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Holbrook v. Amsberry

Court of Appeals of Oregon

December 6, 2017

BRADLEY CHRISTOPHER HOLBROOK, Petitioner-Appellant,
v.
Brigitte AMSBERRY, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

          Argued and submitted January 27, 2016

         Umatilla County Circuit Court CV051636; Rick W. Roll, Senior Judge.

          Matthew G. McHenry argued the cause and fled the briefs for appellant.

          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 General.

          Before Tookey, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge. [*]

         Case 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.

         Reversed and remanded.

          [289 Or. 227] DEHOOG, J.

         Petitioner, 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.

         On 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.[1] Accordingly, we reverse and remand for entry of a judgment granting postconviction relief.

         I. FACTS AND PROCEDURAL HISTORY

         We 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.

         A. Criminal Trials and Bar Proceedings

         In 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.

         In a 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 impropriety.

         The 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.[2] 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.

         The 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.

         In the 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 Holbrook I:

"'[PROSECUTOR]: Have you ever heard anything about the defendant having a secret correspondence with a 14-year-old girl?
"'[WITNESS]: Never.
"'[PROSECUTOR]: Did you ever know that the defendant came home with hickeys on his stomach and at unusual times of night?
"'[WITNESS]: No.
"'[PROSECUTOR]: Did you ever know that he would often be out away from his wife until 3:00, 4[:00] in the morning?
[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 ask them.
"'[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 been?
"'[WITNESS]: No.
"'[PROSECUTOR]: And do you know that he-prior to their divorce that he was in an adulterous relationship with another woman?
"'[WITNESS]: No.'
"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 access to?
"'[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 or-
"'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 aware.
[289 Or. 231]"'[WITNESS]: Oh, no.
"'[PROSECUTOR]: Are you aware that he would return home with hickeys on his stomach unexplained?
"'[WITNESS]: No.
"'[PROSECUTOR]: Are you aware that prior to the divorce he was in an adulterous relationship with another woman?
"'[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.

         After the verdict, petitioner's trial counsel moved for a new trial. He argued, among other things, that, under OEC 405(1), [3] "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 questions.[4]

         Thus, 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 (2005).

         Meanwhile, 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).[5] 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 omitted).

         On 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.

         B. Post-Conviction Proceedings and First Post-Conviction Appeal

         After 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 ...


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