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Johnson v. Premo

Supreme Court of Oregon

August 3, 2017

MARTIN ALLEN JOHNSON, Respondent on Review,
Jeff PREMO, Superintendent, Oregon State Penitentiary, Petitioner on Review.

          Argued and submitted January 10, 2017

         On review from the Court of Appeals, CC 06C16178; CA A154129.[*]

          Benjamin Gutman, Solicitor General, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ellen F. Rosenblum, Attorney General.

          Daniel J. Casey, Portland, argued the cause and fled the briefs for respondent on review. Also on the briefs was Robert L. Huggins, Jr.

          Jeffrey Erwin Ellis, Portland, fled the brief on behalf of amicus curiae Oregon Criminal Defense Lawyers Association.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, and Nakamoto, Justices, and Brewer, Senior Justice pro tempore. [**]

         [361 Or. 689] Case Summary:

         Petitioner, who was convicted of aggravated murder and sentenced to death, sought post-conviction relief, alleging that he received inadequate assistance of counsel in violation of Article I, section 11, of the Oregon Constitution. More particularly, petitioner alleged that his trial counsel failed to adequately investigate the cause of the victim's death. At the criminal trial, the state presented evidence that petitioner had strangled the victim, and petitioner's defense counsel offered evidence instead that petitioner had drowned the victim but had done so in a county other than the county in which he was tried, and therefore argued that petitioner should be acquitted based on the state's failure to prove the proper venue. At his post-conviction trial, petitioner presented evidence that the opinions of both the state and defense experts that testified at the criminal trial as to the cause of death were incorrect, and the victim actually died of a morphine overdose. The post-conviction court granted petitioner a new trial, and the Court of Appeals affirmed.


         Petitioner received inadequate assistance of trial counsel. To be entitled to post-conviction relief based on inadequate assistance of counsel, a petitioner must show that counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suffered prejudice as a result of counsel's inadequacy. Tactical decisions made by counsel must be grounded on reasonable investigation. In this case, counsel knew there was a discrepancy between petitioner's factual account of what had occurred and what the state and defense forensic experts opined had occurred. Counsel also knew that the medical evidence as complicated, and that there was evidence that the victim had ingested numerous drugs before her death. In that circumstance, and in light of the undesirability of the venue defense, counsel should have sought out additional information concerning the drugs in the victim's system at the time of her death, in order to try to develop a theory that petitioner's killing of the victim was unintentional, or alternatively, in the penalty phase that, even though intentional, it was not the type of crime for which the death penalty should be imposed.


         [361 Or. 690] BREWER, S. J.

         In a two-phased jury trial, petitioner was convicted of aggravated murder and sentenced to death for killing a fifteen-year-old girl, HF. The state's theory of the case was that petitioner had killed HF intentionally in furtherance of, or in an effort to conceal, the commission of sexual offenses against her. This court affirmed his convictions and sentence. State v. Johnson. 340 Or. 319, 131 P.3d 173, cert den, 359 U.S. 1079 (2006). Petitioner then brought this action for post-conviction relief, asserting that he received inadequate assistance of trial counsel in violation of Article I, section 11, of the Oregon Constitution. The post-conviction court granted relief on one ground and denied relief on other grounds, and the Court of Appeals affirmed. Johnson v. Premo. 211 Or App 225, 370 P.3d 553 (2016). Respondent sought review in this court. On review, we conclude that the post-conviction court and the Court of Appeals correctly determined that petitioner is entitled to post-conviction relief.

         At petitioner's criminal trial, the state presented evidence that petitioner drugged HF with morphine, raped her, strangled her to death, then threw her body off a bridge. Petitioner did not testify. The sole defense theory presented by his trial counsel, Walker and Peters, was that HF had not died by strangulation as theorized by the state, but, instead, had died of drowning after petitioner threw her off the bridge. As a consequence, counsel argued, petitioner was entitled to an acquittal because the state had not initiated the prosecution in the county in which he had drowned HF[1]As noted, that defense was unsuccessful, and the jury convicted petitioner and sentenced him to death.

