Oregon Appellate Ct - Dec. 9, 2015

by: Abassos and Alisa Larson-Xu • December 9, 2015 • no comments

Request for Pro Se Representation May Be Denied If It Would Be Disruptive to the Orderly Conduct of a Trial

The trial court did not err by denying defendant's mid-trial request to represent himself when (1) defendant had been very disruptive throughout the state's case, with the judge twice before threatening to have defendant removed from the courtroom and (2) defendant first requested to represent himself when the state's case was almost complete and for reasons that would have been counter-productive to his case. While the judge did not make explicit findings about how disruptive self-representation would be, the record supports an implicit conclusion that it would be disruptive based on the judge's repeated conversations and the reasons for his denial. State v Hightower, 275 Or App 287 (2015).

Scope of Consent to Search - An Offer to "Search the Vehicle" for "Anything Concerning" Does Not Include the Search of a Fanny Pack Inside the Vehicle

A search based on consent may not exceed the scope permitted by the consent. Here, defendant was stopped for a traffic infraction; the officer asked whether there was anything in the car that the police should be concerned about; and defendant said "no" and told the officer he could "search the vehicle". The officer did search the vehicle as well as a fanny pack found under the passenger seat, in which there were drugs. The first step in determining the scope of consent is to look at the request for consent to search: "a general request for consent to search a car does not extend to closed containers in the car if no other circumstances reasonably indicate that the officers are searching for something that could be hidden in those containers." In this case, there was no actual request for consent, only a vague and open-ended question. Thus, "a reasonable person would not have understood the scope of the deputies’ interest in the car to extend to the contents of the zipped fanny pack found under the passenger’s seat". Since there weren't any contextual circumstances indicating that officers wanted to look for small items and there wasn't anything about defendant's statement indicating consent to meticulously search all closed containers, the scope of consent was limited and the trial court should have granted the motion to suppress. Also, the Miranda warnings that immediately followed the search did not purge the taint from defendant's admissions to possessing the drugs found in the search. The police conduct was purposeful and flagrant, the connection between the illegality and statements is direct and unavoidable; and:

"The illegal search put defendant in the no-win position of confessing to owning the fanny pack and drugs or incriminating, by process of elimination, the other passenger in the car. Without the illegal search, defendant would not have been in that position. Therefore, the police exploited the illegal search to gain an advantage over defendant"

Reversed and remanded. State v DeLong, 275 Or App 295 (2015).

Exploitation - The Unlawful Seizure of Defendant By Ordering Him to Get Medical Treatment Was Attenuated From HIs Later Consent to Search Given to A Different Officer at the Hospital

Defendant was unlawfully seized when an officer persuaded defendant to get medical treatment after a bike crash by telling him that he could either voluntarily go with the paramedics or the officer would involuntarily take him to the hospital in a police car. However, that seizure was attenuated from a later interaction with a different officer in which a consent-based search was performed and drug evidence was found. The court finds that the consent was attenuated from the illegality because:

1. The first officer had a non-investigative community caretaking based purpose

2. Defendant was dropped off at the hospital and then voluntarily chose to seek treatment

3. The second officer's reasonable suspicion arose at the hospital after smelling a strong odor of marijuana

4. The second officer fully informed defendant of his right to refuse consent

State v Lowell, 275 Or App 365 (2015).

The Search of a Cell Phone Generally Requires a Warrant and Search Incident to Arrest Does Not Apply

An officer's search of defendant's cell phone generally requires a warrant and, in any case, is categorically not permitted pursuant to a search incident to arrest under the 4th Amendment. See Riley v California. 134 SCt 2494 (2014). Nothing new here. Just a good reminder. State v Lowell, 275 Or App 365 (2015).

Derivative Use Immunity - Co-Defendant's Statement Was Derived From Defendant's Statement Where the Latter Was Played to Induce the Former - PCR - Death Penalty

Where the district attorney told defendant and his attorney that “any information that we derive from what you tell us” “cannot ever be used against you”, that was derivative use immunity. In determining the scope of an immunity agreement, the courts should look to contract principles to determine the agreement between the parties. Here, the word "derive" is a legal term of art that could not have been understood by the attorneys to mean anything else besides derivative use immunity. Derivative evidence is "any evidence obtained by use of the immunized statement." Thus, when officers took defendant's recorded statement, played it for co-defendant and thereby induced a confession, it fell under the immunity agreement. Had defense counsel raised the issue, the state would have had the burden of proving that co-defendant's statements "derived from a legitimate source wholly independent of defendant’s immunized statement." Counsel did not raise the issue and, since defendant's statement was used by police to induce co-defendant's statement and co-defendant simply repeated the same statement at trial, counsel was constitutionally inadequate in failing to ask for suppression of derivative statements and testimony that should have been suppressed. It was unreasonable for trial counsel not to raise the issue because, there was no possible detriment to raising the issue and he knew about the immunity agreement and even raised the issue at a release hearing. Counsel's affidavit indicated that he had no strategy, he just forgot about the issue by the time that trial rolled around. Moreover, defendant was prejudiced by the failure to raise the issue because it was the centerpiece of the state's case and the only direct evidence against defendant. Aggravated Murder conviction and death sentence reversed and remanded. Oatney v Premo, 275 Or App 171 (2015).

