Case Reviews
- Go here to see a list of:
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Oregon Court of Appeals 12-15-10
by: Abassos • December 14, 2010 • no comments
Read the full article for details about the following new cases:
- In-Court Identification - Suggestive Throwdown
- Merger - Att. Assault II and Assault IV
- Amendment of Sentence without Defendant's Presence
- Restitution - Counseling Costs
- Plainly Erroneous PPS Terms
- Automobile Exception - Parked Vehicle
- Sex Abuse Diagnosis - Highly Concerning for Sex Abuse (Bench Trial)
- Civil Commitment - Dangerous to Self
- MJOA - DUII (Alcohol/Pot combo)
- Prison Sentence - No Contact Order
Oregon Court of Appeals 12-08-10
by: Abassos • December 7, 2010 • no comments
Read the full article for details about the following new cases:
- DUII Bicycle - Driving Revocation
- VRO Contempt - Not a Conviction
- Stalking - Motion to Seal the File
- Preservation of Jury Instruction Objection - Must except after instructions are read
Oregon Court of Appeals 12-01-10
by: Abassos • November 30, 2010 • no comments
Read the full article for details about the following new cases:
- Confession vs Admission - Corroboration
- Merger: - Assault I and Unlawful Use of a Weapon
- Search Warrant - Sufficiency of Affidavit
- Stop - Extension/Unavoidable Lull
- Waiver of Right to Jury Trial - Intelligently
- Vouching - Diagnosis of Sex Abuse
- Upward Departure - Notice to the Court not Required
Oregon Court of Appeals 11-24-10
by: Abassos • November 23, 2010 • no comments
Read the full article for details about the following new cases:
- Impeachment for Bias - Initial Showing
- Upward Departure - Persistent Involvement
- DUII Diversion Eligibility - Prior Similar Program
- Merger - Attempted Theft and UEMV
- Multiple Fines - Compensatory Fine and Court Fine Impermissible
- Interrogation - Assertion of Right to Counsel
- Preservation - Jury Instructions
- Civil Commitment - Speculation
- Stop - Free to Leave
Oregon Court of Appeals 11-17-10
by: Abassos • November 16, 2010 • no comments
Read the full article for details about the following new cases:
- Search - Shoe Soles
- Escape II - Custody
- Statute of Limitations - Sex Offense Exception (Attempts)
- Interfering with a Peace Officer - Lawful Order
- Scientific Evidence - HGN
- Emergency Aid - True Emergency
- Probation Hearing - Hearsay (Confrontation/Due Process)
- Violation of a Stalking Protective Order - Free Speech
Oregon Supreme Court 11-04-10
by: Abassos • November 3, 2010 • no comments
Read the full article for details about the following new cases:
- Haugen death penalty review
Released by the Oregon Supreme Court today: State v. Haugen - an ag murder committed in prison
- Neither Oregon nor Federal law bars a judge from excluding a non-English speaker from jury duty. Here, two jurors were released, sua sponte, from the jury venire by the judge because the jurors needed interpreters.
- Evidence of bias may be excluded if it is cumulative. Here, the state's witness, after testifying, walked by the defendants on his way out and said "How do you like me now?". The defense wanted to present that statement as evidence of the witness's hostility toward defendants. The Court finds that the witness's hostility was sufficiently displayed during his testimony when he was verbally aggressive with defense attorneys and repeatedly indicated that defendants had made his life miserable. Thus, the proposed testimony was cumulative and the trial judge had the discretion to exclude.
- Where the court makes a pretrial ruling that a witness's testimony is generally admissible but reserves for trial the possibility of objections to discrete pieces of evidence then an objection to such evidence must be made during trial. Even if a written pretrial motion was submitted. Here, defense counsel moved in limine to exclude testimony by psychologists on future dangerousness. They also filed detailed written motions setting forth the basis of their objections to such testimony. The judge ruled that the motion was premature because there was no indication that any of the 5 psychologists were going to testify about future dangerousness. They were being called for other reasons. When one of the 5 did testify regarding future dangerousness, it was incumbent upon defense counsel to make an objection at that time. The judge had said he would hold a hearing out of the presence of the jury once it was clear that the objection was not premature. Defense counsel didn't object or bring it up during trial. Thus, the objection to that testimony was unpreserved.
