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.

Sparks v. Premo

Court of Appeals of Oregon

December 6, 2017

JEFFERY DANA SPARKS, Petitioner-Appellant Cross-Respondent,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent Cross-Appellant.

          Argued and submitted March 31, 2016.

         Marion County Circuit Court 07C11052; A151267 Marshall L. Amiton, Senior Judge.

          Michael D. Curtis argued the cause for appellant-cross-respondent. With him on the briefs was Bert Dupre.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent-cross-appellant. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary:

         Petitioner was convicted of multiple counts of aggravated murder and sentenced to death. After his convictions and sentence were affirmed on direct review, he brought an action for post-conviction relief, claiming that he had received inadequate assistance of counsel during the guilt and penalty phases of his trial. The post-conviction court determined that he failed to prove his guilt-phase claims, which were based on claims that trial counsel failed to effectively undermine the limited direct physical evidence that tied petitioner to the murder. However, the post-conviction court granted relief to petitioner on his penalty-phase claims, concluding that trial counsel's strategic decision to forgo presenting mitigation evidence to the jury during the penalty phase was not supported by a reasonable investigation into the available evidence, and that trial counsel's inadequate investigation prejudiced petitioner. Petitioner appealed the resulting judgment, challenging the post-conviction court's denial of his [289 Or. 160] guilt-phase claims. Defendant cross-appealed, asserting that the post-conviction court erroneously granted relief to petitioner on his penalty-phase claims. Held: On appeal, the post-conviction court did not err in concluding that petitioner failed to demonstrate that trial counsel's performance during the guilt phase of the criminal trial was inadequate. On cross-appeal, the post-conviction court did not err in concluding that trial counsel's decision to forgo presentation of mitigation evidence was not supported by a reasonable investigation and trial counsel's failure tended to affect the result of the case.

         Affirmed on appeal and cross-appeal.

          [289 Or. 161]

          ORTEGA, P. J.

         In 1999, in a two-phase trial, a jury found petitioner guilty of several counts of aggravated murder for killing a 12-year-old girl and determined that he should be sentenced to death. On direct review, the Supreme Court affirmed his convictions and death sentence. State v. Sparks. 336 Or. 298, 300, 83 P.3d 304, cert den, 543 U.S. 893 (2004). Petitioner then brought this action for post-conviction relief, claiming that he received inadequate assistance of trial counsel[1] in both phases of the jury trial. The post-conviction court denied relief as to petitioner's guilt-phase claims, concluding that petitioner failed to prove those claims. However, the court granted relief to petitioner on his penalty-phase claims, concluding that trial counsel's strategic decision to forgo presenting "mitigating evidence"[2] to the jury during the penalty phase was not supported by a reasonable investigation into the available mitigating evidence, and that petitioner was prejudiced by trial counsel's inadequate investigation. Accordingly, the post-conviction court ordered a retrial of the penalty phase. Petitioner appeals and the superintendent cross-appeals the resulting judgment.

         On appeal, petitioner asserts that trial counsel provided inadequate assistance during the guilt phase when he failed to effectively counter the limited direct physical evidence that tied petitioner to the victim's murder, and that the post-conviction court erred by concluding otherwise. In his view, trial counsel's failure to hire a forensic pathologist hindered counsel's ability to effectively undermine the testimony of the forensic pathologist who testified for the [289 Or. 162] prosecution about his findings at the victim's autopsy. He claims that trial counsel retained a forensic scientist too late to allow her to effectively "work the case" and that, regardless, he should have called her as a witness during the trial to raise doubts about the limited direct physical evidence that tied petitioner to the crime scene.

