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Cartrette v. Nooth

Court of Appeals of Oregon

April 19, 2017

JOSHUA AMES CARTRETTE, Petitioner-Appellant,
Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

          Submitted March 21, 2016.

         Malheur County Circuit Court 1303145P Joseph C. Guimond, Judge.

          Jed Peterson and O'Connor Weber LLP fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Leigh A. Salmon, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.

         Case summary: Petitioner is serving a 70 month sentence on a conviction for second degree assault, ORS 163.175, in the custody of defendant, the Superintendent of the Snake River Correctional Institution. Petitioner now appeals the postconviction court's denial of relief, arguing that the court erred when it concluded that petitioner's trial counsel did not provide constitutional-lydefcient assistance of counsel when trial counsel failed to call a particular witness, who was under subpoena to testify, to impeach the victim's testimony. Held: The facts proved by petitioner about the circumstances known to counsel at the time of trial lead to the conclusion that counsel failed to exercise reasonable professional skill and judgment when counsel decided not to call the identified impeachment witness and there is more than a mere possibility that counsel's inadequacy affected the outcome of the proceeding.

          LAGESEN, J.

         Petitioner is serving a 70-month sentence on a conviction for second-degree assault, ORS 163.175, in the custody of defendant, the Superintendent of the Snake River Correctional Institution (the superintendent). Petitioner's conviction arose from a physical altercation between petitioner and another man, Johnson. Petitioner claimed self-defense at trial and seeks post-conviction relief on the ground that his lawyer provided constitutionally-deficient assistance of counsel, in violation of his rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, by failing to call a particular witness, Smith. Smith, who was under subpoena at the time of petitioner's trial but was not called, would have impeached Johnson's testimony that petitioner started the fight by testifying that Johnson admitted to him that he had started the fight, but that he needed for petitioner to be convicted in order to receive financial assistance for his medical bills. The post-conviction court denied relief. Although the court thought that "trial counsel should have called" Smith, and that Smith's testimony would have been "helpful" to defendant's case, it determined that trial counsel's failure to do so did not amount to a constitutional violation because, under the circumstances of petitioner's criminal case, "it really didn't matter * * * exactly who started the fight, " notwithstanding petitioner's claim of self defense. We conclude otherwise and reverse and remand with instructions for the post-conviction court to grant petitioner relief from his conviction for second-degree assault.[1]


         We state the facts in a manner consistent with the post-conviction court's implicit and explicit factual determinations. In that regard, we note that the post-conviction court expressly opined that Smith's testimony would have been "helpful" to petitioner's case, and that trial counsel "should have" called Smith to testify at petitioner's trial, and presume that the post-conviction court implicitly found the facts about Smith and his likely testimony consistently with those explicitly stated determinations.

         The fight that led to petitioner's conviction occurred when petitioner accompanied his girlfriend, Carroll, to drop off her daughter for a visit with Johnson, Carroll's previous boyfriend. Although Johnson was not the father of Carroll's daughter, he had formed a close relationship with her during the course of his five-year relationship with Carroll, and Carroll had agreed to permit her daughter to attend a barbecue at Johnson's uncle's home. Petitioner and another man, Watkins, went with Carroll to drop off her daughter. Shortly after their arrival, petitioner and Johnson became involved in a physical altercation. That altercation left Johnson with significant injuries to the left side of his face, breaking his left eye socket and his nose. As a result, he had to have titanium plates and screws placed in his face, and he suffers from nerve damage and permanent impairment to his vision. Petitioner, who has some skills in mixed martial arts, emerged from the confrontation relatively unharmed.

         Although the fight and the injuries that Johnson suffered are not disputed, petitioner's account of the details of the fight differs significantly from Johnson's. According to Johnson, petitioner and Watkins "jump[ed]" him. Petitioner came after Johnson, and Watkins held Johnson while petitioner punched him. Johnson blacked out and fell to the ground and, when he regained consciousness, he was being kicked or kneed in the head.

         In contrast, according to petitioner, Johnson started the fight, coming after petitioner while he was still sitting in the front passenger seat of Carroll's car. Petitioner, who has experience with mixed martial arts techniques, managed to get himself out of the car and punch Johnson, which caused Johnson to fall to the ground. When Johnson got up, petitioner hit him twice more to make sure that he stayed down. Petitioner and Watkins then fled. Watkins's version of events echoed petitioner's. According to Watkins, Johnson launched a "full on attack" on petitioner, and petitioner simply tried to defend himself. Watkins denied participating in the fight at all.

          The state charged petitioner and Watkins with second-degree assault and third-degree assault.[2] Watkins was tried first. The state's theory of the case was that petitioner and Watkins had attacked Johnson. The testimony of Johnson and his nephew, who had been present at the fight, provided the primary support for that theory. Johnson testified that petitioner came after him and that Watkins held him while petitioner hit him numerous times until he went down. Johnson's nephew testified similarly that, although he had been inside and not witnessed the start of the fight, he had heard someone ...

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