- Despite the fact that ORS 137.123 requires that a sentence for a crime committed in prison be run consecutive to the sentence that put the person in prison, a death sentence for a crime committed in prison can be executed immediately. Defendant committed an aggravated murder while serving a life sentence. He argues on appeal that he can't get death until after his life sentence is over - ie when he dies in prison. Creative argument. The Court says that the legislature's specific intent in authorizing the death penalty for a murder committed in prison outweighs the general intent captured in the consecutive sentencing statute.
Oregon Court of Appeals 11-03-10
by: Abassos • November 2, 2010 • no comments
Read the full article for details about the following new cases:
- Preservation - Foundation/Vouching
- Search and Seizures - Emergency Aid Exception
- Merger - Aggravated Murder
- Consecutive Sentencing - PV Revocations
- Failure to Appear - MJOA
- Disproportionate Sentencing/Cruel and Unusual Punishment
Oregon Court of Appeals 10-27-10
by: Abassos • October 26, 2010 • no comments
Read the full article for details about the following new cases:
- Restitution - Charged and Uncharged Conduct
- Search and Seizure - Emergency Aid Exception
- Upward Departure - Pleading
- Sex Cases - Defendant entitled to Jury Instruction on other Crimes
- Telephonic Harassment - Intent to Harass/Annoy
- Criminal Trespass - Lawfully directed
- Harmless Error Analysis
Oregon Court of Appeals 10-20-10
by: Abassos • October 19, 2010 • no comments
Read the full article for details about the following new cases:
- Search Warrant - Sufficiency of Evidence
- License Suspension - Breath Test Refusal
- Stop - Unavoidable Lull
- Mental State - Failure to Obey a Lawful Order
In addition to the following cases there was also a reversal in light of Lupoli here and two remands from the Supremes in light of Lennon here and here. As well as an annoying preservation case here, that stands for the proposition that if a judge suggests an argument, you should adopt it as your own.
Oregon Court of Appeals 10-13-10
by: Abassos • October 12, 2010 • no comments
Read the full article for details about the following new cases:
- Misstatement of Evidence in Rebuttal
- Parole - Sex Offender Conditions
Oregon Court of Appeals 10-06-10
by: Abassos • October 5, 2010 • no comments
Read the full article for details about the following new cases:
- Hearsay - Effect on the Listener
- Impeachment for Bias - Pending Criminal Cases and Warrants
- Compelling Prostitution - It's for Pimps, Not for Johns
- Constructive Possession
Oregon Court of Appeals 09-29-10
by: Abassos • September 28, 2010 • no comments
Read the full article for details about the following new cases:
- PCR - Late Filing Escape Clause
- Search - Mere Inquiry
- Merger - Forgery
- Speedy Trial
- Sentencing on Remand
- Search - Automobile Exception
- Lesser Includeds - Violations
- Search and Seizure - Consent to Search
- Search Warrant - Surgical Procedure
Oregon Court of Appeals 09-22-10
by: Abassos • September 21, 2010 • no comments
Read the full article for details about the following new cases:
- Stalking Order Violation - Oregon Free Speech
- Search and Seizure - Random Searches of DMV Records
- Amending an Indictment - Subcategory Facts
- Search and Seizure - Emergency Aid Doctrine
- Theft - Evidence of Value
- Search and Seizure - Attenuation
- PCR - Ag Murder Penalty Phase
OR Supreme Court
by: Abassos • September 20, 2010 • no comments
The Oregon Supreme Court recently granted review on a few interesting criminal cases involving preservation, forcible compulsion and pretext communications.
State v. Walker was the terrible preservation case from a few months ago where the attorney correctly argued that the search was beyond the scope of the warrant but didn't argue the right subtype of "beyond the scope". The issue, as stated by the S.Ct.:
(1) When a litigant cites to state and federal constitutional provisions in support of an argument, but fails to detail how a state constitutional analysis compels a different result than a federal constitutional analysis, is that argument rendered unpreserved for appellate review?
(2) When a trial court asks trial counsel to respond to an issue in writing,does counsel's failure to relitigate arguments not requested by the trial court indicate anabandonment of those arguments?
Walker will also review the more substantive issue of whether a search warrant for a house authorizes the search of a purse on a person who just happens to be at the house.
State v. Marshall will address the definition of forcible compulsion for Sex Abuse I. Does it mean more than non-consensual contact? Does it mean physical force? The appellate court found that it means "to exercise physical strength or power that causes the person to act or to submit to being acted upon against the person's will. Victim resistance is not required." In the totality of the circumstances, a jury could have found such force where 27 year old defendant went into 14 year old defendant's bedroom at night, crawled on top of her, put her hand down his pants while she kept telling him no and pushing him away.
