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Don't Ask for Jury Instructions You Don't Want
by: Ryan Scott • July 16, 2024 • no comments
This is a small bit of advice that won't matter most of the time, but every now and then it might.
There are jury instructions given in every case. If you don't specifically want them, don't ask for them.
For example, in a kidnapping case, why ask for the standard instructions? Oh sure, you may want to modify those instructions. You may want to add additional instructions. But why ask for the standard ones? The state will ask for them. If you don't object, the judge will give them.
Why does it matter? Because let's say by the time your case is briefed, the appellate courts have ruled that the standard instruction is wrong. You didn't preserve the argument, which happens. Maybe it was a genuinely unexpected change, which somebody else preserved but didn't tell anyone else about. The appellate attorney in your case nevertheless briefs the issue as plain error. There's no dispute it's error. There's no dispute it's harmful. So your client wins, right? Not if you invited error. And how would you have invited error? You specifically asked for the erroneous instruction.
Would the COA agree that it was invited error? I don't know. But you could avoid that by not asking for the state's instructions. And if nothing else, it's less work.
Can sentencing arguments that don't win still impact the overall sentence?
by: Ryan Scott • July 14, 2024 • no comments
Judges really don't like being reversed. I base this on the fact that judges who were rarely reversed and who I thought wouldn't have cared about the occasional, inevitable reversal will still complain about it when it does happen.
Consequently, I believe it's always a good thing at any sentencing to have the judge take into account the possibility that even if I'm wrong about the law, there's a chance the COA will think I'm right.
What am I talking about? Let me provide a couple of examples. If you've read many of my blog posts, or read me on the defense lawyer listserve, you know that I believe that when the gun minimum is charged on multiple counts, it must be imposed on the primary offense and only the primary offense. For example, if the defendant is charged with murder with a firearm and felon in possession of a firearm with a firearm, the gun minimum of five years must be imposed on the murder charge (assumingf it's the first gun minimum that defendant has ever faced -- if it's the second gun minimum, it gets a little complicated, in some ways good for the defendant, in other ways bad.) (Why does it matter if it's imposed on the murder charge or, say, the felon in possession? Because if imposed on the felon in possession, the judge has the ability to impose a longer sentence than if it's imposed on the murder charge.)
I have argued this at the trial level, and no judge has expressly said I'm right about the law, but some of them haven't said I was wrong either. The judge simply chose to impose the gun minimum on the most serious count, simply because they wanted to (or so they said) and not because I told them they legally had to. From a judge's point of view, this had the advantage of avoiding the possibility of reversible error. At the same time, it didn't bind them to a legal outcome they would have to follow in future cases.
I personally think in some of the cases at least, the judge was motivated in part to avoid reversible error. Maybe not. There's no way to know for certain. (Incidentally, this issue has been preserved in a number of cases by a number of great attorneys, so we should have a definitive answer within two years.)
I want to give another example of a legal argument that didn't win, yet maybe influenced the outcome of a sentencing. I had a client back for re-sentencing. He was already servicing a life/25 sentence for murder, but that case wasn't back for re-sentencing. It was a separate case in which he got twenty years to be served consecutively to the murder charge that was back for re-sentencing.
As it turned out, the client had done great in prison. Truly impressive stuff. I used that information to argue why she shouldn't run twenty years consecutively to the murder sentence. But I also argued at re-sentencing that any sentence run consecutively to a murder charge was subject to the proportionality analysis under Article I, section 16, of the Oregon Constitution. Specifically, I noted that my client wouldn't serve any of the consecutive sentence unless the parole board had found his rehabilitation was imminent. (And they would likely make that finding, given how well he had done in the past ten years, but who knows.) If Article I, section 16, requires that courts take into account the personal characteristics of the defendant when determining the constitutionality of the long sentence, the fact that rehabilitation is imminent certainly should impact whether the additional twenty years was proportionate.
On the law, the judge disagreed. But she only ran eight years consecutively to the life/25 he was already serving, a substantial reduction to what she had imposed the first time around. Was it due entirely to my client's remarkable accomplishments while in prison? Or did she worry that an additional twenty-year sentence might trigger the proportionality analysis and have the case sent back for a third sentencing? Or was it simply that she recognized the absurdity -- even if it were constitutional -- of adding another twenty years to be served -- and only served -- after the defendant was rehabilitated?
That last question is key. Even if I'm wrong about the application of Article I, section 16, in that situation, there is something totally absurd about a lengthy sentence that's only served after rehabiliation. Even my pro-prosecution, non-lawyer family members think that's crazy.
