[DV_listserv] Legal Updates: Subpoenas and Restitution

[Domestic Violence issues]

>From DOJ's Appellate Division Update:

SUBPOENAS: Where defendant made threshold showing that DHS records of a
third party contained material and favorable information, trial court erred when it
failed to exercise its discretion to consider whether to review the records in camera.
State v. Guffey, 291 Or App 729, __ P3d __ (2018) (Lincoln) (AAG Michael

Casper). V was six years old when he stayed overnight with defendant, who knew V's
mother from church. During the stay-over, defendant reached into V's pants and fondled
his penis. Defendant was charged with first-degree sexual abuse, ORS 163.427.
Defendant served subpoenas for school and Department of Human Services (DHS)
records pertaining to V and his cousin I.A. (with whom he lived); he asked the court to
conduct an in camera inspection of the records to look for records pertaining to any
incidents in which I.A. may have been "acting out" sexually or possessing pornography.
DHS and, V, and I.A. moved to quash the subpoenas arguing that they were confidential;
defendant responded that the records contained material and favorable impeachment
evidence to which he was entitled under Brady. Specifically, he argued that some of the
information he had received in discovery contradicted V's mother's claims that V was
doing well in school and had not been exposed to sexual activity at home. The court
(Judge Paulette Sanders) granted the motions to quash and declined to do an in camera
review, reasoning that the sought-for material related only to a peripheral issue and was
not "relevant." The jury found defendant guilty.
Held: Vacated and remanded (Armstrong, P.J.). [1] Under Brady v. Maryland,
373 US 83 (1963), "evidence is favorable to the accused if it is either directly exculpatory
or could be used to impeach a government witness. Oregon cases interpreting Brady
have required defendant to make some showing, beyond mere speculation, that the
evidence he seeks will be favorable to him and material to his guilt or innocence.
Materiality includes not only relevance; it also encompasses a requirement that the state's
failure to disclose the evidence be prejudicial." [2] "In determining whether to conduct
an in camera review of confidential records to search for possible Brady material, a trial
court must engage in a two-step process": (1) the party seeking disclosure must "make a
threshold showing that it is reasonable to believe that the records for which review is
sought contain evidence of sufficient import to the defendant's guilt to require disclosure
of the evidence to the defendant"; and, if that step is met, (2) the trial court must exercise
discretion whether to review the material in camera, a determination that the appellate
court reviews for abuse of discretion. [3] Defendant failed to meet his burden of making
a threshold showing of materiality and favorability with regard to the DHS records and
one set of school records. [4] But he did make a sufficient threshold showing with regard
to the school records regarding I.A.'s sexualized conduct or possession of pornography,
and evidence of such evidence could be exculpatory. The record suggests that the trial
court denied defendant's request based only on its erroneous view that the evidence
sought was "irrelevant"-without first engaging in an exercise of discretion to determine
whether an in camera inspection would be appropriate. [5] The proper remedy is to
remand the case for the trial court to determine whether it would exercise its discretion to
review the records and, if it does decide to engage in that review, to determine whether
the records include any evidence that was material and favorable to defendant's defense.
If it reviews the evidence and concludes that none of the evidence should be disclosed, it
should reinstate the judgment; if it concludes that some of the records should be
disclosed, it should order a new trial.
http://cdm17027.contentdm.oclc.org/cdm/singleitem/collection/p17027coll5/id/15012/rec/1

SENTENCING--RESTITUTION: Sentencing court erred in imposing restitution
because there was no evidence in the record from which the court could infer that
defendant's criminal activity (fourth-degree assault constituting DV) was the
reasonably foreseeable "but for" cause of the victim's losses (medical expenses and
loss of wages).
State v. Smith, 291 Or App 785, __ P3d __ (2018) (Douglas) (AAG Chris Perdue).
Defendant pleaded no contest to a charge of assault in the fourth degree constituting
domestic violence. At sentencing, the state offered evidence that defendant slapped the
victim, his girlfriend, during an argument. Shortly thereafter, after the victim fled and hid
in her car, he yanked the victim out of the car, struck her on the face, pushed her down,
and briefly dragged her. At a subsequent restitution hearing, the state requested
restitution in the amount of $4,366.06, encompassing loss of earning and costs related to
an appointment with a physician, chiropractic care, and acupuncture treatment. To
support the award, the state presented as a witness, Flock, a Crime Victims Services
Division (CVSD), claims examiner. Flock testified that she received and reviewed the
victim's application for compensation "in relation to" the criminal case and had paid the
victim's expenses. She also testified that an applicant had to "tell her whether they are
seeking services for stress or physical injuries." A medical chart note indicated that, in
her doctor's view, the expenses were reasonable and necessary. Defendant objected to
the imposition of restitution, arguing that the state had not presented any evidence that
the victim suffered specific damages causally connected to defendant's conduct.
Rejecting that argument, the sentencing court (Judge William Marshall) imposed
restitution. It determined that Flock's testimony-that she processed the claim "in
relation to" the criminal case-sufficed to establish the necessary causal connection.
Held: Award of restitution reversed; otherwise affirmed (DeHoog, P.J.). [1] To
meet its burden in a restitution hearing, the state must present evidence demonstrating
that defendant's criminal conduct caused the victim's economic damages. [2] A simple
statement that CVSD provided compensation "related to" a case-even if deemed
reasonable and necessary by the victim's doctor-does not support a nonspeculative
inference that there was a causal relationship between defendant's conduct and the
victim's losses. Because the state offered no other evidence of the causal connection, the
trial court lacked authority to impose a restitution award.
http://cdm17027.contentdm.oclc.org/cdm/singleitem/collection/p17027coll5/id/15021/rec/1

Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Cell: 503.932.7482


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