Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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Oregon Supreme Ct - Dec. 3, 2015
by: Abassos • December 3, 2015 • no comments
- Death Penalty - Atkins - Very Low IQ Is Not a Required Element of Intellectual Disability
- Death Penalty - Atkins - There Is No Apprendi/Ring Right to Have the Jury Decide Whether the Defendant Is Intellectually Disabled
- Death Penalty - Penalty Phase - A Defense Psychologist's Diagnosis is Relevant at the Penalty Phase, Even If the Judge Disagrees With the Diagnosis
- Death Penalty - Penalty Phase - Co-Defendant's Life Sentence Is Relevant Mitigating Evidence
- The Trial Court May Not Permit Detailed Cross-Examination of a Defense Witness By the Prosecutor Merely to Find Out Whether the Witness Will Assert a Right to Remain Silent
Oregon Appellate Ct - Dec. 2, 2015
by: Abassos and Alisa Larson-Xu • December 2, 2015 • no comments
- Menacing – Imminence - A Threat to Murder Someone in 3 Days Is Not Menacingly Near
- Repeat Sex Offender - Comparable Out of State Offense - California Lewd Acts Law is "Comparable" to Sex Abuse I Despite Being Broader
- Trial Procedure - Prosecutor’s Expression of Personal Beliefs During Opening and Closing Arguments Require, At Least, Curative Instructions
- Search & Seizure – Officer Safety No Longer Applies Once The Officer's Belief of Danger Dissipates
- Exploitation - When the Purpose of Police Misconduct Is To Procure Consent, the State Is Unlikely to Be Able to Prove There Was Not Exploitation
- DNA Testing - Defendant Does Not Lose His Chance for Appointed Counsel by Filing His Request for Counsel and Motion for DNA Testing Simultaneously
- Dependency –Service Defect Waived if Not Raised Early in Proceedings
- The Former Speedy Trial Statute Still Applied Until the Time When the New Statute Went Into Effect
- Plain Error - Discretion - Court Chooses Not to Correct aPlain Error Where Defendant Acquiesced in the Error and It Probably Didn't Make a Difference in the Outcome
- Plain Error - UUV - A Reasonable Dispute Exists On the Question of Whether Defendant Has Consent If Co-Owners Give Conflicting Answers to a Request to Use the Vehicle
- Appellate Procedure - When the Appellate Court Finds That Restitution Is Not Available, Remand for Resentencing Is the Appropriate Action
Oregon Supreme Ct - Nov. 27, 2015
by: Abassos • November 27, 2015 • no comments
- Rt to Be Free From Unnecessary Restraint - Stun Belts - Right to a Hearing - Capital Penalty Phase
- Allocution in the Penalty Phase of a Capital Case Is Not Evidence But May Be Considered By the Jury
Oregon Appellate Ct - Nov 25, 2015
by: Abassos • November 25, 2015 • no comments
- Stalking - A Petition for a Stalking Protective Order Is Not Evidence At the Hearing On Whether to Grant the Petition for a SPO
Oregon Appellate Ct - Nov. 18, 2015
by: Abassos and Cmaloney • November 18, 2015 • no comments
- OEC 702 - An Expert's Testimony About a Mental Health Diagnosis is Relevant If It Explains Behavior At Issue In The Trial
Oregon Supreme Ct - Nov. 13, 2015
by: Abassos • November 13, 2015 • no comments
- A Finding of Separate Criminal Episodes (For Criminal History Scoring and Consecutive Sentencing) Is Not Subject To the Apprendi Rule
Oregon Appellate Ct - Nov. 12, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • November 12, 2015 • no comments
- Re-Sentencing – The Presumption of Vindictiveness Only Applies When the Resentencing Is Greater Than the Original Sentence
- Robbery-II – Other Person Actually Present and Aiding the Theft Does Not Need to Be Aware of the Theft
- Vouching - The State Cannot Ask Defendant Whether the State’s Witnesses Were Lying
- Search & Seizure – Unlawful Extension - A Blow Torch and Association with Suspected Drug User Not RS of PCS
- Theft by Receiving Requires a Belief That the Property Is Stolen
- Impeachment – Failure to Appear II Is Admissible for Impeachment Under OEC 609(1)
- Sentencing – A Criminal History Score Cannot Be Reconstituted by Convictions Arising From the Same Criminal Episode
- Expert Testimony – An Expert May Testify About Personality Traits Independent of a Diagnosis of Personality Disorder
- Admission of a Party Opponent – The Declarant of a Statement Can Be Inferred From Circumstantial Evidence
- ECSA - Sexually Explicit Conduct – A Photo Can Be a "Lewd Exhibition" Even Though the Subject is Wearing a Shirt and Shorts*
- Contempt of Court – A Person Cannot Be Convicted of Contempt Because It Is Not a Crime
