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Dent v. Franke

United States District Court, D. Oregon

May 1, 2018

BARRY RICHARD DENT, Petitioner,
v.
STEVE FRANKE, as Superintendent, Two Rivers Correctional Institution, Respondent.

          C. RENEE MANES Assistant Federal Public Defender Attorney for Petitioner

          ELLEN F. ROSENBLUM Attorney General NICK K. KALLSTROM Assistant Attorney General Department of Justice Attorneys for Respondent

          OPINION AND ORDER

          ANNA J. BROWN, United States Senior District Judge.

         Petitioner, an inmate at the Two Rivers Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court DENIES the First Amended Petition for Writ of Habeas Corpus (ECF No. 33) .

         BACKGROUND

         I. Summary of Facts

         In December 2000, Petitioner purchased a home and property in Columbia County on contract from the McGilvra Family Trust. The property was located' about 200 yards from the residence of Laurene McGilvra, a 73-year-old woman who was the sole surviving trustee.[1]By April 2002, Petitioner became frustrated with the condition of his home and the property, and with a pre-existing water rights agreement that ran with the property. Petitioner expressed his frustration to Mrs. McGilvra and to her son, Tom McGilvra, who lived nearby and whose own property benefited from the water rights agreement. Petitioner stopped making payments on the contract, and on May 19, 2002, Petitioner taped a note to Mrs. McGilvra's door stating that the property was "incorrectly contaminated in more ways than one, " that he would not clean up "any poisons or debris on the property, " that the property sale documents were "a mess which was designed to excessively control and/or destroy" him, and that the people named in the agreement were "people who are gone and/or DEAD." Resp. Exh. 118, Exh. A at p. 89. The note frightened Mrs. McGilvra, who consulted her children, her friends, and her attorney for advice.

         On May 21, 2002, Mrs. McGilvra was preparing to leave the next day for a trip out of the state. Her son, Tom McGilvra, spoke with her that night. When the friend who was going to give Mrs. McGilvra a ride to the airport arrived at Mrs. McGilvra's house on the morning of May 22, 2004, the front door was broken and Mrs. McGilvra was not home. Tom McGilvra went to the home later that day and found the front door had been kicked in and a pool of blood in the front yard, which prompted him to call the police. The responding officers discovered "significant bloodshed evidence within the house" suggesting "that some person, after having been wounded, had been taken from the master bedroom of the house, through the house and out of the house through the front door." The officers also found blood on the siding of the house, in the yard, and at the top of the driveway. The blood matched Mrs. McGilvra's DNA profile.

         The officers were unable to locate Mrs. McGilvra and brought in two search dogs to track her scent. Both search dogs tracked the scent to the edge of Petitioner's property. When asked, Petitioner refused permission for the second tracking dog to continue onto his property.

         On May 24, 2002, police officers obtained a warrant to search Petitioner's residence. They found a knife between a mattress and box spring. Petitioner stated that he owned the knife. An Oregon State Police forensic scientist examined the knife and found blood on the hilt. When later tested, the blood on the knife also matched Mrs. McGilvra's DNA profile.

         On the morning of May 25, 2002, Petitioner's house and a shed burned down. Officers arrested Petitioner on suspicion of arson, and during questioning he admitted to starting a fire in his house. When asked about Mrs. McGilvra, Petitioner stated he did not care that she was missing. When asked whether he did something with her body, he responded, "I wouldn't say." On July 15, 2003, Petitioner pleaded guilty in Columbia County Circuit Court to one count of Arson, and was sentenced to 60 months of probation. On February 4, 2004, a citizen found human remains near a logging road in Columbia County. Forensic scientists identified the remains as those of Mrs. McGilvra.

         II. Summary of Proceedings

         On February 13, 2004, a Columbia County grand jury indicted Petitioner on five counts of Aggravated Murder, one count of Murder, one count of Kidnaping in the First Degree, one count of Kidnaping in the Second Degree, and two counts of Burglary in the First Degree. Resp. Exh. 104-A. The trial judge appointed two attorneys, Joseph Watson and Daniel Woram, to represent Petitioner.

         In November 2004, Watson raised concerns with the trial court as to Petitioner's capacity to assist counsel in his defense. On November 30, 2004, the trial court conducted a hearing. At the hearing, Petitioner's attorneys presented the testimony and written report of Norvin R. Cooley, Ph.D. Dr. Cooley opined that Petitioner did not meet Oregon statutory criteria establishing his competency to stand trial.[2] Following the hearing, the trial judge ordered Petitioner to be evaluated at the Oregon State Hospital ("OSH") as to his capacity to proceed. Petitioner was admitted to OSH on December 7, 2004, where he remained until his discharge in March 2005. Prior to Petitioner's discharge, Ronald A. Glaus, Ph.D., Senior Clinical Psychologist, prepared an evaluation regarding Petitioner's ability to aid in his defense.

