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Farmer v. Premo

Court of Appeals of Oregon

February 23, 2017

DANTE R'MARCUS FARMER, Petitioner-Respondent,
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Appellant.

          Argued and submitted October 28, 2014.

          Resubmitted en banc December 21, 2016.

         Marion County Circuit Court 07C16834; Susan M. Tripp, Judge.

          Paul L. Smith, Assistant Attorney General, argued the cause for appellant. On the brief were Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, David B. Thompson, Assistant Attorney General, and Rebecca M. Johansen, Assistant Attorney General.

          Hari Nam S. Khalsa filed the brief for respondent.

          Before Hadlock, Chief Judge, and Armstrong, Ortega, Sercombe, Egan, DeVore, Tookey, Garrett, Flynn, DeHoog, and Shorr, Judges.

         EN BANC

         Case Summary:

         Defendant (the state) appeals from a judgment granting petitioner relief on his inadequate assistance of counsel claim on a number of bases, and remanding the case for a new trial. The state assigns error to the post-conviction court's rulings on each basis, arguing that petitioner failed to establish, as a matter of law, that he was entitled to post-conviction relief on any of them. Held: The post-conviction court erred in concluding that petitioner was entitled to post-conviction relief. In determining whether a petitioner's rights to adequate assistance of counsel were violated, a post-conviction court must consider the circumstances from the lawyer's perspective at the time, rather than viewing the lawyer's decisions with the benefit of hindsight. Moreover, the postconviction court must not focus solely on the possible benefits of strategies that trial counsel did not pursue, but should instead determine whether the tactics or strategies that the lawyer did employ were reasonable under the circumstances.

         Portion of judgment granting post-conviction relief and remanding for new trial reversed; otherwise affirmed.

          HADLOCK, C. J.

         In this post-conviction relief case, the state[1] appeals from a judgment granting petitioner relief on a number of his claims, and remanding the case for a new trial. The state assigns error to the post-conviction court's rulings on those claims, arguing that petitioner failed to establish, as a matter of law, that he was entitled to relief on any of them. We conclude that the post-conviction court did err in its legal analysis of each of the claims on which it granted relief, and we accordingly reverse the portion of the judgment granting post-conviction relief and remanding for a new trial.

         In his fourth amended petition (the petition), petitioner alleged claims of inadequate assistance of counsel, claims of direct due process violations, and a claim of prosecutorial misconduct. The post-conviction court granted relief on the basis that petitioner received inadequate assistance of counsel on the following grounds: Trial counsel failed to present a defense expert's bullet-comparison opinion at trial. Trial and appellate counsel failed to argue that certain evidence was not hearsay. Trial counsel failed to move for a continuance of a new-trial hearing and to present testimony from a witness at that hearing. Trial counsel failed to make certain objections to prosecution evidence at the new-trial hearing. Trial counsel failed to make certain constitutional objections to the new-trial hearing procedures. The post-conviction court denied relief on all other claims in the petition.


         To provide a general context for the issues on appeal, we set out here the background facts relating to the claims on which the post-conviction court granted relief, as well as an overview of the applicable legal framework. We state the facts as the post-conviction court found them, supplemented with undisputed facts from the record.[2] In the analysis of each assignment of error, we set out additional facts, explanation, and legal principles as necessary and pertinent to resolution of the issues under consideration.

         A. Petitioner's Criminal Trial and the Defense Strategy

         A jury convicted petitioner of murdering the victim, Monterroso. Monterroso was killed by a single gunshot to the chest. State v. Farmer. 210 Or.App. 625, 627, 152 P.3d 904, rev den, 342 Or 645 (2007). Police arrested petitioner after his then-girlfriend, Jennifer, and her parents, Perkins and Garvin, reported to police that petitioner told them he had shot the victim. Id. at 635-37.

         At petitioner's criminal trial, there was evidence that, on the night of the shooting, petitioner had arrived at Jennifer and Perkins's home "looking scared and 'spooked, like he [had] seen a ghost.'" Id. at 635 (brackets in original). Initially he told them that he had seen '"his home boy get shot, ' and that he was only a few feet away when the shooter's car drove up." Id. Jennifer testified that petitioner told her later the same night "that he had just killed someone and threatened to kill her if she ever told anyone." She also said that he told her the next night, perhaps, "that he had been threatened and that he had to kill the victim before the victim killed him." Id.

         Perkins testified that, about a week and a half after the shooting, petitioner had asked if he could tell her and Garvin something, and that he had confessed to the shooting, saying that it was "over a 'weed deal *** that went bad.'" Id. at 635-36 (omission in original). She was shocked, did not think his story made sense, and told him as much.