         In this post-conviction proceeding, petitioner asserted, among other things, that the venue defense that his criminal trial counsel advanced had virtually no chance of persuading a jury to acquit him. More specifically, petitioner [361 Or. 691] argued that, because, based on the evidence in the record, the jury could have found that the place of HF's death could not be readily determined, a venue defense was not viable in light of the alternative venue provisions of ORS 131.325.[2]Moreover, counsel's sole reliance on such a weak technical defense made the penalty phase of his trial (during which the jury considered aggravating and mitigating factors and determined whether a sentence of death is appropriate) much more challenging. Petitioner asserted, instead, that his counsel should have pursued a morphine-overdose theory of the case, in light of petitioner's statement to his defense team that he woke up after having sex with HF and discovered that she was dead. Petitioner further asserted that, if counsel had consulted a toxicologist, they would have developed credible evidence that HF died of a drug overdose, thus rebutting the state's evidence that she died by strangulation. With respect to the issue of prejudice, petitioner argued that counsel's failure to pursue a more viable theory of defense that actually conformed to petitioner's story had a tendency to affect the outcome of his criminal trial. The post-conviction court agreed with petitioner with respect to that claim and, accordingly, granted relief. The Court of Appeals affirmed.

         The state's primary argument on review is that defense counsel, having retained an expert who opined that the cause of the victim's death was drowning, was not required to seek out additional experts to try to establish a cause of death-morphine-overdose-that had been ruled out by both prosecution and defense experts. As explained below, we do not view the relevant inquiry as how many experts should have been consulted; the evaluation of counsel's adequacy is more nuanced than that. The dispositive [361 Or. 692] issue, rather, is whether adequate trial counsel would have attempted to develop a theory of defense that HF already was dead from a drug overdose when petitioner threw her body off the bridge.

         I. FACTS

         A. Evidence Adduced at Petitioner's Criminal Trial

         We recount the pertinent facts adduced at petitioner's criminal trial. On February 23, 1998, HF went to petitioner's house in Washington County to play computer games. Petitioner previously had provided HF with drugs and alcohol, and had expressed sexual interest in her. The following day, HF's body was discovered on a beach in Clatsop County near the Astoria Bridge at the mouth of the Columbia River. Petitioner fled the state shortly after being interviewed by police concerning his possible involvement in HF's death, and he was not apprehended for almost a year.

         At trial, the state presented evidence that petitioner had driven to the Astoria area and that HF's blood was found on his car. The state's medical examiner, Dr. Hartshorne, opined that HF had died by strangulation, noting fingerprint-shaped bruises on her neck and petechiae on her face. In addition, the state's evidence showed that HF had a significant amount of morphine in her system, and semen in her vagina matched petitioner's DNA. The state introduced evidence that petitioner "habitually preyed on underage girls, taking them to nightclubs, providing them with alcohol and drugs, engaging them in consensual sexual relations when possible and, most significantly, sexually abusing them while they were rendered unconscious by drugs that he had provided to them." Johnson, 340 Or at 32l.[3]

         Petitioner's counsel adduced expert testimony from Dr. Ferris, a forensic pathologist who had extensive experience in examining bodies recovered from water. Noting in particular that water and silt had been found in her lungs, [361 Or. 693] Ferris opined that the victim had not died from strangulation but, rather, had drowned. Both Ferris and Hartshorne opined that the amount of morphine in the victim's system was insufficient to have caused her death. Ferris characterized the amount of morphine in the victim's body as relatively low, although Hartshorne believed that the amount was significant enough that it could have affected the victim's ability to fight off a strangulation attack. Both Ferris and Hartshorne acknowledged that the victim showed signs of pneumonia from having aspirated vomit, which they concluded had occurred when she was unconscious due to the morphine.