         In his evaluation, Dr. Glaus noted this was Petitioner's second admission to OSH.[3] Pet. Exh. A, p. 159. Dr. Glaus interviewed Petition for over an hour, and referred to the charging documents, OSH chart notes and reports, and the November 9, 2004, evaluation signed by Dr. Cooley. Id. Dr. Glaus reported that, when asked, Petitioner understood that the purpose of the interview was to evaluate Petitioner to determine if he was ready to aid and assist his lawyers. Id.

         Dr. Glaus noted that as of the evaluation date, Petitioner continued to receive prescription Risperidone, and had "shown stabilization in his mental condition and currently presents with no signs or symptoms of a mental illness." Pet. Exh. A, p. 164. After relating Petitioner's medical and mental health history, and the results of cognitive testing, Dr. Glaus provided the following "Mental Health Summary/Conclusions:"

[Petitioner] presented upon examination as focused, goal-directed, and cognitively clear. He did not demonstrate any signs or symptoms of a formal thought disorder. His affect was calm and his mood appropriate to the circumstance. His intellectual level appeared to be at least average, if not slightly above average. His behavior was purposeful and within normal limits.

Pet. Exh. A, p. 166.

         Dr. Glaus gave Petitioner an Axis I diagnosis of "Schizophrenia, paranoid type (by history only), " and an Axis II diagnosis of "History of diagnosis of a personality disorder, not otherwise specified." Id. Regarding Petitioner's ability to assist in his defense, Dr. Glaus stated that Petitioner "showed a good understanding of the proceedings against him, " "appear[ed] quite able to assist and cooperate with his legal counsel, " and "demonstrated a sound ability to participate in his defense." Pet. Exh. A, p. 167. Dr. Glaus concluded that Petitioner's "mental disease of schizophrenia, paranoid type, by history only, does not presently incapacitate his basic understanding of the legal proceedings against him, the ability to cooperate with counsel, or the ability to participate in his defense. He presents as having the capacity to stand trial and to maintain the psychological resiliency to endure the distress of a trial." Id. Dr. Glaus recommended that Petitioner "[f]ollow the directions of medical authority in the use of psychotropic drugs." Pet. Exh. A, p. 168.

         Following Petitioner's discharge from OSH on March 7, 2005, the trial judge scheduled an aid-and-assist hearing for May 2005. On May 4, 2005, however, Attorney Watson moved to withdraw, citing a breakdown in the attorney-client relationship. The trial judge granted the motion, but cautioned Petitioner, "I don't want you to think that lack of cooperation with future counsel will result in a similar response from the court." Tr. 101. Petitioner agreed to Attorney Woram's continuation as co-counsel, and the trial judge appointed Charles Fryer as lead counsel. On May 19, 2005, Petitioner formally accepted Fryer as his lead attorney. Fryer then reported to the court that "he was authorized by [Petitioner] to say that he does not wish to take advantage of his right to request a hearing on the [aid and assist] issue and wishes the court to make the decision based upon the information the court has." Tr. 109. It is not clear from the record before this Court what information, other than Dr. Glaus's report, the trial judge had before him.

         Over the next several months, several pretrial motions were litigated, a number of which were argued at an omnibus hearing on November 30, 2005. On March 27, 2006, the trial judge ruled on several of the motions by letter opinion.

         In April 2006, Petitioner filed a pro se motion for the appointment of a new attorney or.to represent himself, and Fryer filed a motion regarding Petitioner's fitness to proceed. In support of his motion, Fryer offered an extensive affidavit detailing Petitioner' mental health treatment and diagnosis history, information from Columbia County Jail personnel, and reports of investigators' together with counsels' interactions with Petitioner. Fryer concluded that Petitioner was not able to aid and assist. Resp. Exh. 123. Fryer also noted Petitioner's adamant denial that he suffered from any mental illness and strenuous objection to the motion. Id. On April 6, 2006, the trial judge issued an order finding reason to doubt Petitioner's fitness to proceed by reason of insanity and ordering Petitioner to OSH for a competency evaluation. Resp. Exh. 123. On April 13, 2006, Petitioner was re-admitted to OSH.

         On June 22, 2006, consulting psychiatrist Gary Field, Ph.D., conducted an evaluation of Petitioner's ability to stand trial and prepared a written report. Pet. Exh. A, pp. 66-72. In conducting his evaluation, Dr. Field relied upon an hour-plus clinical interview with Petitioner, as well as OSH records and reports from Petitioner's current hospitalization. Pet. Exh. A, p. 66.

