Oregon Appellate Ct - June 22, 2016

by: Aalvarez • June 23, 2016 • no comments

PCR – IAC - Standard for Determining Prejudice

The standard for determining ineffective assistance of counsel is whether there was a likelihood (more than a mere possibility but less than a probability) that counsel’s performance prejudiced the defense. Here, the state conceded that defense counsel was deficient but argued that the post-conviction court applied the wrong standard in finding prejudice and argued that the court should have determined whether the likelihood of a different result, but for counsel’s errors, was substantial. On appeal, the Court rejects the state’s formulation of the prejudice test, explaining that the correct standard does not require proof that but for counsel’s errors that there was a substantial likelihood of a different result. Rather, all the post-conviction court must find is that, in the absence of counsel’s errors, a different result at trial was possible. Baronovich v. Brockamp, 279 Or. App. 52, (2016)

SPO – Entry of SPO Improper Where Respondent Has Not Received Notice

The trial court erred in denying respondent’s motion to set aside a stalking protective order because, prior to the entry of the final stalking protective order, respondent had never been served with the petition nor had he been given any notice of the hearing. Because the respondent never received any notice of the hearing, the final stalking protective order was improper and respondent’s motion to set aside should have been granted. L.E.A. v. Taylor, 279 Or. App. 61 (2016)

Failure of the Trial Court to Sua Sponte Grant a Mistrial

A trial does not err in failing to grant a mistrial sua sponte where:

“(1) defendant and the state were aware that a juror had interjected extra-record material into deliberations; (2) the injection of that material arguably prejudiced the state more than defendant; (3) the offending juror’s comments reasonably suggested that he would vote to acquit; (4) the parties were invited to make a motion for a mistrial; (5) defendant was satisfied with the jury and wanted to proceed with that jury, notwithstanding the injection of extrarecord material; and (6) the state and victim also wanted to proceed, despite the risk of acquittal, rather than try the case a second time.”

State v. Carrasco-Montiel, 279 Or. App. 64 (2016)

Denial of a Motion for New Trial – When Subject to Appellate Review

A trial court’s denial of a defendant’s motion for new trial is not subject to appellate review when the defendant was aware of each of the proposed irregularities or juror misconduct on which his motion for new trial was based and nevertheless chose to submit the case to the jury. Where a party has knowledge of an irregularity in the proceeding but fails to object on that ground, the denial of a later motion for a new trial on the same ground is unreviewable. Here, the defendant was aware of all of the bases underlying his request for a new trial yet chose not to seek any remedial measures despite ample opportunity to do so. Thus, the trial court’s denial of his motion for a new trial is unreviewable.

State v. Carrasco-Montiel, 279 Or. App. 64 (2016)

Refusal of the Trial Court to Subpoena a Juror About What Occurred in Jury Deliberations

The trial court did not abuse its discretion in refusing to subpoena a juror who claimed that another juror had threatened her in order to conclusively resolve which juror had made threats. Although the threatened juror was initially shaken, she later backed down from her request for a security escort and after returning to court the morning after the threats were made “felt fine.” Moreover, the threatened juror ended up being one of the two acquittal votes. Thus, under those circumstances, “the trial court acted within the range of permissible outcomes when it determined, in effect, that further inquiry of [the juror] was not justified in light of the competing policy rationales of ‘freedom of deliberation, stability and finality of verdicts and protection of jurors from annoyance and embarrassment after they have performed their civic duty and rendered a verdict.’” (internal citations omitted) State v. Carrasco-Montiel, 279 Or. App. 64 (2016)

Reasonable Suspicion of Drug Activity

An officer’s inquiry during a valid traffic stop as to whether the defendant possessed drugs or weapons was supported by reasonable suspicion that the defendant had engaged in drug activity under the following circumstances: (1) the officer had information that one of the two men in the defendant’s Subaru had gone to an apartment that was under surveillance for suspected heroin distribution and quickly returned to the car; (2) the officer had information that the two men in the car engaged in possible drug activity before leaving the house; (3) the fact that, after police initiated the stop the defendant turned into a motel parking lot and very slowly drove to the back of the parking lot while he watched his passenger fumble with things under the seat, leading the officer to suspect that the passenger was hiding something; and (4) that the defendant and the passenger were staying at the motel, which was a common location for drug activity. State v. Barber, 279 Or. App. 84 (2016)

Consent to Search In the Presence of An Officer’s “Threat” to Bring a Drug Dog On Scene

A defendant’s consent to the search of his car was still voluntary even when given after the defendant was told that if he refused consent, a drug dog would likely be brought to the scene. In this case, the officer had reasonable suspicion that the defendant was engaged in drug activity. Therefore, he was legally allowed to detain the defendant for a reasonable amount of time to bring a drug dog to the scene to sniff the outside of the car. Thus, even though the officer may have communicated to the defendant that he would be detained while a drug dog came to the scene and sniffed the car if the defendant refused to give consent to search, such a “threat” was not outside of the officer’s authority and did not render the defendant's consent involuntary.

State v. Barber, 279 Or. App. 84 (2016)

Basis for an Expert Opinion Under OEC 703 – Scientific Study – Child Sex Abuse

The trial court did not err in limiting the testimony of a defense expert on hearsay grounds where the information the trial court excluded would not have helped explain the expert’s opinion or aid the jury in evaluating the quality of his reasoning under OEC Rule of Evidence 703.

