[DV_listserv] Legal Update--cases

[Domestic Violence issues]

Other Acts Case:

>From DOJ's Appellate Division:

INSTRUCTIONS: A "Leistiko instruction"-i.e., an instruction that the jury may
not consider prior-acts evidence without first determining that defendant committed
the charged act-is required only when other-acts evidence is offered to prove intent
under a "doctrine of chances" theory.
EVIDENCE-OTHER BAD ACTS: Prior-acts evidence offered to prove motive need
not be physically similar to the charged act to be admissible.
State v. Clarke, 279 Or App 373, __ P3d __ (2016) (Deschutes) (AAG Patrick
Ebbett). Defendant beat his roommate to death with a baseball bat in a jealous rage over
the victim's relationship with defendant's ex-girlfriend. He was charged with murder.
Before trial, the state filed a motion in limine seeking to present prior-acts evidence:
(1) that seven to 10 days before the crime defendant had discussed killing the victim with
a baseball bat, and (2) about a month before the murder, he sat on the porch of his home
holding a baseball bat while ruminating about killing his ex-girlfriend. Defendant
objected to the admission of that evidence, disputing its relevance to his motive, arguing
that it was inadmissible under State v. Johns, 301 Or 535 (1986), and that its probative
value was outweighed by the potential for unfair prejudice. The trial court (Judge
Stephen Forte) overruled defendant's objection. Defendant was found guilty. On appeal,
he argued that the trial court erred by failing to give a "Leistiko instruction" to the
jurors-that they could not consider the evidence to prove defendant's intent unless they
first found that he committed the charged act. He also argued that the trial court erred by
admitting the evidence without first balancing under OEC 403, and that the evidence of
his ruminations about killing his ex-girlfriend was irrelevant under OEC 401.
Held: Affirmed (Sercombe, P.J.). [1] A Leistiko instruction is required only when
other-acts evidence is relevant to prove intent under the "doctrine of chances," as set
forth in State v. Johns. [2] The evidence that defendant threatened the victim with a bat
was motive evidence relevant to prove that he committed the act (which, in turn, is
probative of intent), so the Leistiko instruction is inapposite. [3] The trial court properly
balanced under OEC 403 the evidence that defendant threatened the victim with a bat.
[4] Prior-act evidence offered to prove motive-unlike evidence offered to prove intent
under a doctrine of chances theory-need not be physically similar to the charged act.
[5] The evidence that defendant ruminated about killing his ex-girlfriend while holding a
bat was also relevant to prove motive because it tended to show that he was angry and
homicidal about the demise of his relationship with his ex-girlfriend. [6] Although the
trial court did not balance under OEC 403 the evidence that defendant ruminated about
killing his ex-girlfriend, defendant failed to preserve an argument that balancing was
required, and he did not request plain-error review. [7] In any event, any error in failing
to balance was harmless because the testimony was cumulative of other evidence that
defendant fantasized about killing his ex-girlfriend.
http://www.publications.ojd.state.or.us/docs/A152453.pdf

"Unavailability"case:

State v. Harris:

Facts: V was 16 years old. D was V's mom's boyfriend. V called 911. D was charged with AIV/F (witnessed by V's younger siblings) and harassment. V was personally served with a subpoena, but did not show up the morning of trial. The state made attempts to contact her by phone (using several numbers) but was unsuccessful. The state also contacted V's mom who was at the courthouse who confirmed that the V did not plan on coming to court. V's mom was also "uncooperative" with the prosecution of D. After a fairly lengthy discussion between the court and counsel, the court suggested a brief setover to allow the State to attempt to locate the victim. The Defendant objected. The state continued its argument that the victim was unavailable for trial and that her 911 call should come in without her testimony. Ultimately, the court agreed. The 911 call was admitted and the defendant was convicted. The Court of Appeals REVERSES the conviction.

Holding: The state's efforts to secure the attendance is insufficient to demonstrate unavailability under the Oregon Constitution Article I, Section 11. The court said this in  those cases where the witness is known to be reticent about participating: ("[A] witness's known reluctance to testify adds to the government's burden to show that it made 'reasonable, good faith efforts' to secure her appearance because it makes her failure to appear voluntarily all the more foreseeable.")

>From Jennifer Lloyd, Appellate Division:


*         If a witness does not show up pursuant to a personal-service subpoena, prosecutors need to affirmatively ask for a continuance to try and find the victim. (Assuming that you expected the witness to appear and have not engaged in efforts to obtain her appearance other than the subpoena.)

*         Put on the record all efforts to obtain the witness' appearance at trial.

*         If you expected the witness to appear, fight the implication or allegation that we should have known that the witness would not show up.

*         Simply personally serving a witness with a subpoena will not satisfy our obligation to make the witness available.


Another note (from me): The trial court seemed to imply that it was open to the request by the prosecutor to hold the victim/witness in contempt and/or issue a material witness warrant. Kudos to the prosecutor for his reluctance to do so. While there might be limited situations in which those measures are necessary, that should not be our immediate fall-back position. Fortunately, this opinion did not hold that in order to prove unavailability the State would have needed to engage in those measures.

http://www.publications.ojd.state.or.us/docs/A154977.pdf






*****CONFIDENTIALITY  NOTICE*****

This e-mail may contain information that is privileged, confidential, or otherwise exempt from disclosure under applicable law. If you are not the addressee or it appears from the context or otherwise that you have received this e-mail in error, please advise me immediately by reply e-mail, keep the contents confidential, and immediately delete the message and any attachments from your system. 

************************************
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://omls.oregon.gov/pipermail/dv_listserv/attachments/20160725/79b8fefb/attachment.html>