Case Reviews
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Oregon Supreme Court 03-25-11
by: Abassos • March 24, 2011 • no comments
Read the full article for details about the following new cases:
- Felony Elude/Resisting Arrest - Tribal Officers are Officers
- Evidence - Motive
Oregon Appellate Court 03-23-11
by: Abassos • March 22, 2011 • no comments
Read the full article for details about the following new cases:
- DUII - Intoxilyzer Malfunction: When a Card is Complete
- Traffic Stop: Passenger/Free to Leave
- Assault I: Dangerous Weapon
- Waiver of Counsel: Voluntariness
Oregon Appellate Court 03-16-11
by: Abassos • March 15, 2011 • no comments
Read the full article for details about the following new cases:
- Stop - Objective Probable Cause
- Hearsay - Unavailability
- Accomplice Liability - Natural and Probable Consequences
- Sex Cases - There Shall be No Diagnosis in the Absence of Physical Findings
Oregon Supreme Court 03-10-11
by: Grapkoch • March 9, 2011 • no comments
Read the full article for details about the following new cases:
- Evidence: Intent/Motive vs. Character Under OEC 404(3)
- Plea Agreements: Legal Test for Determining their Existence and Terms
- Grand Jury: Resubmitting Charges and ORS 132.430(2)
- Pre-indictment Delay and Due Process
The Supreme Court offers up substantive analysis and some significant legal standards in today's opinions. At issue are the following: (1) other-crimes evidence under OEC 404; (2) the legal standards governing the interpretation of plea agreements; (3) the requisite findings for authorizing resubmission of charges to the grand jury; and (4) the standard for analyzing pre-indictment delay under the Fourteenth Amendment. Note that issues (3) and (4) are from the same case-State v. Stokes-but have been separated below for ease of analysis.
Oregon Appellate Court 03-09-11
by: Abassos • March 8, 2011 • no comments
Read the full article for details about the following new cases:
- Sex Abuse - Sufficiency of Evidence of Penetration (Plain Error)
- Sex Abuse - Expert Diagnosis of Abuse w/o Physical Evidence (Plain Error)
- Civil Commitment - Sufficiency of Evidence of Risk of Harm
- Dependency: Sufficiency of Evidence for Judgment of Adoption)
- Failure to Report Accident- Mens Rea as to Triggering Injury
Today's COA offerings are relatively light on actual criminal law. They involve another Southard error, both a dependency and a commitment case, and one DMV license revocation for failure to report.
→ read the full summaries...U.S. Supreme Court 03-07-11
by: Abassos • March 6, 2011 • no comments
Read the full article for details about the following new cases:
- Post-Conviction Access to DNA Evidence
Rejoice all ye nerds!!! A potentially useful new post-conviction nugget was handed down by the SCOTUS today. In its opinion in Skinner v. Switzer, the Court held that federal courts possesses subject matter jurisdiction over civil rights claims brought under 42 U.S.C. § 1983 for the purpose of seeking access to DNA evidence. In explaining this conclusion, the Court reasoned that
"[a]s the Court explained in Feldman, 460 U. S., at 487, and reiterated in Exxon, 544 U. S., at 286, a state-court decision is not reviewable by lower federal courts, but a statute or rule governing the decision may be challenged in a federal action. Skinner's federal case falls within the latter category. There was, therefore, no lack of subject-matter jurisdiction over Skinner's federal suit."
Id. at 10 (footnotes omitted).
The Court further explained that a prisoner properly invokes § 1983-rather than habeas corpus-when seeking only access to DNA evidence that may have a bearing on guilt or innocence because that remedy is wholly distinct from claims such as Brady violations. The opponent to DNA access argued that
"[a]lthough Skinner's immediate plea is simply for an order requiring DNA testing, his ultimate aim is to use the test results as a platform for attacking his conviction."
