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 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.

2. The court is not going to reverse a jury instruction as plain error where the defense has affirmatively agreed to the instruction. Here, the court twice instructed the jury, in response to jury questions after deliberations had begun, that, for felony murder, the causing of death must have occurred during the commission of the felony. This is wrong because there must be a causal connection, not merely a temporal one, between the felony and the murder. But defense counsel agreed to the instruction on the record, so "he may not seek refuge from that deliberate choice on appeal".

3. The state was allowed to put on testimony regarding the chain of custody for its crucial evidence, even if that chain included a release to defendant's expert for testing. The testimony is probative because the state my rebut anticipated arguments regarding its evidence. And, it is not particularly prejudicial because there is little likelihood that, against the direction of the jury instructions, the jury would come to the conclusion that the defense testing proved defendant's guilt.

4. The trial court did not err when it limited defense counsel in closing from discussing excluded evidence. Particularly because counsel was allowed to and did make the exact same argument without referring to the excluded evidence.

5. The trial court did not abuse its discretion in failing to sua sponte grant a mistrial when the state's witness from the DOC described "Hispanic" gangs as being divided into "soldiers" and "shock collars". The court finds that is not obvious that the jury would find from a reference to "shock collars" that Hispanic gangs are more violent than other gangs. And, in any case, it is not beyond dispute that the testimony was so prejudicial as to have denied defendant a fair hearing. This is an odd discussion because nobody at the appellate level seems to acknowledge (or recognize?) that "shock collars" is an obvious mistake in the appellate transcription. There are soldiers and shot callers (i.e., the guys who call the shots), not soldiers and shock collars. It is exceedingly unlikely that anyone with even a passing familiarity with gangs would confuse a "shock collar" with a "shot caller".

State v Serrano, 355 Or ___ (2014)