Oregon Appellate Court - July 3, 2013

by: Alex Flood, Alarson and Abassos • July 8, 2013 • no comments

• A defendant’s unequivocal and unambiguous invocation of the right to remain silent cannot become retroactively equivocal upon further interaction with the police officer.

• Burglary – Sufficiency of Evidence

• Permanency - Reasonable Efforts Require a Cost-Benefit Analysis

A defendant’s unequivocal and unambiguous invocation of the right to remain silent cannot become retroactively equivocal upon further interaction with the police officer.

A determination of "an unequivocal or equivocal invocation" is based exclusively on "the totality of the circumstances at and preceding the time that it was made." Here, “I won’t answer any questions.” was an unequivocal and unambiguous invocation of defendant’s right to remain silent; even where, after invoking his right, the defendant later agreed to speak with the officer. Since nothing at or preceding the invocation “casts any doubt” on the defendant’s invocation, his subsequent agreement to speak with the officer did not, retroactively, make it equivocal. "State v.Avila-Nava", 257 Or App ___ (2013).

Burglary – Sufficiency of Evidence

It was sufficient circumstantial evidence to support a Burglary conviction where defendant:

• Possessed the stolen items from the burglary
• Did not have a credible alibi
• Admitted knowledge of the burglary to the police and
• Claimed a friend committed the crime where the evidence showed it had to have been committed by two people.

"State v. May", 257 Or App __ (July 3, 2013).

Permanency - Reasonable Efforts Require a Cost-Benefit Analysis

When determining if DHS made “reasonable efforts” to reunify a family, a court must consider both the costs associated with providing services and whether the parent is likely to benefit from services in a way that would increase the chances of family reunification. Here, DHS only looked at a cost analysis when deciding not to provide a psychosexual evaluation to a father, and ignored the benefit it could have to the father if it was administered while he was incarcerated instead of after his release. Since DHS believed the evaluation to be a key element in the reunification process, it was unreasonable that DHS delayed it being administered. "Dept. of Human Services v. M. K.", 257 Or App __ (July 3, 2013).