Again, there is no way of knowing why the judge reduced the sentence or if she would have reduced it to the same degree minus the proportionality argument. That's sorta my point. Judges may reject legal arguments but still be swayed, by either the logic of the legal argument or the risk of reversal, to end up at the same place.
And if the legal arguments don't seem to make a difference at all at sentencing, then at least your client has a shot at re-sentencing, which, per my first post today, can also lead to a much better outcome down the road.
Resentencing Observations
by: Ryan Scott • July 14, 2024 • no comments
This is the first of two blog posts I want to write today regarding sentencing.
I've handled my share of re-sentencings, sometimes after I handled the original sentencing, sometimes when I hadn't. The observation I most want to make is that judges often won't impose the same sentence even when they could.
That hasn't always been true in my cases but it's been more true than not. The reasons vary. One is that the defendant has done very well in prison and there is a record of it. Other times it is because the defendant is able to express remorse that they weren't able to right after the trial. At least one time I think it was merely because enough time had passed that the judge had forgotten what it was about the trial that caused her to impose a sentence out of anger or pique. Without that emotion behind it, the sentence came back down to earth.
It's impossible to know how much of a role I played, but I did a lot of work in all of those cases. I never treated a re-sentencing as pro forma, except when there really was only one sentence the court could impose at re-sentencing. But more likely, re-sentencings that went well probably did so because of the defendant and things they had done since the original sentencing.
My second observation is this. It wasn't always predictable which clients would do well in prison. I was often surprised by the clients who did truly wonderful and impressive things while incarcerated.
Have these observations changed my practice in any way? Not that I've noticed, but it has reaffirmed my belief in the importance of making as many legal arguments at sentencing as possible, even if the benefit of winning isn't always obvious. So, for example, I'll argue for merger of UUW and Murder with a Firearm. In such cases where merger is appropriate, the merger won't reduce the overall sentence because separate sentences would run concurrently. But by making the argument, either (1) the trial judge will agree and my client will have one less conviction, which is always better than more convictions, or (2) the judge will disagree and if the COA says I'm right, my client will have a shot at a re-sentencing that, if they've done well or the law has otherwise changed in their favor, might reduce their sentence.
(In theory, any re-sentencing on a murder charge might have no chance at reducing the original sentence, if the judge ran all counts concurrently to the mandatory murder sentence, but in my experience, most judges are constitutionally incapable of not tacking on an additional sentence to run consecutively to even a life/25 sentence. There must be some additional cost for going to trial.)
I think there are lawyers who are hesitant to make legal arguments at sentencing, murder sentencings in particular. They want the focus to be on a just and fair sentence, and arguing about the statutes will distract from their argument why life/25 is more than sufficient to satisfy the ends of justice. I think this attitude constitutes gross malpractice, and fortunately I think it's relatively rare. But if you are inclined to think that way, just submit a sentencing memorandum with all the legal arguments, tell the court as to those arguments you're standing on your brief, and then make all the non-legal arguments you want to focus on.
Post-Rahimi update on UPF (Portland City Code)
by: Ryan Scott • July 3, 2024 • no comments
A few months ago, in a blog post at this website, I argued that the Portland City Code prohibition on the open carry of loaded firearms was the statute most likely to fail in light of SCOTUS's Bruen opinion. Now that SCOTUS has dramatically walked back parts of Bruen in United States v. Rahimi, does that change my analysis?
No. There are two things to remember about the city code provision:
(1) it applies to the public generally and not those who may be dangerous
(2) as noted by Bruen, open carry was generally permitted at the time of the 2nd Amendment and often prohibitions of open carry were struck down as violations of the 2nd Amendment.
As for (1), in upholding the law in Rahimi, the Supreme Court noted that § 922(g)(8)(i) is a “focused regulation[],” not a “broad prohibitory regime as in Bruen." Id. at 15. Furthermore, unlike the regulation struck down in Bruen, Section 922(g)(8) does not "broadly restrict arms use by the public generally."
