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Cox v. Premo

Court of Appeals of Oregon

May 1, 2019

DAVID LEE COX, Petitioner-Appellant,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

          Argued and submitted February 16, 2017.

          Marion County Circuit Court 06C10658. Pamela L. Abernethy, Judge.

          Daniel J. Casey argued the cause for appellant. Also on the briefs was Kenneth A. Kreuscher. David Lee Cox filed the supplemental brief pro se.

          Ryan Kahn, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, Jonathan Schildt, Assistant Attorney General, and Andrew Lavin, Assistant Attorney General.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         [297 Or.App. 303] Case Summary: Petitioner, an inmate at Oregon State Penitentiary, was convicted of aggravated murder and possessing a weapon in a correctional institution, ORS 163.095(2)(b); ORS 166.275, and sentenced to death, for the fatal prison-yard stabbing of Davis, another inmate. Petitioner appeals the judgment of the post-conviction court rejecting claims of inadequate and ineffective assistance of trial counsel during the guilt and penalty phases, arguing that defense counsel failed to investigate the claims of a trial witness who testified that petitioner's killing of the victim was part of a murder-for-hire conspiracy involving the Lakota Club. Petitioner further argues that, had defense counsel investigated the murder-for-hire theory claims, defense counsel would have called witnesses who could have refuted the theory, and the failure to do so meant that defense counsel's representation was constitutionally inadequate and ineffective. Held: Reasonable defense counsel would have investigated the murder-for-hire theory and called a prison official familiar with the Lakota Club who would have refuted the testimony of the theory. Accordingly, because petitioner was prejudiced by defense counsel's failure to investigate and call the prison official as a witness, defense counsel's representation of petitioner was inadequate under Article I, section 11, of the Oregon Constitution.

         Reversed and remanded with instructions for post-conviction court to grant relief on aggravated murder conviction; otherwise affirmed.

         [297 Or.App. 304] ORTEGA, P. J.

         Petitioner, an inmate at Oregon State Penitentiary (OSP), was convicted of aggravated murder and possessing a weapon in a correctional institution, ORS 163.095(2)(b); ORS 166.275, for the fatal prison-yard stabbing of Davis, another inmate. Petitioner was sentenced to death and, on direct review, the Supreme Court affirmed those convictions and the penalty. State v. Cox, 337 Or. 477, 98 P.3d 1103 (2004), cert den, 546 U.S. 830 (2005). Petitioner now appeals the judgment of the post-conviction court rejecting claims of inadequate and ineffective assistance of trial counsel during the guilt and penalty phases.

         Petitioner raises numerous assignments of error on appeal, but we address only one. That assignment relies on the post-conviction court's finding that McPhail, a witness for the state, lied at petitioner's criminal trial. McPhail testified during the guilt phase that petitioner's killing of the victim was part of a murder-for-hire conspiracy involving another inmate (Graham) and members of the Lakota Club, which is a club for Native Americans incarcerated at OSP to socialize and participate in religious ceremonies. At petitioner's post-conviction trial, McPhail testified that he made up the murder-for-hire plot, and the court found that that testimony was closer to the truth than his testimony at the criminal trial. In petitioner's view, his defense counsels' failure to investigate before trial McPhail's conspiracy assertion resulted in the failure to call witnesses at trial who could have refuted the state's murder-for-hire theory. That failure, he contends, meant that his defense counsel were constitutionally inadequate and ineffective. Reviewing for legal error and bound by the post-conviction court's findings of historical fact if supported by evidence in the record, 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 agree with petitioner that defense counsel failed to investigate McPhail's claims and that, had counsel done so, they would have called a prison official familiar with the Lakota Club who would have contradicted McPhail's claims. Accordingly, defense counsels' representation was inadequate under Article I, section 11, of the Oregon Constitution, and we consequently [297 Or.App. 305] reverse and remand the post-conviction judgment as to the aggravated murder conviction.[1]

         In the prison yard at OSP, petitioner fatally stabbed Davis, pushing a shank almost five inches into Davis's back, with such force that it lifted Davis to his toes. That petitioner stabbed Davis was not in dispute.[2] What was disputed was whether petitioner intentionally killed Davis; petitioner's defense theory was that, because Davis had previously threatened to kill and had pulled a shank on petitioner, petitioner meant only to injure Davis-to give him the "worm," as they say in the facility-so that prison officials would transfer Davis to another facility for his protection.[3] At most, petitioner argued, he was only guilty of manslaughter. The state, on the other hand, advanced a theory that petitioner had a combination of two motives for intentionally killing Davis: (1) petitioner, who was considered a "heavyweight" convict (an inmate who demanded respect) at OSP, killed Davis-who had pulled a shank on petitioner and owed him money-in order to maintain his status within the prison; and (2) petitioner was paid $5, 500 in drugs by the Lakota Club to kill Davis, who had "burned" the club and Graham in their illicit tobacco and heroin dealings at OSP.[4]