In State v. Davis, police got the victim to ask defendant specific questions at their direction before he was charged but after he was represented and had asserted his right to remain silent. Defendant was not in custody, hadn't yet been charged and didn't know he was talking to a police agent. Because the defendant wasn't in compelling circumstances, Miranda doesn't apply. The issue for the court is:
Whether the Oregon Constitution guarantees a freestanding "right to remain silent" apart from Oregon's Miranda protections (which apply only when an individual is in custody or in other compelling circumstances).
Oregon Supreme Court 09-16-10
by: Abassos • September 15, 2010 • no comments
Read the full article for details about the following new cases: Possession with Intent to Deliver - Jury Instruction - Permissible vs Mandatory Inference
Interesting concurring opinion from J. Kistler today on a per curiam denial of review. Kistler writes separately to point out that the following instruction violates the Due Process clause:
Under Oregon law, possession with intent to deliver constitutes delivery, even where no actual transfer is shown. An attempted transfer occurs when a person intentionally engages in conduct which constitutes a substantial step and includes, but [is] not limited to, possession of a large amount of a controlled substance, not for personal use, but consistent, instead, with trafficking in controlled substances.
That second sentence changes a permissible inference into a mandatory one.
To be sure, if a jury finds that a defendant possessed a larger amount of a controlled substance than a person ordinarily would possess for personal use, then the jury may but is not required to infer that the defendant possessed the controlled substance with the intent to sell or transfer it . . . The strength of the inference varies with the amount of the controlled substance possessed. When the amount of a controlled substance that a defendant possesses is only slightly more than a person ordinarily would possess for personal use, other evidence of the defendant's intent may be necessary to permit a reasonable juror to infer that the defendant possessed the substance with intent to deliver. Conversely, when a person possesses a substantially larger amount of a controlled substance than ordinarily would be possessed for personal use, no other evidence may be necessary to permit a reasonable juror to infer that the defendant possessed the substance with intent to deliver.
Unfortunately the issue wasn't preserved so it doesn't do the client any good. But the rest of us have been forewarned by a Supreme Court Justice. Don't let the DA or the trial judge convert an allowable inference into one that is required by the court. And, for gods sakes, object to this particular instruction, running rampant through the state, on Due Process grounds. State v. Schwab
As an aside, these preservation arguments are absurd (and downright Kafkaesque for the clients. )
According to Kistler, trial counsel argued that the instruction failed to require indicia of trafficking other than possession.
That was the wrong argument because, theoretically, possession of a ginormous amount of drugs might alone indicate trafficking.
The correct argument was that the instruction made a permissible inference into a mandatory one.
But, of course, that is what the trial attorney was saying, just not in those exact words. The instruction is like a big arrow from possession of more than normal user amounts to trafficking without requiring actual indicia of trafficking. Sure, if you have 22 pounds of cocaine it is, in of itself, indicia of trafficking. But that wasn't the case here, where the dude had a couple ounces of pot. So the instruction was wrong for this case precisely because it failed to require indicia of trafficking other than possession. It told the jury to jump directly from possession to trafficking.
It's incredibly frustrating for attorneys. But think of the client in this case. I'm sorry, the jury was wrongly instructed in a way that violated your basic Constitutional rights. In fact, the verdict may very well have been wrongly decided based on that unconstitutional instruction. And your lawyer objected to that instruction at the right time and in the correct procedural way. But, your attorney didn't say quite the right words. So that's it, then. Good luck with your life.
Oregon Court of Appeals 09-15-10
by: Abassos • September 14, 2010 • no comments
Read the full article for details about the following new cases:
- Dependency - Intent to Abandon - Location of Psychosexual Evaluation
No criminal cases from the Court of Appeals today. One dependency case though:
There are two primary issues. First, when father moved to Hawaii, did it establish the intent to abandon his child. Father argued:
"[t]he mere fact that mother and father moved to Hawaii in July 2009 fails to prove that father 'abandoned' [Z]. * * * [The] record reflects that mother and father were living together in Hawaii * * *, that mother contacted [Z] to inform him of their move, that mother continued to attempt to contact [Z], and that [Z] refused that contact. Even if father did not himself attempt to contact [Z] after the family moved, that circumstance existed only for the three months preceding the jurisdictional trial. Those circumstances fail to support the inference that father gave up his rights to [Z] with the intent of never reasserting them."