As for (2), see just this one example from Bruen, fn 16: "Beginning in 1813 with Kentucky, six States (five of which were in the South) enacted laws prohibiting the concealed carry of pistols by 1846. See 1813 Ky. Acts §1, p. 100; 1813 La. Acts p. 172; 1820 Ind. Acts p. 39; Ark. Rev. Stat. §13, p. 280 (1838); 1838 Va. Acts ch. 101, §1, p. 76; 1839 Ala. Acts no. 77, §1. During this period, Georgia enacted a law that appeared to prohibit both concealed and open carry, see 1837 Ga. Acts §§1, 4, p. 90, but the Georgia Supreme Court later held that the prohibi�tion could not extend to open carry consistent with the Second Amendment. See infra, at 45–46. Between 1846 and 1859, only one other State, Ohio, joined this group. 1859 Ohio Laws §1, p. 56. Tennessee, mean�while, enacted in 1821 a broader law that prohibited carrying, among other things, “belt or pocket pistols, either public or private,” except while traveling. 1821 Tenn. Acts ch. 13, §1, p. 15. And the Territory of Florida prohibited concealed carry during this same timeframe. See 1835 Terr. of Fla. Laws p. 423.
As noted, the Portland City Code prohibits open carry and it applies to anyone, either of which should be sufficient to strike the law down.
The constitutionality of the law has already been briefed and it waiting on oral argument at the Court of Appeals. There's just no reason not to file a constitutional challenge to the city code, even if, as is often the case, it's the least significant charge in the indictment.
And of course you want to file a motion to suppress, if the open carry is the reason (1) the gun was seized, (2) the reason your client was arrested, or (3) the reason your client was searched, and any of those things resulted in additional evidence.
One side note about felon in possession. Please, please, please make an as-applied argument when you can, putting on evidence that your client is not dangerous, not merely because of the non-violent nature of the underlying felony but also those aspects of your client's life that are consistent with non-dangerousness (e.g., length of time since conviction, employment, family, lack of restraining orders, even lack of traffic tickets to show how law-abiding they are). I already was on record stressing the importance of as-applied challenges, but there are parts of Rahimi (in particular Gorsuch's concurring opinion) that have reinforced my opinion quite a bit.
Narrowing Broadly Written Statutes (sex crime edition)
by: Ryan Scott • May 29, 2024 • no comments
Assume a statute says either party can do X. That means you can do X, right?
Maybe. Some statutes are very poorly drafted, and what the statute says you can do isn't exactly what the legislature intended when they passed the statute.
On April 11th of this year, the Oregon Supreme Court dealt with this in the context of felony computer crime. The case was State v. Azar. This statute is very broadly written. And it was written in the mid-80s, when the legislature would have had no understanding of how computers would be a part of our daily lives forty years later. So while it's true that the legislature will sometimes intend to address an issue with a statute that covers far more ground than the specific issue they are trying to address, nevertheless, it's hard to argue that they intended it to cover ground they couldn't even imagine.
Consequently, there are times when it is necessary to look at the legislative history to determine whether the legislature in fact intended something far less than the face of the statute would seem to allow. To put it another way, if certain behavior appears to be criminal based on the face of the statute, sometimes you have to look below the surface to see if that behavior is in fact what the legislature intended to make criminal.
- We resolve that question under the framework set out in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Our goal is to determine the intent of the legislature that enacted that provision. Id. at 171. In making that determination, we consider the disputed statutory text in context, together with any available legislative history that we find helpful. Id. at 172. If a statute's intended meaning remains unclear to us following our examination of its text, context, and legislative history, we may turn to general maxims of statutory interpretation for additional guidance. See, e.g., Chaimov v. Dept. of Admin. Services, 370 Or 382, 398 n 7, 520 P3d 406 (2022) (noting limited circumstances in which it may be appropriate for courts to consider general maxims of statutory interpretation).
Azar at ____.
As you may note, Gaines was passed in 2009. Prior to then, if the statute wasn't facially ambiguous, you couldn't dive into the legislature history. You were stuck with the face of the statute.
Getting back to my original question. Statute says you can do X. But whether you can do the specific thing you want to do, you have to ask yourself, is this specific thing what the legislature intended to allow you to do?
Which brings us to the child hearsay exception to the hearsay rule.
4th Theory of Merger
by: Ryan Scott • May 8, 2024 • no comments
FOURTH THEORY OF MERGER
Lesser-Included Offenses
This has a lot of overlap with the Third Theory of Merger. Examples #3 and #4 immediately above would also arguably fall into this section, but generally when we think of lesser-included offenses, we think of assault IV as a lesser-included of assault III or assault II for example.
A crime is a lesser-included offense if it includes all but one or two of the elements of the higher offense and does not contain any additional elements.
Generally, robbery in the second degree (purporting to have, for example, a firearm) is not a lesser-included offense of robbery in the first degree (armed with a deadly weapon) because the former offense has an element the latter offense does not (that is, displaying or pretending to display a dangerous weapon). But robbery in the second degree might be converted into a lesser-included offense if the robbery in the first degree count includes the additional allegation of “with a firearm.”
