Oregon Appellate Ct - Sept 7, 2017

Revision as of 20:32, September 22, 2017

CRIMES/CONTEMPT

Restraining Orders – “Interfering” with Petitioner – Insufficient Evidence of Interference

Defendant did not violate a restraining order by “interfering” with the petitioner when he emailed her employer and accused her of theft and fraud. “Interference” does not include “taking part in the concerns of others” and here, defendant did not have any direct physical or verbal contact with petitioner.

State v. Balero, 287 Or App 678 (2017) (Duncan, J.)

CUSTODIAL INTERROGATION/MIRANDA

Miranda Right to Counsel – Equivocal Invocation of Right to Counsel

Preservation - Defendant Sufficiently Preserved Argument

For the purposes of invoking the right to counsel, a defendant asking, “Where is the lawyer?” in response to Miranda Warnings is an equivocal invocation of his right to counsel that needs further clarification by police. Here, following defendant’s arrest for murder constituting domestic violence, police conducted a custodial interview prior to arraignment. In response to the Miranda Warnings, defendant asked “where is the lawyer?” and police responded by asking defendant if he had retained a lawyer. Defendant said he had not and could not afford a lawyer. Police then told defendant that he would be appointed a lawyer at his arraignment. They then asked whether defendant understood his rights and would be willing to speak with them, and defendant said yes.

On appeal, the state argued that defendant failed to preserve his claim that defendant equivocally invoked his right to counsel because he failed to make a closing argument even though defendant clearly addressed the issue during cross. The court rejects the state’s preservation argument because it was apparent that all understood the issue was whether defendant’s Miranda right to counsel was violated, and the state had the burden of proving that. As to the merits, the court agrees with defendant that his statement was an equivocal invocation of the right to counsel, because a reasonable officer would have understood it as an equivocal request for counsel in light of the context in which it was made – immediately after Miranda rights were read and the officer asked whether defendant understood them. Police also failed to clarify the invocation because police, at most, clarified that defendant had the right to a lawyer at arraignment under Article I, section 11, and may have actually misled defendant into believing he did not have a right to counsel during interrogation. And, defendant did not voluntarily cut-off any opportunity for police to ask clarifying questions by spontaneously speaking to the officers about the offense, instead he affirmatively responded to the officer’s questions about continuing the interview.

State v. Sanelle, 287 Or App 611 (2017) (Ortega, P.J.)

EVIDENCE

Self-Incrimination – Error to Introduce Defendant’s Invocation at Trial Preservation – Objection to Admission of Invocation Sufficient to Preserve Issue for Appeal

It is error to permit an officer to testify at trial that a defendant refused to provide his version of events. Here, defendant was arrested and tased at a bathhouse. An officer investigating the incident asked defendant to give his version of what happened and defendant said “I have nothing to say.” The officer testified that the defendant said he “had nothing to say” during trial and defendant objected but did not elaborate as to the basis of the objection.

The court first concludes that the nature of defendant’s objection was apparent from context. The officer had just testified that an in-custody defendant did not want to make a statement. The trial court ruled promptly on the objection and did not ask for further specification. The court next concludes that it was error to introduce defendant’s statement and the error was not harmless. The prosecutor specifically urged the jury to reject defendant’s version of events at trial because defendant did not tell the officer those facts after his arrest. There was a likelihood that the jury drew that impermissible inference.

State v. Villar, 287 Or App 656 (2017) (Lagesen, J.)

PCR/HABEAS CORPUS

• Post-Conviction Relief – Ineffective Assistance of Counsel – Guilty Pleas

PER CURIAMS

• Appeal and Review – Harmless Error
• Fines and Fees – "Mandatory State Amt"

SEARCH AND SEIZURE

• Search and Seizure – Search Warrants – Warrant for Electronic Devices was Overbroad
• Search and Seizure – Probable Cause – Traffic Violations – Impeding Traffic

State v. Burnham, 287 Or App 661 (2017) (Garrett, J.) State v. Carson, 287 Or App 631 (2017) (Egan, J.) Owen v. Taylor, 287 Or App 639 (2017) (Lagesen, J.) State v. McLean, 287 Or App 686 (2017) (per curiam) (Hadlock, C.J., concurring) State v. Triplett, 287 Or App 694 (2017) (per curiam)