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Brenner v. Nooth

Court of Appeals of Oregon

February 23, 2017

LANNY EARL BRENNER, Petitioner-Respondent Cross-Appellant,
v.
Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Appellant Cross-Respondent.

          Argued and Submitted October 10, 2016.

         Malheur County Circuit Court 12089611P; Linda Louise Bergman, Senior Judge.

          Erin K. Galli, Assistant Attorney General, argued the cause for appellant-cross-respondent. With her on the opening brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General. With her on the reply and answering brief on cross-appeal were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Jesse Wm. Barton argued the cause and fled the briefs for respondent-cross-appellant.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant, the superintendent of the Snake River Correctional Institution, appeals a post-conviction judgment granting petitioner post-conviction relief in the form of a new trial. Petitioner, who was convicted of two counts of sexual abuse in the first degree, ORS 163.427, raised four claims for relief before the post-conviction court. On petitioner's second claim, the post-conviction court concluded that petitioner's trial attorney provided inadequate assistance of counsel in failing to sufficiently develop a defense based on defendant's highly intoxicated state and post-traumatic stress disorder. The post-conviction court further concluded that petitioner suffered prejudice as a result. Defendant argues that the post-conviction court erred in granting relief on the basis of petitioner's second claim for relief because evidence critical to that claim would have been inadmissible at defendant's prior criminal trial. Petitioner cross-appeals the post-conviction court's denial of his first claim for relief and raises additional cross-assignments of error. Held: The post-conviction court erred in granting petitioner post-conviction relief as to his second claim. Petitioner failed to show that critical parts of his proffered evidence would have been admissible at his criminal trial. Petitioner's proffered evidence was scientific evidence that he did not show would have met the admissibility criteria for scientific evidence under State v. Brown, 297 Or 404, 687 P.2d 751 (1984), and State v. O'Key, 321 Or 285, 899 P.2d 663 (1995). Accordingly, the post-conviction court erred in concluding that petitioner had shown prejudice and erred in granting petitioner post-conviction relief on the basis of his second claim for relief. As to petitioner's cross-appeal, the post-conviction court's decision is affirmed without written discussion.

         On appeal, reversed as to petitioner's second claim for post-conviction relief and remanded for entry of judgment consistent with this opinion. On cross-appeal, affirmed.

          SHORR, J.

         Defendant Mark Nooth, superintendent of the Snake River Correctional Institution (the state), appeals a post-conviction court judgment concluding that petitioner's trial attorney provided inadequate representation during his criminal trial for sexual abuse in the first degree, ORS 163.427, and granting petitioner post-conviction relief. The state argues that key evidence offered by petitioner in support of his claim of inadequate assistance of counsel would have been inadmissible at his criminal trial and that the post-conviction court erred in granting relief based at least in part on that evidence. Specifically, the state asserts that expert witness testimony proffered by petitioner was scientific evidence and that petitioner failed to show that, as such, it comported with the admissibility requirements specific to scientific evidence. As explained in this opinion, we agree with the state that key parts of the challenged testimony are scientific evidence and that petitioner failed to meet his burden of showing that that testimony would have been admissible at petitioner's criminal trial. We conclude further that, because that testimony was critical to petitioner's claim of inadequate assistance of counsel, the postconviction court erred in concluding that petitioner suffered prejudice, and we reverse the post-conviction court's grant of post-conviction relief on that basis.[1]

         The following facts, which are undisputed on appeal, are drawn from the record. Petitioner was a guest at a party where he became intoxicated. Early in the evening, a group of partygoers-including the victim, E, and her friend, A-were downstairs watching a violent movie. Petitioner, who was visibly drunk, came downstairs for about 30 minutes. Petitioner sat next to A while watching the movie and, when As boyfriend left the room, petitioner made sexual comments to her, telling A that he wanted to have sex with her and mumbling something about her "boobs." After the movie ended, petitioner played a game of pool with E. Petitioner, who was slurring his speech and having trouble keeping his balance, told E that she was pretty. After playing pool, petitioner hugged E, although E "kind of stood back and didn't really want a hug." Around 1:00 a.m., petitioner had an emotional breakdown while with his sister. Petitioner was crying and saying repeatedly, "It wasn't me, " and attempting to go home. Petitioner's sister believed petitioner may have been having a flashback related to his service in the Vietnam War. Petitioner's sister took his car keys because she was concerned about him driving while intoxicated, and then made up a bed for petitioner and left him to sleep.

         E, A, and a third woman all went to sleep around 2:00 a.m. in a basement room, with E and the third woman sharing an air mattress. E awoke to the feeling of someone touching her back, and found petitioner touching her breasts and buttocks. E immediately noticed that her pants and underwear had been pulled down to her knees and that petitioner was "completely naked." E pushed petitioner away, but petitioner did not stop touching her until she pushed him "about two or three more times" and said, "[s]top." E later testified at the criminal trial that, after she told him to stop, petitioner "just kind of sat there for a little bit" and looked "like somebody snapping out of a trance." Petitioner picked up his clothes and walked into another room but returned a few minutes later and asked E if she was okay. E replied, "No. Go away." Petitioner then left. At some point, petitioner was seen coming up the stairs from the basement, naked, while several people were still hanging out in the house. He was described as mumbling and incoherent. Petitioner's sister took petitioner back to the bed that she had made for him, and petitioner went to sleep. In his subsequent statements to police, petitioner maintained that he had no recollection of going downstairs, taking off his clothing, or touching E.

