Argued and Submitted: September 17, 2012.
Resubmitted: January 7, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
CC 97C12376; CA A130258. On review from the Court of Appeals.[*]
Montez v. Czerniak, 237 Or.App. 276, 239 P.3d 1023, (2010).
Daniel J. Casey, Portland, argued the cause and filed the briefs for petitioner on review.
Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, Kathleen Cegla, Assistant Attorney General, and Pamela Walsh, Assistant Attorney General.
Before Balmer, Chief Justice, Walters and Baldwin, Justices, and Riggs and Durham, Senior Judges, Justices pro tempore.[**]
[355 Or. 3] BALMER, C.J.
Petitioner was convicted of aggravated murder in 1988 and, following a 1992 penalty-phase retrial, was sentenced to death for that crime. Petitioner now seeks post-conviction relief, arguing that he received constitutionally inadequate assistance of counsel during that 1992 penalty-phase proceeding. The post-conviction court denied relief and the Court of Appeals affirmed that judgment. For the reasons set out below, we also affirm.
I. HISTORY AND PROCEDURAL BACKGROUND
In 1987, petitioner and another man beat, raped, and sodomized a female victim in a Portland motel room. When the victim resisted, petitioner responded by forcing his fist into her anus, causing her to bleed profusely. The two men then tied the victim's arms behind her back and strangled her to death with a fabric noose that they had fashioned. After carrying her body to the bed, the pair doused her corpse in flammable liquid and ignited it. Firefighters discovered the body shortly thereafter when they responded to the resulting fire.
In 1988, a jury convicted petitioner of first-degree arson, abuse of a corpse, and three counts of aggravated murder. At the time of the penalty-phase proceedings that followed, ORS 163.150 (1987) required juries in aggravated murder cases to consider only three penalty-related issues: (1) whether the conduct that had killed the victim was undertaken deliberately and with a reasonable expectation that death would result; (2) whether there was a probability that the defendant would commit further acts of criminal violence so as to constitute a continuing threat to society; and (3) if warranted by the evidence, whether the conduct that had killed the victim was an unreasonable response to provocation on the victim's part. Following the presentation of evidence by the parties, the jury answered the applicable questions  in the affirmative, and the trial court sentenced petitioner to death.
[355 Or. 4] On automatic and direct review, this court affirmed petitioner's convictions but reversed and remanded his death sentence. State v. Montez, 309 Ore 564, 789 P.2d 1352 (1990) ( Montez I ). Citing its then-recent decision in State v. Wagner, 309 Ore 5, 786 P.2d 93, cert den, 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990) ( Wagner II ), the court held that the trial court had improperly denied petitioner's request for a jury instruction that would have allowed the
jury to find that mitigating evidence justified imposition of a life sentence for petitioner rather than death. Montez I, 309 Ore at 609-10.
On remand in 1992, a newly empanelled penalty-phase jury was instructed to answer the following questions:
" Was the conduct of the defendant that caused the death of the deceased committed deliberately and with a reasonable expectation that death would result?
" Is there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?
" Should the defendant receive the death sentence[?]"
State v. Montez, 324 Ore 343, 345-46, 927 P.2d 64 (1996), cert den, 520 U.S. 1233, 117 S.Ct. 1830, 137 L.Ed.2d 1036 (1997) ( Montez II ) (setting out penalty-phase jury instructions on retrial). As to the last question, the jury was instructed that
" you should answer this question no if you find that there is any aspect of the defendant's character or background or any circumstances of the offense that you believe would justify a sentence less than death."
Id at 346.
[355 Or. 5] The jury was presented with extensive evidence regarding aggravating and mitigating factors related to petitioner's background, his character, and his crime. As petitioner summarizes in his brief, the state's case for demonstrating that petitioner should be sentenced to death focused on (1) the brutality exhibited by petitioner in his sexual assault, torture, and murder of the victim; (2) the fact that petitioner was on temporary release from prison when he committed those crimes; (3) the aggression petitioner demonstrated toward his peers as a child and the belligerent, deceitful, and manipulative behaviors he exhibited toward adults during that same period; (4) petitioner's lifetime of drug and alcohol abuse that was never successfully treated; (5) petitioner's criminal history, marked by numerous assaults in different states and his failure to comply with conditions of probation; (6) petitioner's altercations with various prison inmates; (7) petitioner's alleged threats against his co-defendant; and (8) the fact that petitioner had been diagnosed with an anti-social personality disorder, a condition that increased the likelihood of his future dangerousness.
