Oregon Appellate Ct - Dec. 30, 2015

by: Abassos and Erin Roycroft • December 30, 2015 • no comments

Child Sex Abuse - Defendant Was Not Entitled to an In Camera Review of the Victim's Dependency Records

State v Wixom, 275 Or App 824 (2015).

Attenuation - The Purpose and Flagrancy Factor Is Objective, The Officer's Subjective Intent is Irrelevant

To determine whether an unlawful police action is attenuated from evidence found after the illegality, a 5 factor analysis is used:

• the temporal proximity between the unlawful police conduct and the discovery of the challenged evidence;
• the presence of mitigating circumstances;
• the presence of intervening circumstances;
• the purpose and flagrancy of the unlawful police conduct; and
• the nature, extent, and severity of the constitutional violation.”

Here, the officer stopped defendant for ducking into some bushes just off a sidewalk, found a warrant and during the arrest on the warrant found methamphetamine. The temporal proximity was "right at the same time". There were no mitigating circumstances. The arrest warrant was not an intervening circumstance because it was a direct consequence or objective of the unlawful detention, which was investigatory in nature. (See State v Benning and State v Bailey, overturning State v Dempster.) The constitutional violation was severe, not limited, because it was not incidental to the discovery of the warrant; rather it was the cause of it. Finally, "purpose and flagrancy" focuses on whether the the constitutional violation should have been obvious to the officers. The officer's subjective intent and motivations are irrelevant. Here, the officer saw something unusual and took a "shot in the dark to see what might turn up". Thus, the factor weighs in favor of suppression, as do all the other factors. State v Jones, 275 Or App 771 (2015).

Photo Radar - A Motion to Dismiss is an Appropriate Vehicle to Challenge the Conditions Precedent

At issue in this case is the rule that the state may not issue a citation for speeding based on photo radar unless “[t]he citation is mailed to the registered owner of the vehicle within six business days of the alleged violation.” ORS 810.439(1)(a)(E). Here, the trial court erred in not allowing defendant's pre-trial challenge to the conditions precedent for photo radar evidence. The proper time for such a challenge is pretrial and a motion to dismiss is a proper vehicle. See State v King, 199 Or App 278 (2015). Moreover, the motion to dismiss should have been granted because the only evidence of the mailed citation was a document from the company that purportedly mailed it. The document was inadmissible hearsay without a custodian of records from the company. Evidentiary rules are required at a motion to dismiss based on a challenge to a condition precedent because such a motion is not one of the specifically enumerated exceptions in OEC 101. It is not an OEC 104 hearing on the admissibility of evidence because defendant's motion to dismiss did not challenge the admissibility of evidence. It challenged the citation itself. State v Daly, 275 Or App 1012 (2015).

A Concurrence Instruction Is Required When The State Has Advanced Both Accomplice and Principal Liability

Where the state has presented theories of guilt under both accomplice and principal liability, the defendant is entitled to a jury instruction requiring that the requisite number of jurors required for guilt agree on the theory of liability. Here, the defense failed to request such an instruction and the appellate court still reverses as plain error. The court finds that, after State v Phillips, the error was obvious and it was grave because defendant was sentenced to 70 months in prison and the evidence of defendant's principal liability was equivocal. State v Gaines, 275 Or App 736 (2015)

Setover - Restraining Order Hearing - Abuse of Discretion to Deny both the Petitioner's Witness and a Setover on the Grounds of Judicial Economy

It was an abuse of discretion for the judge in a restraining order hearing to refuse to hear the petitioner's witness solely because the judge decided the hearing shouldn't go beyond 30 minutes. The judge needed either to let the witness testify on the day of the hearing or continue the hearing to allow the witness to testify.

Although we appreciate the demands of the trial court’s docket, there is no explanation in the record as to why, if other cases prevented the court from hearing petitioner’s sole witness that day, the case could not have been continued. At least on the record before us, a continuance for the purpose of hearing petitioner’s witness would have imposed a minimal burden on the court system while also ensuring that petitioner had a fundamentally fair opportunity to present his case. JD v Klapatch, 275 Or App 992 (2015).

Confrontation Clause - Right to Examine on Prior False Accusations - Sufficiency of Defendant's Proof of Falsity

Defendant did not sufficiently establish that a prior accusation was false (such that he had a confrontation right to cross-examine) where there was a California report in which police officers reported to a call from the complainant of domestic violence, did not arrest anyone, noted that "no fight occurred" and that there were no marks or injuries and took the complainant into custody on a mental health hold. This is so because the report did not preclude the possibility that an assault occurred that did not involve a fight or injuries. Ultimately, "the trial court did not err when it found itself not persuaded that defendant had demonstrated the falsity of the victim’s prior accusations." At issue in this case is the rule from State v LeClair, 83 Or App 121 (1986), that there is a confrontation right to cross-examine on a false accusation if (a) the prior statement was recanted (b) the defendant establishes that the prior statement was false or (c) presents some evidence that the statement was false that it passes a balancing test., State v Taylor, 275 Or App 962 (2015).

Vouching - An Officer's Description of an Interview With a Victim Not Such Obvious Vouching That It Was Plain Error

The following exchange between the DA and the Investigating Officer, talking about an interview with the victim, did not require the trial judge to sua sponte strike the testimony:

“Q. *** What was the purpose of those visits?

“A. We like to make—We like to talk to the witness again before the trial just to see, make sure they’re going to be able to—if they’re going to be able to come testify in a court, make sure they still remember, or if they have—if they decide—Let’s say that they were lying to us or they told us a fib, we like to find that out before we get to this point so we can—we don’t have to waste your time and the court’s time. And we talked to her on the Thursday of last week.

“Q. Okay. And if there had been any inconsistencies or any problems, wouldn’t those have needed to be reported to all parties?

“A. Yes.

“Q. And you did not write any such a report or *** note any such inconsistencies at any time?

“A. I did not.”

An officer is allowed to point out a lack of inconsistency in statements without it being vouching. This is particularly true because the officer was not presented as an expert or someone with special knowledge of when a sex abuse victim is telling the truth. J. Armstrong concurs to say that the testimony was not obviously vouching because the officer was describing his investigative process. J. Ortega concurs to describe why the testimony was, at most, "indirect vouching". J. Sercombe dissents on the ground that the testimony was plainly vouching in that it was "explicit testimony by a police officer about the truthfulness of the victim, whose credibility was identified by both parties to be a core issue in the case" State v Inman, 275 Or App 920 (2015)

Preservation - Hearsay Objection Is Not the Same as an Objection to Using the Hearsay as Basis of Opinion (i.e. Personal Knowledge)

An objection to a document as hearsay does not preserve the argument that the content of the document may not be used as the basis of a lay opinion. Here, defendant objected to an estimate from a body shop stating the cost of damage to a car. But later, the victim testified to the value of damage to the car based on the estimate. The problem though was not hearsay; it was that the witness did not have personal knowledge. OEC 602. The hearsay objection did not preserve the personal knowledge argument on appeal. State v Gaines, 275 Or App 783 (2015).