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 defendant's prior trial testimony is presumptively "tainted by the admission of unconstitutionally-obtained pretrial statements." Thus, such testimony is inadmissible at retrial unless the court determines that the defendant's prior testimony did not "refute, explain, or qualify the pretrial statements.” See State v Moore/Cohen, 349 Or 371 (2011). Here the defendant's first conviction was reversed due to a mistrial. At the second trial, the state wanted to use the testimony from the first trial, even while conceding that statements made to officers needed to be suppressed. Remanded for the court to decide whether or not the testimony was tainted due to the police officers’ actions. State v Dalessio, 262 Or App ___ (2014)

A Confession is Involuntary if Induced by Calculated Fear

A confession is involuntary if it is induced through fear calculated to put the defendant in a vulnerable state. Here, the officer stated at the hospital, that unless the Defendant confessed to shaking his daughter the defendant’s daughter would not receive proper medical attention, and that the defendant would be assumed to be an abuser. The question in this case is whether the willingness of the defendant to enter into the hospital private room with the police officers, as well as, his statement of shaking his daughter, were involuntary due to the calculated inducement of fear placed on the Defendant. Affirmed that the statements were given involuntary. State v Ruiz- Piza, 262 Or App ___ (2014).

An Inventory Policy Must Restrict the Scope

An inventory policy is defective if it does not contain restrictions on the scope of the inventory. Here, the Lane County Sheriff's Office inventory policy was defective because it authorized the search of all “pocket property”. “The policy's terms do not purport to impose any sort of limitation--or even guidance--on when an officer may open a closed container as part of an inventory.” Reversed and Remanded. State v Davis, 262 Or App ___ (2014).

It is Vouching Where the DA Asks the Defendant Whether the Cops are Lying

A judge is not required to sua sponte intervene to stop the sort of vouching that occurs where a defendant is asked repeatedly, by the DA on cross-examination at trial, whether or not he is saying that police officers have lied in their testimony. While such questions are objectionable, it does not involve the same concerns as "true vouching" where a party is offering a comment on another witness's credibility. Here, "the credibility of the officers was not the point of the prosecutor's cross-examination of defendant." The point was to undermine defendant's credibility. Affirmed. State v Corkill, 262 Or App ___ (2014)

Forfeiture Cannot Be a Condition of Probation

Forfeiture cannot be imposed as a condition of probation. No statute authorizes it, including ORS 137.540(2). Here, the defendant was ordered by the trial court to forfeit 18 gold discs that had been previously seized as a condition of his probation for methamphetamine possession. Reversed and Remanded with instructions to delete special probation condition requiring forfeiture of gold discs; otherwise affirmed. State v Miller, 262 Or App ___ (2014)

Per Curiams

• Probable cause is not a warrant exception. State v Groling
• A court may not order fees unless there is evidence that he "is or may be able" to pay them. Here, defendant was 64 years old, sentenced to 186 months in prison and there was no evidence adduced of his ability to pay. Thus, ordering defendant to pay $11, 760 in attorney fees was an error. State v Strong
• A Miles instruction is inappropriate where there is no evidence from which the jury could find that the defendant's physical condition exacerbated the effects of alcohol. Here, "the state presented evidence that defendant took pain medication on the day of his arrest, but the state failed to identify that medication or offer evidence that the medication made defendant more susceptible to the effects of alcohol." A Miles instruction is where the jury is instructed in a DUII case that where a physical condition exacerbates the effect of alcohol, it is still a DUII. State v Berning