Case Reviews
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Oregon Supreme Court 08-19-10
by: Abassos • August 18, 2010 • no comments
Read the full article for details about the following new cases:
- Criminal Mistreatment - Messy House Cases Overturned
The Supreme Court has restored sanity to the prosecution of Criminal Mistreatment I:
a defendant withholds physical care from a dependent person when the defendant keeps back from the dependent person those physical services and attention that are necessary to provide for the dependent person's bodily needs.
This does not include protecting the child from every conceivable environmental danger. The cases being reversed today became colloquially known as the "messy house cases" because the State obtained convictions based on messy houses combined with, for example fire hazards or accessible, small objects that a small child could choke on. Taken at face value the State's argument would have made criminals out of most parents in the State. Fortunately, the State's argument gets slapped down based on legislative history, basic logic and, most importantly, a clear reading of the statute:
The state's interpretation is difficult to square with the statutes' texts in three respects. First, it converts the verb "withhold" into "create" or "fail to correct." Second, it converts a prohibition against withholding specific services (food, physical care, and medical attention) into a prohibition against creating any and all risks to a dependent person's health. Third, it converts a statute that prohibits a present deprivation of services or attention into one that prohibits creating a risk of future harm. To be sure, presently withholding necessary and adequate physical care can impair a child's health and safety. But it does not follow that every risk of future harm to a child's health or safety that a parent either creates or fails to correct constitutes withholding physical care. The former set of risks is far broader than the latter, but the statutory prohibition extends only to the latter set (or subset) of risks.
State v. Baker-Krofft, State v. McCants/Walker
Oregon Court of Appeals 08-18-10
by: Abassos • August 17, 2010 • no comments
Read the full article for details about the following new cases:
- Dismissal with Prejudice - Use as a Sanction
- Merger - Stalking Protective Order
- Stalking - MJOA
- Johns Evidence - Uncharged Misconduct
- Dependency - Finding of Jurisdiction
Oregon Supreme Court 08-12-10
by: Abassos • August 11, 2010 • no comments
Read the full article for details about the following new cases:
- Stop - Post-Miranda search still a product of the bad stop
When Miranda warnings follow a bad stop, the evidence found after Miranda isn't necessarily attenuated from the pre-Miranda stop. In other words, evidence discovered (and statements made) after Miranda warnings can still be the product of the illegal stop. Here, Defendant was a passenger in a car pulled over for violations. Because Defendant was suspiciously "over-friendly", the officer asked for his license, checked it, found nothing, and kept the license while he got Defendant out of the car, patted him down and obtained consent to search. Meth was found and Defendant was arrested and Mirandized. After Miranda, Defendant's backpack was found, consent to search given and more meth was found. The Court rules that the search of the backpack was a product of the initial illegal stop (where defendant was checked and patted down for being friendly). The fact that Miranda warnings were given is a relevant but not sufficient fact by itself to attenuate the backpack search from the illegal stop.
The State also argued that that there was no minimal factual nexus between defendant's initial seizure (when his license was taken) and his decision to consent to the backpack search because defendant wasn't going to leave the scene anyway. The Court dispenses with this argument, pointing out that the illegal seizure was ongoing at the time of the consent:
A defendant gains nothing from having a constitutional right not to be seized if the police can seize him and - by definition - use the circumstance of that seizure as a guarantee of an opportunity to ask him to further surrender his liberty.
