Oregon Appellate Ct. - Dec. 10, 2014
by: Frangieringer and Abassos • December 10, 2014 • no comments
Searches & Seizures – No Expectation of Privacy in Bank Records Created During Regular Operations
No expectation of privacy in bank records created for the bank’s own purposes during “regular operations” that “memorialize transactions where the bank was a party.” Here, Oregon Division of Finance and Corporate Securities subpoenaed defendant’s wife’s bank accounts. A warrant was not required because, like phone records, internet service records, medical records, and utility records, there is no constitutionally protected interest in the business records of third parties.
State v. Ghim, 267 Or App ___ (2014).
Hearsay – Testimony of Prior Strangulation/Drunkenness Admissible To Show State of Mind
Case dealt with several exceptions to the hearsay rule where state sought to introduce several statements by decedent implicating defendant/husband where defense theory was self-defense.
• “I hope he is not drunk when I get home,” admissible under the state of mind exception to the rule against hearsay. Because the statement describes a “then-existing state of mind related to apprehension,” and did not describe the decedent’s “memories or beliefs of past events” the statement was admissible under 803(3).
• Witness’s testimony that decedent had called the police after defendant had attempted to strangle decedent was relevant to prove defendant’s culpable mental state in the instant case. Defendant had testified that he killed his wife in the same manner and the statement was admissible because even thought it was not “direct commentary” of a state of mind, it supported the inference that decedent was apprehensive of being left alone with defendant.
• Statement by decedent to witness, who later testified to jury, that defendant “put his hands around [decedent’s] neck and strangled her,” was admissible under the excited utterance exception to the hearsay rule. The court found that being “strangled to the point of unconsciousness is a startling event,” which led to severe stress, and the decedent was still suffering from the physical effects of strangulation when she spoke with testifying witness several hours after the event.
State v. Blaylock, 267 Or App ___ (2014).
Search and Seizure – Unlawful for Police to Hold Item When Item Could Be Given to Third Party
Officers may not hold defendant’s property, absent an exception to the warrant requirement, when defendant provides an alternative for the safekeeping of her property. Here, officers unlawfully detained defendant’s purse for an inventory after defendant requested that officers hand her purse to her boyfriend before she was taken to jail when there was no evidence that police believed there was anything harmful in the purse or any evidence of the crime of arrest. Furthermore, officers exploit an unlawful stop when they wrongfully limit the choices available to defendant. Here, defendant’s statement that there was “something” illegal in her purse had to be suppressed when the statement was only made when the arresting officer gave defendant two options: either grant permission to search the purse or be charged with supplying contraband to the jail if she didn’t tell him about any drugs. Because the property could go to her boyfriend, the officer exploited the stop and forced defendant into a situation where she could only choose between two incriminatory actions.
State v. Olendorff, 267 Or App ___ (2014).
Sex Abuse – Holding a Door Shut Is Forcible Compulsion
Applying force to an object that compels complainant to “submit to . . . sexual contact” constitutes compulsion for the purposes of first-degree sexual abuse. Here, defendant held a door closed with his foot while touching complainant’s breasts and buttocks. Because of the force exerted by defendant against the door, “a jury reasonably could conclude that the physical force that the defendant exerted was sufficient to cause or compel a person of that age [15] to submit to the sexual contact against her will.”
State v. Digesti, 267 Or App ___ (2014).
Jury Instruction – Must Present Evidence of Involuntariness for Involuntariness Instruction
For the purposes of assaulting a public safety officer, a jury instruction that describes knowingly must also take into account the voluntariness of the assaultive conduct. Here, a jury instruction that stated “knowingly or with knowledge means that the Defendant was aware of the assaultive nature of his conduct,” would have been insufficient to also establish the actus reus that defendant voluntarily hit the officer. Because no evidence was presented, however, of the involuntariness of defendant’s actions, and the police officer’s testimony was sufficient to show that defendant actively fought him, the defendant was not entitled to an involuntary act instruction.
State v. Lomchanthala, 267 Or App ___ (2014).
Ineffective Assistance of Counsel – Counsel May Enter Plea to Reflect Client’s Actual Wishes
No actual conflict of interest where counsel is acting on behalf of what she thinks are her client’s actual wishes. Here, client, during the entering of a guilty plea, in the face of his mother’s “domineering statements and disruptions,” stated that he had not had the plea petition adequately explained to him. Having found that defendant adequately understood the basis of the plea through several prior judicial conferences, the trial judge entered a guilty plea. Because counsel was not seeking to preserve her reputation, but to advocate for what she thought were client’s actual wishes in the face of a domineering mother, there was no ineffective assistance of counsel.
Clark v. State, 267 Or App ___ (2014).
