We’ve moved

Ryan’s not really gone.  He’s just over at the new site.

Come on, follow me.

libraryofdefense.org

libraryofdefense.com will take you there too.  So will http://www.mpdtrainer.com

See you there,

Alex

This Appellate Week

Relevancy – Other Acts

Defendant’s drawing of an armed robbery was relevant in his trial for armed robbery where the defense argued that defendant did not participate in the robbery.  Because the drawing was relevant, OEC 404(4) requires admission even if the drawing was substantially more prejudicial than probative.  However, the question of whether a balancing test was constitutionally required was not preserved and, therefore, not considered by the appellate court.  State v. Jasso

Sentencing – Stipulated Illegal Sentence

41 months prison plus 3 years post-prison supervision is an illegal sentence for a C felony.  The sentence is reversible on appeal, even if the sentence of 41 months was a stipulated one.  138.222(2)(d) bars review of stipulated sentences; but it only bars those portions of a sentence which are stipulated.  Here, the prison sentence would be unreviewable.  However, nobody ever mentioned post-prison supervision as being part of the stipulation.  Therefore, it is reversible.  State v. Capri

Diagnosis of Sex Abuse – Multiple Complainants

A diagnosis of sex abuse in the absence of physical evidence is prejudicial enough that it requires reversal of convictions against a complainant who wasn’t diagnosed but whose allegations were part of the same trial.  This is particularly true in a case that relies completely on the credibility of the complainants.   State v. Cox

Stalking Protective Order – No Mental State as to Alarm

The respondent in a stalking protective order is not required to have any mental state with regard to the petitioner’s feeling of alarm or coercion.  Here, the respondent rode up to petitioner on his riding mower.  Petitioner felt alarmed because his dog might pull him into the lawnmower.  It didn’t matter that respondent was unaware of such alarm.  Additionally, the court rejects respondent’s argument that the lawnmower incident was speech because there was a verbal exchange.  The court finds that, while the speech provides context, it was the act of riding the lawnmower up to the petitioner that caused the alarm and thus constituted an unwanted contact.   TMB v. Holm

Termination of Parental Rights – Unfitness

Mother’s heroin addiction made her unfit, despite her recent abstenance:

Importantly, mother has thus far maintained her recovery while living in a women’s shelter without the stresses, financial and otherwise, of parenting multiple children; in the past, mother has relapsed almost immediately upon leaving structured treatment environments and, up to the time of the termination hearing, demonstrated little ability to even reliably attend outpatient treatment.

The court finds that it would have taken at least 7 months for mother to potentially become minimally fit.  But testimony at the TPR trial established that 6 months was too long for the children to wait.  DHS v TMM

Dependency – No Appeals Past 90 days

Despite the fact that trial counsel did everything wrong in failing to timely file an appeal, Due Process does not allow for an appeal past the 90 days allowed by ORS 419A.200(5):

In sum, ORS 419A.200 comports with due process in the generality of cases. Even assuming that due process might somehow demand more in father’s circumstances, we are persuaded that, in the totality of the circumstances, the termination proceedings have been fundamentally fair, and due process does not require that father be allowed to file a late appeal.

DHS v WSC III

My Last Post

This will be my last post at this website.  It has been quite fun.  I hope you’ve all found something useful in these posts.  Even better, I like to think something I wrote helped you settle a case on more favorable terms or even better, win at trial.

Anyway, I thought for my last post, I’d write a summary of what may be the most important issues working their way through the appellate courts (that I know about).  That parenthetical is key, since obviously I’m not aware of every appellate issue out there.   But I do like to bug people for copies of their briefs and ask about their cases and so I know about issues well beyond the ones I’ve written about myself.

For those of you who are regularly readers of this website, many of these issues will be familiar to you.  One of the more important issues is whether offense-specific enhancement factors are elements under the Oregon Constitution.  This isn’t the most important issue, in part because it won’t affect that many cases.  But if it is successful, in State v. Reinke (currently before the Oregon Supreme Court), it will require at least some enhancement facts to be filtered through the Grand Jury.