Oregon Court of Appeals 08-11-10
by: Abassos • August 10, 2010 • no comments
Read the full article for details about the following new cases:
- Restitution - Security Measures
- Inventory Search - Designed to carry valuables
- Dependency - Indian Child Welfare Act (ICWA) Good Cause
- Stop - Right for the Wrong Reasons
- Civil Commitment - Basic Needs
- Illegal Hunting - Enclosed Land of Another
Oregon Court of Appeals 08-04-10
by: Abassos • August 3, 2010 • no comments
Read the full article for details about the following new cases:
- Diagnosis of Sex Abuse - Reversible Error not to Hold a 104 Hearing
- Pro Se Representation - Inappropriate Denial = Structural Error
Oregon Supreme Court 07-29-10
by: Kbevins • July 28, 2010 • no comments
Read the full article for details about the following new cases:
- 30% Good Time Hearings - Appeal
- State Criminalist Reports Require Author Testimony
Oregon Court of Appeals 07-28-10
by: Abassos • July 27, 2010 • no comments
Read the full article for details about the following new cases:
- Accomplice Liability - Specific Intent Required
- Merger - Assault
- Departure Factors - Pending Charges
- Vehicle Impound - Deterrence is not a Justification
- Preservation - Extension of a Stop
- Search and Seizure - Extension of a Stop
- Juvenile Dependency - Drug Use
- M11 - Juvenile Crime/Adult Trial
- Stalking Order Hearing - No Right to a Jury Trial
- Juvenile Dependency - RCWA
- Merger - Appeal after Guilty Plea
Oregon Court of Appeals 07-14-10
by: Abassos • July 13, 2010 • no comments
Read the full article for details about the following new cases:
- Sentencing - Constitutional Proportionality
- Sentencing - PPS Term Must Be Determinate
Oregon Court of Appeals 07-07-10
by: Abassos • July 6, 2010 • no comments
Read the full article for details about the following new cases:
- Civil Commitment - Danger to Others
- Consent to Search - Housemate can't Override Objection to Search
Oregon Supreme Court 07-01-10
by: Kbevins • June 30, 2010 • no comments
Read the full article for details about the following new cases:
- Belated Miranda- validates post-warning statements only
Evidence derived from pre-Miranda interrogation must be excluded, even where a defendant consents to a physical search. Belated Miranda warnings are sufficient to validate subsequent statements if they accurately and effectively convey a defendant's right against self-incrimination. The efficacy of Miranda warnings is circumstance specific, and inherent coercion (i.e., being in police custody) will not invalidate a waiver.
Defendant was handcuffed and placed in the back of a police car, but not Mirandized, when he admitted that his backpack contained marijuana. The consent he gave to search the backpack was irrelevant, because the questioning that led the police to ask for consent was invalid. Therefore, the marijuana should have been suppressed. However, subsequent Miranda warnings were accurate and effective, and the defendant's statements from that point on were properly admitted. State v. Vondehn
Oregon Court of Appeals 06-30-10
by: Abassos • June 29, 2010 • no comments
Read the full article for details about the following new cases:
- Felon in Possession - Knowledge that one is a Felon
- Patdown - Scope
- Miranda - Implied Consent Warning is not Interrogation
- Merger - Identity Theft
Oregon Court of Appeals 06-23-10
by: Abassos • June 22, 2010 • no comments
Read the full article for details about the following new cases:
- Stop - Seizure of a Passenger
- Fines - Ability to Pay
- Statutory Speedy Trial
- DUII - Breath Test Refusal
- DUII - Diversion Eligibility
- Search Incident to Arrest - Cell Phone
- Double Jeopardy - VRO vs. Assaults
Oregon Court of Appeals 06-16-10
by: Abassos • June 15, 2010 • no comments
Read the full article for details about the following new cases:
- Venue - Vehicle
- Right to Counsel - Restitution Hearing
- Tampering with a Witness - Official Proceeding
Oregon Supreme Court 06-10-10
by: Abassos • June 9, 2010 • no comments
Read the full article for details about the following new cases:
- A Threatened Robbery Witness Is a Victim
One of two new Oregon Supreme Court cases released today:
Each individual that a defendant threatens in the course of a single incidence of robbery counts as a victim of the crime, and each victim may give rise to a separate count of robbery. These counts do not merge. The Oregon Supreme Court noted that the relevant statutes (ORS 164.395, 164.405 and 164.415) describe the individual against whom force must be used broadly, as "any" or "another" person. The Court held that as fear or the threat of violence is the central factor distinguishing robbery from theft, each individual threatened in a robbery is a victim, regardless of whether she is the owner or possessor of the property sought. Per ORS 161.067(2), where a single criminal episode involves multiple victims, "there are as many separately punishable offenses as there are victims." The Court further relied on legislative history, which demonstrates that the Oregon legislature of 1970 intended to shift the focus of robbery from the taking of property to the risk of injury, and that the necessary use or threat of force could be directed toward anyone, not just the owner of the property. State v. Hamilton