Example #1: Reckless burning can be a lesser-included offense of arson. State v. Leckenby, 200 Or App 684 (2005).
3rd Theory of Merger
by: Ryan Scott • May 8, 2024 • no comments
THIRD THEORY OF MERGER
Crimes that are (1) Related but have (2) Different Elements from Different Statutory Provisions.
An uncommon one, but pops up occasionally. It’s basically where the elements of one crime – though from a different statutory provision – subsume the elements of the other crime. Might not qualify as a lesser-included offense since it isn’t always a “lesser” offense, but crimes of the same seriousness. See below for an example where all the elements of the more serious offense are contained in the less-serious offense.
Example #1: Intimidation in the Second Degree and Menacing. State v. Black, 320 Or App 263 (2022)
Example #2: Unlawful Use of a Vehicle and Possession of a Stolen Vehicle. State v. Noe, 256 P3d 166 (2011). But note the elements of UUV have changed in some circumstances, so this may no longer be true in all circumstances.
Example #3: Murder with a Firearm and UUW with a Firearm. Murder and UUW would not merge, because UUW has an element murder does not (the use of a dangerous weapon). But the additional allegation of “with a firearm” (which is considered an element of the offense) may supply the missing elements and therefore compel merger. In theory, UUW could merge with other crimes where “with a firearm” is alleged (e.g., robbery in the first or second degree), as long as the other conditions are met (including same victim.) This may also depend whether the theory the state relies on for UUW includes “use or attempted use” of a dangerous or deadly weapon, or whether the state’s theory is exclusively “possession with intent to use.” The latter may be enough to defeat merger, since a person can use a weapon without possession it.
Example #4: Criminal Mistreatment and Assault (depends on the theories involved. See State v. Smith, 229 Or App 518 (2009)
Example #5: Identity Theft and Fraudulent Use of a Credit Card
Weird one. All the elements of ID Theft (a C felony) are contained in FUCC (an A misdemeanor). But when they merge, they stay a felony. State v. Haddon, 286 Or App 191 (2017)
- In sum, proof of the elements of fraudulent use of a credit card proves the elements of the offense of identity theft, in the forms in which the offenses were alleged in this case. At least as is alleged here, identity theft does not require proof of an element that is not already included in fraudulent use of a credit card. Therefore, the trial court erred in failing to merge the separate guilty verdicts in each of those pairs of offenses (Counts 1 and 3; Counts 2 and 4). That is, the pair of offenses occurring on the first date should merge; the pair of offenses occurring on the second date should merge.
Defendant requests that the court vacate her convictions and sentences for misdemeanor fraudulent use of a credit card. We agree that the offenses merge into the more serious offense but describe the disposition more appropriately. State v. Cloutier, 286 Or. 579, 600, 596 P.2d 1278 (1979) (entry of conviction is for "the most serious of the offenses of which the defendant was guilty").
PRACTICE TIP: Argue that Cloutier is no longer good law and that it would violate vertical proportionality (State v. Simonson, 243 Or App 535 (2011)) to impose a felony sentence, when the “greater offense” is a misdemeanor.
2nd Theory of Merger
by: Ryan Scott • May 8, 2024 • no comments
SECOND THEORY OF MERGER
Multiple Counts involving (1) Same Criminal Episode, (2) Slightly Different Elements, (3) Same Statutory Provision
Example #1: Two counts of theft in the first degree merge, even if the elements are different, as long as the other requirements are met, because different means of committing theft doesn’t indicate a legislative intent to reflect separate statutory provisions. State v. Slatton, 268 Or App 556 (2015). This can include, for example, theft by taking and theft by selling.
Same is true for different counts of robbery in the second degree based on different theories (e.g., aided by another and purport to have dangerous weapon) or kidnapping, if the counts are based on different theories. Generally speaking, if the title of the crime is the same, then it will be from the same statutory provision, though not always. Different degrees of crime (i.e., first versus second degree) are generally not from the same statutory provision. If they are from the same statutory provision, the facts still need to satisfy all the other conditions required for merger (one criminal episode, one victim, no sufficient pause.)
But be aware of this limitation to merger contained in ORS 161.067(3):
- Each method of engaging in oral or anal sexual intercourse as defined in ORS 163.305, and each method of engaging in unlawful sexual penetration as defined in ORS 163.408 and 163.411 shall constitute separate violations of their respective statutory provisions for purposes of determining the number of statutory violations.