Incriminating Statements - Recording of Defendant's Statements to Undercover Officer Were Not Improper

Gutierrez v Nooth

Civil Commitment - Intellectual Disability - A Hearing May Not Proceed Without an Evaluation

State v R.E.G., 275 Or App 239 (2015)

Preservation – Defendant Must Object to Inadmissible Evidence, Not to an Exhibit Without Differentiating Between the Portions That Are Admissible and Those That Are Inadmissible

Where a defendant makes a general objection to the trial court’s admission of an exhibit, the objection will fail if any portion is admissible. Here, defendant made a hearsay objection to three sets of text messages:

• In the first exhibit, defendant actively responded to text messages sent by his girlfriend. While a few messages may have been inadmissible, defendant’s responses were sufficient to constitute an adopted admission of the girlfriend’s texts under OEC801 (4)(b)(B); therefore it was not error to admit the entire exhibit.
• The second exhibit consisted of messages that the state’s informant had sent to defendant, improperly admitted for the purpose of refreshing the informant’s memory (Under OEC 612, only the adverse party is entitled to have portions of the writing admitted). However, because the text messages were sent after the alleged offense and was cumulative of other forms of admissible evidence that proved the offense, the error was harmless.
• The third exhibit consisted of approximately 200 incoming messages from defendant’s cell phone; however some of those consisted of duplicates of previously admitted messages. Because defendant did not differentiate between inadmissible and admissible with his objection, all messages were admissible.

State v. Martinez 275 Or App 451 (2015)

Dependency – Mental Health Concerns + Not Fully Engaged in Services + Avoiding Fault for Child’s Injury = Continue Jurisdiction

To support juvenile court jurisdiction following a motion to dismiss, the court must examine the totality of the circumstances to determine whether there is a current threat of serious loss or injury to the child and a reasonable likelihood that the threat will be realized. Here, after DHS took C from parents after C sustained a tibia fracture, the following facts supported continued jurisdiction: · Parents failed to substantially benefit from the services they were engaged in. · Parents had mental health concerns; specifically, father failed to follow through with services related to anger management. · C, the child, was diagnosed as special needs and during the three months parents were aware of C’s special needs, parents failed to fully engage in services related to those special needs. · While not dispositive itself, parents refused to acknowledge fault or reason to C’s injury to ensure that it does not happen in the future. Dept. of Human Services v. J.M. 275 Or App 429 (2015)

Dependency – Not Completing Courses and Slow Progress with Child Can Change Plan from Reunification To Adoption

When the permanency plan at the time of the hearing is reunification, to change the child’s plan away from reunification, DHS bears the burden to show that (1) it made reasonable efforts to reunite the family; and (2) despite those efforts, the parents’ progress was insufficient to make it possible for the child to return home safely. Here, C was diagnosed with autism spectrum disorder and DHS did not notify parents until six months later. Once notified, while parents’ time with C was more focused on C’s special needs and parents had made progress in developing a connection with C, parents did not begin the online autism spectrum disorder course until a week before their permanency hearing. Thus despite DHS’s delay in disclosing C’s disorder, DHS’s efforts at reunification were reasonable, and enough evidence supported the finding that parent’s progress was insufficient. Dept. of Human Services v. J.M. 275 Or App 429 (2015)

Bail & Equal Protection – Indigent Defendant Not Disadvantaged Inability to Post Bail if Wouldn’t Be Released Anyway

Here, after defendant admitted to violating his probation, the court revoked probation and sentenced defendant to 60 days of jail, with no credit for time served. Defendant argued that this violated equal protection because a non-indigent defendant would have bailed out and would have served less time. However, at the time of the hearing, defendant was serving a separate sanction in another case. Therefore, defendant did not prove, as a factual matter, that he would have been released even if defendant could post bail. Without that factual finding, the court refuses to reach defendant’s equal protection argument. The imposition of attorney fees, however, was improper without any evidence of defendant’s ability to pay. State v. Kasper 275 Or App 423 (2015).

Merger – UUW and Pointing a Firearm at Another Do Not Automatically Merge

The elements of UUW do not obviously merge within the elements of Pointing a Firearm at Another to overcome a claim of plain error. Pointing a firearm at another does not require that the firearm be loaded; UUW requires the weapon be deadly; and arguably, a deadly fiream must be loaded. Here, the defendant was convicted of both counts and did not preserve the merger argument. On appeal defendant does not identify evidence or sources of precedent that would make it obvious that a firearm, loaded or not, is always a deadly weapon, such that UUW would subsume the elements of Pointing a Firearm at Another. The failure to merge was not plain error. State v. Kuester 75 Or App 414 (2015).

PCR – Judgment that References Oral Findings Sufficient for Post-Conviction

A post-conviction judgement can satisfy the statutory requirements of “clearly stating the grounds on which the cause was determined” by incorporating by reference findings that the court made on the record at the post-conviction trial. Here, the post-conviction judge orally explained why relief was being denied. The court wrote in the judgment that the conclusions and findings were made “on the record.” Because it is sufficient to have oral conclusions, and petitioner did not challenge the sufficiency of those conclusions had they been written out, only that oral conclusions are insufficient, there was no error in the judgment. Asbill v. Angelozzi 275 Or App 408 (2015).

Sentencing – “Remand for Resentencing” Means A Resentence on All Convictions

“Where an appellate court’s decision affects part of a felony sentencing package—even by doing nothing more than requiring merger of two guilty verdicts—resentencing on all convictions that form part of that package is required on remand.” The trial court then has discretion to impose the same sentence or a different sentence, so long as the sentence is legally permissible. Moreover, the defendant has an opportunity to present further evidence to change the sentence. Here, the appellate court merged two convictions and remanded for sentencing. The trial court held that it lacked authority to revisit sentencing and its sole job was to merge the convictions. As the trial court misperceived the scope of its authority, defendant did not have a meaningful chance to advocate for a change in sentence. The error was plain. Remand for resentencing. State v. Zolotoff 275 Or App 384 (2015)