         At petitioner's criminal trial, his defense counsel did not contest that petitioner had touched E; rather, defense counsel emphasized the witness accounts of petitioner's intoxication to argue that, because petitioner was so drunk, he could not have acted "knowingly" as required for a conviction in his case.[2] In his opening statement, petitioner's defense counsel referenced petitioner's military service in Vietnam and explained that the jury would hear evidence that the movie playing at the party was "particularly freaky" and "particularly scary, " and "brought back memories of [petitioner's] Vietnam service." As a result, defense counsel explained, petitioner "dr[ank] and t[ook] his medication because he did not want to feel that way; he did not want to re-have those memories; he did not want to think about the war." During the trial, petitioner's sister testified that she believed that petitioner's emotional breakdown was related to his experience in Vietnam, but defense counsel did not introduce as evidence a mental health diagnosis for petitioner. Petitioner did not testify.

         In closing, petitioner's defense counsel argued that, as a result of his intoxication, petitioner was "on autopilot" when he went downstairs and it was "just as likely" that petitioner was trying to get out of the house and go home when he wandered into the room where E was sleeping. Defense counsel further argued to the jury that petitioner was "feeling his way through" a dark and unfamiliar room when he touched E: "He doesn't know who she is. He doesn't know where he is. When he's told, 'No, ' he stops." Petitioner's defense counsel then argued that petitioner's lack of memory was evidence that he lacked the required mental state:

"I think I talked about it a little bit on jury selection when people are under anesthesia *** you don't remember what happened, and again, I'm not bringing up lack of memory as excuse or as denial. Lack of memory is really- in this case is really a result of the extreme intoxication. That's what happens when somebody's either under anesthesia or extremely intoxicated."

         At the conclusion of the trial, petitioner was found guilty by the jury of two counts of first-degree sexual abuse.

         After petitioner's direct appeal was dismissed on his own motion, petitioner sought post-conviction relief, raising four claims of ineffective assistance of counsel. Petitioner's second claim, which is the focus of this opinion, asserted that petitioner's trial counsel "failed to develop a defense theory based on petitioner's health problems, including his military service-connected post-traumatic stress disorder (PTSD)." Petitioner asserted that his trial counsel should have been aware of evidence that petitioner was suffering from PTSD related to his military service and that petitioner abused alcohol to self-medicate and ease symptoms associated with that disorder. Petitioner claimed that his counsel could have leveraged those facts to develop a diminished capacity defense attacking the mens rea requirements of the sexual abuse charges[3] or a lack-of-volition theory attacking the actus reus.[4] Petitioner acknowledged that his trial counsel did present some evidence of his military history, mental health issues, and intoxication; however, he pointed out that the evidence was introduced by lay witnesses and argued that a defense such as he outlined required expert testimony to be effective. Petitioner argued that his trial counsel's failure to obtain and present expert witness testimony supporting that theory constituted inadequate assistance of counsel and necessitated a new trial.

         In support of his claim, petitioner offered, among other things, the testimony of two experts: Dr. Robert Julien, a retired pharmacologist, and Dr. Bridget Cantrell, a mental health therapist. Prior to the post-conviction trial, the state moved to exclude the testimony of both witnesses and argued that neither expert's testimony would have been admissible in petitioner's criminal trial. As relevant to this appeal, the state argued that key parts of each expert's testimony amounted to scientific evidence and that, under the admissibility requirements for scientific evidence set out in State v. Brown, 297 Or 404, 687 P.2d 751 (1984), and State v. O'Key, 321 Or 285, 899 P.2d 663 (1995), their testimony would have been inadmissible in petitioner's criminal trial because it lacked valid scientific foundation. In response, petitioner primarily argued that the admissibility requirements of Brown and O'Key did not apply to the testimony of Julien and Cantrell for various reasons that we address below. At the post-conviction trial, petitioner called Cantrell and Julien, whose testimony we discuss in detail as part of our analysis later in this opinion.

         Following the post-conviction trial, the court granted petitioner post-conviction relief, ordering the judgment from his criminal trial vacated and the case returned for a new trial. In its judgment, the post-conviction court concluded that petitioner's counsel was deficient and that petitioner had suffered prejudice. The post-conviction court framed the issue underlying petitioner's second claim for relief as "whether [petitioner's] trial attorney properly evaluated the PTSD and alcohol issues." The postconviction court noted that "[t]he bench and bar have recently become aware of the particular issues of veterans" and that petitioner's attorney had access to trainings and referrals related to veterans' issues but did not "call upon the resources available to evaluate the defense." The postconviction court then concluded:

"The best defense in this case is alcohol and PTSD. *** [Defense counsel] needed an expert with the proper experience who could follow up and definitively diagnose PTSD. [Defense counsel] could have called on the VA system or one of the experts from the [Oregon Criminal Defense Lawyer's Association] training. He didn't."