In rejecting this as a basis for denying relief, the Court brushes aside the perceived overlap with Brady claims and simply notes that the opponent's argument is telling: An order for DNA does not seek an "immediate or speedier" release from custody, while any potential Brady claim does. Thus, § 1983 is the proper avenue to pursue.
Be wary, though, as the Court does include this important caveat to its decision, which has the effect of severely narrowing the class of claims over which federal jurisdiction properly extends:
"We note, however, that the Court's decision in Osborne severely limits the federal action a state prisoner may bring for DNA testing. Osborne rejected the extension of substantive due process to this area and left slim room for the prisoner to show that the governing state law denies him procedural due process."
Oregon Appellate Court 03-02-11
by: Abassos • March 1, 2011 • no comments
Read the full article for details about the following new cases:
- Felony Hit and Run - Who is a "Victim" for Purposes of Merger
- Confessions - Sufficiency of Evidence Corroborating Confession of Sex Abuse
- Improper Diagnosis of Sex Abuse- Harmless Error Analysis
- Sex Abuse- Is Semen a Sexual or Intimate Part of Defendant's Body
- Accomplice Liability- Circumstantial Evidence of Intent
- Accomplice Liability- "Natural and Probable Consequences" Instruction
- DUII Breath Test- Opportunity to Seek Advice of Counsel
- Motions to Suppress: New Crime Exception to the Exclusionary Rule
- Substantive Issue Unidentified
The COA offered up nine new opinions today, although four of those are per curiam dispositions. Among other issues, the COA addresses who is a "victim" for the purposes of hit-and-run, how much corroboration is needed to support a confession of sexual abuse, and whether a certain bodily fluid is part of a defendant's body for the purposes of sex abuse under former ORS 163.415. All in all, the cases are fairly fact-specific, but a few legal nuggets can be found.
U.S. Supreme Court 02-28-11
by: Abassos • February 27, 2011 • no comments
Read the full article for details about the following new cases:
- Confrontation - Ongoing Emergency
This morning the Supreme Court of the United States released a new opinion on the Confrontation Clause: Michigan v. Bryant. Justice Scalia was so upset with the 6-2 majority opinion written by Justice Sotomayor that he has declared the Confrontation Clause a shambles. Unfortunately, he's on our side on this issue. The issue is what constitutes an ongoing emergency such that the primary purpose of the statements and of the police is to respond to the ongoing emergency rather than the statements being testimonial. For example, a 911 call during the course of an incident is not testimonial because it is an ongoing emergency. Davis, 547 US at 822. But a domestic violence incident where the officers are at the house and have the two parties separated is testimonial. Hammon. Here, police responded to the scene of a shooting where the shooter was still on the loose and the victim was bleeding to death on the ground in a parking lot. According to the Supremes, the primary purpose inquiry is objective and here, all the objective facts and statements point to an ongoing emergency. More later. Make sure to check out the Confrontation Blog for excellent analysis of this issue. Michigan v. Bryant
Oregon Appellate Court 02-23-11
by: Abassos • February 22, 2011 • no comments
Read the full article for details about the following new cases:
- Jury Trial - Enhancement Facts on Remand for Resentencing
- Jury Trial - In-Trial Waivers and The Prosecutorial "Objection" Revisited
- Miranda Warnings - Exploitation and Pre-Miranda Interrogations
- Using a Child in a Display of Sexual Conduct - Definition of "Permitting"
- Restitution - Contested Amounts and Required Hearings
- Negotiating a Bad Check - Proof of "Knowledge" that a Check will not be Honored
- DUII Diversion - Timeframe for Acts Relevant to Revocation
- Search and Seizure - Traffic Stops and Possessory Interests in Automobiles
- Parole Revocation - Requisite Evidence, Vagueness of Special Conditions and Right to Counsel
- Motion for Reconsideration - Successfully Appealing Denial of MTS
- Diagnosis of Child Sexual Abuse - Plain Error to Admit Absent Physical Corroboration
Another busy day at the COA features 11 new criminal opinions, two of which are resolved per curiam. The issues span a variety of topics, including the application of Blakely on remand, the exploitation-type analysis used for Miranda violations, and possessory interests in automobiles under Article I, section 9. Forgive the lengthiness of the synopses, but many cases address multiple issues-so be sure to give them a good skim.
