Oregon Appellate Ct. - Feb. 25, 2015
by: Frangieringer and Abassos • February 25, 2015 • no comments
Search & Seizure – Harmless Error Where Evidence Did Not Alter Verdict
It is harmless error to deny a motion to suppress where evidence that should have been excluded had no impact on the verdict. Here, the Defendant was charged with DUII. The evidence that the Defendant sought to suppress were statements that he owned the car that he was found in and that he was not diabetic or on medication. In light of all the other evidence, including a breath test that revealed a BAC of .14, there was little likelihood that the Defendant’s statements affected the verdict. State v. Beck, 269 Or App 304 (2015).
Jury Instructions – Requested Instructions Must be Tied to the Evidence
A trial court judge is not required to deliver jury instructions on voluntariness where the Defendant had provided no evidence to support a theory of involuntary driving in a DUII case. Unlike in other cases, the Defendant provided no evidence that he had a sleepwalking disorder, diabetes, head injury, or used Ambien. Because no evidence was proffered that would support such an instruction, the trial court judge was not in error in refusing to grant it. State v. Beck, 269 Or App 304 (2015).
Bias – Crossing Complainant on Intent to Apply for U Visa Goes to Bias
Under OEC 403 and 609-1, it is error to prevent cross-examination on the witness’s intent to apply for a U- Visa (a visa that allows an “otherwise illegal resident to stay in the United States” if she is a victim of a crime). Here, the defense theory was that the complainant fabricated the allegations of sexual abuse and harassment to “secure a U visa.” The trial court prevented defense counsel from questioning the complainant about her plans to obtain a U visa, despite the defense’s presentation of evidence that the complainant, who was in the country illegally, wanted to remain in the country and knew the she could apply for a U visa if she were a crime victim. Based on the defense’s questioning, the trial court should have known that the defense sought to impeach the complainant for bias. Because it is “always permissible” to show bias, preventing cross on the U visa was not harmless because such evidence would have assisted the jury in evaluating the complainant’s credibility. State v. Hernandez, 269 Or App 327 (2015).
PCR – Attachments to Petition Do Not Need to Prove the Truth of Petitioner’s Allegations
Under State v. Ogle, a PCR petitioner only needs “to attach [to his petition] materials, including petitioner’s own averments of fact, that address each element of each asserted ground for relief,” and if “considered together” and substantiated, “would permit the post-conviction court to determine that the petitioner was entitled to post-conviction relief on that ground.” Here, the PCR court was in error in finding that there was “insufficient supporting documentation” for each of petitioner’s claims where petitioner had submitted a sworn affidavit that explained the basis for his claims. Because such an affidavit was sufficient under the standard announced in Ogle, it was improper for the PCR court to dismiss petitioner’s claims. Stoeckert v. Nooth, 269 Or App 335 (2015).
IAC – Lawyer’s Don’t Have to Advance a Rule That Has Yet to be Promulgated
Not IAC for trial counsel to fail to argue a legal principle that had yet to be promulgated at the time of argument. Here, the Petitioner brought an IAC challenge claiming that his 2005 trial counsel failed to object to a DVD recording of a child/complainant’s interview at a child advocacy center. The Petitioner argued that under the rule promulgated in State v. Chase, a 2011 case, the state must give notice of the “particulars” of statements it seeks to introduce under OEC 803(18a)(b). Although such a principle could have been extracted from the case law in 2005, given trial counsel’s familiarity with the practices of the particular trial court, trial counsel could have reasonably concluded that bringing such a claim in 2005, six years before the Chase opinion, would have cost him credibility with the court, to the detriment of his client. Thus it was not IAC for counsel to fail to ask for the particulars of the statements that the state sought to introduce. Hagberg v. Coursey, 269 Or App 377 (2015).
Vouching – Lupoli Does Not Encompass Out-of-Court Statements on Credibility
The rule against vouching prevents a trial witness from testifying about the credibility of another trial witness or a non-witness complainant; it does not prevent the admission of “statements commenting on credibility that were made out of court.” Here, the Defendant sought to exclude out-of-court statements made by the investigating detective on the Defendant’s credibility. Thus, the Lupoli line of vouching cases were in applicable because the dealt with in-court vouching. Furthermore, no prejudice analysis under OEC 403 where the trial court did not preserve that argument in the trial court. State v. Chandler, 269 Or App 388 (2015).
Criminal Mistreatment I – Mere Exposure to a Hostile Dog is Not Assaultive Conduct
For the purposes of Criminal Mistreatment I, a person does not knowingly engage in assaultive conduct by exposing the complainant to a dog that is known to bite and has bitten complainant in the past. Here, the Defendant was charged with two counts of Criminal Mistreatment I after her live-in boyfriend’s dog bit Defendant’s daughter on two occasions. On one occasion, the dog bit the complainant when she stepped on the dog’s tail. The other occurred when complainant was alone with the dog and disturbed the dog’s sleep. Although those instances might permit an inference that the Defendant acted recklessly, they do not permit the inference that the Defendant “knowingly engaged in assaultive conduct,” or that she had “awareness that she was assaulting” assaulting complainant when she allowed the complainant and the dog to be in close proximity to one another. State v. English, 269 Or App 395 (2015).