         On cross-appeal, the superintendent asserts that the post-conviction court erroneously concluded that petitioner received inadequate assistance during the penalty phase of the trial. In the superintendent's view, trial counsel made a reasonable strategic choice to forgo introducing mitigating evidence because trial counsel's preliminary mitigation investigation reasonably led him to conclude that petitioner's best chance to avoid the death penalty was to focus exclusively on convincing the jury that the state could not prove that petitioner was a future danger to society-i.e., the "future dangerousness" question. The superintendent maintains that the record shows that trial counsel's mitigation investigation was sufficient to allow him to make the reasonable and appropriate tactical decision that presenting mitigating evidence could undermine his stronger "future dangerousness" argument. Alternatively, the superintendent argues that, even if trial counsel failed to exercise reasonable professional skill and judgment, petitioner did not suffer prejudice from that failure.

         On appeal, we conclude that the post-conviction court did not err in concluding that petitioner failed to demonstrate that trial counsel's performance during the guilt phase of the trial was inadequate. On cross-appeal, we conclude that the post-conviction court did not err in concluding that trial counsel's decision to forgo presentation of mitigation evidence was not supported by a reasonable investigation and trial counsel's failure tended to affect the result of his case. Accordingly, we affirm.

         I. UNDERLYING CRIMES

         For context, we begin with the facts of the underlying crimes as recounted by the Supreme Court on direct review.

[289 Or. 163] "On April 20, 1998, the victim, who was 12 years old, left her home on her bicycle. At about 6:00 p.m. the victim's mother and her friend, Blake, saw the victim with some friends near the local post office. Defendant also was present. After speaking with her mother, the victim returned home for a short time and then left again to retrieve her bicycle, which had a flat tire. At about 8:30 p.m., the victim's grandmother saw the victim walking her bicycle with a man with long dark hair similar to defendant's hair.
"That night, according to Keith, defendant and the victim entered the trailer where Keith and defendant lived. Defendant took the victim into the back bedroom and told Keith that he was 'not home.' An hour later, defendant came out of the bedroom and told Keith to go buy him condoms and a douche. Defendant had a cut on the right side of his face that had not been there before. Keith also heard what sounded like sexual sounds coming from the back bedroom.
"At some point that night, Keith saw the victim come out of the bedroom and go into the bathroom. Defendant followed her into the bathroom and Keith heard water running. At about 12:30 a.m., defendant told Keith that he was taking the victim home, and left with her. Defendant returned alone about an hour later and seemed agitated. Defendant left again at 3:00 a.m. and returned at 6:00 a.m.
"Rodriguez, an acquaintance of defendant, saw defendant at approximately 4:00 a.m. walking from the park or the railroad tracks. Defendant was wearing a black trench-coat and a black stocking hat. When Rodriguez saw defendant again at 5:30 a.m., he was not wearing the coat or hat, and appeared to be nervous and sweating.
"The victim did not return home. Throughout the night, the victim's mother and Blake drove around and visited the victim's friends in an attempt to locate her.
"On the morning of April 21, 1998, while operating a train, an engineer observed what appeared to be a sleeping transient on the side of the railroad embankment. He called his dispatcher, who then notified the Yamhill County Sheriffs Office. The police responded to the call and discovered the partially nude body of the victim. Someone had strangled her both manually and by ligature. There was a small bruise to the entrance of her vagina consistent with sexual assault. Swabs of the victim's body were negative [289 Or. 164] for the presence of semen and defendant's DNA. However, police found a Band-Aid near the victim's body that contained DNA that was consistent with defendant's DNA and that could not have come from the victim.
"On the morning of April 21, defendant told Keith to clean the trailer because the police would be searching it. Keith burned drug paraphernalia behind the trailer, and defendant also may have burned some items. Defendant told Keith not to tell the police that he had left at 3:00 a.m. After the police interviewed Keith on April 22, defendant tried to convince Keith that the victim had not been at the trailer and he threatened to kill Keith if he caused any problems.
"On April 21, Detectives Runyon and Crabtree interviewed defendant. Defendant had a fresh scratch on the right side of his face, fresh scratches on his arm, and bruising around his biceps. During the interview, defendant repeatedly changed his story. After initially denying that he knew the victim or had had any contact with her, defendant admitted to meeting her once on April 20 in front of the market.
"Runyon, Crabtree, and Detective Ludwig interviewed defendant a second time on April 23. They confronted defendant with the information that Keith had provided. Defendant admitted that he was with the victim in his bedroom and had fondled her buttocks, breasts, and vagina. However, defendant denied having sex with her.
"The state charged defendant with 15 counts of aggravated murder, ORS 163.095; one count of first-degree sexual abuse, ORS 163.427; one count of first-degree kidnapping, ORS 163.235; one count of second-degree kidnapping, ORS 163.225; one count of first-degree attempted rape, ORS 163.375 and ORS 161.405; and one count of second-degree attempted rape, ORS 163.365 and ORS 161.405."