         In sum, there was unrefuted evidence that petitioner had had sexual intercourse with the victim, that the victim had been rendered unconscious due to morphine ingestion, that there were injuries on the victim's body, including her neck, and that petitioner had thrown her off a bridge.

         The disputed facts centered on how-and by extension where-petitioner had killed the victim, not on whether he had killed her. In light of Ferris's testimony, petitioner's trial counsel argued to the jury that petitioner should be acquitted of aggravated murder because the crime had not occurred in Washington County as alleged by the state but, instead, was committed in Clatsop County when petitioner threw HF off the bridge. It followed, defense counsel argued, that the state had failed to prove the venue element of the offense. Defense counsel acknowledged the terms of ORS 131.325, but argued that that statute did not authorize venue in Washington County because the place of the victim's death readily could be determined to be Clatsop County.

         As noted, counsel did not present any ground for the jury to acquit petitioner other than the venue defense, nor did counsel argue that there was any basis to convict petitioner of a lesser crime, although the jury was instructed on lesser-included offenses. The jury convicted petitioner of aggravated murder and sentenced him to death.

         B. Evidence Adduced at the Post-Conviction Trial

         In this proceeding, petitioner asserted, in pertinent part, that both Hartshorne and Ferris were wrong about [361 Or. 694] the cause of HF's death, and that she actually died of a drug overdose. Petitioner alleged that his trial counsel was inadequate in failing to develop and present that theory of death to the jury. More specifically, petitioner asserted that his counsel should have developed a theory that HF had con-sensually taken drugs and had sex with him, [4] and that she had died of an accidental overdose.

         In support of that claim, petitioner adduced evidence that, early in the investigative process, he had told his defense team that, shortly before her death, HF had willingly consumed alcohol, marijuana, morphine and other opioids with him. He also indicated that they had engaged in sexual intercourse. According to petitioner's account, he fell asleep, awakened at one point to find HF choking and vomiting, and helped her to the bathroom. He fell asleep again, and when he awoke later, he discovered that she was dead. He then wrapped her in a blanket, put her in his car, drove her to the coast, then threw her off the Astoria Bridge.

         Conflicting evidence was presented as to whether petitioner also told the defense team that he was not sure whether HF was dead when he threw her off the bridge. The trial court did not explicitly resolve that factual issue. It did, however, make several findings of fact and conclusions of law that implicitly resolved that conflict in the evidence in favor of petitioner's story that he had told counsel that the victim had died in Washington County[5] Accordingly, we accept the post-conviction court's implicit factual determination that [361 Or. 695] defense counsel knew that the venue defense was inconsistent with their client's version of the facts.

         The majority of petitioner's evidence in support of the pertinent claim consisted of expert testimony that the victim did not die either from strangulation or from drowning, but, rather, that she died from a drug overdose. Among other evidence, petitioner presented testimony from Ferris, who, as noted, had testified at the criminal trial that the victim died from drowning. Ferris testified in the postconviction proceeding that, despite his former opinion, he had come to believe that HF actually died of a morphine overdose. Ferris further testified that petitioner's trial counsel had withheld information from him about petitioner's account that he had found the victim dead in bed before throwing her off the bridge.

         The post-conviction court explicitly found Ferris not to be credible, concluding that his testimony was not "helpful in any manner" to petitioner.[6] However, the court did credit testimony that petitioner presented from two additional expert witnesses, Dr. Julien and Dr. Ophoven. Julien, a retired anesthesiologist, opined that the amount of morphine in HF's body was sufficient to have caused her death, and concluded that it was "very likely" that she had died of a morphine overdose, assuming she had not developed a tolerance to opioids. Ophoven, a forensic pathologist, testified similarly that HF had a potentially lethal level of morphine in her bloodstream. Ophoven also testified that she did not observe clinical findings typically associated with drowning, and that the injuries to HF's neck were not indicative of death by strangulation, given the lack of damage to internal structures in her neck. Although Ophoven could not ...

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