The mitigation case that petitioner's counsel presented in response focused on (1) the childhood neglect and abuse petitioner had endured at the hands of his natural and foster parents; (2) the post-traumatic stress disorder (PTSD) he suffered as a result, a condition that would be treatable in prison; (3) the absence of any counseling component in the substance abuse treatment programs made available to and used by petitioner; (4) the remorse petitioner expressed to others for his crime; (5) the difficult conditions of petitioner's confinement that, in turn, led to altercations with other prison inmates; (6) testimony from several inmates who indicated that they had instigated those altercations with petitioner; and (7) evidence of petitioner's efforts to better himself in prison and help others to do the same.
Following presentation of evidence at the penalty-phrase retrial, the jury answered the required questions in the affirmative and the trial court again imposed a death sentence. In 1996, this court affirmed that judgment in Montez II, 324 Ore 343, 927 P.2d 64.
[355 Or. 6] In 1997, petitioner filed his first petition for post-conviction relief. Over the next seven years, the parties presented and litigated a plethora of pre-hearing issues and motions. During that period, petitioner amended his initial post-conviction petition nine times and ultimately raised numerous claims regarding the allegedly ineffective assistance of counsel he received during his 1992 penalty-phase retrial. Petitioner's hearing, in which he bore the burden of proving the facts alleged in his petition by a preponderance of the evidence, ORS 138.620(2), began in April 2004 and encompassed four days of testimony over a three-month period. The post-conviction court subsequently entered a judgment denying relief in October 2005.
Petitioner appealed that judgment. Following extensive briefing and oral argument, the Court of Appeals affirmed the post-conviction court's judgment in September 2010.
This court allowed petitioner's subsequent petition for review.
II. INADEQUATE ASSISTANCE OF COUNSEL: LEGAL PRINCIPLES AND STANDARD OF REVIEW
Criminal defendants in aggravated murder cases have a constitutional right to counsel under Article I, section 11, of the Oregon Constitution and under the Sixth Amendment to the United States Constitution. Under both constitutions, " the defendant's right is not just to a lawyer in name only, but to a lawyer who provides adequate assistance." State v. Smith, 339 Ore 515, 526, 123 P.3d 261 (2005). Those constitutional provisions require " adequate performance by counsel" concerning the " functions of professional assistance which an accused person relies upon counsel to perform on his behalf." Krummacher v. Gierloff, 290 Ore 867, 872, 627 P.2d 458 (1981); see also Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (Sixth Amendment right to counsel requires not just counsel, but " effective" counsel). This court, while interpreting and applying Article I, section 11, independently of the United States Supreme Court's interpretation of the Sixth Amendment, has nevertheless recognized that the standards for determining the adequacy of legal counsel under the state constitution are functionally equivalent to those [355 Or. 7] for determining the effectiveness of counsel under the federal constitution. See State v. Davis, 345 Ore 551, 579, 201 P.3d 185 (2008) (equating " effective" assistance with " adequate" assistance).
In evaluating whether a defendant's lawyer has rendered inadequate assistance under the Oregon Constitution, our analysis ordinarily proceeds in two steps:
" First, we must determine whether petitioner demonstrated by a preponderance of the evidence that [his lawyer] failed to exercise reasonable professional skill and judgment. Second, if we conclude that petitioner met that burden, we further must determine whether he proved that counsel's failure had a tendency to affect the result of his trial."
Lichau v. Baldwin, 333 Or 350, 359, 39 P.3d 851 (2002) (internal citations omitted). In doing so, we " make every effort to evaluate a lawyer's conduct from the lawyer's perspective at the time, without the distorting effects of hindsight." Id. at 360. We will not " second-guess a lawyer's tactical decisions in the name of the constitution unless those decisions reflect an absence or suspension of professional skill and judgment." Gorham v. Thompson, 332 Ore 560, 567, 34 P.3d 161 (2001). As this court's case law has made clear,
" [t]he constitution gives no defendant the right to a perfect defense -- seldom does a lawyer walk away from a trial without thinking of something that might have been done differently or that he would have preferred to have avoided."
Krummacher, 290 Ore at 875.
As noted, the United States Supreme Court has articulated the standard that we employ under the United States Constitution. To prevail on a Sixth Amendment claim regarding the ineffectiveness of counsel, a petitioner must demonstrate that his or her trial counsel's performance " fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Appellate courts reviewing Sixth Amendment claims " must consider the totality of the evidence before the [355 Or. 8] judge or jury." Id. at 695. At the end of the day, the court must evaluate the reasonableness of counsel's representation " from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). In doing so, we do not inquire into counsel's subjective state of mind; instead, we inquire into the objective reasonableness
of counsel's performance. Harrington v. Richter, 562 U.S.
___, ___, 131 S.Ct. 770, 790, 178 L.Ed.2d 624 (2011).
With regard to prejudice, petitioners
" must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'"
Richter, 562 U.S. at ___, 131 S.Ct. at 787-88 (quoting Strickland ; internal citations omitted).
This court's review of a post-conviction court's determinations is not open-ended. We review such proceedings for errors of law. Peiffer v. Hoyt, 339 Ore 649, 660, 125 P.3d 734 (2005). A post-conviction court's findings of historical fact are binding on this court if there is evidence in the record to support them. Lichau, 333 Ore at 359. If the post-conviction court failed to make findings of fact on all the issues -- and there is evidence from which such facts could be decided more than one way -- we will presume that the facts were decided consistent with the post-conviction court's conclusions of law. Id.
III. PETITIONER'S CLAIMS ON REVIEW
On review, petitioner raises a number of different claims related to his inadequate assistance of counsel allegations. We address those claims below, grouped into five broad categories: (1) claims related to omitted mitigation evidence, (2) claims related to trial counsels' disclosure of petitioner's previous death sentence, (3) claims related to [355 Or. 9] trial counsels' use of inmate witnesses, (4) claims related to omitted evidence regarding petitioner's future dangerousness, and (5) claims related to trial counsel and the jury.
A. Claims Related to Omitted Mitigation Evidence
We begin by setting out the mitigation-related steps taken by petitioner's lawyers in preparation for petitioner's penalty-phase retrial, and the strategy that evolved as a result. Counsel initially had engaged the trial court in an effort to secure funds for a specialized " mitigation expert" in addition to the defense team's regular investigator. Those requests were denied. Counsel subsequently dispatched their investigator to petitioner's childhood home in Minnesota to gather facts concerning his formative years. Counsel also retained licensed clinical psychologist Dr. Walker, a recognized expert in battered-child syndrome and PTSD to examine petitioner. Dr. Walker, in turn, referred counsel to Dr. Appel, a neuropsychologist who, after reviewing data generated by Dr. Walker, opined that a neuropsychological assessment of petitioner would not provide useful mitigation evidence.
Defense counsel nevertheless engaged a second neuropsychologist, Dr. Goldmann, to evaluate petitioner. Dr. Goldmann indicated that he would conduct a screening examination of petitioner and, should that examination reveal signs of brain injury, would continue his evaluation. Absent indications of brain injury at the screening, he stated, a full assessment would be unnecessary. Dr. Goldmann went on to evaluate petitioner over a two-day period, administering tests that were " particularly sensitive to deficits seen in brain-injured individuals; " he found none. In an affidavit submitted during defendant's post-conviction proceedings, Dr. Goldmann observed:
" In my experience, it is not only unlikely but improbable that deficits will be found on a full neuropsychological evaluation when the results of the screening battery were normal. If one conducts enough tests, however, one can usually find an anomaly, simply because the statistical chance of finding a significant result increases with the number of tests administered."
[355 Or. 10] Ultimately, he concluded that " [i]t was my opinion in 1992 that Mr. Montez did not suffer from brain injury in any form."
Finally, counsel retained Dr. Jacobsen, a medical doctor who was an expert in addiction, to determine whether petitioner suffered from fetal alcohol syndrome and would be amenable to treatment in prison. Dr. Jacobsen's examination also failed to find any evidence of brain damage.
The centerpiece of the mitigation strategy that resulted from the input of those experts focused largely on the harsh upbringing and physical abuse that petitioner had suffered as a child, factors that had caused him to be diagnosed with acute PTSD. Defense counsels' mitigation case encompassed nine days of testimony, beginning with petitioner's father and siblings, various foster parents, and mental health care professionals and social workers who had interacted with petitioner when he was a child.
The picture painted by their testimony was of an early childhood that was beyond bleak. It was dominated by an alcoholic mother who had utterly failed to care for her children, frequently leaving petitioner and his two siblings alone for days to fend for themselves. Mother had, on at least two occasions, tried to kill the children and herself; once using gas from the oven, and once by setting the family house on fire after igniting the bed of petitioner's sister while the child slept in it.
An early foster care placement aggravated rather than alleviated the level of childhood abuse petitioner suffered. Petitioner's younger brother described how their placement together in one foster home was marked by frequent punishments in the form of beatings with belts or fists, daily verbal abuse, and withheld food. The brother recounted one incident in which petitioner was kicked against the foster family's automobile and another in which petitioner was accidently knocked unconscious.
Subsequent foster care providers described petitioner as a " very damaged" and " angry" child tormented by night terrors and given to seizure-like episodes during which his body would become rigid and he would hyperventilate -- [355 Or. 11] sometimes for hours -- while remaining unresponsive to external stimuli. Medication eventually controlled the seizures but, as social workers and counselors who worked with petitioner during that time explained, nothing seemed to diminish petitioner's anger at his mother, nor his propensity to react violently if physically hurt while playing with others.
Petitioner's counsel followed that block of testimony with three days of testimony from licensed clinical psychologist Dr. Walker. Dr. Walker had been given all the mitigation-related information defense counsel had gathered regarding petitioner's case. She reviewed various agency and treatment center reports concerning petitioner, his family history, educational records, medical records, drug treatment records, and police reports. She also conducted a complete assessment of petitioner's childhood history and scrutinized prior psychological test results showing his early cognitive abilities, brain function, and personality. Finally, Dr. Walker evaluated petitioner in person for two days, administering a variety of tests designed to determine present cognitive abilities, neuropsychological problems, and personality characteristics.
Ultimately, Dr. Walker testified that she had diagnosed petitioner with PTSD and battered child syndrome. She described how petitioner had been severely battered from early childhood through adolescence, noting the abuse petitioner had suffered with his natural parents, his abusive foster-home placements, his experiences in residential treatment, and his history of head injuries, seizures, and night terrors. Dr. Walker also provided a provisional diagnosis of substance-abuse personality disorder, noting mother's alcoholism and the difficulties created by fetal exposure to drugs and alcohol, as well as petitioner's own drug- and alcohol-abuse problems. Walker testified that petitioner's pattern of substance abuse was an attempt to alleviate the pain of his childhood trauma, trauma that had contributed, in Dr. Walker's opinion, to a " Dr. Jekyll and Mr. Hyde personality" marked by periods of depression, irritability, anxiety, and explosiveness. Petitioner's traumatic childhood and the PTSD he suffered as a result, Dr. Walker opined, [355 Or. 12] accounted for the extreme violence petitioner had exhibited in murdering the victim because, at the time, petitioner's condition had left him unable to differentiate between the actions that were occurring
around him and the childhood trauma he was reliving in his mind.
In Dr. Walker's expert opinion, however, petitioner's PTSD and his tendency toward antisocial conduct were treatable in a closely controlled environment such as prison. That opinion was echoed by Dr. Colistro, a prison staff psychologist who specialized in treating violent offenders incarcerated in Oregon correctional institutions. Dr. Colistro testified that (1) petitioner was amenable to treatment, (2) treatment was available for him in prison, and (3) treatment would lessen the risk that petitioner would commit future acts of violence.
On review, petitioner acknowledges the breadth of the mitigation case made on his behalf. Drawing generally, however, on mitigation-related ineffective-assistance-of-counsel decisions from the United States Supreme Court -- including Sears v. Upton, 561 U.S. 945, 130 S.Ct. 3259, 177 L.Ed.2d 1025 (2010), Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) -- petitioner nevertheless contends that the fact that some mitigation evidence was presented did not satisfy his trial counsel's duty of reasonable representation when other significant mitigating evidence was ignored, or left undiscovered. Moreover, petitioner continues, he suffered prejudice as a result under State v. Davis, 336 Ore 19, 34, ...