Sparks, 336 Or at 300-02.

         At trial, petitioner's trial counsel attempted to establish reasonable doubt that petitioner committed the murder because, although petitioner had admitted to having sexual contact with the victim in his residence, there was evidence that the victim had been with petitioner [289 Or. 165] "willingly" and that they had been in "good standing" when they left petitioner's residence. Accordingly, petitioner's trial counsel attempted to show that "there was no reason for him to kill her" and that, given the lack of physical evidence tying petitioner to the crime scene, there was reasonable doubt that he killed the victim. The jury found petitioner guilty on all charges.

         In the subsequent penalty phase of the trial for petitioner's aggravated murder convictions, the prosecution presented several witnesses who testified about petitioner's extensive history of criminal behavior, including a long history of sexual assaults on women and underage children, and a history of propositioning underage girls for sex. In addition, the prosecution presented evidence about petitioner's extensive possession, use, and distribution of controlled substances, and evidence outlining the conclusions from two psychological evaluations of petitioner performed in 1991. Those evaluations included diagnoses of sexual disorder and antisocial personality disorder, with elements of sadism in petitioner's sexual arousal pattern, and opinions that petitioner had a "mixed personality disorder with paranoid or sociopathic traits." Dr. Maletzky opined that petitioner presented a "very high risk to reoffend sexually" and concern that he would "use violence to gain access to additional victims for sexual crimes." On cross-examination, however, he acknowledged that, in his opinion, petitioner presented less than a 50 percent chance of committing serious violent assaults in prison.

         Petitioner's trial counsel argued to the jury that the state could not carry its burden, as required by ORS 163.150(1)(b)(B), to prove beyond a reasonable doubt that "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." The jury had to unanimously answer "yes" to that question to recommend a death sentence. ORS 163.150(1)(e), (f). Accordingly, trial counsel attempted to convince the jury that the prosecution could not prove "future dangerousness" beyond a reasonable doubt because the evidence showed that, if petitioner was sentenced to life without the possibility of parole, he did not present a [289 Or. 166] danger to the relevant "society"-i.e., the adult male prison population.

         Trial counsel presented evidence that petitioner had been "written up" for disciplinary reasons only twice for minor infractions in almost six years of imprisonment, and that he had received favorable reviews for the work he had performed as an inmate and for assistance he provided to other inmates. Trial counsel also presented expert testimony from Dr. Cunningham, a national expert on "future dangerousness, " who testified that, under a three-prong analysis (consisting of statistical data analysis, a review of petitioner's relevant personal history and prison record, and an in-person interview), defendant was not a future danger to the adult male prison population. He opined that petitioner presented a low risk (less than 20 to 33 percent) of inflicting serious violence on adult males in prison, and a risk in the seven to 15 percent range for persistent violence in prison. Cunningham acknowledged that, based on petitioner's past behavior, he presented a high risk that he would "sexually offend [against] young girls, young boys, and women if * * * outside of prison, " and that, outside of prison, there was a concern of violence in the community in general-even against adult males. In pursuing the "future dangerousness" line of defense, trial counsel did not present any testimony from petitioner's family and acquaintances, nor did trial counsel present any evidence as to petitioner's social history and upbringing.