Oregon Court of Appeals 06-09-10
by: Abassos • June 8, 2010 • no comments
Read the full article for details about the following new cases:
- Vertical Gaze Nystagmus Test - Scientific Validity
- Failure to Register - Venue
- DUII Breath test refusal - Right to consult attorney
- Sentencing - Post Prison Supervision Conditions
- Due Process - Right to names of Witnesses
- PCR - Inadequate Counsel
- Search - Third Party
Oregon Supreme Court 06-04-10
by: Abassos • June 3, 2010 • no comments
Read the full article for details about the following new cases:
- Vouching
There's a great new opinion on vouching from the Oregon Supreme Court today in a child sex abuse case: State v Lupoli. Think of it as sort of a companion case to Southard, pushing back on some of the worst evidentiary abuses in sex cases but from a different angle. Southard, you may recall, said that an expert may not give a diagnosis of sex abuse in the absence of physical evidence supporting the opinion. Vouching, in this situation, is an opinion that abuse occurred (ie a diagnosis) based on the credibility of the alleged victim. Same problem, different angle. Or as Ryan Scott points out:
The distinction with Southard is also interesting. Under Southard, a diagnosis of sex abuse w/o physical evidence is inadmissible. Under Lupoli, the reasons for the diagnosis can be inadmissible. In other words, the Lupoli opinion should keep the state from trying to get right up to the Southard line without crossing it. The court gives some hint what testimony a CARES doctor could properly make that might be admissible, but it would be very neutered testimony. Other than introducing the video, I wonder, what really is the point of having a CARES doctor testify anymore?
Of course, it really shouldn't take a great new case to affirm the longstanding rule that one witness may not give an opinion on whether another witness is telling the truth. There's a prior S.Ct. opinion reversing a child sex abuse case where a CARES expert vouched for the truthfulness of the child victim: State v. Keller, 315 OR 273 (1993). And, in a separate case the S.Ct. even got snarky about it:
"We have said before, and we will say it again, but this time with emphasis - we really mean it - no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state. . . . An opinion that a person is not deceptive, could not lie without being tripped up, and would not betray a friend (to wit: the defendant) is tantamount to the same thing." State v Milbradt, 305 OR 621 (1988)
Yet still, the 50 + vouching statements from this case are ones that are regularly admitted as evidence in child sex abuse cases. Here are some examples:
Avila, for example, testified that she diagnosed eight-year-old SM as having been sexually abused because:
- "Her disclosures * * * were very clear and spontaneous. They were appropriate for the age that she was. They didn't sound rehearsed, they sounded like things she just said."
- "She was consistent. She had said the same type of thing before to her parents, I guess."
- "[H]er physical exam was consistent with what she said happened. There weren't any signs, but you wouldn't expect there to be. * * * [S]he was touched and - with a hand, and touching doesn't leave any marks."
- "[T]he manner in which [SM] told her story was pretty compelling. She just had a real clear change in her demeanor."
Avila also testified that she saw multiple instances of "idiosyncratic detail" in SM's statements, which Avila described as "spontaneous detail that you wouldn't otherwise get, * * * things that if you were making up a story, you might not put that kind of detail in it." Avila stated that, in SM's story, "there was a lot of little details that were involved in the way the story was told. * * * I mean it was really quite descriptive." Finally, Avila testified that she and social worker Findlay "were in agreement. * * * We both felt quite certain that when you look at the things that you look at that make you think that a kid is telling it like it is, they were all there. They were all there, and we both agreed[.]"(7) Heskett testified that she diagnosed five-year-old SO as having been sexually abused because "the child made consistent statements in a developmentally appropriate way, she's only five years old, consistent with abuse. Her examination was - did not show signs of abuse. * * * [B]ased on those things, I came to the diagnosis." Heskett also described the things she looked for in SO's statements to arrive at her diagnosis:
- "[J]ust the way she told her story was very compelling, and that just makes it - it just was - it had an effect."
- "We look to make sure that the child's statements are developmentally appropriate. It would be very worrisome or concerning * * * if I had a child who at five was using terminology or expressing things with phrases that would not be expected to come from a five-year-old. * * * [SO] seemed developmentally appropriate to me[.]"
