Case Reviews
From OCDLA Library of Defense
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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
- Discovery Violation – Failure to Include Witnesses on a State’s Pre-Trial Witness List
- Chain of Custody – Evidence Re-Tested by the State Crime Lab
- Pointing a Firearm At Another – MJOA – “Within Range of the Firearm"
- Sex Abuse I – Proportionality – Buck/Rodriguez
- Appellate Procedure – Preservation – Failure to use the Words “I Object”
- Trial Procedure – Exclusion of Witnesses – Failure to Read Witness Name to Jury
- Attorney Fees - Court Must Make the Predicate Determination That a Defendant "Is or May Be Able to Pay" the Fees
- DNA Testing - A Post-Conviction Motion for DNA Testing and Appointment of Counsel Must Satisfy the Statutory Requirements
- Statement Against Interest – The Declarant Must Appreciate the Statement's Potential Detrimental Impact for the Hearsay Exception to Apply
- Search and Seizure – Reasonable Suspicion of Drug Activity
- An Incorrect First and Middle Name Does Not Automatically Render a Search Warrant Insufficiently Particular
- Civil Commitment – “Qualified Examiner"
- Search and Seizure – Traffic Stop – Reasonable Suspicion of Drug Activity
Oregon Supreme Ct - April 7, 2016
by: Aalvarez • April 8, 2016 • no comments
- Article I, Section 11 – Right to Counsel – Questioning an Already Represented Defendant
Oregon Appellate Ct - April 6, 2016
by: Aalvarez • April 7, 2016 • no comments
- PCR - IAC - Natural and Probable Consequences Jury Instruction
- Sixth Amendment – Apprendi – Jury Trial Not Required for Restitution Determination
- Sentencing – Shift to I
- Search and Seizure – Pat Downs - Officer Safety Exception
- Miranda – Custody/Compelling Circumstances – Use of Restraints
- Jury Instructions – Self Defense
- Hindering Prosecution & Tampering with Physical Evidence – “Physical Evidence”
- Merger – Felon in Possession of a Firearm
- Civil Commitment – Failure to Advise the AMIP of His Right to Subpoena
- Civil Commitment – Unable to Provide for Basic Needs
- Dependency – Appeal Dismissed as Moot
U.S. Supreme Court - March 30, 2016
by: Aalvarez • March 31, 2016 • no comments
- Sixth Amendment Right to Counsel – Pretrial Restraints on Funds
Oregon Appellate Ct - March 30, 2016
by: Aalvarez • March 31, 2016 • no comments
- Improper Joinder – State Required to Allege Basis for Joinder - Ryan Scott Wins!
- Search and Seizure - Extension - Asking about Weapons During a DUII Stop
- Post-Conviction Relief - IAC - Failing to Object to Improper Closing Argument
- Revocation of Driving Privileges Under ORS 809.235(1)(b) - Sixth Amendment Implications - Prior Uncounseled Convictions
- Juvenile Courts’ Jurisdictional Determinations - The Hearsay Rule
- Appellate Procedure - Preservation - Motions to Suppress
- Miranda - Refusal to Suppress Statements Was Harmless Error
- PCR - IAC - Failure to Hire an Expert
- Denial of a Motion for Continuance – Abuse of Discretion
- Enhancement Facts – Willful Failure to Appear – Judicial Notice
- Attorney’s Fees- Four Per Curiam Reversals
U.S. Supreme Court - March 21, 2016
by: Aalvarez • March 24, 2016 • no comments
- Second Amendment - Unlawful Possession of a Weapon - The Right to Possess a "Stun Gun"
Oregon Appellate Ct - March 23, 2016
by: Aalvarez and Cmaloney • March 23, 2016 • no comments
- Disorderly Conduct II - Conduct Primarily Characterized as Speech - Knocking on a Door
- Dependency - Evidence of Past Substance Abuse and Mental Illness Insufficient Basis for Jurisdiction
- Probation Revocation Where Prior Post-Prison Supervision Sanction Already Imposed for Same Conduct
Oregon Appellate Ct - March 16, 2016
by: Aalvarez and Cmaloney • March 16, 2016 • no comments
- Post Conviction Relief - A Judgment That Incorporates by Reference the Court's Oral Findings Must Be Noted on the Judgment
- Juvenile Dependency - A Concluding Decision on Jurisdiction Can Be Inferred From the Title and Text of a Document
- Dependency - Reunification Efforts - Parent’s Failure to Sign ROI’s