         The prosecution countered trial counsel's penalty phase case by arguing to the jury that "society" in ORS 163.150(1)(b)(B) was not limited to the adult male prison population because the legislature intended "society" to refer more broadly to the unsuspecting public. Accordingly, the prosecution asserted that it had proved "future dangerousness" because petitioner's trial counsel had conceded that petitioner was a danger to society outside of prison and, alternatively, even if "society" was limited to the prison population, the evidence showed that petitioner would find someone to prey upon in prison.

         The jury determined that petitioner had acted deliberately, that defendant posed a continuing risk to society, and [289 Or. 167] that defendant should receive a death sentence.[3] Accordingly, the trial court sentenced petitioner to death.

         II. POST-CONVICTION CLAIMS

         In a petition for post-conviction relief, petitioner raised numerous claims for relief, most of which are not at issue on appeal. As relevant to this appeal, petitioner asserted that he was deprived of his constitutional rights to adequate assistance of counsel during the guilt phase of the trial because, given counsel's defense theory-that there was reasonable doubt that petitioner was with the victim when she was killed-trial counsel ineffectively undermined the significance and credibility of the forensic pathologist who testified for the state, and ineffectively undermined the value of the limited physical evidence that tied petitioner to the victim's murder. To support those claims, petitioner alleged that trial counsel had performed inadequately by failing to (1) adequately prepare to cross-examine the pathologist who testified for the state, (2) retain a forensic pathologist to consult with trial counsel and, as appropriate, testify at trial, (3) timely retain a forensic scientist, and (4) call the forensic scientist whom he eventually retained as a witness to undermine the value of the physical evidence that was located with the victim's body.

         Petitioner also claimed that he had received inadequate assistance at the penalty phase of his trial because trial counsel performed an inadequate penalty-phase investigation into potential mitigation evidence, which meant [289 Or. 168] that trial counsel's decision to focus solely on "future dan-gerousness" was not a reasonable strategic choice. Petitioner asserted that, had trial counsel performed an adequate investigation and presented evidence that was available (with additional investigation) about petitioner's "life story marked by horrific physical and sexual abuse, poverty, and neglect, " the jury likely would not have sentenced him to death.

         The post-conviction court denied petitioner's claims as to the guilt phase of trial counsel's representation, concluding that petitioner presented insufficient evidence to sustain his allegations of inadequate assistance. However, as to the penalty phase, the court concluded that, based on what trial counsel had learned during his preliminary investigation into petitioner's background, "[a]t minimum, there were enough clues in what the defense team did know, that a reasonable attorney would and should have continued the investigation further before deciding not to present mitigation evidence." The court explained that "the investigation in this case was not complete enough before it was decided to terminate the investigation and not present mitigation evidence to the jury." The court also concluded that, if the mitigation evidence had been presented at trial, "there is a reasonable probability that the results of the proceedings would have been different (federal standard) and that such failure had a tendency to affect the result of the trial (Oregon standard)." Accordingly, the post-conviction court granted petitioner relief and ordered a retrial of the penalty phase.

         A. Constitutional Right to Adequate Assistance of Counsel

         Article I, section 11, of the Oregon Constitution guarantees a criminal defendant the constitutional right to "adequate" representation. Montez v. Czerniak, 355 Or. 1, 6, 322 P.3d 487 (2014). Similarly, the Sixth Amendment to the United States Constitution guarantees the right to "effective" assistance of counsel. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Although we interpret and apply Article I, section 11, independently of the Sixth Amendment, the analyses are "functionally equivalent." Montez, 355 Or at 6-7.

         [289 Or. 169] To demonstrate that he is entitled to post-conviction relief, petitioner must show that counsel failed to exercise reasonable professional skill and judgment, and that petitioner suffered prejudice as a result of counsel's inadequacy. Johnson v. Premo. 361 Or. 688, 699, 399 P.3d 431 (2017). We review a post-conviction court's determinations for errors of law, accepting the court's findings of historical fact if there is evidence in the record to support them. Montez, 355 Or at 8. If the post-conviction court fails to make a finding, and there is evidence from which facts could be found in more than one way, we presume that the ...


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.