         Dr. Field noted that when Petitioner arrived he was not taking psychotropic medications, and had not been doing so since May 2005. Pet. Exh. A, p. 67. Upon Petitioner's arrival, an Interdisciplinary Treatment Note indicated he "presented with no signs of mental illness, " that he was not a behavior problem on the ward, and that he "presented highly suspicious to paranoid thinking, but not at the level of a delusional disorder." Id. Other treatment notes indicated that Petitioner "perseverated on his legal case, " but that his "thinking was clear except for his perseveration and negativity regarding his legal case;" that he "presented as defensive and grandiose" and "became upset when others challenged his logic;" that he was "agitated and angry about his lawyer" and was "often irritable." Pet. Exh. A, p. 68. It was also noted, however, that Petitioner's "thoughts were organized and goal-directed, " that he was "knowledgeable about the legal system, " his "thinking was clear and well-organized, " he "participated in ward treatment groups and classes, " and that "[n]o evidence of psychosis was present." Id. Dr. Field summarized the treatment notes as follows:

In summary, the clinical record documents no reports of observable evidence of psychosis during this hospital admission. In a May 24, 2006, Treatment Note, the ward psychiatrist reports a review of [Petitioner's] treatment records and concludes that insufficient evidence was found to justify a diagnosis of schizophrenia, paranoid type. Given the absence of significant signs of psychosis, the ward psychiatrist concludes [Petitioner] likely suffers from an Axis II personality disorder only.

Id.

         In his Mental Summary and Conclusions, Dr. Field noted that while Petitioner was previously diagnosed with schizophrenia, paranoid type, Petitioner's current treating psychiatrist, Dr. Chen, "raises questions regarding the existence of any Axis I mental disorder." Pet. Exh. A, p. 70. Dr. Field's review concluded that while Petitioner has "a personality disorder involving paranoid, narcissistic, and antisocial features; the personality disorder alone may explain his presentation, " and that Petitioner "has been off psychotropic medications for more than a year without presentation of psychotic symptoms." Id. Dr. Field further noted that while Petitioner has shown "consistent suspiciousness of others, a demandingness that his needs be met immediately, denigration of others by attitude and statements, and defensiveness if challenged, " he has not "presented evidence of psychosis" during the course of his hospitalization." Id.

         Dr. Field stated that Petitioner's diagnostic picture "is unclear." Pet. Exh. A, p. 71. While Petitioner "has some history that would suggest schizophrenia . . . his presentation over the past several months (or years) argues against that diagnosis." Id. Dr. Field explained the existence of two prominent hypotheses:

The 'first is that [Petitioner] has an Axis I mental illness (along with his personality disorder) that is in current remission. The second hypothesis is that [Petitioner's] personality disorder stands alone, and that he may become psychotic in certain prolonged stressful situations. The prevailing evidence (i.e. -recent functioning without psychotropic medications) currently favors this second possibility. Certainly [Petitioner's] personality characteristics of paranoia and narcissism dominate his clinical picture. It is likely with stress his paranoia and narcissism rise to a level of meeting criteria for delusional disorder, persecutory type.

Id. Ultimately, Dr. Field rendered the following diagnosis:

Axis I Delusional disorder, persecutory type, in remission Rule out schizophrenia, paranoid type, in remission
Axis II Paranoid personality disorder with narcissistic and antisocial features.

Id.

         Regarding Petitioner's ability to assist in his defense, Dr. Field stated that Petitioner "appears currently capable of understanding the proceedings against him, " "appears currently capable of assisting and cooperating with a legal counsel as a technical advisor, " and "appears currently capable of participating in his defense." Pet. Exh. A, pp. 71-72. Dr. Field concluded:

[Petitioner's] mental disease of delusional disorder, persecutory type, in remission, does not presently incapacitate his basic understanding of the legal proceedings against him, the ability to cooperate with counsel, or the ability to participate in his defense. He presents as having the capacity to stand trial and to maintain the psychological resiliency to endure the distress of a trial.

Id. Petitioner was release from OSH on June 28, 2006.

         On July 3, 2006, the trial court held a competency hearing. Although the trial judge had before him Dr. Field's report, neither the prosecutor nor Petitioner's counsel offered any other evidence. The trial court concluded that, "Given the report of Dr. Field I believe this court has no option but to find that [Petitioner] is able to aid and assist in his defense in this matter and will so find." Tr. 197.

         Having found Petitioner able to aid and assist in his defense, the trial court turned to the matter of Petitioner's motion for removal of counsel. In an extensive colloquy with Petitioner (spanning over twenty pages of transcript), the trial judge discussed Petitioner's dissatisfaction with his attorneys and his intent to represent himself. In particular, Petitioner explained that he was unhappy about the delay in bringing the case to trial and about the challenges to his mental health. He was also unhappy that his attorneys had not followed through in investigating witnesses and issues he deemed important to his defense. Tr. 201-17. Petitioner told the court: "It's my right to represent and defend myself and that is what I must do. I am competent, my case is winnable." Tr. 217. Petitioner also noted that he had successfully worked with attorneys in the past and acknowledged that he may need a "legal advisor" to help him "with the protocol in the court." Tr. 219.

