and submitted January 27, 2016
County Circuit Court CV051636; Rick W. Roll, Senior Judge.
Matthew G. McHenry argued the cause and fled the briefs for
Rebecca M. Auten, Assistant Attorney General, argued the
cause for respondent. With her on the brief were Frederick M.
Boss, Deputy Attorney General, and Anna M. Joyce, Solicitor
Tookey, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: In 2002, petitioner was convicted of one count of
frst-degree sexual abuse. After a previous remand in this
post-conviction proceeding, the post-conviction court
determined that petitioner's trial counsel had performed
inadequately and ineffectively in failing to prepare for and
properly object to certain cross-examination questions that
the prosecutor asked of two of petitioner's character
witnesses at trial. The post-conviction court held, however,
that the inadequate performance did not prejudice petitioner
and, consequently, entered a judgment denying relief.
Petitioner appeals. Held: Petitioner was prejudiced
by trial counsel's inadequate performance. The prosecutor
lacked a reasonable basis for his cross-examination questions
regarding petitioner's purported inappropriate
relationship with a young female student. Those improper
questions prejudiced petitioner.
Or. 227] DEHOOG, J.
who, in 2002, was convicted of one count of first-degree
sexual abuse, ORS 163.427, appeals from a judgment denying
him post-conviction relief. This is petitioner's second
appeal in the post-conviction proceeding. In the first
appeal, we reversed the post-conviction court's denial of
relief and remanded for a new post-conviction trial on
petitioner's allegation that trial counsel had performed
inadequately under Article I, section 11, of the Oregon
Constitution and ineffectively under the Sixth Amendment to
the United States Constitution in failing to prepare for and
properly object to certain questions that the prosecutor
asked of two of petitioner's character witnesses at
trial. Holbrook v. Blacketter. 254 Or.App. 549, 297
P.3d 482 (2013) (Holbrook I). On remand, the
post-conviction court determined that trial counsel had
performed inadequately and ineffectively in three ways with
respect to those questions. However, the court held that the
inadequate performance did not prejudice petitioner and,
consequently, entered a judgment denying relief.
appeal, petitioner assigns error to the court's
determination that he was not prejudiced by trial
counsel's inadequate performance, and the state does not
challenge the court's determination that trial counsel
performed inadequately. We conclude that, on the facts found
by the postconviction court, petitioner was prejudiced under
Article I, section 11, by the inadequate
performance. Accordingly, we reverse and remand for
entry of a judgment granting postconviction relief.
FACTS AND PROCEDURAL HISTORY
state the facts consistently with the postconviction
court's explicit and implicit findings as long as there
is evidence in the record to support them. 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).
We outline petitioner's two criminal trials and the other
relevant [289 Or. 228] proceedings here. We provide
additional detail regarding the evidence presented at
petitioner's second criminal trial below, as necessary
during our analysis.
Criminal Trials and Bar Proceedings
2001, petitioner was tried on two counts of first-degree
sexual abuse for allegedly touching the victim, a 10-year-old
girl, on the vaginal area and buttocks while both petitioner
and the victim were visiting the home of a friend of the
victim. There were no third-party witnesses to the touching
and there was no physical evidence that it had taken place.
The jury deadlocked, and the court declared a mistrial.
new indictment, petitioner was charged with two additional
counts of first-degree sexual abuse arising from the same
incident. The indictments were joined and petitioner was
tried on three counts of first-degree sexual abuse. Before
the second trial began, however, petitioner filed a complaint
against the prosecutor with the Oregon State Bar, asserting
that, after the first trial, the prosecutor had made false
statements about him to jurors from the first
trial-statements that petitioner had had a secret
relationship with a young female student when he was a
teacher and that he had engaged in other acts of sexual
prosecutor did not deny that he had spoken with jurors from
the first trial and that he had discussed with them the
matters that petitioner alleged. The prosecutor's
statements to the jurors were based on assertions made to him
by Elizabeth Carpenter, the sister of petitioner's
ex-wife, Linda Holbrook. Carpenter claimed that Holbrook had
told her, among other things, that Holbrook suspected
petitioner of having an inappropriate relationship with a
student. The prosecutor submitted a letter to the Bar in
which he asserted that the things he heard from Carpenter
about petitioner, and that he had discussed with the jurors,
were only "rumors" and that Holbrook's
statement to Carpenter conveyed "an unconfirmed
suspicion." One of the jurors [289 Or. 229] stated that,
if the jury had known of those things during the first trial,
jurors would have voted differently.
prosecutor also informed the Bar that he had tried to
substantiate the allegation about petitioner's
relationship with a student but that he had been unable to
find any evidence to support the allegation. The prosecutor
did not discuss Carpenter's assertions with Holbrook, the
alleged source of Carpenter's information. Before the
second trial began, however, defense counsel provided the
prosecutor with a statement from Holbrook in which she denied
telling her sister about any such things and denied that any
of the underlying accusations were true.
second criminal trial, the court ruled that petitioner could
present evidence, in the form of character witnesses, of his
character trait of "sexual propriety." See
State v. Enakiev. 175 Or.App. 589, 29 P.3d 1160 (2001)
(evidence of defendant's character trait of sexual
propriety relevant in prosecution for sex crime). The defense
called several witnesses to testify to their opinions that
petitioner had the character trait of sexual propriety.
