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Tiner v. Premo

Court of Appeals of Oregon

March 1, 2017

JEFFREY DALE TINER, Petitioner-Appellant,
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

          Argued and Submitted March 6, 2015

         Marion County Circuit Court 07C13469; Frank L. Bearden, Senior Judge.

          Andy Simrin argued the cause for appellant. With him on the briefs were Andy Simrin PC, W. Keith Goody, and Zachar y Spier.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Kathleen Cegla, Assistant Attorney General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge. [*]

         Case Summary: Petitioner appeals a post-conviction court judgment denying him relief on claims related to the guilt phase of his criminal trial in which, among other things, a jury found petitioner guilty of intentional murder and two counts of aggravated murder. Defendant, the superintendent of the Oregon State Penitentiary, opposes the majority of petitioner's claims and cross-assigns error on a number of them. However, the superintendent concedes that the state committed due process violations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in petitioner's criminal trial by failing to disclose material impeachment evidence about two of its witnesses. The superintendent contends that petitioner is entitled to relief on those violations only on the verdicts for aggravated murder because the impeachment evidence was material only to those verdicts.

         Held: The post-conviction court erred in denying petitioner relief on his Brady claims involving two of the state's witnesses. However, because the withheld impeachment evidence was material only to the aggravated-murder verdicts, petitioner is entitled to relief only on his conviction for aggravated murder.

         Reversed and remanded with respect to petitioner's conviction for aggravated murder; otherwise affirmed.

          ARMSTRONG, P. J.

         Petitioner was found guilty by a jury of two counts of aggravated murder, one count of intentional murder, and a number of other crimes. He sought post-conviction relief on a variety of claims. The post-conviction court denied relief on all of petitioner's claims involving the guilt phase of petitioner's criminal trial but granted relief on his penalty-phase claims and voided the imposition of the death penalty. Petitioner appeals the post-conviction court's judgment, raising 29 assignments of error. Defendant, the superintendent of the Oregon State Penitentiary, opposes the majority of petitioner's assignments and raises several cross-assignments of error. The superintendent concedes, however, that the state committed due process violations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when it failed to disclose material impeachment evidence for two of its witnesses. The superintendent argues that petitioner is entitled to relief for the Brady violations only on his conviction for aggravated murder because the undisclosed impeachment evidence was material only to the aggravating circumstances that elevated the murder to aggravated murder.[1]

         For the reasons explained below, we reject the majority of the Brady claims raised in petitioner's third and fourth assignments of error because petitioner failed to prove that the allegedly withheld information was material to the jury's verdicts. As to the Brady violations conceded by the superintendent, we accept the superintendent's concession and agree that petitioner is entitled to relief on his conviction for aggravated murder. We reject the remainder of petitioner's assignments of error and the superintendent's cross-assignments of error without written discussion. We therefore reverse and remand the judgment denying post-conviction relief with respect to petitioner's aggravated murder conviction, but otherwise affirm.


         We state the facts consistently with the postconviction court's express and implicit findings. See Montez v. Czerniak, 355 Or 1, 8, 322 P.3d 487, adh'd to as modified on recons. 355 Or 598, 330 P.3d 595 (2014).

         A. The Underlying Crime

         Petitioner was released from prison in California on parole in December 1992 and became involved in a sexual relationship with Karlyn Eklof. In early 1993, Eklof and her children moved to Lane County, Oregon. Eklof's friend, Salmu, was renting a house there and had invited Eklof and her family to stay with him. While Eklof was living with Salmu, she invited petitioner to visit her. With permission from his parole officer, petitioner visited Eklof at Salmu's house for several weeks in March 1993.

         On March 21, Eklof hosted a pizza party at the Salmu residence. About a dozen people attended the party, including John Distabile, Keith and Linda Smith, and Alvin Hope. The party guests began to leave when it started to get dark. After the Smiths arrived home, Linda received a phone call from Salmu asking her if he could spend the night at their place. She told Salmu that she did not have enough room for him to stay over. Eklof called Linda about 15 to 20 minutes later and seemed to be annoyed because the Smiths would not allow Salmu to stay at their home overnight.

         At around 7:00 to 7:30 p.m., after most of the party guests had left, Distabile saw a knife "flying" out of the kitchen and into the living room, but he could not see who had thrown the knife. About a half hour later, he saw petitioner palming a small-caliber handgun. Eklof asked Distabile to take Eklof's thirteen-year-old son home with him so that she could be alone with petitioner. As Distabile was getting ready to leave, he heard petitioner and Eklof talking to Salmu about leaving the house for the night so that they could be alone. Petitioner offered Salmu money so that he could go to a movie. The conversation escalated when petitioner asked Salmu who had been "messing around" with Eklof. Distabile saw petitioner hit Salmu, knocking his glasses off. He also saw petitioner push Salmu to the ground and straddle him.

         Eklof's son, T, and his twelve-year-old friend, S, were outside on the front porch during the altercation between petitioner and Salmu. S heard petitioner offer Salmu money to go somewhere so that he could be alone with Eklof. He heard fighting noises such as "thuds" and "slaps, " and saw Salmu come outside, put his dog in a car, and then return to the house. S heard Eklof yelling and believed that Salmu was being beaten. S saw Salmu attempt to leave the house, but Eklof pulled him back inside. Salmu looked as though he had been in a fight. At some point during the assault, S heard petitioner say, "Come on, man, I got a gun, " and warn Salmu that he would shoot him if he did not leave the house.

         T could hear arguing inside the house but was unable to understand what was happening. At some point, he entered the house and saw petitioner punching Salmu. T returned to the porch and heard continued arguing. After things "calmed down, " T went back into the house and saw Salmu sitting on the couch. Salmu's glasses were off, and he had a black eye. T and S left the house with Distabile.

