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Lotches v. Premo

Court of Appeals of Oregon

July 10, 2013

ERNEST N. LOTCHES, Petitioner-Appellant,
v.
JEFF PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

Argued and submitted on February 05, 2013.

Marion County Circuit Court 01C18545, Joseph C. Guimond, Judge.

Bronson D. James argued the cause for appellant. With him on the brief was JDL Attorneys, LLP.

Kathleen Cegla, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

EGAN, J.

Petitioner appeals a judgment denying his petition for post-conviction relief. We affirm.

Petitioner alleged that he was denied adequate assistance of trial counsel under Article I, section 11, of the Oregon Constitution.[1] At his initial trial, a jury convicted petitioner of three counts of aggravated murder, one count of attempted aggravated murder, one count of attempted murder, one count of assault in the first degree with a firearm, one count of robbery in the first degree, and one count of felon in possession of a firearm, and imposed a sentence of death on the aggravated murder counts. Petitioner alleges that trial counsel failed to investigate and present a "culturally attuned" defense emphasizing self-defense and post-traumatic stress disorder, failed to investigate petitioner's mental health history in order to buttress these defenses, and interfered with petitioner's right to testify, noting that the record does not establish that trial counsel informed petitioner of his right to testify. Petitioner asserts that those failures amounted to constitutionally inadequate assistance of counsel.[2]

We summarize the facts from the post-conviction court's findings and from the record. We are bound by a post-conviction court's findings of fact if they are supported by evidence in the record, [3] and we review its legal conclusions for errors of law. Derschon v. Belleque, 252 Or.App. 465, 466, 287 P.3d 1189 (2012), rev den, 353 Or 208 (2013).

The convictions at issue in this case resulted from an altercation in Portland, Oregon, on August 22, 1992. State v. Lotches, 331 Or 455, 457, 17 P.3d 1045 (2000). A string of confrontations culminated when petitioner fired a handgun at several unarmed people and one armed security officer. Id. at 458-59. After petitioner's attempts at flight failed, he surrendered to the police. Id. at 460. There was evidence that petitioner was intoxicated at the time. Id. at 461. Petitioner pleaded not guilty to all charges in a 10-count indictment. Id.

The trial court appointed two experienced attorneys to represent petitioner. Those attorneys, and their investigators, met with petitioner repeatedly. During the entire period of preparation and the trial itself, petitioner maintained that he remembered nothing beyond the initial confrontation. Those denials included his testimony at the penalty phase that he could remember nothing about the shooting and that all he remembered about that day was that he had been drinking.

The jury trial focused on petitioner's mental state as trial counsel pursued a defense of "guilty but insane." Petitioner was convicted of three counts of aggravated murder, one count of attempted aggravated murder, one count of attempted murder, one count of assault in the first degree with a firearm, one count of robbery in the first degree, and one count of felon in possession of a firearm. Id. at 457. The jury acquitted petitioner on one count of attempted murder. Id. at 461. After a penalty-phase proceeding, petitioner was sentenced to death. Id.

On direct and automatic review, the Oregon Supreme Court reversed two of the convictions for aggravated murder, but affirmed the remaining convictions, including one count of aggravated murder, and affirmed the death sentence. Id. at 457. Petitioner sought post-conviction relief and, on June 23, 2009, the post-conviction court conducted a hearing on petitioner's Ninth Amended Petition for Post-Conviction Relief.

Petitioner is a member of the Native American Klamath-Modoc tribe and the hearing included extensive testimony about the history of the Klamath-Modoc people and various egregious acts of misconduct perpetrated against them by, inter alia, the United States government. There was also extensive evidence as to petitioner's own dysfunctional family and traumatic experiences and some evidence as to the extent that those experiences might have affected petitioner. The post-conviction court concluded that the evidence failed to establish inadequate performance by counsel and that, even assuming ...


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