To which the court says:
We emphatically disagree. It is exactly father's move to another state and failure even to attempt to contact Z, immediately following a 10-year period of complete lack of contact, that directly supports the inference that father intended to relinquish his parental rights.
The second issue is whether the judge could order that father do a psychosexual evaluation and counseling in Oregon, rather than by phone from Hawaii. The court doesn't think much of the argument:
the court's order that father return to Oregon for therapy and treatment is also rationally related to the reasons why the court took jurisdiction. Z has suffered because he feels abandoned by his family, and the court took jurisdiction because it found father fled the state and abandoned Z. By requiring father to return to the state and to begin building a relationship with Z, the court was requiring father to be an active presence in Z's life in order to remedy one of the reasons why the court took jurisdiction in the first place.
Oregon Supreme Court 09-10-10
by: Abassos • September 9, 2010 • no comments
Read the full article for details about the following new cases:
- Resentencing After Appeal May Be Harsher
Bad case today changing the law on whether a defendant's sentence can be harsher when it comes back after a successful appeal. The trial court is now allowed to give a harsher sentence after a successful appeal, if the court can articulate objective reasons for the harsher sentence unrelated to vindictiveness for appealing and unknown by the initial sentencing judge. The prior Supreme Court case of State v. Turner is overruled because "the Turner rationale has been overtaken by the passage of time and by legislation." In this case, the defendant was convicted of a bunch of sex abuse charges and sentenced to 420 months in prison. When it came back on appeal, the judge discharged the counts with the appellate issue and sentenced him to 600 months on different set of counts. Remanded so the court can articulate reasons for the greater sentence. State v. Partain
Oregon Court of Appeals 09-01-10
by: Abassos • August 31, 2010 • no comments
Read the full article for details about the following new cases:
- Restitution - Definition of Victim
- Lab Reports - Confrontation Clause Objection Required
- Probation Revocation - Failure to Pay Restitution
- Stop - Extension
- Dependendency - ICWA Jurisdictional Findings
Restitution - Definition of Victim
The estate of a victim is not a person entitled to restitution. Thus where, as here, the victim dies before the restitution hearing, the court is not allowed to impose restitution. An estate is neither a person nor a victim because ORS 137.106 limits the definition of person to human beings, corporations, unincorporated associations and government entities.
Per Ryan, this case might have a bigger impact than restitution:
The section I like most is as follows: "As we have noted, on its face, the statute defines the term "person" as one of four entities. An estate of a decedent does not qualify as any of those four. Under Oregon law, an estate consists of "the real and personal property of a decedent," ORS 111.005(15), and as a "decedent's property subject to administration in Oregon." ORS 114.505(3). As the state correctly concedes, the property of a decedent is not a human being; nor is it a public or private corporation, an unincorporated association, or a government entity." How might this impact ID Theft? In the ongoing debate of whether ID Theft has a named victim, the argument the state likes the most is that "sometimes" there is a victim, depending on the facts of the case. (I think this is wrong, but in the right case, it's a helpful position for the state to take.) So, if one of the facts is that the person whose identity was taken is "imaginary," then that person isn't a victim. If many of the stolen identities were of imaginary people, the counts often would merge. The grey area has been whether the person whose identity is stolen is "dead," which is listed, just like "imaginary," as a possibility. I don't think a dead person can be a victim, if dead before the crime began. Some people have taken issue with me on this. They say, "then it's the person's estate." I think today's opinion would require the courts to hold otherwise. "An estate of a decedent" is not a victim. Keep in mind that the burden is on the state to prove the people who have their identity stolen are both real and living. Often, the prosecution won't do that, especially in a case involving possession of dozens of fake IDs. At a minimum, if they aren't shown to be both real and living, you have a great shot at merging all of those counts into a single conviction.→ read the full summaries...
Oregon Supreme Court today
by: Abassos • August 25, 2010 • no comments
One case today: an attorney, acting pro se, is entitled to reasonable attorney fees if he or she prevails in a suit seeking disclosure of public records. The state argued that the attorney fees provision only applies if a person actually hires an attorney. Colby v. Gunson.
Oregon Court of Appeals 08-25-10
by: Abassos • August 24, 2010 • no comments
Read the full article for details about the following new cases:
- Post Prison Supervision - PPS doesn't start during Incarceration
- Search Warrant Affidavit - Corroboration of Informant
- False Information to a Police Officer - Mental State
- Requested Jury Instructions - Modify them to fit your Case