Oregon Appellate Ct - Nov. 4, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • November 9, 2015 • no comments
- Sentencing – Criminal Episodes - Multiple Agg Thefts Stemming From a Single False Claim of Benefits Is Probably a Single Criminal Episode
- Severance of Charges - A Challenge to Improper Joinder Does Not Require a Showing of Prejudice
- Search & Seizure - Search Incident to Arrest – A Strip Search is Unreasonable in Scope and Intensity
- Search & Seizure - Automobile Exception – Allows Search of a Passenger’s Backpack That Was In the Vehicle When PC Arose
- Preservation - Vouching - After a Party Properly Objects to Vouching No Further Objection Is Required to Preserve the Error for Appeal
- Dependency – Continued Alcohol Use For Single Father Sufficient to Endanger Welfare of Children
- PCR – A Judgment Doesn't Clearly State the Basis for the Court's Decision By Incorporating the Arguments From the State's Trial Memorandum
- PCR – When the PCR Court Does Not Provide a Process for Reviewing the Judgment, Objections to the Form of the Judgment Do Not Need to Be Preserved
- PCR – When the Court Provides a Process for the Parties to Object to the Judgment, Preservation Requirements Will Not Be Excused
- DNA Testing – Defendant Must Show How Testing Would Alter Jury’s Original Assessment of Reasonable Doubt
Oregon Appellate Ct - Oct. 28, 2015
by: Abassos, Alisa Larson-Xu and Cmaloney • November 1, 2015 • no comments
- Unlawful Use of a Weapon – "Use" Includes Using a Weapon to Threaten Immediate Harm
- Reasonable Suspicion – Parking on a Gravel Pull Out Off Of a Public Road Does Not Provide Reasonable Suspicion of Trespass
- Fines and Fees – Ability to Pay - Unlike Attorney Fees, a Compensatory Fine is Not Susceptible to Plain Error Review When There's No Evidence of Ability to Pay
- Expungement – Interests of Justice - Court Must Grant Expungement When Petitioner is Eligible and State Presents No Evidence
Oregon Appellate Ct - Oct. 21, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • October 21, 2015 • no comments
- Exigency - Urine Test for Drug DUII – Test is Whether Warrant Would Be Significantly Faster Than What Officer Actually Did
- Dependency - TPR – A Parent's Rights May Not Be Terminated for Failing to Appear Where There Was Insufficient Notice of Hearing
- Dependency Jurisdiction – A Wardship Can’t Continue If the Factual Bases for Jurisdiction Have Ceased to Exist
- Preservation - PCR – Dismissal For Failure to Prosecute
Oregon Appellate Ct - Oct. 14, 2015
by: Abassos, Alarson and Cmaloney • October 14, 2015 • no comments
- Encouraging Child Sex Abuse II - Sexually Suggestive Nature of Photos Sufficient to Prove Intent to Arouse
- Endangering the Welfare of a Minor – Evidence Must Be Presented that a Minor Was Present During the Unlawful Drug Activity
- Reasonable Suspicion - PCS - Defendant Nervous, On Probation, Furtive Movements, On Probation
- Probable Cause – PCS - Saying “Hide That” While Furtively Gesturing Is Not PC
- Attorney fees – The State Has the Burden to Prove Ability to Pay
- For Parole purposes, a Vulnerable Victim Need Only Be Vulnerable - The Vulnerability Need Not Have Been Exploited
- Preservation - Post-Conviction Relief - Requesting Remand for a New Trial Does Not Preserve the Remedy of a Delayed Direct Appeal
Oregon Supreme Ct - Oct. 8, 2015
by: Abassos • October 8, 2015 • no comments
- Free Exercise of Religion - The Constitution Allows For A Criminal Conviction On Less Than a Knowing Mental State, Even Where the Criminal Conduct Was Motivated By Religious Belief
- A Trial Court Has The Power To Issue a Sell Order for Involuntary Medication, Even Where The State Hospital Believes That the Person Doesn't Have a Disorder and Does Not Need To Be Medicated
Oregon Appellate Ct - Oct. 7, 2015
by: Abassos, Cmaloney and Alarson • October 7, 2015 • no comments
- Miranda Warnings May Be Required When Police Use Probable Cause to Confront a Suspect
- Financial Assessments Must Be Based in Statutory Authority
- Venue - Challenges to Venue Must Be Made in a Pretrial Motion, Not in a MJOA
Oregon Appellate Ct - Sept. 30, 2015
by: Abassos, Alarson and Cmaloney • September 30, 2015 • no comments
- Automobile exception – A Recently Parked Vehicle Is Not "Mobile", Even If The Police Had Information for a Non-Criminal Stop While the Vehicle Was Moving
- Character Evidence – Gang Imagery Pulled From the Internet Admissible for Motive Because State v Williams and 404(4)
