Oregon Appellate Ct - July 23, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Evan Ottaviani and Tim OConnor • July 23, 2014 • no comments
PCR - Ineffective Assistance of Counsel- No Prejudice when Defense Counsel Used Prior Bad Acts to Support Defense Theory
Where defense counsel wraps potentially objectionable state's evidence into a reasonable defense theory rather than objecting to it, there is unlikely to be prejudice for the purposes of post-conviction relief. Here, defendant was charged with attempted rape for bringing the drunken victim to a motel room and repeatedly asking for sex without letting her leave. Defense counsel failed to object to testimony from two women who claimed he made lewd comments and grabbed one of them earlier that night. Instead, counsel used that testimony to characterize defendant’s intentt as desperate for a sexual encounter with the victim but not desirous of forcing victim to do anything. Based on how the issues were framed at trial, admission of this testimony did not prejudice the defendant. Affirmed. Wright v. Nooth, 264 Or App ___ (2014).
Fines and Fees - State Must Show That Defendant Currently Has or Will Have Financial Resources
Evidence of employment a decade ago at “several fairly good jobs” combined with recent underemployment is not sufficient to meet the state’s burden of showing defendant is able to pay court ordered fees. After he was convicted of murder, defendant was ordered to pay $18,000 in court-appointed attorney fees and $18,000 in indigent contribution fees, in addition to $14,000 in other fees. Defendant’s recent and past employment history was insufficient to support the imposition of the $36,000 in fines that the defendant challenged. This imposition was sufficiently grave to give court discretion to correct the plain error. Indigent contribution and court-appointed attorney fees reversed. State v. Below, 264 Or App ___ (2014).
“Suspicious Movement,” Gang Attire, and a Prior Conviction Justify a Stop Extension on Officer Safety Grounds
Furtive movements, gang-associated attire, and a felony conviction are sufficient to justify the extension of a traffic stop on officer safety grounds. Here, the defendant was reaching down to the floorboard of the car, wearing a shirt associated with an area gang, and was known by the officer to be a convicted felon. The officer extended the stop by requesting consent to search for weapons and drugs. These circumstances, along with the fact that there were three occupants in the car and only two officers, were sufficient to establish a reasonable concern that defendant posed an immediate threat of physical injury. Affirmed. State v. Lee, 264 Or App ___ (2014).
Right to Proceed Pro Se—Court Must Determine that Defendant Understands Inherent Risks
It is prima facie error for a trial court to accept a waiver of the right to counsel without speaking to defendant about the risks of self-representation. In this case, defendant chose voluntarily to proceed without her attorney but the record did not contain either a colloquy with the defendant about the material risks of proceeding pro se or any other indication that the defendant understood the practical impact of her decision. Reversed and remanded. State v. Todd, 264 Or App ___ (2014).
It Is Plain Error to Impose Attorney Fees on an Indigent Defendant
A court’s imposition of attorney’s fees when the evidence indicates that the defendant is indigent is plain error. The court holds that it is appropriate to review and correct the error in this case, because the actual evidence on the record indicated that the defendant was homeless, mentally ill, and on an indefinite immigration hold that likely would result in deportation. The portion of the judgment requiring defendant to pay attorney fees reversed; otherwise affirmed. State v. Ramirez-Hernandez, 264 Or App ___ (2014).
A General Objection Does not Preserve a Related Issue Where the Judge Believes the Issue to Be Resolved
To adequately preserve an issue for review, a party must provide the trial court with an argument that allows the trial court to consider the matter. Here, while there were fleeting references to hearsay in the trial court, the trial court understood the hearsay concerns to have been resolved when the state provided clarification of its position. The court holds that, if the defendant believed that his original objection had encompassed a “layered hearsay” contention, then he should have alerted the court to that fact rather than raising objections on other grounds. Affirmed. State v. Graves, 264 Or App ___ (2014).
UUMV- Stacking Inferences and Speculation
Unauthorized Use of a Motor Vehicle (UUMV) requires that defendant know the vehicle is stolen. Knowledge may be proven with circumstantial evidence and inferences, but not by stacking inferences to the point of speculation. Here, defendant lied about who gave him permission to use the truck, which contained property the defendant constructively knew was stolen. The truck also had interior and exterior damage, and contained a tool box labeled “crime committing kit”. However, the car had a working key and the damage did not include anything like exposed hot wires or obvious damage to the ignition system. Taken together, in the light most favorable to the state, such evidence is not sufficient to prove that defendant knew the truck itself was stolen. UUV conviction reversed, otherwise affirmed. State v. Shipe, 264 Or App___ (2014).
Officer Safety - Possession of a Gun
In this case, officers responding to a gun call found the gun and were told that defendant supplied the firearm. The officers then received consent to search the apartment where defendant was passed out, for other weapons. When the defendant did not respond to verbal inquiries, the officers woke, handcuffed, and searched him for officer safety purposes. The stop was not justified by officer safety concerns because there was no evidence that defendant possessed any other weapons and there was nothing threatening in his demeanor. Reversed and remanded. State v. Easton, 264 Or App___ (2014).