Here, the defendant offered testimony from Dr. Reisberg, a psychology professor, in order to show how false memories are created. The defendant wanted the trial court to allow Dr. Reisberg to discuss a particular study in front of the jury, where children were subject to a medical procedure involving their genitals and asked about their memories of the event later. Although the trial court allowed Dr. Reisberg to testify generally about how traumatic events are clearly remembered in children, the trial court prevented Dr. Reisberg from testifying about the particular study the defense wanted Dr. Reisberg to discuss. On appeal, the Court of Appeals upholds the trial court’s ruling, noting that the study was hearsay and did not qualify for admission under OEC 703, the rule which allows certain evidence admissible if it serves as the basis for an expert’s opinion, because the details of the studies would not have helped explain or provide the necessary foundation for any opinion that Dr. Reisberg was asked to offer. Dr. Reisberg opined generally on how traumatic events are clearly remembered by children, and was never asked to offer his own opinion on how children would remember the details of medical procedures involving their genitals compared to other types of trauma.

Further, “[w]hen pressed on the subject, defense counsel did not identify an opinion that would be based on the [procedure.] Instead, defense counsel stated that the relevant issue was ‘Dr. Reisberg’s presentation of [the study] and the jury can evaluate his presentation of it.” Thus, instead of being offered as evidence to explain Dr. Reisberg’s opinion, the information was offered as direct evidence, simply repeated by Dr. Reisberg, about a particular medical procedure that was the foundation for the conclusions of someone else. Thus, that information was inadmissible hearsay. State v. Thomas, 279 Or. App. 89 (2016)

Extrinsic Evidence of Bias - Cross Examination

The trial court did not err in refusing to allow the testimony of a defense expert offered to provide extrinsic evidence of bias on behalf of a state’s witness because the witness had fully admitted to the facts that the defense claimed showed her bias. The state’s witness, a doctor who interviewed the named victim in a child sex abuse case, failed to follow up on multiple (though totally unbelievable given the context of the child’s statements) allegations of abuse the child made during the interview against his mother although her protocol required her to do so. The defense argued that this failure to follow up showed that the expert was biased against the defendant and in favor of the victim’s mother, since none of the abuse allegations involving the mother were investigated. The expert defense counsel sought to offer would have pointed out how the state’s witness failed to follow protocol with the mother. However, because the state’s witness admitted on cross examination that she failed to follow protocol with respect to the complaints involving mother, any additional extrinsic evidence of her bias was inadmissible under OEC 609. Affirmed. State v. Thomas, 279 Or. App. 89 (2016)

PCR - Denial of Motion for Substitute Counsel

A trial court does not err in denying a petitioner’s motion for substitute counsel in a PCR case where the information before it suggested that petitioner's counsel was suitable and where the trial court does not require the petitioner to proceed to trial unrepresented. Here, a week before petitioner’s PCR trial, he requested substituted counsel. The PCR court reviewed the petitioner’s affidavit and found that counsel was adequate and substitute counsel was not necessary. On the day of his trial, the petitioner told the court that he wished to hire his own attorney. The PCR court allowed current counsel to withdraw and rescheduled the trial in light of petitioner’s request. At the rescheduled trial, petitioner showed up without counsel and did not ask the court to appoint counsel, instead representing himself in the PCR hearing, where the court ruled against him. On appeal, the petitioner argued that the trial court erred in denying his earlier motion to substitute counsel. The Court of Appeals disagrees, noting that the PCR court was entitled to find that substitute counsel was not necessary after reviewing petitioner’s affidavit. Moreover, the PCR court did not force the petitioner to go to trial without counsel, as it was the petitioner’s choice to tell the court that he was going to try and hire counsel and the petitioner’s choice to proceed pro-se. Affirmed. Goodlette v. Causey, 279 Or. App. 113 (2016)

Dependency – Voluntary Admission of the Bases for Jurisdiction

In this juvenile dependency case, the court took jurisdiction over father’s child after father admitted the facts that formed one of the bases for jurisdiction – that he was incarcerated and unable to be a custodial resource for trial. On appeal, father contends that he did not make a knowing and voluntary admission, despite the hearing and the fact finding performed by the court. On appeal, the Court rejects father’s contention, noting that the court’s finding that father made a knowing and voluntary admission is supported by the evidence: Before accepting father’s admission, the trial court advised and questioned father extensively and confirmed that father had an opportunity to look over the petition. Moreover, the court explained that the state was asking father to take jurisdiction based on the allegations in the petition and that meant that the state would take custody of the child. Lastly, the court advised father about his right to a trial and the rights he would have at trial. Thus, the record supported the trial court’s finding of a knowing and voluntary waiver. DHS v. T.E.B., 279 Or. App. 126 (2016)

Per Curiam Civil Commitment Reversals

The Court of Appeals reverses multiple civil commitments in per curiam opinions and dismisses one appeal as moot. State v. C.R.C., State v. M.P., State v. M.L.B., and State v. T.D.T.

Theft by Receiving – MJOA

Per curiam reversal where the trial court should have granted defendant’s MJOA because defendant presented undisputed evidence that he knew or had reason to believe that he had permission to sell the scrap metal he was accused of unlawfully selling. State v. Riddle

Disorderly Conduct – Free Speech - MJOA

The state concedes and the Court of Appeals accepts that the trial court erred in refusing to grant defendant’s MJOA to a disorderly conduct charge where the whole basis for the charge was based on defendant’s free speech activity. State v. Read