- Sodomy I - Jury Instructions - Forcible Compulsion
- Attorney’s fees - Plain Error in Imposing Where No Evidence of Ability to Pay
- Parole Board Decisions - Public Meetings Law
- Accomplice Testimony Corroboration - Attempted Murder and Conspiracy to Commit Murder
- Search and Seizure - Warrants and the Particularity Requirement
- Failure to Warn a Defendant of the Consequences of Refusing to Perform FST's Results in Exclusion
- Post-Conviction Relief- Failure to Properly Enter a Judgment - Per Curiam
- Criminal History Scoring - Out of State Conviction- Colorado's Assault Statute
- Civil Commitment - Per Curiam Reversal - Failure to Provide for Basic Needs
U.S. Supreme Court - March 7, 2016
by: Aalvarez • March 11, 2016 • no comments
- Brady - Evidence that the States' Witnesses Had Personal Reasons to Want to See the Defendant Convicted
Oregon Supreme Ct - March 10, 2016
by: Aalvarez • March 11, 2016 • no comments
- Appellate Procedure - Waiver of Objection
Oregon Appellate Ct - March 9, 2016
by: Aalvarez and Crystal Maloney • March 10, 2016 • no comments
- Search and Seizure - Relinquishment of Possessory and Privacy Interests
- Prior Bad Acts - 403 Balancing After State v. Williams
- 403 Balancing - Pre-Williams - Balancing Requested by the Defense
- Dependency - Risk of Harm - Father's Failure to Protect Children from Mother
- Termination of Parental Rights - Notice of Hearing Under ORS 419B.820
- Emergency Aid Warrant Exception – Scope of the Exception Depends on the Type of Emergency and the Type of Aid That Would Alleviate It
- Department of Corrections – Invalidating a DOC Health Care Rule and Policy
- Miranda – Expressing a Clear and Present Desire to Speak With an Attorney in Response to Miranda Warnings Is an Unequivocal Invocation of the Right to Counsel
- Invocation of the Right to Counsel Is Not Waived by Subsequent Statements Related to Routine Incidents of the Custodial Relationship
Oregon Supreme Ct - March 3, 2016
by: Aalvarez • March 3, 2016 • no comments
- Appellate Procedure - Motion to Dismiss under ORAP 8.05(3) - Evidence that a Defendant Has Absconded
- Permanency Hearings - ORS 419B.923 - Raising Claims of Ineffective Assistance of Counsel on Direct Appeal
Oregon Appellate Ct - March 2, 2016
by: Breinhard, Jonathan Heritage, Matthew Watkins and Joseph Hampton • March 3, 2016 • no comments
- Contempt – Proceedings initiated as Civil Contempt Proceedings Could not Result in Probation or a Fine
- Miranda/Article I section 12 – Sex Abuse Admissions Not Made Under Compelling Circumstances
- Civil Commitment – Delusions, Inappropriate Behavior, and Resisting Arrest Insufficient for Danger to Self or Others
- Vouching – Harmless Error Where the Court Presumes the Jury Follows Curative Instructions
- Evidence – Potential Plain error When Court Failed to Conduct 403 Balancing Test on Prior Bad Acts
- Dependency – Excusable Neglect Claim Controverted by Mother’s Inconsistent Statements Regarding Her Mistake
- Search and Seizure - Arrest Warrant Did not Sufficiently Attenuate Police Illegality
Oregon Appellate Ct - February 24, 2016
by: Aalvarez • February 24, 2016 • no comments
- Merger-Theft of a Firearm and Theft of Property Valued at $1,000 or More
- Buck/Rodriguez-A Judge May Consider a Defendant’s Diminished Mental Capacity in Deciding Whether a Sentence is Disproportionate
- Two Per Curiam Reversals of the Imposition of Attorney Fees
- Delinquency-Insufficient Evidence to Support the Crime of UUV
- Civil Commitment-Failure to Advise the AMIP of The Right to Subpoena
Oregon Supreme Ct - February 19, 2016
by: Aalvarez • February 20, 2016 • no comments
- A Defendant's Decision to Provide a False Name During an Unlawful Traffic Stop Can Attenuate the Taint of the Unlawful Encounter
- A Court Must Consider The "Reasonable Foreseeability" of Damages in a Restitution Hearing
- A Victim May Recover Lost Wages as Restitution When Subpoenaed to Trial and an Accompanying Restitution Hearing
Oregon Appellate Ct - February 18, 2016
by: Aalvarez • February 18, 2016 • no comments