         Garvin was there because he was concerned about a previous incident of violence by petitioner against Jennifer, and intended to tell petitioner that he "'had to go.'" He "testified that [petitioner had] appeared very upset and said that 'it was either him or the other guy.'" Id. at 636. Garvin testified that petitioner "described the killing, saying that he walked up to the victim, who did not see him coming, and shot the victim once with a .357 that [petitioner] had gotten from a friend." Id. Garvin also testified that petitioner told him that he put the gun to the victim's head, and that it "'just went off" Id. Garvin asked what petitioner "was wearing at the time, and petitioner said that he was wearing a reversible blue/black coat." Id.

         Neither Perkins nor Garvin initially believed petitioner. Perkins initially believed that petitioner was "'puffing' because he feared Garvin and he was trying to avoid being excluded" from Perkins's home. Id. Garvin similarly believed that the story was "just 'talk'" aimed at keeping Garvin from "kicking him out, " but "out of concern for his daughter, " he "also wanted to investigate the story." Id.

         The next day, angry about seeing petitioner and Jennifer together, Garvin called the police and spoke with Detective Renna, the lead detective investigating Monterroso's murder. Garvin told Renna that petitioner "'walked up on the guy and blew him away.'" Id. At some point after that report, petitioner "confronted Garvin about 'ratting him out, '" and after that confrontation, Garvin "'look[ed] at it in a different light, yes. He was pretty nervous and real up-tight. So at that point I saw that this was going somewhere.'" Id.

         Petitioner's descriptions of the murder as recounted by Jennifer, Perkins, and Garvin in some ways did not match other evidence-Monterroso was not shot in the head, the gun was no closer than 6 inches from Monterroso's chest, and no one else described a car being involved in the murder.

         In addition to those confessions, the prosecution presented evidence from two other witnesses who linked petitioner to the murder. One of those witnesses, Feliu, identified petitioner on the night of the murder as a person who had been looking for Monterroso about an hour before the shooting. Feliu had attended middle school with petitioner and had seen him around the neighborhood a few times since then, and she recognized petitioner "'the second [she saw] him.'" Id. at 628 (brackets in original). On the night of the murder, she gave police a description and petitioner's first name, "'Dontae.'"[3] Id. Two days later, she identified petitioner in a police photo line-up. Id. at 633.

         The other witness, Muldrew, had been next to Monterroso when he was shot. He testified that he saw petitioner shoot Monterroso with a .357 revolver. Id. at 629. Muldrew provided a description of the shooter to police on the night of the shooting, but "[a]lthough Muldrew had seen [petitioner] a couple of times previously and knew who [petitioner] was (though only by a nickname), he did not identify [petitioner] as the perpetrator at that time." Id. at 633. Four days after the murder, "[identifying [petitioner] by his nickname, Muldrew told Feliu that [petitioner] had killed Monterroso." Id. About two weeks later, he identified petitioner in a police photo line-up. Id.

         On the night of the murder, Muldrew described the shooter to police as "about 5' 9" or 5' 10", 16 to 19 years old, skinny, with a mustache and a goatee." Id. at 632. He also told police that the shooter "was wearing a dark, puffy coat" that had writing on it and "black sweatpants with a white stripe down the side." Id. That night, Feliu also described to police the man she recognized as "Dontae, " who had been looking for Monterroso earlier, as "a black male, 18 years old, medium-dark complected, 5' 9" or 5' 10", with light facial hair, and wearing a blue coat with a hood and a horizontal stripe." Id. at 633.

         Muldrew called 9-1-1 immediately after Monterroso was shot. Id. at 629. At about the same time that Muldrew called 9-1-1, a woman, later identified as Thompson, also called 9-1-1. Id. She initially was identified by only her first name, and was not located until after the trial was over. In the call, Thompson said she had witnessed the shooting and, among other things, she described the shooter and his companion as Hispanic. Id. She also described the shooter as wearing a black or bluejacket. A recording of the call was played at trial.[4]

         A police officer at the scene after the murder also made statements to dispatch, which were recorded, that a witness had described a suspect who ran away from the scene as a teenaged Hispanic male. Petitioner is African American. Id. at 634.

         Renna was told during his investigation that '"word on the street'" was that a man named Baines was involved in the shooting. Id. Baines and petitioner resemble each other. During an unrelated investigation of Baines, police seized a Rohm .38-special revolver from a home where he sometimes stayed. Id. at 637. When shown a photograph of Baines, both Feliu and Muldrew noted some resemblance to petitioner, but neither recognized him or had any idea who he was. Id. at 638.

