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Farmer v. Premo

Supreme Court of Oregon

October 4, 2018

DANTE R'MARCUS FARMER, Petitioner on Review,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Respondent on Review.

          Argued and submitted May 7, 2018

          On review from the Court of Appeals. (CC 07C16834) (CA A152447) [*]

          Lindsey Burrows, O'Connor Weber LLC, Portland, argued the cause and fled the briefs for petitioner on review.

          Ryan Kahn, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.

          Venetia Mayhew, Criminal Justice Reform Clinic, Portland, fled the brief for amicus curiae Criminal Justice Reform Clinic. Also on the brief were Aliza B. Kaplan, Criminal Justice Reform Clinic, and Lindsey Burrows, O'Connor Weber LLC, Portland.

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

         [363 Or. 680] Case Summary: Petitioner was granted post-conviction relief after the post-conviction court found that petitioner's trial counsel was ineffective for not presenting to the jury a defense expert's findings that a gun recovered at another suspect's residence was "likely" the murder weapon. The superintendent appealed, and the Court of Appeals reversed. Held: To render constitutionally adequate assistance of counsel in making a strategic decision, counsel must both gather the necessary facts and have a reasonably accurate understanding of those facts. Given the post-conviction court's finding that defense counsel "did not realize" that the defense expert's findings "would be that much different" than the state's expert's findings, defense counsel misunderstood an important fact and was thus unable to make a reasonable strategic decision, a failure that prejudiced petitioner.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

         [363 Or. 681] WALTERS, C. J.

         Petitioner was convicted of murder with a firearm. He sought post-conviction relief, arguing that his defense counsel was constitutionally inadequate for, among other things, deciding not to call a defense expert who would have testified that a gun seized from another suspect's residence was "likely" the murder weapon. The post-conviction court agreed with petitioner and ordered a new trial. We reverse the contrary decision of the Court of Appeals and affirm the post-conviction court's judgment.

         I. HISTORY AND GENERAL BACKGROUND

         Monterroso was shot and killed one January evening in 2001 while he was walking down the street with his two friends, Muldrew and McCauley.[1] Two men had approached the group from behind, and one of them demanded, "Give us your money." Monterroso was then grabbed, turned around, and shot in the chest. The two men then ran off. Muldrew hurried to a payphone at a nearby store to call 9-1-1. A second person, Thompson, also witnessed the shooting and reported it to 9-1-1.[2] Police soon arrived and, about two weeks later, arrested petitioner for the murder.

         [363 Or. 682] The primary evidence against petitioner was in the form of witness testimony: He was placed in the area before the murder and looking for Monterroso; he was identified as the shooter; and he made several admissions that he had killed Monterroso. Petitioner contested the credibility and reliability of those witnesses and proffered evidence that his admissions differed from the forensic evidence. He focused his defense, however, on evidence that Baines, a man who resembled petitioner, had committed the murder. He adduced evidence that the police had information that "word on the street" was that Baines was involved in the murder and had been seen on the night of the murder riding a bicycle away from the crime scene. He also adduced evidence that Baines had access to a gun that could have been the weapon used in the shooting. That gun, a Rohm .38 special (the Rohm), was recovered during the execution of a search warrant in an unrelated matter at a house at which Baines resided.[3] The Rohm, along with the bullets discovered with it, was test-fired by a forensic firearms examiner with the Oregon State Police-Grover.[4] Grover prepared a report about his findings, as did the defense's expert, Wong. Grover opined that it could not be determined whether the Rohm had fired the fatal bullet; Wong, however, concluded that the Rohm was "likely" the murder weapon. At a pretrial hearing, defense counsel explained the Rohm's importance to petitioner's case and her intent to call Wong to testify:

"[The Rohm], in our position, is exculpatory evidence in this case that [petitioner] is not the perpetrator of this homicide. We expect to put on ballistics evidence of that firearm. We expect to talk about the likelihood that that firearm was the firearm used in the homicide."

         At trial, the state called Grover, who testified that he had been with the Oregon State Police for a little more than three years, beginning as an analyst who entered data from firearms into a database.[5] Grover had served in [363 Or. 683] that capacity for about a year and a half before becoming a forensic firearms examiner. In that role, he had completed a year-long curriculum at the Bureau of Alcohol and Firearms Examiners Academy, the details of which he recounted to the jury. Explaining his process in this case, Grover testified that he had used the characteristics and measurements of the bullet that killed Monterroso and entered them into a database, which produced a nine-page report of firearms that could have fired the fatal bullet. That list included both a Rohm .38 special, the kind of gun recovered at Baines' residence, and a .357 revolver, the kind of gun the state contended that petitioner had used to kill Monterroso.[6]

         Grover then thoroughly discussed forensic bullet examination analysis, which he summed up as follows:

"[I]n order for a bullet to be considered a positive identification or a match, the amount of agreement that we see between the test-fired bullet and the bullet in question has to exceed the amount of agreement known to have been observed between two bullets test-fired from different firearms, and at least be consistent with the amount of agreement that we had seen between two bullets that we know were fired from the same firearm."

         Grover testified that the bullets from the Rohm shared all discernible class characteristics with the fatal bullet-like caliber and twist direction of the lands and grooves-and agreement on some individual characteristics-like striations. Grover testified that those results, however, were insufficient to say with certainty that the fatal bullet had been fired from the Rohm. Grover testified that there are 30 to 40 different types of firearms that could have produced similar results and, when asked how many of those kinds of firearms are in the Portland area, stated,

"Probably talking millions of guns out there. It's hard to say. With this particular small subset there's probably thousands, hundreds of thousands, of these particular types of guns."