- Permanency - Substance Abuse and Lack of Legal Custody Insufficient Grounds for Jurisdiction
- A First Degree Robbery Indictment Necessarily Alleges the Crime of Third Degree Robbery
- Weaving in Own Lane and Touching Fog Line is Sufficient to Provide Reasonable Suspicion of DUII
- Evidence of a Lawful Marijuana Business in Washington is Not Relevant in a Prosecution for Delivery in Oregon
- Merger - Possession and Delivery of a Controlled Substance
- OEC 803(18a)(b)-State Not Necessarily Required to Provide New Notice of Hearsay Statement Particulars on Retrial
- Nonthreatening but Unwanted Contacts with No Previous History of Violence Or Threats Are Insufficient to Justify an SPO
- Attorney Fees May Not Be Imposed Where the Record is Silent as to the Defendant's Ability to Pay
Oregon Appellate Ct - February 10, 2016
by: Aalvarez • February 11, 2016 • no comments
- PCR - Defendant Did Not Suffer Prejudice by Counsel’s Failure to Object to the Use of a Restraining Leg Brace Where the Brace was Not Visible to the Jury
- PCR – There Can Be No Claim for Post-Conviction Relief Where the Defendant Unsuccessfully Previously Raised the Claim on Direct Review
- Unanimous Jury Verdicts are Not Required
- Merger - Plain Error - Manufacturing Cocaine and Manufacturing Cocaine in Substantial Quantities
- MJOA - Tampering with Physical Evidence - Knowledge of Being Under Arrest Was Sufficient to Prove Knowledge that an Official Proceeding Was About to be Commenced
- Attorney's Fees - Plain Error in Imposing Where No Evidence of Defendant's Ability to Pay
Oregon Supreme Ct - February 4, 2016
by: Aalvarez • February 11, 2016 • no comments
- UUV Requires a Mental State of Knowledge Because “Without the Owner’s Consent” is Part of the Conduct UUV Criminalizes, NOT a Circumstance
Oregon Appellate Ct - February 3, 2016
by: Aalvarez • February 11, 2016 • no comments
- UUW - Holding a Gun Coupled with Angry Statements is Sufficient to Prove Intent to Fire the Gun
- Merger - Plain Error - Possession of Multiple Guns in One House Merge into One Conviction
- Knowingly Allowing an Acquaintance to Store Guns in Your Home is Sufficient Evidence of Constructive Possession
- Dependency - Failure to Present Sufficient Evidence to Justify Jurisdiction - No Evidence of Harm to Child
- Former Speedy Trial Statute - 19 Month Delay in a DUII Case is Unreasonable
- Miranda - Invocation of Counsel is Equivocal if Reasonably Interpreted in Multiple Ways
- The Court Will Decline to Examine a Federal Issue When No Distinct Analysis Provided
- Officer Safety - Pat Down Not Justified on a Reasonable Suspicion of Serious Physical Injury
- Joinder - Two or More Acts Connected Together - Marijuana Possession and Assault IV in the Same Vehicle
- Severance-Substantial Prejudice - No Prejudice Where Defendant Can Limit the Most Damaging Result of the Joinder
- Choice of Evils - Medical Marijuana Defense - Insufficient Evidence that Defendant's Marijuana Possession Was Necessary as to Justify Defense
- Improper Joinder - Demurrer - Unpreserved
- Joinder - Marijuana Possession and Theft of Firearms Where Evidence of Both was Discovered in One Search
- Severance - Substantial Prejudice - No Substantial Prejudice Where Defendant Does Not Explain How Evidence Will Harm His Case
- Attorney’s Fees - Plain Error in Imposing When the State Puts on No Evidence of the Defendant’s Ability to Pay
Oregon Appellate Ct - Jan. 27, 2016
by: Abassos • January 27, 2016 • no comments
- Assault IV - "Substantial Pain" Can Be Inferred From Observed Injuries and Circumstantial Evidence
- Manslaughter - "Extreme Indifference to the Value of Human Life" Is More Than a Lack of Concern for Social and Legal Responsibility
- The Corpus Delecti Rule - Inner Thigh Bruises and Scratches Are Sufficient to Corroborate a Confession to Touching the Victim's Vagina
- Attenuation - Implied Consent Can Break the Chain Between an Article I, Sec. 12 Violation and Consent to a Breath Test
- PCR - A Dismissal For Failure to State a Claim is Not Appealable
