Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Woods v. Franke

Court of Appeals of Oregon

April 26, 2017

BURL LEE WOODS, Petitioner-Appellant,
v.
Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

          Argued and Submitted June 11, 2015

         Umatilla County Circuit Court CV120127; A153851 Jack A. Billings, Senior Judge.

          Ryan O'Connor argued the cause and fled the briefs for appellant.

          Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. On the brief were Frederick M. Boss, Deputy Attorney General, Anna M. Joyce, Solicitor General, and Ryan Kahn, Assistant Attorney General.

          Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge pro tempore.

         Case Summary: Petitioner appeals from a judgment denying post-conviction relief on his inadequate assistance of counsel claim. He argues that the post-conviction court erred by denying his claim based on his trial counsel's failure to move to strike or take other additional action after his objection to vouching testimony during the criminal trial was sustained.

         Held: 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. The circumstances included the trial court's preliminary instruction to the jury that, when the court sustained an objection, the evidence was not admitted. In addition, the trial court noted, when sustaining the objection to the vouching testimony, that a witness cannot comment on the truthfulness of another witness. Under all of the circumstances, it was not unreasonable for counsel to conclude that the trial court's comment had informed the jury that the evidence was improper and inadmissible, and for counsel to conclude that taking further action was unnecessary.

          DUNCAN, P. J.

         Petitioner filed for post-conviction relief on the ground that, during his criminal trial, his defense counsel failed to provide adequate representation. Among other claims, petitioner alleged that defense counsel failed to respond properly after a prosecution witness vouched for the credibility of the complainant. Defense counsel objected to the vouching testimony and his objection was sustained, but, according to petitioner, defense counsel should have done more; specifically, he should have moved to strike the testimony and asked the trial court to instruct the jury to disregard it. The post-conviction court denied relief, concluding that petitioner failed to prove that defense counsel's response to the vouching testimony was inadequate. Petitioner appeals. As explained below, given the particular circumstances of the case, we conclude, as did the postconviction court, that petitioner failed to prove that defense counsel's response to the vouching testimony was inadequate. Therefore, we affirm.[1]

         We begin by recounting the relevant facts, which we state in accordance with the post-conviction court's findings and legal conclusions. Green v. Franke, 357 Or 301, 312, 350 P.3d 188 (2015) ("A post-conviction court's findings of historical fact are binding on this court if there is evidence in the record to support them. If the post-conviction court failed to make findings of fact on all the issues-and there is evidence from which such facts could be decided more than one way-we will presume that the facts were decided consistently with the post-conviction court's conclusions of law." (citation omitted)).

         Petitioner was indicted for committing four crimes against the complainant, a 15-year-old girl, AB. The case was tried to a jury. At the outset of the trial, the trial court gave precautionary instructions to the jury, including an instruction about the effect of the court sustaining an objection. The court told the jury, "Now, occasionally a lawyer will make an objection in the case. It's my job to decide whether to allow the evidence in or not. If I sustain the objection, it's not coming in."

         In its case-in-chief, the state presented evidence that, on the day of the charged crimes, petitioner provided AB with alcohol and sexually assaulted her. Individuals who knew both petitioner and AB saw them in a truck together and believed that petitioner was sexually assaulting AB. They confronted petitioner, put AB in their car, drove to another location, and called the police. An ambulance took AB to the hospital, where a detective attempted to interview her, but AB was "too intoxicated to talk that night." Her blood alcohol content was 0.19 percent, and she had Vicodin in her system.

         The next day, a detective interviewed AB. At trial, the detective testified about AB's demeanor during the interview. He said that "[s]he was crying, " they had taken "several breaks for her to compose herself, " and "[s]he was falling apart while she was telling [him] what happened." The prosecutor then asked the detective whether he thought AB was untruthful during the interview:

"[PROSECUTOR]: At any point did you feel like she was being untruthful with you?
"[DETECTIVE]: No.
"[DEFENSE COUNSEL]: Objection, Your ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.