         [363 Or. 684] Ultimately, when asked what he could say with scientific certainty about the issue, Grover stated that "it could not be determined whether or not [the fatal bullet] was fired from" the Rohm. Grover explained that his results were peer reviewed by an equally trained analyst, who came to the same conclusion. To close out his testimony, Grover opined that evidence that someone had used a .357 revolver to kill Monterroso would be consistent with his findings. Grover said that he would expect a bullet fired from a .357 revolver to have agreement with the fatal bullet on all class characteristics and that it was possible that it also would have "some agreement of individual characteristics."

         After the state wrapped up its case-in-chief, the defense presented its case. Defense counsel called officer Santos. Santos testified that he had requested and served a search warrant at a residence where Baines resided. Santos explained that the warrant was not related to Monterroso's murder and instead related to a report that Baines, a felon, had been seen with a semi-automatic firearm at the residence. Santos testified that Baines was on a first-floor couch when the warrant was served and that the Rohm was in a black case in an upstairs bedroom belonging to Waller, the owner of the Rohm. On cross-examination, the prosecutor asked about the Rohm's operability. Santos testified that, based on his experience with firearms, it looked as if the Rohm had not been fired "in quite a long time." Santos further testified that Baines had not been charged with being a felon in possession of a firearm and indicated that part of the reason was that the Rohm was not functional when the police seized it. Santos explained that, to prove "the crime of felon in possession of a firearm, you do have to prove that the gun is functional." On re-direct, Santos conceded that he could not say with certainty the last time the Rohm was fired.

         The defense then called Grover back to the stand. The purpose of this testimony seemed to be to pave the way for Wong-who was a civil engineer with no specific training in forensic bullet examination-to testify. Defense counsel asked Grover whether he had a background in mechanical engineering or metallurgy, to which he responded that [363 Or. 685] he did not. Defense counsel then asked if he could "quantify the regular degree of agreement" he observed between the fatal bullet and the bullets test-fired from the Rohm. Grover explained that forensic firearms examiners "don't use a quantitative or percentage type criteria for doing our comparison work." That is, for example, firearms examiners do not say that there is a 90 percent or a 50 percent match between bullets-essentially, it is either a match, not a match, or inconclusive. Grover explained that "the amount of agreement we observe is based on the examiner's training and knowledge by examining and comparing actual bullets they know have been test fired from different firearms." When defense counsel asked if bullet comparison is then entirely subjective, Grover stated, "subjective in nature based on the individual examiner's training, knowledge, and experience, yes." Grover explained that the "baseline" that he uses to measure the agreement between bullets could be different from another examiner's; however, he expected that another examiner with a similar background would reach the same conclusion that he did and, perhaps, that someone with more experience could "see something that [he] might not have."

         After Grover testified, the court held a hearing outside the presence of the jury to determine whether Wong was qualified as an expert in forensic bullet examination. Wong, a professional engineer licensed in both California and Oregon, had been working as a forensic mechanical engineer for nine years. He was the vice president of a forensic engineering firm that worked on all types of engineering projects, including auto accident reconstructions, fire investigations, and criminal cases. Wong had testified as an expert in other matters, and he explained how his background in mechanical engineering and metallurgy was relevant to forensic bullet analysis and firearms. Wong said that firearms are mechanical devices that "incorporate any number of mechanical engineering principles, from materials, material selection, heat treating, linkages, pressure, [and] design." He discussed the courses he had taken and explained how they would apply to the manufacture of firearms. Wong explained that his education and experience enabled him to talk about the microscopic changes that [363 Or. 686] could occur to a firearm over time as a result of "broaching," a cutting procedure that Grover had discussed during his testimony. Wong testified that he had extensive experience in the comparison study of bullets, explaining that he worked on over a dozen cases involving firearms, three or four of which involved the comparison of bullets. Wong further stated that had training and experience in using microscopic equipment to make comparison studies of metals; he explained that it is "a visual observation, and what you look for is both similarities and differences between a part that you are trying to find more information on and parts that you have information about already."

         On cross-examination, the state elicited testimony from Wong that he had received no formal training through workshops or seminars regarding bullet comparisons. The trial court then interrupted the prosecutor and informed him that "the likelihood that [the court was] going to prevent [Wong] from testifying is not high" because of "his background and working with metals." The court explained that the jury could weigh Wong's answers to the prosecutor's questions. The prosecutor indicated that he understood and ended his questioning.

         At that point, the defense told the court that it would wait until the morning to call Wong to the stand and instead called two witnesses whose testimony was expected to be short. After those witnesses testified, and to make use of the remaining time, the court permitted the state to call Baker, a rebuttal witness. Baker testified that she was the original owner of the Rohm and that it had not fired when she had attempted to shoot it in the air on a prior New Year's Eve. The next morning, the defense presented the remainder of its case, calling a neighborhood store owner who was familiar with both Baines and petitioner. The defense did not, however, call Wong to the stand.[7] The defense also did [363 Or. 687] not call Reid, another ballistics expert that counsel had consulted.[8]

         Following the presentation of evidence and the parties' closing arguments, the case went to the jury. The jurors deliberated for 15 hours and, at one point, asked for clarification of the definition of "reasonable doubt" and about when they should tell the court that the jury was hung. Ultimately, the jury returned a verdict of guilty for murder with a firearm.

         Petitioner pursued a direct appeal, and his conviction was affirmed. State v. Farmer,210 Or.App. 625, 152 P.3d 904, rev den,342 Or. 645 (2007). Petitioner then sought postconviction relief. He raised numerous issues, but, because of the conclusion we reach, only one is relevant here: Petitioner alleged that defense counsel failed to provide constitutionally adequate representation by deciding not to call Wong to testify[9] The post-conviction court issued a letter opinion agreeing with petitioner, which noted ...


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