This Appellate Week
Prosecutorial Misconduct – Comment on Defendants Failure to Present Evidence
There is no rule which prevents the state from commenting on a defendant’s failure to call available witnesses (other than defendant) or procure evidence. It does not shift the burden to the defense. Here, the DA asked a detective on redirect whether anyone ever asked the detective to do the sort of investigation that defense counsel argued on cross the police should have done. Such an inquiry was permissible because “it alerted the jury to the fact that defendant could have procured the evidence that defendant had faulted the police for not gathering. The prosecutor was entitled to rebut defendant’s implication that the state had failed to gather potentially exculpatory evidence because the investigating officers had jumped to the conclusion that defendant had intentionally murdered the victim. “ State v Henderson
Upward Departure – UUW
In a case that seems shockingly obvious, the court finds that you can’t upward depart someone for use of a weapon on an unlawful use of a weapon case unless the criminal conduct was significantly different than the usual conduct captured by UUW. Such evidence is absent from this case. Remanded for resentencing. State v Pedro
404(3) – Prior Similar Acts to Prove Lack of Consent
Following the recent cases of Momeni and Leisteko, the court finds that prior similar sexual assaults are admissible to prove that the complainant did not consent. ORE 404(3). Here, all but one of the prior incidents, like the instant one, involved the defendant isolating young female acquaintances in college settings and forcing himself upon them while they were unconscious or semi-conscious from alcohol. Four such incidents occurred in the previous 14 months. There was also a prior incident from 7 years previous that did not involve alcohol but did involve isolating a female acquaintance. The court says that by itself it probably would not be admissible but together with the other four prior incidents “it’s logical relevance becomes apparent”. State v Klontz
Stop – Ashbaugh
When an officer (1) takes a person’s information to do a warrant check and (2) asks an investigative question like “do you have any warrants?”, it is a seizure under the new Ashbaugh scheme. Where, as here with a vehicle passenger, there is no reasonable suspicion, the seizure is an unconstitutional one. State v Parker
Venue – Prostitution – Over the Phone
Where defendant agrees during a phone call to exchange sex for money, venue is proper in the county at either end of the call. State v Harris
Corroboration – Accomplice Testimony
It was sufficient to meet the corroboration requirements of ORS 136.440, that a witness saw the accused youth and accomplice together within minutes of the crime when there was nobody else around and the youth seemed nervous and started walking faster when he saw the witness. In the Matter of BML
Civil Commitment – Dangerousness to Self
AMIP was dangerous to himself where, due to increasing bipolar mania, he narrowly avoided crashing his car because voices were telling him to take his hands off the wheel. It was also relevant that during his previous manic period he had jumped off a two story building and seriously hurt himself. At the time of the hearing, defendant had little insight, refused to take medications and was hostile and threatening. State v JDS
