Oregon Appellate Ct - April 12, 2017

by: Sara Werboff • April 14, 2017 • no comments

Defendant Was Not Entitled to Grand Jury Notes – Court Will Not Exercise Discretion to Correct Sentencing Error

The court upholds defendant’s convictions for murder by abuse and concludes that defendant was not entitled to grand jury notes taken during the testimony of his girlfriend, Smith. Defendant and Smith lived with A, the victim, and their other children. A died from severe neglect. Smith gave statements to the police that, defendant contended, did not really implicate him in the murder. Smith testified at the grand jury, which indicted him for murder. Defendant sought notes from the grand jurors contending that Smith must have given inconsistent testimony. Defendant renewed his request after Smith testified at trial. Defendant also requested in camera review.

The court rejects defendant’s argument that he was entitled to the grand jury notes. First, the court explains that case law entitling a defendant to a tape recording of grand jury does not also entitle defendant to notes. Second, the court concludes that defendant is not entitled to the notes under the due process clause because he failed to establish that the notes would be exculpatory or that they would have made a difference in his trial. Finally, for those reasons, defendant failed to make a showing that he was entitled to in camera review.

The court also declines to review as plain error defendant’s claim that the trial court erred in sentencing him on merged counts. The trial court noted in the judgment that the three counts were three alternative theories of murder by abuse, the three convictions merged, and defendant was given a determinate life sentence. The court concludes that even if that was error, it declines to exercise its discretion to review it because the error is not grave and the judgment does show that the counts merge.

State v. Cockrell, 284 Or App 674 (Sercombe, P.J.)

Siefken v. Premo, 284 Or App 692 (2017) (Sercombe, P.J.)

Cunio v. Premo, 284 Or App 698 (2017) (Sercombe, P.J.)

State v. Hagner, 284 Or App 711 (2017) (Sercombe, P.J.)

State v. Aguilar-Ramos, 284 Or App 749 (2017) (Tookey, J.)

State v. Flores, 284 Or App 754 (2017) (DeHoog, J.)

Clark v. Nooth, 284 Or App 762 (2017) (Flynn, J., pro tem)

State v. Craig, 284 Or App 786 (2017) (Flynn, J., pro tem)