Oregon Appellate Ct - Nov. 4, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • November 9, 2015 • no comments
Severance of Charges - Party Seeking Severance of Properly Joined Charges Must Show, With Specific Facts, How Joinder Will Substantially Prejudice
Under ORS 132.560(3), the party seeking severance of properly joined charges bears the burden of demonstrating that joinder will result in substantial prejudice. To satisfy that burden, the party must make a specific showing as to how joinder will result in prejudice in light of the facts of the particular case. However, if a party challenges joinder on the ground that the counts are not properly joined then there is no burden of substantial prejudice. Here, defendant was charged with 42 offenses that were joined in a single indictment that alleged there were six different victims. Defendant argued that he was substantially prejudiced by joinder and did not contend that the charges were improperly joined. Defendant’s support for his motion to sever was nothing but conclusory allegations about the type of prejudice that might result form the joinder of multiple charges of sex offenses. The only specific facts supporting his motion referred to the allegations in the indictment alleging that the offenses had been committed against six victims over five years. Defendant argued that prejudice should be presumed from the fact that the charges involved six different victims. However, the Oregon Supreme Court previously held prejudice should not be presumed. The Court of Appeals held defendant failed to present sufficient facts from which the trial court could have concluded that joinder would have substantially prejudiced him. Defendant had also argued that Due Process required severance. For similar reasons, the court held that defendant did not meet his burden to show that joinder deprived him a fair trial. State v. Crummett, 274 Or App 618 (2015). Also see Ryan Scott’s blog post on this case: [https://libraryofdefense.ocdla.org/Blog:Main/Severance:_Now_That%27s_What_I%27m_Talking_About Severance: Now That's What I'm Talking About].
PCR – A Judgment Doesn't Clearly State the Basis for the Court's Decision If It Simply Adopts a Lawyer’s Arguments Made in Trial Memos
ORS 138.640(1) requires that a judgment for post conviction relief “clearly state the grounds on which the cause was determined.” As the Supreme Court construed this statute in Datt v. Hill, if a particular claim has been denied and has more than one element then the judgment must identify each element that the court determined was not met. Here, the petitioner alleged three claims of relief each of which involved two elements. The court denied his petition for post-conviction relief. The judgment clearly stated how the court ruled with respect to each element in Claim 1. However, the judgment was silent to how the court ruled with respect to the elements of Claims 2 and 3. The state argued that the judgment was adequate because the judgment stated that “the Court relies upon and adopts the facts and law in...Defendant’s Trial Memorandum as the Court’s findings of fact and conclusions of law” and “the court also relies upon the arguments set forth in Defendant’s brief.” The Court of Appeals held the judgment’s general reference to the arguments in the state’s trial brief did not satisfy the requirement that the judgment explain what elements the post-conviction court found were not met. Reversed and remanded as to Claims 2 and 3 for entry of judgment including the findings required by ORS 138.640(1). Soderstrom v. Premo, 274 Or App 624 (2015).
PCR – A Judgment Must Clearly State the Grounds on Which the Cause Was Determined
ORS 138.640(1) imposes a clear-statement rule on judgments in post-conviction proceedings. In Datt v. Hill, the Supreme Court construed this statute to require a post-conviction judgment that denies relief to do three things: (1) identify the claims for relief that the court considered and make separate rulings on each claim; (2) declare, with regard to each claim, whether the denial is based on petitioner’s failure to utilize or follow available state procedures or a failure to establish the merits of the claim; and (3) make the legal bases for the denial of relief apparent. If a claim has contains more than one element, then to comply with the third requirement the judgment must identify each element that the court determined was not met. Here, the post-conviction court denied petitioner’s three claims for relief. The judgment satisfied all the Datt requirements for Claim 1. However, the judgment did not satisfy the Datt requirements as to Claims 2 and 3. Although the judgment sufficiently indicated that the post-conviction court considered and resolved those claims by stating “all questions were presented and decided,” the judgment did not state whether the court rejected those claims for procedural reasons, on the merits, or both as required by Datt’s second requirement. Furthermore, Claim 2 had two elements and the judgment did not comply with Datt’s third requirement by identifying which of the elements the court found were not met. The Court of Appeals, rejected the state’s argument that the judgment satisfied Datt’s requirements by referring to “the oral and written argument of defense counsel.” Reversed and remanded as to Claims 2 and 3 for entry of judgment including the findings required by ORS 138.640(1). Gonzales v. Taylor, 274 Or App 631 (2015).
PCR – No Excuse From Obligation to Preserve Errors in the Form of a Judgment When the Court Provides a Process for the Parties to Object
When the post-conviction court employs a process that permits the parties to object to the form of the judgment, then the obligation to preserve errors in regards to the form of the judgment will not be excused. Here, petitioner assigns error to the post-conviction court’s failure to enter judgment in the form required by ORS 138.640(1), as construed by the Supreme Court in Datt v. Hill. Petitioner did not preserve her assignment of error, but argues that the preservation requirements should be excused with claims of Datt error. The Court of Appeals rejected this argument. While the Court of Appeals has deemed preservation requirements excused in appeals raising claims of Datt error, in those cases the post-conviction court did not employ a process that permitted the parties to object to the form of the judgment. In this case, the post-conviction court did employ such a process. Consistent with ORS 18.035(1) and UTCR 5.100, the court directed the state’s attorney to prepare the judgment and share it with petitioner’s attorney before transmitting it to the court. The Court of Appeals held, under these circumstances the petitioner was not excused from the obligation to preserve her assigned error. Dudrov v. State of Oregon, 274 Or App 636 (2015).