The issue of enhancement facts has really brought home the importance of Grand Juries.  Yes, we all know about the ham sandwich.  But, you know, it’s very, very rare — in my opinion — that a Grand Jury will indict entirely frivolous charges.  It happens, yes.   But very rarely.  But enhancement facts?  The ability of the prosecutor to charge enhancement facts by checking off a box has resulted in truly ridiculous accusations.    I think if they had to get by a Grand Jury, we wouldn’t see as many.  Whether it’s because prosecutors would restrain themselves if they had to do more than just check a box, or the Grand Jury would vote against them, who knows.  But it can’t be a coincidence that charging integrity drops dramatically when there is no Grand Jury.

Perhaps the most important issue currently working its way through the appellate courts is one that, paradoxically, we’ve already won.  It’s the Mallory issue.   But it’s been years since Mallory came out, and still defense attorneys don’t understand it and certainly don’t use it, like a muscle we didn’t know we had.   But it has potential sentencing benefit for thousands of clients.  It could dramatically reduce all sorts of sentences.  But still you don’t argue it.  Well, a couple of you have, and those cases should produce decisions within the next year or two.   Let me take this opportunity to plug my series on criminal episodes as they relate to Theft and ID Theft, and Child Porn, and a strategic demurrer, and, again, State v. Mallory.

Speaking of sentencing, I saw that a defendant got over 60 years recently for a plea in state court for child porn.  Yes, I checked OJIN.  Yes, it appeared not a single pre-trial motion was filed.  If there was any reference to a sentencing memo, I didn’t see it.  But right now there are a ton of issues related to child porn that impact both culpability and sentencing.    Expect new posts about defeating ECSA charges for members only at the new website.  (Hey, I didn’t say this would be my last post anywhere.)

Probably not that many defendants — among the thousands and thousands we send to prison — will be impacted by how the OSC rules in State v. Ofodrinwa.   But we’ll all be better off if they eliminate one of the worst absurdities ever in Oregon judicial history.  Which absurdity is that? It’s the absurdity that can require sex offender registration for sex with a 17 year but not sex with a 15 year, as well as make the punishment worse for sex with a 17 year old than sex with a 14 year old.

There are a few other issues I would highlight, and I reference a few of them in the 2012 Oregon Criminal Law Quiz.   But that’s all for now.

And if you read this post closely, you know that while I won’t be writing for mpdtrainer.com anymore, you’ll be able to find my new posts at libraryofdefense.org .    Some of the posts will be available to the public, some will only be accessible to OCDLA members.  It’s for the members that we’ll really cut loose and talk about creative strategies for doing great things for your clients.

Upward Departure Notice in Multnomah County

If your Multnomah County client has been given notice of the state’s intent to seek an upward departure and/or a dangerous offender sentence, and you intend to challenge the upward departures based on Savastano and Equal Privileges, you can do one of two things.  You can file the motion and then subpoena someone from the DA’s office to testify at the hearing about their policy or lack of one.   (Michael Shrunk had testified in State v. Freeland, you may recall.)  You then get to cross-examine him or her somewhat blindly.

Or you can ask the prosecutor to supply you in advance with an affidavit from either of the two chief deputies regarding their procedures.   This way you can tailor your motion to their office procedures.  The Multnomah County DA’s office has been highly professional in this regard.  I have gotten a copy of both their upward departure procedure and their dangerous offender procedure.     In my opinion, those affidavits are exceptionally useful in making a clear and unambiguous record, if the COA ever needs to get involved.

While there is the possibility the future Oregon Supreme Court decisions will eliminate this arrow from our quiver, right now I think it’s malpractice not to get a copy of the procedures/policies of the DA’s office in your county.  Keep in mind that if even you’ve got a dozen clients who have received upward departure notice, you only need to get the policy once.

PS:  the Multnomah County DA’s aggregation policy is also available for the asking.

