Guilt Phase is Harmless if Minimal or Similar to other Admitted Testimony
Oregon Appellate Ct - June 18, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Sam Robell, Evan Ottaviani and Tim OConnor • June 18, 2014 • no comments
- Dependency - An Appeal of Jurisdiction is Moot Once Jurisdiction is Terminated
- Miranda Warnings Communicate a Restriction of Freedom
- A Pre-Mills MJOA on Venue Should be Remanded to Give Defendant an Opportunity to Object Properly
- 5th Am. Right to Counsel Must Be Clearly Invoked in DUII Breath Test Context
- Merger - Sufficient Pause - ECSA & Using a Child in Display of Sexually Explicit Conduct
- Attempt to Elude - No Requirement of Evasive Maneuver
- Assault II - Dangerous or Deadly Weapon- Knowingly Applies to the Nature of the Weapon Used
- Sex Abuse II - A Sleeping Person is “Physically Helpless”
- A Decision to Tow a Car Does Not Fall Under the Administrative Seizure Exception When It Is Motivated By Suspicion of Criminal Activity
- Burglary - Tents are Buildings
- Unreasonable Delay and Speedy Trial Rights Under Former ORS 135.747
- Right to Be Present at Trial - Defendant’s Awareness of Trial Date and Location Does Not Establish Voluntary Absence
- Appeals Must Be Raised within 30 Days and Cannot Address Issues from Judgments Outside That Timeframe
Oregon Supreme Ct - June 12, 2014
by: Abassos and Katie Watson • June 17, 2014 • no comments
- A PCR Petitioner Must Submit Evidence That Aids or Advances Allegations
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.
