Oregon Appellate Ct - Aug 23, 2017
by: Sara Werboff • August 28, 2017 • no comments
State v. George, 287 Or App 312 (2017) (Ortega, P.J.)
State v. Bennett, 287 Or App 338 (2017) (DeVore, J.)
State v. Parsons, 287 Or App 351 (2017) (DeVore, P.J.)
State v. Garlitz, 287 Or App 372 (2017) (Lagesen, J.)
State v. Stanley, 287 Or App 399 (2017) (Garrett, J.)
State v. Gonzalez-Aguilar, 287 Or App 410 (2017) (Garrett, P.J.)
State v. Beleke, 287 Or App 417 (2017) (Garrett, J.)
Post-Conviction Relief – Remanding for Consideration of Whether Counsel Made a Considered Choice Not to Introduce Bias Evidence and Whether Counsel’s Failure to Contact Petitioner Prejudiced Him – Counsel’s Bar Disciplinary Records Were Admissible
The court remands this PCR case to the PCR court to decide in the first instance whether trial counsel’s failure to introduce emails between petitioner and the victim was a strategic choice. Petitioner was convicted of domestic violence crimes. Trial counsel had emails between petitioner and the victim where the victim threatened to ruin petitioner’s life. Counsel did not introduce the emails but used them during cross-examination of the victim. The court notes that the emails would have provided persuasive evidence in support of petitioner’s case theory, but that the emails also contained unflattering evidence about petitioner. The court therefore remands to the PCR court to determine whether the failure to introduce the emails was a result of a reasonable strategic choice following an adequate investigation.
The court also remands for the trial court to determine whether trial counsel’s failure to meet with petitioner until the night before his trial prejudiced him. The court explains that the failure, while clearly deficient performance, is not structural error and petitioner must show prejudice.
Finally, the court concludes that trial counsel’s bar disciplinary records were admissible in the PCR case because they were relevant to whether counsel had made a deliberate strategic choice not to introduce the emails.
Johnson v. Taylor, 287 Or App 424 (2017) (Flynn, J.)
Post-Conviction Relief – Statutory Interpretation – Unloaded Firearm Does Not Qualify as Deadly Weapon
The court concludes that trial counsel rendered ineffective assistance of counsel in petitioner’s underlying first-degree burglary trial when they failed to challenge the sufficiency of the state’s evidence that petitioner possessed a “deadly weapon” during the offense. In the underlying case, the state charged petitioner with committing a burglary while armed with a deadly weapon. During the offense, petitioner stole an AR-15 that was functional but unloaded and kept in a closed, zippered carry bag. Petitioner also took another bag which contained ammunition for the AR-15 and several other firearms. Petitioner was convicted of the burglary and was also sentenced to a higher grid block in light of the finding that he possessed a deadly weapon.
During post-conviction proceedings, petitioner asserted that trial counsel was ineffective for failing to challenge the evidence that he possessed a deadly weapon. The court, employing the customary statutory interpretation analysis, agrees with petitioner’s reading of “deadly weapon.” Specifically, the court determines that a weapon “presently capable” of causing death is a weapon that is immediately capable of doing so. Because the AR-15 was unloaded and in its carrying case, separated from its ammunition, it was not presently capable of causing death. The court further concludes that reasonable counsel would have raised the challenge to the evidence at the time of petitioner’s trial. The court disagrees that petitioner would have been entitled to an outright acquittal of the first-degree burglary charge but agrees that he was prejudiced because he was subject to a harsher sentence. The court grants relief in the form of resentencing.
Norwood v. Premo, 287 Or App 443 (2017) (Linder, S.J.)
Per Curiam – Error to Instruct Jury to Consider 9-1-1 Statements As Substantive Evidence
The court accepts the state’s concession that the trial court erred when it instructed the jury that it may consider the victim’s out-of-court statements to a 9-1-1 dispatcher as substantive evidence, when the statements were admissible only to impeach the victim’s trial testimony. The court further concludes that the error was harmless as to one of defendant’s convictions and remands for resentencing.
State v. Burns, 287 Or App 459 (2017) (per curiam)
Per Curiam – Jury Instructions – Plain Error in Failing to Instruct on Culpable Mental State
The court reverses defendant’s conviction for unlawful use of a vehicle when the trial court failed to instruct the jury that it must find that defendant knowingly used a vehicle without consent of the owner.
State v. Perez-Rodriguez, 287 Or App 461 (2017) (per curiam)
Per Curiam – Any Error in Admitting Evidence was Not Prejudicial
The court rejects defendant’s challenge to the admission of text messages. The trial court admitted the messages as relevant to only one issue, and so instructed the jury. Ultimately that issue was not presented to the jury. During closing, both the state and defendant acknowledged that the messages could be relevant to a different issue. In light of that admission, defendant failed to establish that admitting the messages was prejudicial error.
State v. Reed, 287 Or App 463 (2017) (per curiam)