         At trial, to counter the defense theory that Baines could have been the shooter, the prosecution presented evidence that the Rohm revolver had been inoperable for years at the time it was seized. There was testimony from prosecution witnesses that the gun had to be repaired before it could be test fired, and that test-fired bullets from it did not match the bullet fragment recovered from Monterroso's body. Id. at 637-38.

         A defense expert, Wong, had concluded that the Rohm revolver "likely fired" the fatal bullet, but trial counsel did not call him as a witness at trial. Trial counsel was concerned about Wong's qualifications, and, in consultation with Wong and a second expert, she opted instead to rely on testimony she elicited from the state's expert.

         The defense strategy generally was to suggest that Baines or another person was the perpetrator rather than petitioner. Trial counsel's tactics included eliciting evidence that the shooter had been described as Hispanic, challenging the witness identifications of petitioner, focusing attention on the resemblance between petitioner and Baines, establishing that the gun that Baines arguably had access to could be the murder weapon, and questioning the motives of petitioner's ex-girlfriend and her parents.

         At the conclusion of the trial, the jury deliberated for 15 hours before returning a guilty verdict. Petitioner was convicted and sentenced for murder with a firearm.

         B. Post-Judgment Motion for New Trial

         A defense investigator, De La Melena, had attempted before trial to locate the unidentified 9-1-1 caller. De La Melena was eventually able to locate Thompson and interview her, but not until after the trial had ended. Id. at 639. Thompson provided an affidavit in which she stated that she had been shown photographs of petitioner and that he "was definitely not the shooter" or the accomplice. Id. Rather than describing the shooter as Hispanic, as she had during her 9-1-1 call, she gave a description of the shooter as "a dark-complected, black male." She stated that two of the photographs she had been shown "most closely resemble [d]" the shooter. Id. at 639. Those two photographs were of Baines. Id.

         Trial counsel filed a motion for new trial based on the discovery of new evidence, along with Thompson's affidavit. On the morning of the new-trial hearing, the prosecutor submitted an affidavit and police report from Detective Renna.[5] Renna's affidavit contained information from his own interview with Thompson, including potential bases for impeachment. Trial counsel objected to Renna's affidavit on several grounds and moved to strike it. The trial court admitted the affidavit over trial counsel's objections, but stated that it would focus primarily on Thompson's affidavit. At the conclusion of the hearing, the trial court ruled that it would not grant a new trial because Thompson's testimony would not be likely to change the result of a new trial.

         Petitioner appealed his conviction, assigning error to the trial court's denial of his motion for new trial. We affirmed his conviction and, as part of our analysis in concluding that the trial court did not abuse its discretion, we noted that petitioner had offered no evidence to dispute the information in Renna's affidavit. Farmer, 210 Or.App. at 644-45.

         C. Applicable Legal Framework

         Criminal defendants have a constitutional right to counsel under both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Montez v. Czerniak. 355 Or 1, 6-7, 322 P.3d 487, 493, adh'd to as modified on recons. 355 Or 598, 330 P.3d 595 (2014).

         To prevail on a claim of inadequate assistance of counsel under Article I, section 11, a petitioner must establish both "that [counsel] failed to exercise reasonable professional skill and judgment, " and "that counsel's failure had a tendency to affect the result of [the] trial." Lichau v. Baldwin. 333 Or 350, 359, 39 P.3d 851 (2002). When a court evaluates trial counsel's conduct to determine whether it failed to meet state constitutional standards, the court must "make every effort to" do so "from the lawyer's perspective at the time, without the distorting effects of hindsight" and must "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." Montez, 355 Or at 7 (internal quotation marks and citations omitted).

         Similar principles apply when evaluating whether trial counsel's performance failed to meet federal constitutional standards.

"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 [v. Washington], 466 U.S. [668, 688, 104 S.Ct. 2052 (1984)]. Appellate courts reviewing Sixth Amendment claims 'must consider the totality of the evidence before the 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 US 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. 86, 110, 131 S.Ct. 770, *** 178 L.Ed.2d 624 (2011)."

Id. at 7-8.

         The Oregon Supreme Court has "recognized that the standards for determining the adequacy of legal counsel under the state constitution are functionally equivalent to those for determining the effectiveness of counsel under the federal constitution. Id. at 6-7. "Under both constitutions, the defendant's right is not just to a lawyer in name only, but to a lawyer who provides adequate assistance." Id. at 6 (internal quotation marks omitted).