 

 

 

The DCS-SQ/CDO Demurrer that WILL NOT Win (but you should file it anyway)

Here’s the demurrer.   It applies when CDO factors and the SQ factor are contained within the same count of DCS/MCS or PCS.  Winning would be dependent on a finding that sentence enhancement factors such as “the defendant was in possession of more than 150 grams of marijuana” are elements — and not mere sentence enhancements — of enhanced versions of delivery, manufacturing or possession.  Under current Oregon Court of Appeals case law, they are not elements.  Therefore, the trial judge is required by her oath to follow the law to deny this demurrer.  Moreover, unless something changes, I wouldn’t expect an appellate attorney to even bother briefing it.  See the demurrer itself for the full and complete argument.

As I’ve stated in a footnote, the Oregon Supreme Court — in a case called St v. Reinke –  is likely to address whether those types of sentence-enhancers are in fact elements.  Well, let me be precise.  The OSC has addressed whether offense-specific enhancements are elements under Article I, section 11, of the Oregon Constitution.  And the OSC has concluded:  usually.  However, none of the OSC analysis ever seems to make it into COA opinions on this issue.

Reinke is set to be argued on May 3, 2012.  If you file this demurrer Monday, lose, go to trial, lose, and file the notice of appeal in the next month or two, there’s a good chance the OSC will issue an opinion before the appellate attorney even has to decide whether to brief it.  And if Mr. Reinke prevails, then there’s a good chance not only that your client will win on appeal, but after a successful appeal, it would be too late for the state to reindict.  (This is a demurrer after all; reversal on these grounds means dismissal of the indictment.)

I understand why this is hard for some lawyers.  Filing a motion just to tell the court they are obligated to deny it.   If this is the only issue you’ve got at trial, then you’ve got nothing.  But sometimes nothing can be a real cool hand.

Impact of New US S.Ct. Miranda Case

The US Supreme Court recently issued a Miranda case, finding that a prison inmate was not in custody for the purposes of a Miranda analysis under the Fifth Amendment.  The question is how much influence the US Supreme Court has on how Oregon courts analyze what  circumstances are considered “compelling” under an Article I, Section 12 argument?  Some older Oregon cases have indicated that the analysis is similar for Fifth Amendment custody and Article I, Section 12 compelling circumstances.  But newer Oregon cases clearly diverge from the federal analysis.  The bottom line is that Oregon courts would likely agree with the Supreme Court that there is no categorical rule that inmates are in custody.  But they would also likely agree with the Supreme Court dissenters that Mr. Fields’ Constitutional rights were violated.

In Howes v. Fields, the majority held that police did not need to give defendant Miranda warnings. The majority focused on the following facts: defendant (1) was told at the outset of the interroga­tion, and reminded thereafter, that he was free to leave and could go back to his cell whenever he wanted; (2) was not physical­ly restrained or threatened; (3) was interviewed in a well-lit, average­ sized conference room where the door was sometimes left open; and (4) was offered food and water.

The dissent, on the other hand, concluded that the police should have given Miranda warnings. The dissent focuses on the following facts: defendant (1) was removed from his cell in the evening; (2) was taken to a conference room in the sheriff’s quarters; (3) was questioned by two armed depu­ties long into the night and early morning; (4) was not told at the outset that he had the right to decline to speak with the deputies and believed the deputies would not have allowed him to leave the room; (5) stated that he did not want to speak with them anymore; and (6) was not given his evening medications.

If the federal test for self-incrimination heavily influences the Oregon “compelling circumstances” test, then this looks like a very bad case for Oregon. However, reading the Oregon cases, it’s clear that the Oregon test is different from the federal test, and there is language to suggest that the Oregon test provides broader protections than the federal test.

Under Article I, Section 12, Miranda warnings are required when police place a person in a setting that is “compelling.” The test to determine if a situation is compelling is a multi-factor one that considers (1) the location of the encounter, (2) the length of the encounter, (3), the amount of pressure exerted on defendant, and (4) defendant’s ability to terminate the encounter.