         The post-conviction court also found that the testimony of Cantrell and Julien would have been admissible at trial:

"Both Julien and Cantrell qualify as expert witnesses based on their training and experience. They each have specialized knowledge and experience that would assist the trier of fact. Their testimony is admissible for this hearing and for trial. It would have then been up to a trial jury to decide what to do with that testimony. This court has certainly found it informative."

         The post-conviction court then concluded that the expert witness testimony would have "affected [the] outcome":

"There is prejudice here. The experts would have testified to enough that there is a reasonable likelihood it would have affected the outcome."

         The court did not specify which parts of the testimony it found helpful or that it believed would have affected the outcome of petitioner's criminal trial, and it did not determine whether any parts of the experts' testimony were scientific evidence or whether that evidence met any of the admissibility criteria discussed in Brown and O'Key.

         On appeal, the state assigns error to the postconviction court's determination that the testimony of Julien and Cantrell would have been admissible at trial and its decision to grant post-conviction relief based at least in part on that testimony. The parties largely reiterate to us the arguments that they made to the post-conviction court. The state contends that parts of the testimony of Julien and Cantrell are scientific evidence subject to the requirements of Brown and O'Key and that petitioner failed to meet his burden at the post-conviction trial of showing that the evidence would have been admissible at the criminal trial. The state argues further that, applying the admissibility criteria from Brown and O'Key, the science underlying parts of Julien's and Cantrell's testimony is invalid and therefore would have been inadmissible at trial. Petitioner argues that the testimony of Julien and Cantrell is not subject to Brown and O'Key but rather is governed only by the requirements applicable to all expert witnesses as stated in OEC 702. Petitioner further argues that Oregon's intoxication-defense statute, ORS 161.125, makes the testimony admissible.

         Based on those arguments, the issue before us is whether the post-conviction court erred in concluding that the testimony of Julien and Cantrell would have been admissible at petitioner's criminal trial and, on the basis of that testimony, erred in granting petitioner a new trial. As we proceed to explain, we conclude that key parts of Julien's and Cantrell's testimony are "scientific" evidence. As the proponent of scientific evidence in a post-conviction proceeding, petitioner had the burden to show that the evidence meets the admissibility requirements specific to scientific evidence. Because we conclude that petitioner failed to meet that burden, the post-conviction court erred in concluding that those parts of the testimony would have been admissible. As a result, petitioner failed to show that he was prejudiced by his counsel's performance at his criminal trial and, therefore, the post-conviction court erred in granting petitioner post-conviction relief as to his second claim.

         We begin our analysis with an overview of our law regarding inadequate assistance of counsel. Petitioner raised claims for post-conviction relief under both the Oregon Constitution and the United States Constitution. A petitioner who seeks post-conviction relief on the ground that his trial counsel was inadequate must prove, by a preponderance of the evidence, facts demonstrating that his counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result. Trujillo v. Maass, 312 Or 431, 435, 822 P.2d 703 (1991); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (the federal constitution requires "effective" assistance of counsel). Our analysis focuses on the second of those two prongs-whether petitioner showed that he suffered prejudice as a result of the alleged deficient performance of his attorney.

         To prove prejudice under the Oregon constitution, a petitioner must show that his counsel's deficient performance had "a tendency to affect the result of the prosecution." Stevens v. State of Oregon, 322 Or 101, 110, 902 P.2d 1137 (1995); see also Green v. Franke. 357 Or 301, 322-23, 350 P.3d 188 (2015) (explaining that "the tendency to affect the outcome standard demands more than mere possibility, but less than probability, " and that "the issue is whether trial counsel's acts or omissions could have tended to affect the outcome of the case" (emphasis in original; internal quotation marks omitted)). When a petitioner's claim is that his trial counsel was deficient for failing to investigate and pursue a particular trial strategy, as petitioner argues here, "the petitioner must adduce evidence at the post-conviction hearing that would have been discovered and introduced at the criminal trial had trial counsel undertaken the proposed investigation." Short v. Hill. 195 Or.App. 723, 729, 99 P.3d 311 (2004), rev den, 338 Or 374 (2005) (emphasis added). That is, to show prejudice, the petitioner "must prove that investigation would have produced admissible evidence" that could have affected the outcome of the trial. Tracy v. Nooth. 252 Or.App. 163, 170, 285 P.3d 745 (2012), adh'd to on recons, 255 Or.App. 435, 299 P.3d 565, rev den, 353 Or 868 (2013) (emphasis added); see also Holcomb v. Hill, 235 Or.App. 419, 438, 233 P.3d 448, rev den, 349 Or 370 (2010) (petitioner failed to show prejudice where testimony essential to his claim of ineffective assistance of counsel would have been inadmissible at trial). To prove prejudice under the federal constitution, a petitioner must demonstrate that there was a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

         To summarize, to show that he was prejudiced by his trial counsel's failure to procure evidence, petitioner had to proffer evidence at the post-conviction trial that would have been admissible at his criminal ...


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