When asked whether anything about SO's affect would raise concerns of whether to rely on what she had said, Heskett testified, "For a five-year-old child, she actually seemed to be very appropriate. She did not seem to be overly anxious, overly timid, overly afraid." Heskett also testified that nothing about SO's emotional state gave rise to concerns about her reliability. Heskett listed specifically what led her to diagnose SO with sexual abuse: "The combination of her statements, as well as the fact that her physical findings fit with her statements. She did not have any signs of abuse, but I would not have expected any based on her statements. * * * It was the comments that she made[.] * * * It was the fact that she had options or opportunities to perhaps change her history or say that she had been touched in other places, and she remained fairly consistent - not fairly, she remained consistent in where she was touched."
- "In general, [peripheral details are] one of the things that's important in the sense that the child can give as much detail about the entire reported or alleged incident as possible. * * * [SO] was very clear-cut in telling us [details]."
It's all inadmissible vouching. Congratulations to trial attorney Patrick Sweeney for persevering in his objections. And congratulations to big shot New York attorney Robert Rosenthal for coming into this fine state and making our law better. State v. Lupoli
Oregon Court of Appeals 06-02-10
by: Abassos • June 1, 2010 • no comments
Read the full article for details about the following new cases:
- Merger - One crime, Multiple theories = One conviction
- Identity Theft - Intent to Defraud is Broad
- Confrontation - Testimonial Statement
- Civil Commitment - Basic Needs
U.S. Supreme Court - Miranda
by: Abassos • May 31, 2010 • no comments
As avid readers of this blog are aware (from my March post here), the high Court has been considering the question of whether 3 hours of silence followed by a confession is a waiver of one's Miranda rights. The following exchange from oral argument nicely sums up both the internal dynamic and the upshot of today's ruling:
JUSTICE SOTOMAYOR: You want to change the Miranda rule to say: Tell someone their rights and unless they explicitly say "I don't want to talk to you," then they implicitly under virtually any circumstance haven't. That's what you believe the rule in Miranda and Butler and Davis sets forth?
To which Scalia responds that it sounds good to him:
JUSTICE SCALIA: Why shouldn't we have a rule which simply says if you don't want to be interrogated, all you have to say is "I don't want to answer your questions"?
Sadly, Scalia won. The opinion issues on party lines with Kennedy swinging right. Berghuis v. Thompkins.
Oregon Supreme Court 05-27-10
by: Abassos • May 26, 2010 • no comments
Read the full article for details about the following new cases:
- Privacy Interest - Abandonment - Hotel Room
Where defendant denied ownership of a bag in a hotel room and gave the police a false name, she relinquished her possessory and privacy interests in the bag. When the person who rented the hotel room gave permission to search, the police had the consent of the only person that mattered. Trial and Appellate Court reversed:
In light of those cases, we now return to the issue of what weight should be given in this case to defendant having left the bags in a locked room rented by someone she knew. We conclude that that fact does not affect our holding that defendant had relinquished her constitutionally protected interests in the bags. As we have already noted, defendant disclaimed ownership of the bags and voluntarily gave up possession of them. In doing so, she abandoned her bags in a locked room to which she would not have access. Defendant thus relinquished her possessory rights in the bags to Beal. See Howard/Dawson, 342 Or at 640 (noting that it was uncontested that the defendants had relinquished their possessory interests in garbage to the sanitation company, once the sanitation company had picked up the garbage). Because defendant had relinquished her possessory rights, she also had relinquished her privacy interests in the bags. See id. at 642-43 ("when a person gives up all rights to control the disposition of property, that person also gives up his or her privacy interest in the property in the same way that he or she would if the property had been abandoned"). Beal, by virtue of his control of the room, held the only remaining possessory and privacy interest in the two bags. Beal's consent to a search relinquished the remaining privacy interest in the room and its contents. See Tanner, 304 Or at 322 ("B's section 9 interests will not be violated if A allows the police to enter the house and discover the effects, * * * because A controls access to the house * * *."). Accordingly, when Officer Pfaff searched the two bags, she did not violate any constitutionally protected privacy interest held by defendant. The Court of Appeals and the trial court erred in holding otherwise.
Oregon Court of Appeals 05-26-10
by: Abassos • May 25, 2010 • no comments
Read the full article for details about the following new cases:
- Jury Instructions - Theory instructed must match theory charged
- Merger - Rob II