         After hearing Petitioner's concerns, the trial judge cautioned Petitioner against representing himself:

You've indicated that you wish to represent yourself, which seems to me to be a huge mistake. Obviously there is no more difficult technical type of legal proceeding that is held in the state Circuit Court than a capital Murder case, and as you've identified, understandably you have no legal training and even if you did have legal training it would seem to me that as the defendant you may not have the objectivity to do an appropriate defense of the case.
And so I guess I cannot state anymore strongly-it seems to me to be an absolute mistake if not a disaster for you to attempt to defend yourself. But you are also competent, as has been determined by the state hospital and this court, to make decisions good and bad and so if you wish to be represented in this matter, which I would recommend, then you will have to work with Mr. Fryer and Mr. Woram.
And in the event that you decide to represent yourself I would not be appointing different counsel for purposes of giving you advice. You would still be required to rely on Mr. Fryer and Mr. Woram for your legal assistance in the event that you were to decide to try the case.

Tr. 230. Following this warning, Petitioner explained that he would not work with Fryer or Woram, stating: "I do assert my rights to defend myself. I realize-I know all the things you're saying." Tr. 231. He further explained, "I do understand the heavy responsibility put on me." Tr. 232.

         The trial court presented Petitioner with a waiver-of-attorney form. Resp. Exh. 125. The form explained in some detail the benefits Petitioner would for ego by representing himself, and required Petitioner to acknowledge each of those benefits would be lost. Id. On the form, Petitioner indicated that he had "16 " years of education; that he had been represented by an attorney in a criminal proceeding in the past; that he understood his rights; and that, he understood the disadvantages to self-representation. Id. Petitioner inquired of the judge whether he could amend the form by interlineation to specify that any appointed legal advisor would be appointed "only for protocol." Tr. 233; Resp. Exh. 125, p. 1. The court then engaged in further colloquy with Petitioner to confirm that Petitioner would be permitted to conduct jury selection, receive discovery, and receive his attorneys' "work product." Tr. 236-38, 256. The trial judge ultimately accepted Petitioner's Waiver of Attorney form:

I'm going to allow you to waive your right to counsel. I am going to continue Mr. Fryer and Mr. Woram as counsel to provide you with advice in this case and I'm going to instruct them to be present throughout the course of the trial to provide you that assistance.
It's up to you to choose whether you utilize them or not. I would urge that you do so.

Tr. 241.

         Four days later, at a further hearing on July 7, 2006, the trial judge re-visited the matter of self-representation:

[B]efore we continue today I just wanted to make sure that it is still your intention to represent yourself in this matter. You've had a few days to give some thought to it. Obviously you've received a fair amount of materials. I don't know whether or not you've had any change of heart, realizing the grave responsibility that you are taking on.
And I don't believe that I have any additional words that I can offer that would express my concern about the decision that you've made to represent yourself and the seriousness of this matter and the general, almost I would say universal belief that representing one's self is an absolute mistake, and that -- and feel the need just to once again reiterate that before we proceed further and insure that it is still your desire to represent yourself given the court's indication that it would not disqualify or remove your attorneys from this case that have been appointed.

         So ..., is it still your intention to represent yourself? Tr. 259-60. Petitioner confirmed that he still intended to represent himself, explaining, "I give it serious consideration quite often[.]" Tr. 260. The court again accepted Petitioner's waiver, and explained that the appointment of Fryer and Woram would continue such that "[t]hey are available to you at anytime in this case." Tr. 260-61.

         Jury selection took place from July 18, 2006, through July 26, 2006. Petitioner questioned prospective jurors, including as to the degree of knowledge they had about the case, their knowledge of and/or relationship to persons involved the case, and whether they would give additional weight to the testimony of police officers. Petitioner argued bases to exclude several jurors, and exercised his peremptory challenges.

         On August 1, 2006, the guilt phase of Petitioner's trial began. Petitioner gave a brief opening statement. Tr. 359-60. Throughout the trial, he cross-examined the prosecution's witnesses-, and was often able to bring out prior inconsistent statements made by witnesses, often at particular pages of the discovery. See, e.g., Tr. 598-601; 1075. Petitioner elicited testimony that he was a person with no prior history of violence. See, e.g., Tr. 743-44; 788; 836-37; 910; 1035. Petitioner elicited testimony portraying the note left on Mrs. McGilvra's door as containing no overt threats other than dissatisfaction over a property sale. See, e.g., Tr. 540, 678, 3199-20. Petitioner pointed out other potential suspects, such as previous renters Ms. McGilvra had evicted from the property, or ...


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