         The following day, Distabile returned to Salmu's house to pick up some kitchen supplies and saw that the carpet in the front room was gone. That same day, Eklof and a man went to a floor-covering store to purchase linoleum and carpeting.[2] Hope also returned to Salmu's house the day after the party and saw Eklof and petitioner removing some carpet and furniture. Hope helped them put in the new carpet and offered to take the old materials to the dump. He noticed a large stain on the old carpet. Hope testified that he had previously sold Eklof a .25-caliber handgun and that petitioner was with Eklof during the sale.

         Salmu failed to show up for work the day after the party. During his lunch break, Keith Smith went to Salmu's house and asked Eklof if Salmu was home. She said that he was not. Keith returned to Salmu's home the next day and found Salmu's possessions on the porch. Petitioner told Keith that he had bought the personal property from Salmu, who wanted to go to California. Keith returned to the house again that evening, and petitioner offered to help Keith look for Salmu that night, but Keith was unable to do that because he had a prior engagement. Keith returned the next day and told petitioner and Eklof that he had filed a missing-person report with the police regarding Salmu. Petitioner and Eklof became upset on learning that Keith had contacted the police.

         Springfield Police Officer Michael McCarthy, the first officer involved in the investigation of Salmu's disappearance, went to Salmu's house a few days after the party. He spoke with Eklof and saw some replacement carpeting in the front entrance of the house. Springfield detectives then contacted Salmu's landlord, Kathy Shults, and asked permission to enter Salmu's house. Shults let them into the house and, while the detectives were in Salmu's bedroom, Eklof entered the house. Shults was aware that Eklof and her children were staying at the house, but she had not met Eklof in person. Evidently unaware that Shults was the landlord, Eklof told the detectives that the landlord had given Salmu and her permission to change the carpet. Eklof also claimed that she had purchased everything inside the house, including appliances that belonged to Shults, for $1, 500. Shults acknowledged that the house was in disrepair, that the carpet was soiled, and that the linoleum had been damaged by moisture. She knew that the carpet and linoleum needed to be replaced, but she testified that she had not discussed changing them with Salmu.

         Springfield Police Detective Steve Walker searched Salmu's house on March 30 and found what appeared to be blood splatter on the bathroom door and on the molding near the bathroom. Criminalist Terry Bekkedahl examined the house that same day and found blood on a dryer in a utility room and on the paneling and molding next to the bathroom door. He also examined the floor beneath the living room carpet. He saw stains on the padding, but it was later determined that there was no blood on the padding or on the wood subfloor.

          In November 1994, Bret Martin was picking mushrooms near the McKenzie River when he found a human skull and a plastic bag containing bones and clothing. Martin reported his findings to a ranger, who contacted the sheriff. Criminalist Bradford Putnam arrived at the location to collect the bones. The remains were partially concealed in a sleeping bag and appeared to be from a single individual. When Putnam picked up the skull, he heard something roll around inside it. Putnam believed that there was a bullet hole in the skull. No gun shell casings or bullets were found at the scene.

         Through dental records, the bones were identified as Salmu's. An autopsy revealed two gunshot wounds to Salmu's skull, and a bullet was found inside the skull. The medical examiner was unable to determine whether the gunshot wounds were inflicted before or shortly after death. John Lundy, a forensic anthropologist, also examined Salmu's remains. He found two bullet entrance wounds- one below the left eye and the other through the upper jaw bone. Lundy also examined three finger bones that appeared to have been severed by a "sharp instrument of some kind." DNA testing revealed that one of the blood stains found in Salmu's house matched "the bones [that Martin found] to a very rare number."

         In December 1995, petitioner was indicted for four counts of aggravated murder and various other crimes for Salmu's murder. Each of the counts alleged that petitioner had "act[ed] in pursuance of a common intent with Karlyn Eklof, in [causing] the death of [Salmu]." Three months before petitioner's indictment, Eklof was convicted of two counts of aggravated murder and two counts of intentional murder for Salmu's death.[3]

         B. The Criminal Trial

         We briefly discuss some of the testimony from petitioner's criminal trial that bears on petitioner's postconviction case. Eklof testified that she had been convicted of Salmu's murder and her conviction had been affirmed on appeal, but she was pursuing post-conviction relief from her convictions. When asked if she knew who had killed Salmu, Eklof initially responded, "I take the Fifth on this trial." However, on further questioning, Eklof testified that, when she was in the kitchen in Salmu's house, she heard two gunshots come from the bathroom. She stated that she did not know that petitioner had a gun. She testified that petitioner shot Salmu twice in the bathroom. During cross-examination, Eklof denied participating in the murder and expressed frustration with the police and the prosecution, stating that she had been falsely accused and "railroaded" because the police were trying to "drum up business." On redirect examination, the prosecutor asked Eklof whether it was "fair to say * * * that you've always been consistent that it was [petitioner] who killed [Salmu], not you?" Eklof responded, "It was. It was."

         Distabile testified that, the week after the party, he saw petitioner at a friend's house, and petitioner told him that he and Eklof had "kicked the crap out of [Salmu], put him in the dirt." On cross-examination, defense counsel asked Distabile, "And then after the State of Oregon puts some serious pressure on you, essentially indicating they may charge you with various crimes, you changed your story. Isn't that right?" Distabile responded that he had retained an attorney in the case, but only "because they were talking accessory, " and he insisted that he was not an accessory to the murder. Defense counsel followed up by asking, "And you got yourself a lawyer and your story ...

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