- Kidnapping – Intent to Interfere With Liberty - Dragging Victim to A Porta-Potty For Sexual Assault Was Not Merely Incidental to Assault
- Interfering With a Peace Officer With Regard to Another Person – “Another Person” Means a Person, Not the Public
- Waiving a Jury - The State Does Not Have a Right to Present Its Case in The Manner of Its Choosing
- Eyewitness ID – Admissibility Per Lawson/James Requires 401 Relevance, 602 Personal Knowledge & 701 Foundation for Lay Opinion
- OEC 403 – A Defendant's In-Court Statement That "I Should Have Just Killed the Bitch" Is Relevant to Contradict a Defense of Mistaken Identification
- Stops – A Strong Odor of Marijuana Supports Reasonable Suspicion to Stop For Criminal Possession
- Search Incident to Arrest – An Intrusion Into a Person's Clothes Requires Something More Than a Reasonable Concern for Officer Safety
- Double Jeopardy – To Bar a Retrial, A Prosecutor Must Know Her Conduct Is Improper and Be At Least Indifferent to a Mistrial
- Restitution – The Court Can't Make Up a Number Out of Thin Air
- Sentencing – The 400% Rule Applies to the Determinate Portion of a Dangerous Offender Sentence
- Dependency Jurisdiction – Joint Custody and One Unfit Parent Does Not Alone Create a Basis for Jurisdiction
- Appellate Procedure - The Appellate Court May Use the Record to Interpret An Ambiguous Trial Court Order Susceptible to a Clerical Error
Oregon Appellate Ct - Sept. 23rd, 2015
by: Abassos, Alarson and Cmaloney • September 23, 2015 • no comments
- Search and Seizure - Attenuation - Bringing in A Second Officer Uninvolved in the Illegalities Does Not Itself Attenuate Evidence From a Prior Illegality
- Attorney Fees – State Must Present Evidence on Defendant’s Ability to Pay
- PCR - Escape Clause Requires Evidence to Support It
- No Appellate Review of Plain Error Where Defendant Could have Easily Remedied the Error by Telling the Court
Oregon Supreme Ct - Sept. 17, 2015
by: Abassos and Alarson • September 17, 2015 • no comments
Unlawful Possession of a Firearm
- (1) The Element "Within Any Vehicle" Applies Both to the Accused and to the Firearm, Both of Whom Must Have Been Within the Vehicle
- (2) A Person is Within a Vehicle if Any Portion of the Person’s Body Enters the Vehicle
Oregon Appellate Ct - Sept. 16, 2015
by: Abassos, Alarson and Cmaloney • September 16, 2015 • no comments
- Animal Neglect – Caring for and Exercising Power over Animals Constitutes “Control”
- Third-Degree Assault – “Extreme Indifference” Established by Intoxicated Driving Combined With Other Evidence of Defendant's Conduct
- Impossibility of Getting a Permit Is Irrelevant to Charge of Unlawful Water Pollution
- Confession - Compelling Circumstances - 3 hours of Polygraph Questions and Accusatory Non-Custodial Interrogation Is Compelling
- Confession -Voluntariness - No Threats, Promises or Inducements
- Restitution May Not Be Imposed In a Criminal Case Where It Results From Conduct During the Pendency of the Case
- Proportionality - A Life Sentence For a Third Sexual Touching of a Child is Not Constitutionally Disproportionate For a 71-Year-Old Defendant With 100 Uncharged Victims
- TPR – “Changed Circumstances” Is not a Valid Reason to Set Aside a TPR Judgment
Oregon Supreme Court - Sept. 11, 2015
by: Abassos • September 11, 2015 • no comments
- Jury Concurrence - Concurrence is Required Where Evidence of Multiple Occurrences of a Single Crime Involving the Same Parties is Nonspecific and Undifferentiated
Oregon Appellate Ct - Sept. 10, 2015
by: Abassos, Alarson and Cmaloney • September 10, 2015 • no comments
- Probable Cause – Driving 32MPH in a 35MPH Zone at Night Is Not PC of Driving Too Slow In Left Lane
- Other Bad Acts Evidence – 403 Balancing Required for 404(4) Evidence
- Probable Cause - Traffic Violation - Probable Cause of a Violation May Exist Even If the Violation Never Occurred
- Merger – A "Sufficient Pause" Occurs Only Through Defendant’s Conduct, Not the Conduct of Others
- Plain Error Review - The Error Assigned Must Not Reasonably Be In Dispute
- PCR - Preservation
Oregon Appellate Ct - Sept. 2, 2015
by: Abassos, Cmaloney and Alarson • September 3, 2015 • no comments
- Plea Agreements – A Judge Cannot Reject a Plea Agreement Based Solely On a Court Policy
- Jury Instructions – Unlawful Possession of Firearm – An Instruction That a ‘Firearm Carried in a Holster is Not Concealed’ is Required Where Defendant Presents Such Evidence
