and submitted October 28, 2014.
Resubmitted en banc December 21, 2016.
County Circuit Court 07C16834; Susan M. Tripp, Judge.
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.
Nam S. Khalsa filed the brief for respondent.
Hadlock, Chief Judge, and Armstrong, Ortega, Sercombe, Egan,
DeVore, Tookey, Garrett, Flynn, DeHoog, and Shorr, Judges.
(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.
of judgment granting post-conviction relief and remanding for
new trial reversed; otherwise affirmed.
HADLOCK, C. J.
post-conviction relief case, the state 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
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.
HISTORICAL AND PROCEDURAL FACTS AND LEGAL FRAMEWORK
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. 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.
Petitioner's Criminal Trial and the Defense
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
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."
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.
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."
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
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
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.
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.'" Id. Two days later, she
identified petitioner in a police photo line-up. Id.
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.
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.
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.
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.
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.
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.
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
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.
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.
Post-Judgment Motion for New Trial
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.
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. 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.
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.
Applicable Legal Framework
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).
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
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.
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
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
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.
CLAIMS RELATED TO EVENTS DURING TRIAL
Defense Counsel's Decision Not to Call Wong as an
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." 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. We agree with the state.
Whether the fatal bullet fragment could have been fired
from the Rohm was the subject of expert testimony 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
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.
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
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
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
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.
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.
Trial counsel made a tactical decision not to call her
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.
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
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
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 ...