Vouching – After a Party Objects to Vouching No Further Objection Is Required to Preserve the Error for Appeal
When one party seeks to elicit from a witness an opinion about another witnesses’ credibility, and the other party objects, a trial court must sustain that objection. No further objections are required to preserve the assigned error for appeal. Here, the prosecutor pursued a line of questioning that did not conform to the rule against vouching. The prosecutor’s questions included asking the officer “Did you find one witness’s account more credible than the other?” Defendant objected on vouching grounds. However, defendant did not renew his objection after the trial court made an ambiguous ruling on it and the prosecutor continued to ask for the officer's opinion as to which witness he found more credible. The Court of Appeals held, the defendant’s initial objection to vouching preserved the error for appeal.
State v. Betcher, 274 Or App 640 (2015).
Search Incident to Arrest – Strip Search Unreasonable A search incident to arrest must be examined to determine whether the search was reasonable in time, scope, and intensity. A strip search, incident to arrest, is not reasonable in scope or intensity under Article 1, section 8. Here, police officers observed and interpreted the defendant make a hand-to-hand drug transaction. Unable to find drugs on defendant’s person after the officers arrested defendant, the officers brought defendant to the police station to perform a strip search. The officers forced defendant to bend over and retrieved drugs from his buttocks. Because this search was so intrusive and humiliating, it did not meet the parameters for a search incident to arrest. Furthermore, because the officer testified to the incorrect strip search policy and the policy was not properly admitted into evidence, the court could not discern which policy was used in defendant’s strip search. Accordingly, the state did not meet its burden in proving the evidence would have inevitably been discovered. State v. Scruggs 74 Or App 575 (2015). DNA Testing – Must Show How Testing Would Alter Jury’s Original Assessment of Reasonable Doubt Under ORS 138.692, when a defendant requests DNA testing as a post-conviction remedy, the defendant must make a prima facie showing that DNA testing, assuming exculpatory results, would establish the defendant’s actual innocence. “Such a showing necessarily requires the defendant to establish a logical relationship between the presumed exculpatory DNA results and the defendant’s theory of defense in the context of the underlying trial proceedings, as will be required for a later showing of actual innocence.” Here, defendant requested DNA testing of sex toys and the victim’s nightdress, both supposedly involved in the offenses. The defendant asserted nothing more than that there was some testimony at trial that he used the sex toys and that the victim wore the nightgown, without providing any context for the significance of that evidence in the overall evidence that he had abused his daughter. “Without a further showing, the court is in no position to evaluate how or even if the proposed DNA evidence would alter a jury’s assessment of reasonable doubt, an evaluation necessary to a prima facie showing of actual innocence.” State v. Romero 274 Or App 590 (2015)
Dependency – Continued Alcohol Use For Single Father Sufficient to Endanger Welfare of Children Under ORS 419B.100(1)(c), where the welfare of the children were at issue, the following facts supported jurisdiction of the children: • Father had a history of alcohol abuse; • Father drank to self-medicate; • Father began treatment after DHS’ allegations but dropped out a week later; • Father was unable to completely abstain from alcohol; and • Even though father testified he only drank after the children were asleep, no other adult lived in the house to help were the kids to need assistance at night and father was intoxicated. Dept. of Human Services v. J. R. 274 Or App 601 (2015)
Search & Seizure - Automobile Exception – Allows Search of Passenger’s Backpack If Within Vehicle When PC Developed Where an officer develops probable cause to search under the automobile exception, a backpack located within automobile will be searched. Here, the officers stopped a car for a traffic infraction. The officers, who were alerted by their drug dog of the presence of drugs, directed the occupants out of the car to search the car. Defendant, a passenger, kept his backpack on his person; however the officers placed it back in the car to be searched, as it was within the vehicle when the officers developed PC. Any containers within the vehicle, which the officers had probable cause to search for drug-related evidence, had already fallen within the purview of the automobile exception. The defendant does not raise the argument that the car was not moving when the officers developed probable cause. State v. Furrillo 274 Or App 612 (2015)
Sentencing – Criminal Episodes - Multiple Agg Thefts Stemming From a Single False Claim of Benefits Is Probably a Single Criminal Episode
The state bears the burden of proving that a "previous conviction" from the same sentencing is from a separate criminal episode. If the state does not meet its burden then the conviction may not be used to enhance defendant's sentence on later counts. The first question for determining whether a criminal episode is separate is to ask "whether a complete account of one crime necessarily includes details of the other". Here, defendant said that he was injured in a hit and run accident and filed a claim for lost wages from a job and a business that did not exist. The state alleged three separate time periods over the course of a year in each of which the insurance company paid out more than $10,000 in benefits. The court rejects the state's argument that because defendant stipulated that the state could prove the three offenses, it was implicitly proof that they were from 3 separate criminal episodes. The court also rejects the state's argument that the separate acceptance and cashing of the individual checks at different times was enough, by itself, to create separate episodes. The crucial aspect of these offenses were that there was only one, initial false claim of benefits. Thus, "a complete account of why defendant committed theft each time he deposited one of the insurance checks issued to him would necessarily include the detail that [the insurance company] issued the check pursuant to defendant’s initial false claim for benefits." Reversed and remanded for resentencing. State v. Nesbit, 274 Or App 694 (2015). See Ryan Scott’s blog posts on this case:
