Argued and Submitted May 20, 2013.
Marion County Circuit Court. 99C15857. Don A. Dickey, Judge.
Daniel J. Casey argued the cause and filed the briefs for appellant.
David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[268 Or.App. 2] ARMSTRONG, P. J.
Petitioner was convicted of aggravated murder and sentenced to death. He sought post-conviction relief challenging his conviction and sentence on a number of grounds, which the post-conviction court denied. He appeals the resulting judgment, contending that the post-conviction court erred in rejecting his claims that his trial and appellate counsel provided him with constitutionally deficient representation in the guilt and penalty phases of his trial and on appeal. For the reasons explained below, we affirm.
I. THE UNDERLYING CRIMES
We begin with the facts of the underlying crimes, as taken from the Oregon Supreme Court opinion on direct review of petitioner's conviction and death sentence.
" About 10:30 p.m. on November 18, 1994, Andrew McDonald and his wife, Debra Oyamada, were at the Driftwood Tavern in Portland. Defendant and his companion, Paul Whitcher, entered the tavern and ordered a pitcher of beer. Oyamada was sitting at a video poker machine and McDonald was sitting at the bar. Defendant was wearing a plaid shirt. Defendant and Whitcher approached Oyamada. Defendant asked Oyamada if she was from 'the " samurai family" ' or 'from samurai blood.' She responded, 'As a matter of fact, yes, I am.' Defendant continued, but Oyamada said she did not want to talk. Oyamada turned her back to defendant because she thought those were 'weird questions' and that defendant was 'overbearing.' Defendant persisted, saying, 'I need to know about it. I'm a warrior and I want to know about this.' Oyamada replied that she did not want to talk about it. Defendant then sat next to Oyamada. She said, 'You're sitting in someone else's seat.' After that, defendant got up from the seat and started to walk toward the door. As they walked, McDonald approached defendant and Whitcher and said, 'Please leave her alone, she doesn't want to talk about it.' Pat Disciascio, the bartender, became concerned, and he directed
defendant and Whitcher to leave the tavern. When defendant and Whitcher did not leave immediately, Disciascio said 'Good night, you guys,' and pointed toward the door. As defendant and Whitcher left the tavern, one of the two men said, 'I feel like killing somebody tonight.' Defendant and Whitcher then stood outside, where defendant said to Whitcher, 'I'm going to go [268 Or.App. 3] back in there and kick that guy's ass.' Defendant stated to Whitcher, 'If we do this, you know, we're going to jail.'
" Between five and ten minutes after leaving, defendant ran into the tavern alone, grabbed McDonald from behind, began stabbing him, and dragged him outside. Oyamada tried to pry defendant off of McDonald. Defendant then turned on Oyamada, hitting her in the head, throwing her to the ground, and stabbing her in the head and neck. Bill Jones, another tavern patron, grabbed defendant. Defendant stabbed Jones six times. Defendant then ran away. Ambulances took McDonald, Oyamada, and Jones to the hospital. McDonald died as a result of his wounds.
" Defendant and Whitcher went to defendant's grandmother's home, where defendant lived. Defendant introduced Whitcher to his grandmother, then she went to her room to sleep. About 1:30 a.m. on November 19, 1994, defendant's grandmother awoke and went downstairs because she heard a lot of noise. She saw Whitcher cleaning up broken glass and defendant cleaning grape juice off the rug. She asked Whitcher to leave. Defendant said that he was going to see that Whitcher got home safely, and the two men left the house. When defendant returned shortly, his grandmother was still cleaning grape juice. Defendant said he would clean the grape juice and told his grandmother to go to bed, which she did. Before she fell asleep, she heard the washing machine running.
" About 1:30 a.m. on November 19, 1994, Sally Woolley called 9-1-1 to report that she heard loud, angry, male voices outside her home. Woolley reported that a man was lying face down in the street. Another man, wearing a plaid shirt, was kneeling over him and rolled him partially onto his side. The man in the plaid shirt rummaged through the other man's pockets, then ran away.
" The police arrived. The man on the street was identified as Whitcher. He had been stabbed 16 to 20 times and was dead. One pocket had been turned inside out.
" About 2:00 a.m. on November 19, 1994, the police found defendant walking nearby. He smelled of alcohol and was nervous and evasive. His shoes were untied and, although it was a cold night, he was sockless. One eye was swollen. The police thought that defendant might have witnessed Whitcher's stabbing and questioned him. After denying that he had been in an altercation, defendant stated that [268 Or.App. 4] he lived nearby with his grandmother, but gave the police his mother's address. He denied ever having been arrested or being on probation. After a record check indicated that he had been arrested and that currently he was on probation, defendant was taken into custody.
" The police first contacted defendant's mother, who stated that defendant did not live with her. She gave the police defendant's grandmother's address. The police contacted defendant's grandmother at her home. She invited the officers into her home and gave them permission to look around. Defendant's grandmother then led them to the washing machine in the basement and opened the lid. Blood was smeared on the outside of the machine. The washed clothing in the machine had stains consistent with blood. The grandmother told police that the clothing in the machine was defendant's. The state's criminologist concluded that the DNA recovered from the top of the washing machine, and from jeans, a shoelace, and a sock found in the washing machine, was consistent with Whitcher's.
" At 12:30 p.m. on November 19, 1994, detectives returned to defendant's grandmother's home with a search warrant. After finding no weapons, the police left. They returned around 5:00 p.m. that day. With defendant's grandmother's consent, the detectives searched her basement. A detective found a bloody knife on a cross-beam
and a blood-smeared wallet inside a wood stove. The knife was consistent with defendant's grandmother's description of a knife defendant owned. The state's criminalist concluded that the blood on the knife and wallet matched Whitcher's blood type."
State v. Thompson, 328 Or. 248, 250-52, 971 P.2d 879, cert den, 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999).
Petitioner was charged in a 22-count indictment with the murders of McDonald and Whitcher and related crimes. Petitioner pleaded not guilty to all counts and proceeded to a jury trial, in which petitioner was represented by attorneys Lynne Dickison and Jon Martz. The jury ultimately convicted petitioner of four counts of aggravated murder, two counts of murder, two counts of felony murder, one count of first-degree robbery, two counts of first-degree burglary, and two counts of first-degree assault. Id. at 252-53. After a penalty-phase proceeding, petitioner was sentenced to death. Id. at 253. On automatic and direct review, [268 Or.App. 5] the Oregon Supreme Court affirmed petitioner's death sentence, and the United States Supreme Court denied review.
II. THE POST-CONVICTION CASE AND APPLICABLE LAW
In a petition for post-conviction relief, petitioner alleged 22 claims of ineffective assistance of counsel before and during the guilt and penalty phases of his trial, and on appeal. Following the post-conviction trial, the post-conviction court issued a 60-page letter opinion, as well as an additional 19-page memorandum detailing further findings and conclusions, and rejected each of petitioner's claims. On appeal, petitioner raises 26 assignments of error, many of which contain multiple arguments regarding trial counsel's allegedly deficient performance and the ways in which those deficiencies affected the outcome of petitioner's trial and appeal. We write to discuss only four of petitioner's assignments of error, supplementing our discussion of each with a recitation of the pertinent facts, although we have considered and reject without written discussion the balance of petitioner's assignments.
To prevail in a post-conviction proceeding, a petitioner must establish by a preponderance of the evidence a " substantial denial in the proceedings resulting in petitioner's conviction, or in the appellate review thereof, of petitioner's rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void." ORS 138.530(1)(a). As noted, petitioner alleged in his post-conviction petition that his trial counsel had performed deficiently at the guilt and penalty phases of his criminal trial, and that his appellate counsel had performed deficiently in the subsequent appeal.
Petitioner's claims are grounded in both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, which guarantee a criminal defendant the right to adequate representation by counsel. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (Sixth Amendment right to counsel requires " effective" assistance by counsel); Krummacher v. Gierloff, 290 Or. 867, 872, 627 P.2d 458 (1981) (Article I, section 11, requires " adequate performance by [268 Or.App. 6] counsel" ). In reviewing petitioner's claims, we first consider his arguments under Article I, section 11, proceeding to his arguments under the federal constitution only if necessary. Lichau v. Baldwin, 333 Or. 350, 358-59, 39 P.3d 851 (2002).
We evaluate petitioner's claims of constitutionally deficient assistance of counsel under Article I, section 11, 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."
Montez v. Czerniak, 355 Or. 1, 7, 322 P.3d 487 (2014) (quoting Lichau, 333 Or. at 359).
While Oregon courts have construed and applied the requirements of Article I, section 11, independently of the United States Supreme Court's construction and application of the Sixth Amendment, the Oregon Supreme Court has nonetheless recognized that the standards for determining the adequacy of legal counsel under the state constitution are functionally equivalent to the standards governing the effectiveness of counsel under the federal Constitution. Montez, 355 Or. at 6-7; State v. Davis, 345 Or. 551, 579, 201 P.3d 185 (2008). Under the Sixth Amendment, we first determine whether petitioner has established that his counsel's performance " fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. If so, we determine whether petitioner has demonstrated " a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
In performing our task, we are bound by the post-conviction court's findings of historical fact if there is evidence in the record to support them. Montez, 355 Or. at 8. In the event that the post-conviction court failed to make a finding, and there is evidence from which facts could be found in more than one way, we presume that the facts were found consistently with the post-conviction court's ultimate legal conclusions. Id. Finally, we " make every effort to evaluate a [268 Or.App. 7] lawyer's conduct from the lawyer's perspective at the time, without the distorting effects of hindsight." Lichau, 333 Or. at 360; see also Strickland, 466 U.S. at 689 (" A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight * * *." ). And 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 Or. 560, 567, 34 P.3d 161 (2001). As has often been noted,
" [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 Or. at 875.