         We review a post-conviction court's application of the legal standards for errors of law, and its express findings of historical fact are binding if there is evidence in the record to support them. See Green v. Franke, 357 Or 301, 312, 350 P.3d 188 (2015) (stating standard of review). If the post-conviction court did not make findings as to all of the historical facts that are pertinent to the analysis, and the evidence would allow the court to find those facts in more than one way, we will presume that it found the facts consistently with its conclusions. Ball v. Gladden, 250 Or 485, 487, 443 P.2d 621 (1968). That presumption, however, "is necessarily dependent on the trial court's application of the correct legal analysis. If the court is operating under a misunderstanding as to the applicable legal principles[, ] *** we will not infer that the court decided facts consistently with that erroneous legal construct." State v. Ellis, 252 Or.App. 382, 390, 287 P.3d 1215 (2012), rev den, 353 Or 428 (2013).

         The analysis that follows focuses on fundamental principles that govern post-conviction proceedings, as emphasized in two opinions that issued after the postconviction court decided this case: Montez and Pereida-Alba v.Coursev. 356 Or 654, 342 P.3d 70 (2015). Those cases stress that, in reviewing the adequacy of petitioner's trial counsel, a post-conviction court must consider "the lawyer's perspective at the time, " instead of viewing the lawyer's decision with the benefit of hindsight. Montez, 355 Or at 7. Moreover, the post-conviction court should not focus solely on the possible benefits of strategies that trial counsel did not pursue, but should instead determine "whether the strategy that defense counsel did employ was reasonable." Pereida-Alba, 356 Or at 674 (emphasis added); see Montez, 355 Or at 24 ("The fact that petitioner would, in retrospect, have implemented his *** defense in one or more different ways is not a ground for post-conviction relief if counsel acted reasonably in presenting the defense that they did."). The discussion below is based on those core precepts.


         A. Defense Counsel's Decision Not to Call Wong as an Expert Witness

         Petitioner made an allegation, as part of an inadequate assistance of counsel claim in section 7 (1)(e) of his petition that the post-conviction court summarized as follows: "Trial [c]ounsel failed to call either Franklin Wong or Bart Reid as an expert witness to testify that a handgun * * * found in the possession of * * * Baines, was more likely than not the firearm that discharged the bullet found in the deceased." The post-conviction court granted relief on that claim, finding that Wong "would have testified that the firearm found in Baines's home was operable and * * * was 'most likely' the gun that killed Monterroso." Accordingly, the court concluded, "a reasonable attorney would have called Wong to testify as a defense expert."[6] The state assigns error to that ruling, arguing that trial counsel's decision not to call Wong as a witness was a reasonable tactical choice and that the post-conviction court erred by not giving proper deference to that decision. Petitioner argues that the postconviction court did not err.[7] We agree with the state.

         1. Whether the fatal bullet fragment could have been fired from the Rohm was the subject of expert testimony at trial.

         At petitioner's criminal trial, the prosecution called an Oregon State Police (OSP) forensic firearm and tool-mark examiner, Gover, as a witness to provide evidence about the bullet fragment that had been recovered from the victim's body and about the Rohm revolver and bullets test fired from it.[8] Gover had extensive training from the Bureau of Alcohol Tobacco and Firearms, including training in firearm and tool-mark examination as used in bullet comparisons. Gover explained that his training included comparing bullets known to have been fired from different firearms that were "as closely manufactured to each other as possible, " and bullets known to have been fired from the same firearm. That training allows examiners to establish baselines of the most agreement possible between bullets fired from different firearms, and the level of disagreement one can expect to see with bullets fired from the same firearm.[9]

         A bullet fragment was recovered from the victim's body. Investigators could not determine conclusively what caliber it was or what kind of gun had fired it. Gover noted that the bullet fragment was from a type of ammunition typically used in revolvers. When he entered data collected from the bullet fragment into a Federal Bureau of Investigation database to create a list of firearms that could have fired the bullet, there were 30 to 40 different types of firearms on the list. The list included 9mm, .380, .38, and .357 magnum caliber firearms. Among the listed possible firearms was a Rohm .38-special revolver.

         Gover recounted that he test fired the Rohm revolver associated with Baines in February 2002 and he compared test-fired bullets with the fatal bullet fragment. In his opinion, the amount of "agreement" of individual characteristics "was insufficient to positively say that that bullet was fired from that gun." He explained that, in comparing the test-fired bullets from the Rohm to the fatal bullet fragment, there was some agreement of the individual characteristics, but there was also some disagreement. He concluded that the results of the comparison were inconclusive-it could not be determined whether the bullet fragment was fired from the Rohm. Gover's conclusions were confirmed by another equally trained analyst in the OSP crime laboratory.

