Oregon Appellate Court 12-14-11
by: Abassos • December 13, 2011 • no comments
Read the full article for details about the following new cases:
- Consent - Voluntariness - When Obtained After Implied Consent Warnings (Machuca)
- Evidence Code - Bias
- Restitution - Evidence to Support Judgment
- Voluntary Intoxication - Recklessness - Due Process
- Amended Judgment - Correcting a Factual Error
- Venue - Failure to Register as a Sex Offender
- Stop - Unavoidable and Routine Lulls
- Probation Violation - Waiver of Counsel
- PCR - Failure to Investigate
- Restraining Order - "Interfering"
- PCR - Ordering Defendant to Proceed Pro Se
- Bench Trial - Right to Closing Argument
- Evidence Code - Bias - Prior Disputes
Consent - Voluntariness - When Obtained After Implied Consent Warnings (Machuca)
Consent is involuntary when it is obtained after the defendant is given implied consent warnings. The court adheres to and readopts its reasoning in Machuca I. Here, while investigating a fatal crash, the officer obtained consent for blood and urine analysis from defendant at the hospital after reading him the implied consent warnings. The state argued that consent should not be rendered invalid simply because an officer correctly advises a person of their rights and risks. The court points out that the State is attempting to make the same argument that was rejected in Machuca I. Just as in Machuca I, "what is determinative in this context, however, is that consent was procured through a threat of economic harm and loss of privileges. . . a consent to search obtained in that fashion is coerced by the fear of adverse consequences and is ineffective to excuse the requirement to obtain a search warrant." State v. Moore
Evidence Code - Bias
A statement made by complainant that "the Mexicans are taking all the jobs" was admissible to show bias in this menacing case where defendant was Hispanic. Defendant laid a sufficient foundation that the statement demonstrated bias by offering other statements by the complainant, including "[expletive] Mexican". But not admitting the statement was harmless error because there were multiple other statements demonstrating bias toward people from Mexico. State v. Torres-Rivas
Restitution - Evidence to Support Judgment
A failure to avail oneself of a restitution hearing is not a waiver of the right to challenge a restitution judgment for plain error. However, here plain error does not exist because the state established during trial that the victim was entitled to restitution. That there is scant evidence supporting the exact amount of restitution does not amount to plain error. State v. Gruver
Voluntary Intoxication - Recklessness - Due Process
The Oregon statute that prohibits consideration of voluntary intoxication as to recklessness, ORS 161.125(2), is consistent with Federal Due Process because it is narrower than the statute that was upheld by the U.S. Supreme Court in Montana v Egelhoff. Interestingly, the court does not decide whether the statute is an evidentiary rule or a redefinition of the mental state of recklessness. The court finds that in neither case would the Due Process clause be violated. [Note though that the state is not relieved of its burden to establish that the defendant consciously disregarded a substantial risk. The jury just can't consider voluntary intoxication in determining the element. Voluntary intoxication does not create a presumption that the conscious thought existed even though it actually did not. Quite the opposite, intoxication is to be ignored entirely. If defendant did not consciously disregard the relevant risk then he is not guilty.] State v. McKay
Amended Judgment - Correcting a Factual Error
A judge has the authority to correct a factual error in a judgment by amending the judgment. Even if it has been 145 months since the original judgment. And, even if correcting the factual error increases the defendant's sentence. Here, the factual error was a 100 month discrepancy between the orally imposed sentence and the sentence that appeared in the judgment. State v. Estey
Venue - Failure to Register as a Sex Offender
The state must prove proper venue, for failure to register as a sex offender, on the date when defendant was required to register. Here, defendant was charged with failing to register within ten days of her birthday. Thus, the Polk County DA was required to prove that defendant was either present in or residing in Polk County on day ten. The state proved only that defendant was present in Polk County 18 days after her birthday and that she had registered her address as a transient in Polk County a year earlier. Such evidence is too speculative to establish residence or presence on the required date. Reversed. State v. Massei
The officer was allowed to ask for and obtain consent to search while defendant was looking for his insurance and registration. The court summarily rejects defendant's new argument on appeal that the lull was entirely avoidable since the officer already knew the information he was requesting. The court says that even if it was an avoidable lull it was routine behavior for officers. So apparently the new rule allows an officer to request consent during unavoidable lulls or avoidable but routine lulls. That's an interesting extension of the law to plop into a footnote. State v. Hampton
Probation Violation - Waiver of Counsel
A court may not extend the probation of a pro se defendant unless the court has advised defendant of the risks of proceeding without counsel and has assured that the waiver of counsel is knowing. It is actually a fairly common occurrence in Multnomah County for probationers to waive counsel and hearing by signing a form in the probation office. Based on that form, the judges will extend probation. It's hard to see how that practice can continue. After all, "each probation violation hearing [is] a critical stage in defendant's criminal prosecution". State v. Reed
PCR - Failure to Investigate
Counsel was Constitutionally inadequate where she failed to investigate and present evidence regarding the potential lethality of a fire in a case of arson and attempted murder. A co-defendant, tried separately from petitioner in the original case, presented three separate witnesses to testify to the lack of seriousness of the fire and the fact that, though it was intentionally set, no accellerant had been used. No such attack on the state's theory occurred in petitioner's trial. The defense attorney, in an affidavit, said she had consulted an arson expert who had confirmed the defendant's statements of his involvement. The PCR court found and the appellate court agrees that "further investigation was necessary to make an informed determination as to how to proceed with petitioner's defense." Galloway v. Nooth
Restraining Order - "Interfering"
Defendant did not violate a FAPA restraining order, preventing her from contacting or "interfering with" her ex-boyfriend, when she posted a sign in his new girlfriend's yard saying that the ex-boyfriend has herpes:
The purpose of a FAPA restraining order is to protect a victim of domestic abuse from further abuse. Thus, when a court orders the abuser to "be restrained from intimidating, molesting, interfering with or menacing" the protected person within the context of FAPA, ORS 107.718(1)(e), "interfering" within the context of the statute simply could not encompass defendant's conduct, which did not constitute more than offensive behavior.
PCR - Ordering Defendant to Proceed Pro Se
A defendant has a right to appointed counsel for post-conviction relief. A PCR court is only allowed to order a defendant to proceed pro se if it reasonably concludes that such an order is necessary to achieve a fair, orderly and efficient resolution of the case. No such findings were made in this case and the court could not have reasonably concluded it was necessary. Bailey v. Nooth
Bench Trial - Right to Closing Argument
A court may not deny defendant the right to make a closing argument in a bench trial. Here, the court summarily announced that it was "going to waive close argument" and proceeded to find defendant guilty without allowing counsel to object. In such a situation, no additional preservation is required. Reversed. State v. Barajas
Evidence Code - Bias - Prior Disputes
Evidence of the complainant's prior disputes with defendant and his family were relevant and admissible to show the bias of the complainant as well as a possible motive for fabricating the current charge of Menacing. Complainant was a neighbor of defendant and his stepdaughter, who lived a few houses away from each other. Defendant's stepdaughter would have testified that the complainant had previously fabricated similar charges against her. The trial court erred when it found that the prior incident was irrelevant because it did not involve defendant. It also erred when it found that the evidence was only being offered as character evidence. Reversed. State v. Prange
