Oregon Court of Appeals 11-18-09

by: Abassos • November 17, 2009 • no comments

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

• Trespass II - Lawful Exclusion and Due Process (Adequacy of Appeal)
• Failure to Report as a Sex Offender - MJOA
• Speedy Trial - Calculations of Unreasonable Delay
• Suppression - Exclusion of Testimony for FTA, Consent to Search

These summaries are not a substitute for the OCDLA criminal law newsletter, which does a more thorough job than this initial, day of release, take on the cases:

Trespass II - Lawful Exclusion - Due Process

An exclusion on which a trespass is based is invalid if there is an inadequate appellate process. However, a defendant may not complain about problems with the appellate process if, as here, the defendant never appealed the exclusion in the first place. State v. Barnes

Failure to Report as a Sex Offender - MJOA

The fact that the State Police Sex Offender Registration unit has no record of registration is sufficient evidence that a person did not register. The Defense tried to rely on a case which said that an absence of registration in LEDS is insufficient where the State couldn't show an official duty to enter registration into LEDS. Unfortunately, there is a clear statutory duty to report all registrations to the State Police. State v. McElroy

Speedy Trial

To calculate the period of unreasonable delay, you start from the date of indictment (not information) and subtract all periods to which defendant consented. The period from indictment to trial in this case was 651 days. Subtracting those periods where defendant requested a specific date as well as those caused by defendant's failure to appear brings the period attributable to the State down to 447 days. Such a delay exceeds expectations but the court must also ask whether the delay is nonetheless reasonable. This delay was reasonable because (1) all but four months were justified by reasonable setovers on the way to trial; (2) part of the time was prior to a first trial that ended in mistrial; (3) the total amount of unconsented delay (15 months) was not huge in light of 11 months of it being justified. State v. Cunningham

Suppression - Exclusion of Testimony for FTA, Consent to Search

(1) The trial court erred in excluding an Officer's testimony where he failed to appear at a hearing. Exclusion of testimony is not a remedy for contempt. (The officer failed to appear at the first motion hearing but due to the State's negligence on a different matter the case had to be set over. The officer did show up to the second hearing, where his testimony was excluded.)

(2) Consent to search the interior of a car includes consent to search the glove box in this case because the officer said he wanted to search for a gun, an object which fits nicely into a glove box.

(3) An officer's belief that a violation has occurred does not become unreasonable upon proof that no violation occurred. Here, defendant's windows were tinted up to the legal limit (as documented by the shop that did it). However, the officer still reasonably believed the tinting was over the legal limit where he was unable to see through the windows. State v. Baker/Jay