Because of scheduling constraints, the first two of those
witnesses, Millette and Chubb, testified out of order, during
a break in the prosecution's case-in-chief. During
cross-examination of Millette and Chubb, the prosecutor asked
each of them whether she knew of or had heard the things that
Carpenter had told the prosecutor that Holbrook had told her.
We set out those parts of the trial transcript in
"'[PROSECUTOR]: Have you ever heard anything about
the defendant having a secret correspondence with a
"'[PROSECUTOR]: Did you ever know that the defendant
came home with hickeys on his stomach and at unusual times of
"'[PROSECUTOR]: Did you ever know that he would
often be out away from his wife until 3:00, 4[:00] in the
[289 Or. 230]
"'[PETITIONER'S TRIAL COUNSEL]: Objection.
He's making a statement of fact when there's no
evidence to support it. He can ask whether-
"'THE COURT: I know what he can ask. If you have a
basis for asking them, fine. "'[PROSECUTOR]: I have
a basis. "'THE COURT: All right. Then go ahead and
"'[PROSECUTOR]: Did you ever know that he was out
until 3:00, 4[:00] in the morning and would come up at that
period of time without much explanation as to where he'd
"'[PROSECUTOR]: And do you know that he-prior to
their divorce that he was in an adulterous relationship with
"Another witness, Chubb, testified that petitioner had
an 'appropriate' 'upstanding' sexual
character. On cross-examination, a similar exchange occurred:
"'[PROSECUTOR]: Are you aware that while he was
married, he'd often come home at 3:00 Or. 4[:00] in the
morning without an explanation?
"'[WITNESS]: No. I wouldn't be aware of that.
"'[PROSECUTOR]: Are you aware that he was suspected
of having a relationship with a little girl writing letters
secretly to a post office box that his wife did not have
"'[PETITIONER'S TRIAL COUNSEL]: I'm going to
object to the past tense. He was suspected. He hasn't
identified whether [these are] *** Carpenter's suspicions
"'THE COURT: Overruled.
"' [PROSECUTOR]: Are you aware of that?
"'[WITNESS]: I-I just know what- "'THE
COURT: Ma'am, you're either aware or you're not
[289 Or. 231]"'[WITNESS]: Oh, no.
"'[PROSECUTOR]: Are you aware that he would return
home with hickeys on his stomach unexplained?
"'[PROSECUTOR]: Are you aware that prior to the
divorce he was in an adulterous relationship with another
"'[WITNESS]: No, I'm not.'"
254 Or.App. at 552-54 (brackets in Holbrook I). The
jury found petitioner guilty of one count of first-degree
sexual abuse in a nonunanimous verdict; it acquitted him of
the two other counts.
the verdict, petitioner's trial counsel moved for a new
trial. He argued, among other things, that, under OEC 405(1),
"the state's attorney engaged in improper
cross-examination of defense witnesses concerning the
character of defendant for sexual propriety." In a
letter opinion denying the motion, the trial court primarily
faulted trial counsel's response to the prosecutor's
questions, noting that counsel had failed to "ask the
court for a hearing outside the presence of the jury"
and that the objection that counsel did make "did not
adequately apprise the court of the basis for his objection
about the one specific instance of conduct or that the
objection was meant to challenge all questions [289 Or. 232]
concerning all specific instances of conduct." The court
also noted that, in its view, the facts established that the
prosecutor had a good faith basis for the
the criminal trial court entered a judgment of conviction. On
direct appeal, we affirmed without opinion and the Supreme
Court denied review. State v. Holbrook, 196 Or.App.
353, 103 P.3d 1211 (2004), rev den, 338 Or. 681
the Bar instituted a proceeding against the prosecutor. As we
described it in Holbrook I, the Bar alleged
"that the prosecutor's questions to Millette and
Chubb on cross-examination violated Code of Professional
Responsibility Disciplinary Rule (DR)
7-106(C)(1). The Bar trial panel found that the
prosecutor's questions were improper under a court-made
corollary to OEC 405(1) because the prosecutor 'did not
have a good faith belief that [petitioner] had actually
engaged in the conduct in question.' In re
Tichenor. 340 Or. 108, 111-12, 129 P.3d 690 (2006)
(internal quotation marks omitted). The Bar trial panel then
concluded that, on that basis, the prosecutor had violated DR
7-106(0(1). Tichenor, 340 Or at 112."
Holbrook I, 254 Or.App. at 554-55 (footnote
review, the Supreme Court disagreed with the Bar trial panel.
The court held that DR 7-106(0(1) does not apply to
cross-examination questions about specific instances of
conduct posed to character witnesses because [289 Or. 233]
OEC 405(1) and its corollary do not require such questions to
be supported by admissible evidence, whereas DR 7-106(C)(1)
applies only when such support is required.
Tichenor, 340 Or at 116. Accordingly, the Supreme
Court dismissed the Bar's complaint against the
prosecutor without considering whether the prosecutor had
violated the corollary to OEC 405(1). Id.
Post-Conviction Proceedings and First Post-Conviction
his conviction was affirmed on appeal, petitioner sought
post-conviction relief. In his petition, he alleged, among
other things, that trial counsel had performed inadequately
under Article I, section 11, and the Sixth Amendment by
failing "to make attempt to prevent the state from
introducing improper character impeachment. *** Counsel
should have, at the very least, moved for a hearing outside
jurors' presence." In support of that allegation,
petitioner sought to introduce testimony by his trial counsel
before the Bar trial panel about what counsel knew and
believed at the time ...