Oregon Appellate Court, May 1, 2019

by: Rankin Johnson • May 8, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

POST-CONVICTION RELIEF - Counsel's failure to investigate

Trial counsel's failure to investigate prison informant's allegations about murder-for-hire plot was ineffective assistance. Reversed.

Petitioner, a prison inmate, stabbed and killed another inmate. He argued that the victim had previously threatened him and he wanted the victim to be transferred to another institution for his protection.

The state offered the testimony of another inmate that petitioner was paid by a Native American prison gang to kill victim. The inmate, who was white, said that he was the "War Chief" of the gang. At the post-conviction trial, the inmate testified that his trial testimony had been false and that a prison captain and the prosecutors told him what to say.

A prison official testified at the post-conviction trial and testified that the inmate was not part of, or well-liked by, the prison gang, and that the gang would not have involved a white inmate in the dispute. Other witnesses also testified at the post-conviction trial in support of petitioner's theory that the murder-for-hire evidence was false.

The post-conviction court found that counsel's failure to investigate was not unreasonable, because prison inmates were not cooperative witnesses and the jury would probably have convicted regardless of the murder-for-hire scheme.

The Court of Appeals concluded that counsel had been ineffective in failing to investigate the murder-for-hire evidence, and that the failure tended to prejudice petitioner.

Cox v. Premo 297 Or App 302 (May 1, 2019) (Ortega) (Marion County, Abernathy)

CORPUS DELICTI RULE - Matters for court and jury

Trial court correctly found that defendant's statements were admissions, not confessions, and defendant was not entitled to submit the question to the jury. Affirmed.

Defendant was charged with DUII. When police investigated, defendant obliquely admitted to driving, but not to being intoxicated. The court decided that defendant's statement was an admission, not a confession. In affirming, the Court of Appeals held that the corpus delicti rule was an evidence rule, not a substantive rule of criminal law, and thus could be decided by the court rather than the jury.

State v. Barbero 297 Or App 372 (May 1, 2019) (James) (Tillamook County, Tichenor)

SEARCH AND SEIZURE - Extension of traffic stop

Police had a valid basis to extend traffic stop to ask about controlled substances and seek consent to search. Affirmed.

Police stopped defendant for a traffic infraction. Defendant seemed intoxicated and struggled to answer simple questions. The investigating officer asked if he had been drinking or taking any medications, and defendant said he had just woken from a nap. The officer asked if defendant had any alcohol or controlled substances in the car, and, when defendant said he was not sure, the officer asked for permission to search. Defendant picked up a jacket from the seat next to him, under which was a meth pipe. The Court of Appeals found that the questioning and search request about alcohol and controlled substances was reasonably related to a legitimate investigation of DUII.

State v. Williams 297 Or App 384 (May 1, 2019) (Powers) (Multnomah County, Silver)

SELF-INCRIMINATION - Compelling circumstances