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Oregon Appellate Ct - Sept 7, 2017

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by: Msell@mpdlaw.com • September 21, 2017 • no comments

Written by Sara Werboff, OPDS | Edited by Mary Sofia, OCDLA


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.)


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.)


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.)


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

Trial counsel did not provide ineffective assistance of counsel by failing to raise motions to suppress and instead negotiating a global resolution to 40 pending charges. Petitioner/Defendant went on a crime spree that resulted in 40 pending charges, primarily for property and drug offenses. Petitioner/Defendant told trial counsel that he wanted to work out the best deal possible to resolve all pending charges and ensure that more charges would not be filed against him. Trial counsel negotiated a global resolution, where the state agreed to cap their sentencing recommendation at 200 months. At sentencing, the state argued for 181 months and the defense for 60 months, and the trial court imposed 151 months. Petitioner/Defendant thereafter filed for post-conviction relief, asserting that trial counsel was ineffective for failing to challenge the searches that occurred in several of the pending cases. Trial counsel explained that he did not seek to suppress evidence in light of defendant’s wishes to work out a deal, and because he did not believe that the motions would have merit. The prosecutor also filed an affidavit saying that the state could respond to all of the motions, and had petitioner filed motions, it would have negatively impacted his plea bargain.

The court concludes that trial counsel did not provide ineffective assistance of counsel. Counsel’s decision not to file motions to suppress in advance of plea discussions was a strategic choice consistent with defendant’s goals of working out the best deal possible. The motions would not have prevented the state from prosecuting defendant and the likelihood of success on the motions was doubtful. Additionally, filing the motions would pose significant risks to Petitioner’s/defendant’s plea prospects. The court also explains that trial counsel was not obligated to file motions as Petitioner/defendant racked up additional charges because counsel is not required to anticipate a client’s future crimes and plan around them.

Owen v. Taylor, 287 Or App 639 (2017) (Lagesen, J.)


Appeal and Review – Harmless Error

The court summarily affirms the conviction based on State v. Bouthillier, 4 Or App 145 (1970). Bouthillier stands for the proposition that if the trial court commits evidentiary error at trial, by either improperly admitting or excluding evidence, the error is harmless if subsequent developments meant that the admission or exclusion of evidence would not be error on remand.

Do note that Chief Judge Hadlock concurs, and writes separately to express her doubts about the continuing viability of Bouthillier in light of the court’s modern harmless error cases. In this case, defendant sought to introduce the victim’s guilty plea to perjury for impeachment. The victim had entered into a diversion program where after a certain period of time the perjury count would be dismissed. The trial court erroneously excluded her guilty plea because it was not a conviction. However, the court concludes that the error was harmless because the victim’s guilty plea was dismissed without a conviction and could no longer be used to impeach her on remand.

Chief Judge Hadlock believes the Bouthillier rule is inconsistent with subsequent harmless error holdings, which look solely at whether the error affected the verdict. The Bouthillier rule requires an appellate court to speculate as to a probable outcome on retrial, which “cannot be the law.”

State v. McLean, 287 Or App 686 (2017) (per curiam) (Hadlock, C.J., concurring)

Fines and Fees – "Mandatory State Amt"

The trial court erred in imposing $60 “mandatory state amt” awards because it lacked authority to impose those fees.

State v. Triplett, 287 Or App 694 (2017) (per curiam)


Search and Seizure – Search Warrants – Warrant for Electronic Devices was Overbroad

A search warrant for electronic devices is facially overbroad when the officer’s training and experience is “generic” and fails to establish a “probability” that evidence will be found on all of defendant’s electronic devices. Here, defendant was accused of killing an elk on private property. A witness told police that defendant had used his cell phone to take photos of the elk, and that defendant later posted photos of the elk to Facebook. Police obtained a warrant authorizing the seizure of “any and all” of defendant’s “computer equipment.” In the supporting affidavit, the officer averred that, in his training and experience, hunters customarily obtained digital photographs, and some devices may store the date, time, and geographical location. Police searched a laptop and obtained incriminating GPS information.

The court concludes that the warrant was facially overbroad. The officer’s training and experience was “generic” and failed to establish a “probability” that evidence would be found on all of defendant’s devices. There was probable cause to search only defendant’s cell phone.

State v. Burnham, 287 Or App 661 (2017) (Garrett, J.)

Search and Seizure – Probable Cause – Traffic Violations – Impeding Traffic

When defendant’s vehicle blocks an entire lane of travel altering the normal movement of traffic, an officer has probable cause to initiate a traffic stop. Here there was no traffic signal or stop sign, and no pedestrians were crossing. Although the officer could continue on the road by passing defendant in the unobstructed lane, defendant was blocking the right lane. Because defendant’s vehicle blocked an entire lane of travel and therefore altered the normal movement of traffic, defendant was impeding traffic and the stop was lawful.

State v. Carson, 287 Or App 631 (2017) (Egan, J.)