         In response to questions from trial counsel, Gover acknowledged that the test-fired bullets and the bullet fragment had agreement of all discernible class characteristics and some agreement of individual characteristics. He conceded that he could not exclude the Rohm as the murder weapon. Specifically, Gover's response to trial counsel's question was, "That is correct, it cannot be excluded." He also agreed with trial counsel's characterization of his previous testimony as being that he was "not one hundred percent certain that this was a match."

         The prosecution also presented evidence that the Rohm had been inoperable at the time of the murder. The former owner, Baker, testified that it did not work the last time she tried to fire it, more than a decade before the murder. About two to three months before police seized it, Baker gave the gun to her daughter, Waller. Waller testified that it did not work and that she had not cleaned or repaired it. An OSP firearms examiner, Alessio, testified that another criminalist had reported that the Rohm was inoperable when examined in April 2001. Alessio had also observed that the Rohm was inoperable before he repaired it in August 2001.

         Before the defense case began, the prosecutor requested a hearing to determine whether Wong, who had been present at the February 2002 test firing of the Rohm, was qualified as an expert in bullet comparison. At that hearing, outside the presence of the jury, trial counsel and the prosecutor questioned Wong about his qualifications. In response to trial counsel's questions, Wong agreed that he had "extensive experience in the comparison study of bullets." He elaborated that he had worked on "over a dozen cases involving firearms, " three or four of which involved bullet comparisons, during his nine years of professional experience. Wong recounted his education and experience in metallurgy and mechanical engineering, and described how they provided relevant expertise in the area of bullet comparison. On cross-examination, Wong acknowledged that he had no formal training in bullet comparison. The court ruled that Wong could testify on the subject, and noted that evidence of Wong's specific experience and training would be for the jury to weigh.

         2. Trial counsel made a tactical decision not to call her own expert.

         In advance of the post-conviction trial, trial counsel was deposed and her deposition testimony was admitted at the post-conviction trial. In that testimony, trial counsel explained that while preparing for petitioner's trial she had pursued the possibility that Baines had actually been the shooter. She had hired Wong initially as an expert in crime scene reconstruction to analyze the trajectory of the fatal bullet. After she learned of Baines and the Rohm revolver, trial counsel had Wong attend OSP's test-firing and compare the fatal bullet fragment with the test-fired bullets. Wong analyzed the bullets and concluded that the fatal bullet "was likely fired from the Rohm." Trial counsel became concerned, however, that Wong might not make a persuasive witness on that issue because he did not have an extensive background in ballistics and tool-mark identification. When she decided that she needed someone who had more expertise in that area, trial counsel hired another expert, Reid, who was also present when the Rohm was test fired. Trial counsel's recollection was that Reid's conclusions were similar to Gover's: the results of the comparison were inconclusive, and the Rohm could not be excluded as the murder weapon.

         Explaining her decision not to call either defense expert, trial counsel said that the prosecution could challenge Wong, and that "Reid was not going to be as strong as Wong." Trial counsel recalled that, consulting with Wong and Reid after Gover testified, she knew neither of them would say conclusively that the fatal bullet came from the Rohm. Although Wong would have said it was "likely, " she thought that the prosecutor would attack his qualifications-which were far less extensive than Gover's-thereby damaging credibility with the jury, which would "detract from * * * the strength of" the defense case. Counsel also believed that Wong ultimately would have to admit that the bullet-comparison result was inconclusive, which would essentially be a rehashing of Gover's testimony. In consultation with both of her experts, trial counsel ultimately decided not to call either of them to testify about the bullet comparison because she thought that Gover's acknowledgment on cross-examination that he could not exclude the Rohm as the murder weapon "was the best * * * coming from the [s]tate's witness."

         3. Trial counsel's decision at trial not to call Wong as a witness was a reasonable tactical choice that did not reflect an absence or suspension of professional skill and judgment.

         Tactical decisions made in the course of preparing for trial must involve "a conscious choice by a lawyer either to take or to omit some action on the basis of an evaluation of the nature and complexity of the case, the likely costs and potential benefits of the contemplated action, and other factors." Stevens v. State, 322 Or 101, 109, 902 P.2d 1137 (1995). A lawyer's tactical decision "must be grounded on a reasonable investigation." Gorham v. Thompson. 332 Or 560, 567, 34 P.3d 161 (2001). If it ...

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