Oregon Appellate Court June 27, 2012
by: Fgieringer • June 28, 2012 • no comments
Administrative Searches > Writs of Execution
A defendant has a protected privacy interest in his office. Thus, in order to conduct an administrative search of the office pursuant to a writ of execution, the sheriff must have a court order under ORS 18.887(1) to enter the enclosure. Here, mushrooms discovered during a warrantless search of defendant's safe had to be suppressed. State v. Mast.
Stop > Extension
A defendant's prior arrest for possession of a concealed handgun does not provide reasonable suspicion that a defendant is currently engaged in illegal conduct nor does it create a reasonable officer safety concern. Likewise, an officer's belief that defendant was lying about the number of times he was arrested does not justify a search as an officer safety measure. Where the defendant was relaxed, unconcerned, and cooperative during the stop, and did not make any furtive movements or other signs of hostility, officers unlawfully extended the traffic stop when they inquired about weapons and searched defendant after collecting all the information necessary to issue a citation. State v. Steffens.
Stop > Unavoidable Lull
In an unlawful extension of stop case, in order to carry its burden of proof, the State must demonstrate that the search occurred within the timeframe that they claim was an unavoidable lull. Here, where the officers requested that defendant, a jaywalker, remove a container from his pants pocket, the state failed to demonstrate that the request coincided with the estimated 30-second wait time to run defendant's information with dispatch. State v. Dennis.
Vouching > Witness Cannot Vouch for Herself
A witness does not vouch for her own testimony by stating that her plea agreement included a "contract to tell the truth" where the prosecutor does not suggest that that she "believed" the witness's testimony. A witness cannot vouch for herself.
To preserve error, defense counsel must object to prosecutor's misstatement of law about the presumption of innocence. The trial judge did not abuse his discretion in failing to cure a prosecutor's misstatement sua sponte with a curative instruction. The prosecutor stated in closing that, "at this point in the trial, the presumption of innocence will evaporate." State v. Joel Sanchez-Jacobo.
Jury Instructions > Preserving Objections
In order to preserve an objection to a court's refusal to give a proposed jury instruction, defendant must specify "with particularity" why his proposed instruction would be helpful to the jury's deliberations and otherwise a correct statement of law.
In order to preserve an objection to a given jury instruction, the defendant must except to that instruction. Offering a special jury instruction that clarifies a standard jury instruction is not enough.
Here, defense counsel offered a special instruction related to self-defense in a resisting arrest case. In proposing his special instruction, defense counsel stated that the instruction would "detail" the law on the self-defense issue. However, defense counsel did not except to the standard jury instruction, USCrJI 1227, that the trial court gave to the jury. Because defense counsel did not (1) state his basis for the proposed instruction with sufficient particularity - i.e., give the specific basis of law that necessitated the instruction, or (2) except to the erroneous standard instruction, the issue was not preserved under ORCP 59 H(2).
J. Schuman dissented, arguing that the majority misapplied the ORCP 59 H(2) standard and that defendant stated his exception with particularity. State v. Vanornum.
Sentencing- Sentencing Court Has Discretion to Impose Longer Sentence than Mandatory Minimum
A court may impose a sentence that is longer than the mandatory minimum without a jury finding where the sentence is within the presumptive gridblock. Defendant was convicted of conspiracy to commit murder, and was given a line 11 gridblock. The court holds that the sentence was not a departure because it did not increase a statutory maximum. The sentence was within the presumptive range of the ranking. State v. Ibarra-Ruiz.
Hearsay- Officer Testimony Based on Translator's Statements Permitted as an Exception to Hearsay
Defendant challenged police officer's testimony as hearsay because it was based on a translator's statements. The court holds that the officer's testimony had adequate foundation because the translator's qualifications fulfilled the requirements of Oregon's hearsay exception statute OEC 803(28). The translator was a fluent Spanish speaker, spoke Spanish every day, received a bonus for his Spanish skills and frequently served as an interpreter. These qualifications ensured that the interpreter's translation was reliable and trustworthy Therefore, the admission of the translated statement was not qualitatively different from the admission of the defendant's own statement. State v. Montoya-Franco.
Expert Witness Cannot Testify on Credibility of Witness
An expert witness may not testify as to the credibility of a witness. The CARES nurse, unsolicited, testified that she believed victim was telling the truth about being sexually abused by defendant. The court finds that it does not matter that the challenged testimony was not explicitly elicited.
The state also argued that the testimony didn't qualify for plain error review because the defendant may have acquiesced to its admission in order to secure evidence that the victim had previously recanted other allegations against the defendant. The court rejected that argument and stated that it was not required to make such inferences because the legal error was so obvious. State v. Hollywood.
Inventory > Closed Containers
A closed container may not be searched during a jail inventory merely because the container "could" contain valuables. This is doubly true where the inventory policy requires a search of containers "designed to typically carry" valuables. Here, the container was a lipstick sized metal canister attached to defendant's belt. State v. Cruz-Renteria.
Speedy Trial
Where defendant's trial is delayed by 2,119 days through no fault of her own and without her consent, defendant's constitutional right to a speedy trial is violated. In State v. Adams, 339 Or. 104, 112 (2005), the Oregon Supreme Court used the statute of limitations as a basis for the outer edge of delay. Here, that limitation period equaled 730 days, therefore the 2,119 day delay far exceeded a reasonable amount of time.State v. Danford.
Dependency > Permanency Plan > Order Required Under ORS 419.B476(5)(b)
ORS 419B.476(5) requires the court to make findings within 20 days of a permanency hearing, and defense counsel does not have to preserve the issue. Where the record showed that the case was set for a permanency hearing, the court erred in failing to make a "determination of the permanency plan for the ward" within 20 days of the hearing, as required by ORS 419.B476(5)(b). Additionally, the court's factual determination that the proposed guardian was suitable and willing had a sufficient evidentiary basis where the father never raised the issue of fitness, and the finding was supported by an affidavit provided by DHS counsel. Department of Human Services v. SA.
Dependency > Change of Permanency Plan > Reasonable Efforts & Sufficient Progress
In order to change a permanency plan from reunification to placement with a fit and willing relative, the juvenile court must determine that (1) DHS has made reasonable efforts to make it possible for the child to return safely home, and (2) despite those efforts, the parent has not made sufficient progress to allow the child to return safely home. Here, where father's mental health evaluations suggested that his mental issues controlling his anger were not treatable, DHS made reasonable efforts by providing 3 different referrals for psychological evaluations with different psychologists, a 10-week parenting class, and weekly supervised visits. Although the father eventually completed the evaluation and did well in the parenting class and most visits, father's personality disorder was untreatable and was likely to aggravate his daughter's PTSD and hyper-vigilance to sound. Thus, the juvenile court did not err in changing the permanency plan. Department of Human Services v. SN.
No per curiams this week.