→ read the full summaries...Oregon Supreme Court 02-17-11
by: Abassos • February 16, 2011 • no comments
Read the full article for details about the following new cases:
- Appellate Acquittal: Remanding for Resentencing
- DUII: Convictions under Former ORS 487.540 as a Predicate for License Revocation
- Use of Anonymous Juries: Requisite Findings and Mitigating Prejudice
Following the trend set by the COA yesterday, the Supremes publish three criminal opinions this morning. Well, almost three. The first is a modification of the Court's instructions on remand in its prior case State v. Sierra. The other two, however, are more substantive.
→ read the full summaries...Oregon Appellate Court 02-16-11
by: Abassos • February 15, 2011 • no comments
Read the full article for details about the following new cases:
- Waiver of Jury Trial - Enhancement Facts
- Waiver of Jury Trial - The Prosecutorial "Objection"
- Waiver of Jury Trial - Conditional Release Agreements not Sufficient
- Unlawful Use of a Weapon - Merger and Lesser-Included Offenses
- Mandatory Terms of Post-Prison Supervision - Mootness
- Motions for New Trial - Appellate Review
- Aiding and Abetting - "Mere Presence" Insufficient
- Money Laundering - Intent to Promote a Future Unlawful Activity
- FDWS: Proof of Suspension's Existence (not Validity) Required
- CAA Fees - Requesting Special Findings of "Ability to Pay"
- Diagnosis of Sexual Abuse - Confirmatory Physical Evidence and OEC 403
- Involuntary Commitment - Sufficiency of the Evidence
- PPS and First Degree Rape - Max Indeterminate Sentence Less Time Served
Oregon Appellate Court 02-02-11
by: Abassos • February 1, 2011 • no comments
Read the full article for details about the following new cases:
- Child Sex Cases - 803 (18a)(b) Hearsay Notice
- Theft - Aiding and Abetting "After the Fact"
- Theft - Merger
- Probation Hearing - Confrontation
Oregon Appellate Court 01-19-11
by: Abassos • January 18, 2011 • no comments
Read the full article for details about the following new cases:
- Dependency - Judgment must contain 476(2)(b,c) Findings
- Merger - Burglary
- Sex Abuse - Diagnosis of Abuse Without Physical Evidence
Not much today. One dependency case and 3 per curiam opinions with not one iota of new law.
→ read the full summaries...Oregon Appellate Court 01-12-11
by: Abassos • January 11, 2011 • no comments
Read the full article for details about the following new cases:
- Evidence - FRE 404(3) Prior Bad Acts
- Plea Bargain - Guardian Ad Litem
- Max Sentence - Prison + PPS
Oregon Supreme Court 01-06-11
by: Abassos • January 5, 2011 • no comments
Read the full article for details about the following new cases:
- Encouraging Child Sex Abuse - Possession of Computer Images
The Oregon Supreme Court today recalibrated the notion of possession and control in the context of computer images. No longer can one be considered in possession and control of an image which one accesses via an internet browser without downloading or otherwise manipulating it. The state had argued that because of one's ability to print it and e-mail it, the viewer was in control of the image. The Court today rejects that notion:
"We think, however, that that argument misses the point: The intangible nature of a web image is analogous to seeing something that a visitor has temporarily placed in one's own home. One may be aware of it, may even have asked the visitor to bring it for viewing, but one does not thereby possess the item.
The state argues, next, that a computer user 'controls' a digital image of child pornography by actively navigating to the web site where it resides, thereby bringing the image to his computer screen. We think, however, that this argument suffers from some of the same defects as the preceding one: Looking for something on the Internet is like walking into a museum to look at pictures - the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them."