III. PETITIONER'S CLAIMS ON APPEAL
With those general principles in mind, we turn to petitioner's claims in this case. On appeal, in 26 assignments of error, petitioner raises numerous challenges to the post-conviction court's ruling on petitioner's claim of inadequate assistance of counsel. We address only those that, in our view, require discussion. Those claims relate to trial counsel's initiation of competency proceedings; their failure to call expert witnesses in support of petitioner's intoxication defense; their failure to argue the federal constitutional underpinnings of a motion for judgment of acquittal; and, finally, their failure to adequately investigate and present mitigation evidence in the penalty phase of petitioner's trial. We discuss each in turn.
A. Initiation of competency proceedings
We first address petitioner's contention that the post-conviction court erred in denying petitioner's claims of inadequate assistance of counsel related to the initiation of competency proceedings. Before addressing the specifics of petitioner's claim, we set out the pertinent factual background in accordance with our standard of review.
As noted, petitioner was arrested in November 1994 for the murders of McDonald and Whitcher. Shortly [268 Or.App. 8] thereafter, the court appointed Dickison to represent defendant and scheduled petitioner's trial for July 1995. Dickison hired a defense investigator, Philip Agrue, and the two met with petitioner in December 1994. Difficulties immediately arose between petitioner and his defense team. At their initial meeting, petitioner refused to discuss the murders in detail, and Agrue arranged to return the following week. However, when Agrue contacted petitioner in preparation for their meeting, petitioner again refused to speak with Agrue about the murders. Instead, petitioner told Agrue that he was uncomfortable with Dickison serving as his attorney, because petitioner questioned
her record and believed that she was too busy to adequately represent him. Notwithstanding that concern, petitioner told Agrue that he wanted to meet with Dickison and discuss his case without Agrue present. Petitioner subsequently told Dickison that he did not trust Agrue and that he wanted Dickison to employ another investigator. Dickison complied and hired a second investigator, Shirley Beers, to replace Agrue; a second attorney, Martz, was also appointed to assist Dickison.
Matters did not improve, and, by February 1995, petitioner had proposed a motion to withdraw, as well as an accompanying affidavit, that he forwarded to Dickison. The motion and affidavit were accompanied by a letter in which petitioner instructed Dickison to execute and file the motion; petitioner also told Dickison that he was both filing a civil action against her and submitting a complaint to the Oregon State Bar. In early March 1995, petitioner refused to meet with his defense team, and the defense filed a motion for substitution of counsel a few days later. On March 14, 1995, the court held a hearing on the substitution motion. At the hearing, Dickison recounted the difficulties that had arisen between petitioner and his defense team but told the court that she did not believe that " the communications ha[d] deteriorated to the point where [the defense team] cannot represent [petitioner]." After a lengthy colloquy, the trial court denied petitioner's motion.
Over the same time span, as petitioner refused to cooperate with his defense team, Dickison became concerned that petitioner was unable to aid and assist in his defense. As a result, in late February 1995, Dickison hired [268 Or.App. 9] a psychiatrist, Dr. Norman Janzer, to evaluate petitioner. Between February and May 1995, Janzer met with petitioner a number of times, interviewing him for " more than six hours" and administering the Minnesota Multiphasic Personality Inventory (MMPI) psychological assessment test. Janzer summarized the results of his evaluation in a letter to Dickison on May 16, 1995, reaching the following conclusion:
" Based on the time I spent with [petitioner] and the somewhat usable MMPI test, I believe his long-standing psychopathology prevents him from emotionally appreciating his legal situation and from assisting his attorney in preparing his legal defense. I believe this would likely be the experience of any attorney now trying to help him. His paranoid ideation is mobilized by stress, both protecting him from reality and preventing him from coping with it. This critically interferes with learning, with considering relevant facts, and with making rational decisions."
The following day, petitioner's defense team requested an aid-and-assist hearing, which was held on May 22, 1995. At the hearing, Janzer testified that he had been unable to reach a definitive diagnosis of petitioner and that--given Janzer's affiliation with petitioner's defense team--he did not believe that petitioner would cooperate with him further. Nevertheless, Janzer testified that petitioner's diagnosis was " a matter of possibilities, but it's certainly in a paranoid family." Specifically, Janzer was unable to determine whether petitioner suffered from a delusional disorder or simply a paranoid personality disorder. Despite that uncertainty, Janzer did not believe that petitioner was able to aid and assist in his defense:
" [Martz:] Now, Doctor, if I can just maybe--and correct me if I am wrong--but it appears that[,] is it not your opinion that [petitioner] has some form of either personality disorder or mental illness that prevents him from aiding and assisting in his defense, but that it will take more time and more observation before it sounds like you have formed the beginnings of an opinion to what the problem is but it is going to take more ...