Oregon Appellate Ct - July 23, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Evan Ottaviani and Tim OConnor • July 23, 2014 • no comments
PCR - Ineffective Assistance of Counsel- No Prejudice when Defense Counsel Used Prior Bad Acts to Support Defense Theory
Where defense counsel wraps potentially objectionable state's evidence into a reasonable defense theory rather than objecting to it, there is unlikely to be prejudice for the purposes of post-conviction relief. Here, defendant was charged with attempted rape for bringing the drunken victim to a motel room and repeatedly asking for sex without letting her leave. Defense counsel failed to object to testimony from two women who claimed he made lewd comments and grabbed one of them earlier that night. Instead, counsel used that testimony to characterize defendant’s intentt as desperate for a sexual encounter with the victim but not desirous of forcing victim to do anything. Based on how the issues were framed at trial, admission of this testimony did not prejudice the defendant. Affirmed. Wright v. Nooth, 264 Or App ___ (2014).
Fines and Fees - State Must Show That Defendant Currently Has or Will Have Financial Resources
Evidence of employment a decade ago at “several fairly good jobs” combined with recent underemployment is not sufficient to meet the state’s burden of showing defendant is able to pay court ordered fees. After he was convicted of murder, defendant was ordered to pay $18,000 in court-appointed attorney fees and $18,000 in indigent contribution fees, in addition to $14,000 in other fees. Defendant’s recent and past employment history was insufficient to support the imposition of the $36,000 in fines that the defendant challenged. This imposition was sufficiently grave to give court discretion to correct the plain error. Indigent contribution and court-appointed attorney fees reversed. State v. Below, 264 Or App ___ (2014). Lisa
“Suspicious Movement,” Attire, and Past Conviction Justify Traffic Stop Extension on Officer Safety Grounds A defendant’s “suspicious movement,” gang-associated shirt, and past felony conviction are sufficient to justify the extension of a traffic stop on officer safety grounds. In this case, the defendant was reaching down to the floorboard of the car, wearing a shirt associated with an area gang, and was known by the officer to be a convicted felon; the officer extended the stop and requested consent to search the defendant for weapons and drugs. These circumstances, along with the fact that there were three occupants in the car and only two officers, were sufficient to establish a reasonable concern that defendant posed an immediate threat of physical injury. Affirmed. State v. Lee, 264 Or App ___ (2014).
Right to Proceed Pro Se—Court Must Determine that Defendant Understands Inherent Risks It is prima facie error for a trial court to accept a waiver of the right to counsel without speaking to defendant about the risks inherent in self-representation. In this case, defendant chose voluntarily to proceed without her attorney but the record lacked any demonstration of defendant’s understanding of the material risks of that decision and the court did not engage in a colloquy about those risks. Reversed and remanded. State v. Todd, 264 Or App ___ (2014).
Katie
An imposition of attorney’s fees when the evidence in the record indicates that the defendant is indigent is correctable plain error. A court’s imposition of attorney’s fees when the evidence in the record indicates that the defendant is indigent is correctable plain error. An appellate court may review and exercise its discretion to correct an unpreserved error as “an error of law apparent on the record,” ORAP 5.45(1), or “plain error.” Here, the trial court imposed attorney fees on the defendant in the absence of any evidence in the record of the defendant’s ability to pay those fees beyond mere speculation. The court held that it was appropriate to review and correct the error in this case, because the actual evidence on the record indicated that the defendant was homeless, mentally ill, and on an indefinite immigration hold that likely would result in deportation. Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed. State v. Ramirez-Hernandez, 264 Or App ___ (2014). When a party raises a generalized objection, it does not preserve a related issue for review. A party that raises a generalized objection does not preserve a related issue for review. To adequately preserve an issue for review, a party must provide the trial court with an argument that allows the opposing party to meet, and the trial court to consider, the matter claimed as error. Here, while there were fleeting references to hearsay in the trail court, the trial court understood the hearsay concerns to have been resolved when the state provided clarification of its position. The court held that, if the defendant believed that his original objection had encompassed a “layered hearsay” contention, then he should have alerted the court to that fact at that point in the hearing rather than raising objections on other grounds. Affirmed. State v. Graves, 264 Or App ___ (2014).
Tim
UUV- Evidence that the defendant lied about who gave him permission to use a stolen truck which contained stolen property does not prove that the defendant knew the truck itself was stolen. UUV requires proof that the accused knew they were not authorized by the owner of the vehicle to use or operate the vehicle. Knowledge may be proven with circumstantial evidence and inferences, but not by stacking inferences to the point of speculation. Here, the denial of defendant’s motion for acquittal was reversed because the state failed to prove that he knew the truck he had operated was stolen. Viewed in the light most favorable to the state, the evidence that the defendant lied about who gave him permission to use the truck, which contained property the defendant constructively knew was stolen, had interior and exterior damage, and contained a tool box labeled “crime committing kit”, was not sufficient to prove that he knew the truck itself was stolen where he was given a working key and the interior damage did not include exposed hot wires or obvious damage to the ignition system. UUV conviction reversed, otherwise affirmed. State v. Shipe, 264 Or App___ (2014). In responding to a gun call, waking up and detaining a passed out suspect, whom officers know supplied a handgun to another individual, is a stop which is not justified by officer safety concerns. A stop justified by officer safety concerns requires a subjective belief by the officers that a person represents an immediate threat of serious physical injury, and that this belief be objectively reasonable based on specific articulable facts. In this case officers responding to a gun call recovered the firearms and were told that the defendant supplied the firearm. The officers received consent to search the apartment, where defendant was passed out, for other weapons. When the defendant did not respond to verbal inquiries, the officers woke, handcuffed, and searched him for officer safety purposes. This was a stop which was not supported by officer safety concerns because it was not objectively reasonable to think that defendant represented an immediate and serious risk to officer safety because there was no evidence that he actually possessed any other weapons and there was nothing threatening in his demeanor. Reversed and remanded. State v. Easton, 264 Or App___ (2014).