More later as we process the cases. State v. Barger. State v. Ritchie.
Oregon Appellate Court 01-04-11
by: Abassos • January 3, 2011 • no comments
Read the full article for details about the following new cases:
- Eyewitness ID - Suggestive Procedure Outweighed
- Probation Hearing - Hearsay/Confrontation
- Sex Cases - Uncharged Misconduct Evidence
- Stalking Order - Sufficiency
Oregon Supreme Court 12-29-10
by: Abassos • December 29, 2010 • no comments
Read the full article for details about the following new cases:
- Kidnapping - Movement from One Place to Another
Today the Oregon Supreme Court, in State v. Sierra, recalibrated the crime of Kidnapping where the movement is within the same room or is incidental to another crime. Defendant was charged with Kidnapping I for pointing a crossbow at an employee of a convenience store who was outside at the time, ordering him inside and behind a desk in the rear of the store while threatening and then assaulting him. Defendant was also charged with Kidnapping II because two good samaritans came into the store to intervene and were ordered behind the desk as well.
A unanimous Supreme Court today overturns the two Kidnapping II convictions, finding that the victims were not taken "from one place to another" because they ended up in the same room in which they started and not in a qualitatively different place. Additionally, the movement was incidental to other crimes committed against them.
Two prior Oregon Supreme Court cases exemplify the two rules that (1) the movement must be from one place to a qualitatively different place and (2) the movement must not be incidental to another crime. In State v. Murray, the defendant stole a car by jumping into the driver's seat and pushing the victim over to the passenger seat, where she jumped out of the car and defendant drove away. There the movement from one seat to another was incidental to the vehicle theft. In State v. Walch, defendant attacked the victim in her driveway and forced her into the trunk of a car. There the movement was a short distance but it was qualitatively different and it was not incidental to another crime. In today's case, the secondary victims were moved within the same room, and forced to kneel. The room was not qualitatively different on one side as opposed to the other. And the change of body position was not a different space. Also, it is clear that the movement was incidental to the crimes of menacing and unlawful use of a weapon because the victims were moved so that defendant could point his weapon at all three victims at the same time.
The Court gives additional guidance in determining whether the starting and ending points are qualitatively different places:
- Minimal movement that effects little change in the defendant's position will generally not suffice - e.g., from standing to sitting or stepping to the side.
- The degree of force or threat is not generally relevant to the question of asportation.
- The degree to which the movement increases the defendant's control or isolation of the victim is only relevant to the extent that it demonstrates the qualitative difference between the starting place and the ending place.
The Court affirms the Kidnapping I conviction, including the additional element of that charge, that defendant's intent was to terrorize the employee, ie to fill him with intense fear or dread. The defendant tried to argue that his intent was to frighten but not to severely frighten. This is a tough argument though where defendant pointed a crossbow at the victim at close range, threatened his daughter, forced him to kneel in a close, bounded area and kicked him in the head.
Oregon Court of Appeals 12-29-10
by: Abassos • December 28, 2010 • no comments
Read the full article for details about the following new cases:
- Stop - Reasonable Suspicion
- Delinquency - Restitution
- Assault I - Merger
- Dependency - Permanency Plan/Adoption
- Search - Implied Consent
- Motion for Continuance - Due Process
- Speedy Trial - 6 Months of Unexplained Delay
- Civil Commitment - Dangerous to Self
Oregon Court of Appeals 12-22-10
by: Abassos • December 21, 2010 • no comments
Read the full article for details about the following new cases:
- Parole Board hearings - Right to Review Recordse
- PCR Appeal - Sex Abuse
Oregon Supreme Court 12-17-10
by: Abassos • December 16, 2010 • no comments
Read the full article for details about the following new cases:
- Unconstitutionally Obtained Statements - Retrial or Harmless Error
- OEC 404(4)
- Relevance - Defendant's Theory of the Case
