Oregon Appellate Court 02-15-12

by: Abassos • February 14, 2012 • no comments

Read the full article for details about the following new cases:

• A warrant check does not impermissibly extend a stop
• Cross may be limited where confusing and collateral
• Judge may not impose no Contact provision on PPS
• Evidence of Satanism admissible if it's a motive
• No inventory of closed containers unless policy allows
• DCS to a minor - no mental state as to age

Stop - Extension - Doing a Warrant Check Does Not Impermissibly Extend the Stop

Contacting dispatch for a warrant check during a lawful traffic stop does not unconstitutionally extend a traffic stop because it is reasonably related to the identification of the person and the issuance of a citation. In this case, defendant was stopped for riding a bicycle without a headlight at 3:00 am. The officer took defendant's drivers license and called it into dispatch. While waiting for the check, the officer obtained consent to search. The officer specifically testified that, before calling in, he had all the information he needed to issue the citation. Thus, this is about as clean a decision as possible finding that the delay created by a standard warrant check is an unavoidable lull, within which consent to search may be obtained. State v. Leino ||

Cross-Examination - Limitation where Confusing and Collateral

Defendant's cross was properly limited where the subject matter was collateral and likely to confuse the jury. Defendant was accused of robbery with a firearm. Whether the gun was operable was an issue in the case. Defendant's counsel wanted to ask the person who defendant allegedly gave the gun to after the robbery how exactly he got rid of the gun. The witness said he "would rather not say" to whom he gave the gun in order to get rid of it. The court finds that the line of questioning was properly curtailed. While it was minimally relevant, it was collateral because it had nothing to do with whether the gun was operable or whether defendant used it. And the potential for jury confusion was considerable because casting doubt on persons unrelated to the offense would distract the jury from the actual issues in the case. State v. Rubio ||

Post-Prison Supervision - Conditions - The Judge May Not Impose a No Contact Provision

The court may not impose an order not to contact the victim as a condition of post-prison supervision or incarceration. Such a condition is in the sole power of either the board of parole and post-prison supervision or the DOC. See State v. Langmayer. State v. Rubio ||

PCR - Ag Murder

The court rejects petitioner's post-conviction claims that counsel was ineffective for failing to object, in limine, to evidence of Satanism and for allowing victim impact evidence in at the penalty phase. The evidence of Satanism was more probative than prejudicial since, according to the State's theory, Satanism was the primary motive for the crime. The evidence was prejudicial, but primarily because of its evidentiary value to the state. Moreover, counsel made a strategic decision not to object in limine and did, in fact, vociferously object during trial. The victim impact statement was a violation of Article I, section 21 (ex post facto) since the statute allowing for such information was amended after the incident but before the trial. However, the evidence was insufficiently prejudicial to make a difference at the PCR level. The victim statement was brief and overwhelmed by evidence of the brutality of the crime and the lack of defendant's remorse. Moreover, there is no meaningful relief because, as a result of the retroactive application of Article I, section 42 (victims rights), a new trial would necessarily allow for the admission of victim impact testimony. Hayward v. Belleque ||

Inventory - Pursuant to Tow

An officer may not inventory or seize a closed container within a car in preparation for the car being towed when the inventory policy doesn't limit the officer's discretion as to what to seize and when. Here, the policy was silent as to when closed containers should be seized pursuant to a tow, therefore, the officer was not allowed to seize any closed container. The closed container at issue in this case was a backpack the defendant asked to take with him. The officer denied the request, inventoried the backpack and found methamphetamine. The court unequivocally rejects the State's argument that once the officer gives notice to the defendant that the car will be impounded, the impounding authorities have exclusive rights to possess the contents of the vehicle. Both ORS 809.720(1) and logic dictate otherwise. The court also rejects the State's argument that the search was made pursuant to a search warrant obtained after the tow. Since the seizure was unlawful, any subsequent warrant relied on that initial unlawful seizure and doesn't cure it. Reversed. State v. Dimmick ||

DCS to a Minor - No Mental State as to Age

In a Delivery of Marijuana to a Minor prosecution, the state is not required to prove that the defendant was aware that the person to whom he delivered was under the age of 18. There is no culpable mental state requirement for that element. The legislative history strongly indicates an intention that there be no mental state requirement as to age. And, consistent with State v Rutley, the purpose of the statute (to protect children) would be frustrated by a mental state element that would allow an offender to avoid culpability by intentionally remaining ignorant of age. State v. Jimenez-Correo ||