In contrast, under the federal 5^th Amendment, Miranda warnings need to be given to a person being interrogated when a reasonable person would feel he or she is not at liberty to terminate the interrogation and leave. A person’s ability to freely move plays a much more central role in the federal test.

The same questions – such as whether or not defendant felt free to leave — may be asked for both tests. In addition, both tests protect the same interest. Ultimately, however, the two tests have been developed through different sets of case law, and the “freedom of movement” inquiry is not as heavily emphasized in Oregon case law.

State v. Warner, a 2002 case, does state that, “[t]he Oregon constitutional test is comparable to the test for determining whether a person is in custody for Fifth Amendment purposes, and Oregon courts have approached the two questions using the same analysis.” The court supports that statement with two cases: Zalinka and Brown. However, the language of those cases seem to suggest that, not only are the federal test and the Oregon test different, the Oregon test is a broader, more robust test.

In Zalinka, the court writes that “[u]nder the Oregon Constitution, Miranda-like warnings are required when the defendant is in ‘full custody’ and ‘may be required in circumstances that, although they do not rise to the level of full custody, create a `setting which judges would and officers should recognize to be ‘compelling.’” The court is saying that if a defendant is placed in “full custody,” he or she needs to be Mirandized. See State v. Magee. The court then goes one step further, indicating that circumstances do not constitute “full custody” may still be recognized as “compelling.”

In Brown, the court writes “[the Federal] test is a useful starting point for determining whether Article I, section 12, requires the police to give warnings in a particular situation” (emphasis added). The court describes the federal test as a “starting point,” presumably because the protections the federal test provides is less robust than the state test. (side note: In Oregon, state courts are supposed to analyze the state’s laws before reaching a federal constitutional claim. In Sterling v. Cupp, the court writes that, “the proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim.”  Perhaps Zalinka and Brown should have started with state law first… but if the federal test is more stringent than the state test, it would make sense for a court to apply the narrower test first before moving on to the broader test).

Most importantly, some recent Oregon cases do not even bother applying the federal test. Roble-Baker (2006), Machain (2009), and Schwerbel(2010).

Particularly once one reads the more recent cases, it’s hard not to come to the conclusion that the Oregon test provides broader protections than the federal test. Oregon defense attorneys should not be too bothered by the SCOTUS opinion. And if ever confronted with a federal case about Miranda rights, lawyers can confidently argue that the “compelling circumstances” argument is different from and offers broader protections than the federal “full custody” test.

This Appellate Week

Venue

Where a city is entirely within a county, it is sufficient proof of venue to survive MJOA that the crime occurred in that city.  A jury can infer that the city exists within the county.  Here, the state proved that a DUII occurred in Medford.  Such proof was sufficient for venue, even though nobody testified that the crime occurred within Jackson County.  Note that this does not work for Portland, or any other city that exists across more than one county.  State v Davis

Consent to Search/Emergency Aid

Defendant was handcuffed and questioned outside her hotel room after her boyfriend was arrested on a warrant. The trial court found and the state, on appeal, agrees that handcuffing and questioning amounted to a seizure.  Since there was no PC to believe a crime occurred, the seizure was illegal.  And, since consent was obtained during the unlawful detention there was a causal relation between the detention and the consent.  The state comes nowhere close to purging the taint of the illegality because the consent was obtained during an unlawful detention and immediately after a custodial interrogation without Miranda warnings.

The emergency aid doctrine doesn’t save the state because there was no emergency. Officers knew that defendant’s baby was in the hotel room, that defendant’s boyfriend had a meth pipe on him when he was arrested and that defendant had previously been convicted of negligent homicide for rolling onto her child while high on meth.  But without more, such facts do not constitute evidence of an imminent threat of serious physical injury.  State v Shirk

Interfering with a Police Officer

The trial court committed reversible error when it refused to instruct the jury that passive resistance does not constitute interference with a police officer under ORS 162.247. Per Curiam.  State v Davis