State v. Roberts
| Decision Date | 14 February 1968 |
| Citation | 437 P.2d 731,249 Or. 139,86 Or.Adv.Sh. 203 |
| Parties | STATE of Oregon, Respondent, v. Earl Lesley ROBERTS, Appellant. |
| Court | Oregon Supreme Court |
Lawrence A. Aschenbrenner, Public Defender, Gary D. Babcock, Deputy Public Defender, Salem, and Earl Lesley Roberts, in propria persona, for appellant.
Doyle L. Schiffman, Dist. Atty., Roseburg, for respondent.
Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE, HOLMAN, and LANGTRY, JJ.
Defendant was tried by jury for assault and robbery with a dangerous weapon under ORS 163.290, found guilty, and sentenced. He was represented by appointed counsel on trial and another was appointed to represent him on appeal. The latter, by affidavit, stated that a study of the transcript did not disclose error and he was permitted to withdraw. The defendant filed his own briefs. The conviction was affirmed on November 23, 1966, State v. Roberts, 83 Or.Adv.Sh. 575, 420 P.2d 391.
In Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (May 8, 1967), the United States Supreme Court held that if after conscientious study appointed counsel finds his client's appeal 'wholly frivolous' he may request permission to withdraw, but must accompany his request with a brief 'referring to anything in the record that might arguably support the appeal.' Then the court must give the defendant time to raise any points he may have, after which the court may decide whether the appeal is 'wholly frivolous.' If such is found, counsel may be allowed to withdraw in federal cases, but in states where a decision on the merits is required the court may then proceed to such a decision and if it finds any points arguable on their merits, it must, before decision, afford the defendant counsel to argue the appeal. After this decision, and based thereon, the defendant petitioned the United States District Court for Oregon for a writ of Habeas corpus because he did not have an attorney on appeal. Judge Solomon of that court dismissed the petition, but stated that after the defendant exhausts his remedies under Oregon post-conviction statutes, or is allowed a direct appeal in the light of the Anders decision, with the assistance of counsel, that he could petition again.
This court then directed that the defendant's appeal be reinstated and appointed Mr. Lawrence A. Aschenbrenner, Public Defender for the State of Oregon, as the defendant's attorney. Mr. Aschenbrenner and his then assistant who is now the Public Defender or Oregon, Mr. Gary D. Babcock, have filed a brief in the defendant's behalf, in which they argue assignments of error and urge a reversal of the conviction. The district attorney for Douglas County has filed an answering brief. In addition to his counsels' brief, defendant filed his own 'Prepria (sic) Persona' supplemental brief urging two alleged additional errors.
Counsels' brief asserts alleged errors substantially the same as those considered in the former appeal. In the former appeal they were thoroughly considered by the court and found to be without merit. The ones discussed in the former opinion are not rediscussed here, but the others are.
(1). The trial court did not tell the jury to disregard the offer in evidence of a dental plate which the trial court rejected when it was offered. This is assigned as error. To understand this it is necessary to briefly relate some of the facts in evidence.
A light-colored Toyota Land Cruiser with out-of-state license was used as transportation southward after the commission of an armed robbery of a market. The description of the Toyota was immediately broadcast. Seven miles south a law officer traveling from the opposite direction passed such a vehicle. He reversed directions and pursued it to a place where it was abandoned at the end of a side road by a building near the Umpqua River. The officer inspected the vehicle, finding a gun, loose currency, and an unusual shirt...
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State v. Fessenden
...at 225, 94 P.3d 872 (risk that defendant might escape created exigent circumstance justifying warrantless search); State v. Roberts, 249 Or. 139, 143, 437 P.2d 731 (1968) (“[I]t is preposterous to assert that a police officer in hot pursuit * * * must stop as soon as the pursued drives upon......
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State v. Ayers
...the jury to disregard the prosecutor's implication of theft. We presume the jury followed the court's instruction. State v. Roberts, 249 Or. 139, 437 P.2d 731 (1968); State v. Drummond, 6 Or.App. 558, 489 P.2d 958 (1971). Therefore the court did not abuse its discretion by refusing to grant......
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State v. Oland
...and you are not to speculate upon any such possibility.' The jury is presumed to have followed the court's instruction. State v. Roberts, 249 Or. 139, 437 P.2d 731 (1968). Defendant assigns as error the court's failure to instruct the jury that the testimony of accomplices should be viewed ......
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Roberts v. Gladden
...a 15-year sentence. Petitioner's conviction was affirmed on appeal, State v. Roberts, 245 Or. 97, 420 P.2d 391 (1966); 86 Or.Adv.Sh. 203, 437 P.2d 731 (1968). Petitioner now seeks relief in this Court under 28 U.S.C. § 2241 et seq. All available State court remedies are exhausted. 28 U.S.C.......