         The murder-for-hire plot involving the Lakota Club- described by the post-conviction court as the "critical issue" in petitioner's claims of inadequate assistance of counsel-is [297 Or.App. 306] the focus of this appeal.[5] We therefore begin with the testimony of McPhail, the only inmate witness who testified directly about the murder-for-hire theory. At trial, McPhail claimed that two of the club's members, Pope and Kentta, sharpened a shank on the concrete floor of the clubhouse while he kept watch. He described Davis's exchange of heroin for tobacco with the Lakota Club and said that Davis lied to the club about obtaining heroin from Graham rather than a guard, and that Davis lied to Graham about obtaining tobacco from the Lakota Club rather than a guard. McPhail further testified that Davis was late in repaying the club with heroin, therefore "burning" the club. McPhail explained that, consequently, the club coordinated with Graham to arrange for petitioner to stab Davis, and that he instructed Pope to deliver the shank to petitioner and to relay instructions on how to stab Davis (below the ribs and in the liver).

         Throughout his testimony, McPhail spoke of his role as the club's "war chief"-that he was "second in command" to the club's chief, Kentta, and that prison officials believed he was responsible for setting up sports activities and the protocol for the club's religious ceremonies but that his actual job was to mediate between club members, be the "first one in line" to fight nonclub members, and to pass out weapons or use weapons himself. The state asked McPhail, "as a result of being in this position of being second in command, were you also aware of the illegal-the tobacco smuggling, the drug sales that the club was involved in?" McPhail answered that he was, and that, as the club's "war chief," he had experience assaulting other inmates, which explained his ability to instruct Pope on the proper way to stab another person.

         Petitioner was represented by Bostwick and Grefenson. On cross-examination, Grefenson made efforts to impeach McPhail, namely by questioning McPhail's assertions about having assaulted multiple inmates; by pointing out, and getting McPhail to admit, that he lied to investigators [297 Or.App. 307] initially about not knowing about the Davis stabbing and that McPhail's understanding of the events changed from hearing rumors to being involved in a plot to kill Davis; and by pointing out that McPhail did not fully admit to participating in the claimed conspiracy until six or seven weeks before trial. Grefenson also elicited acknowledgement from McPhail that he had not been charged with murder for his involvement in the conspiracy and that he had asked for a transfer from Eastern Oregon to the Willamette Valley to be closer to his family.

         After McPhail's testimony, the state called as a witness the lead detective for the murder investigation, Duvall. Among other things, Duvall testified to the investigative contacts and interviews with McPhail, noting that the first two times McPhail was interviewed, he had "nothing of substance" to say about the Davis stabbing. At McPhail's third interview, Duvall explained, McPhail informed him that he was in the Lakota Club clubhouse when the shank was being made and that the weapon was to be used to kill someone but he did not say who; that Davis owed petitioner money; that he overheard another inmate, Pope, tell petitioner how to stab Davis with the shank; and that shortly before the stabbing took place he learned that the victim was to be Davis. Duvall also explained that McPhail described himself as the Lakota Club's war chief and that he was tired of doing things as the war chief that kept him in the "convict code" and in prison. Duvall also testified that, in a follow-up interview later that month, McPhail stated that he knew that the shank was made in the clubhouse, that it was intended to be used against Davis and, for the first time, he introduced Graham as a participant in drug dealings with the club and Davis.

         On cross-examination, Duvall acknowledged again that McPhail had initially denied any knowledge or involvement in the stabbing. Petitioner's defense counsel pointed out that Duvall had testified that McPhail, in the beginning, "emphatically denied having any information about the case at all," and Duvall acknowledged (as he had on direct) that initially McPhail had not spoken of a conspiracy, but later provided details of participating in the conspiracy. Specifically, counsel pointed out that McPhail had [297 Or.App. 308] said that, after the stabbing happened, McPhail overheard Pope talking about how Pope had told petitioner where to stab Davis, and how that was inconsistent with McPhail's trial testimony that he had himself instructed Pope where to stab Davis before the stabbing occurred. Petitioner's defense counsel elicited testimony from Duvall recounting how McPhail's statements to investigators had progressed from "rumor" about participants in the fatal stabbing to actually witnessing conversations and planning.

         Before defense counsel proceeded with their case, the trial court inquired about counsels' readiness to proceed. Counsel indicated that they did not have their own witness list and, when pressed, indicated that they could potentially call back three of the state's witnesses, including McPhail and Duvall, and otherwise needed time to interview and prepare their witnesses. The trial court evinced surprise, given that the case had been pending for a year and a half; the court indicated disbelief that defense counsel had "not talked to these people" or had "investigators talk to these people."

         As relevant here, defense counsel called witnesses, including petitioner, to support a manslaughter theory. Among those witnesses, defense counsel called Pope, a member of the Lakota Club and one of the people whom McPhail had implicated in the murder-for-hire plot. Pope disputed McPhail's contention that Lakota Club members were involved in a plot to kill Davis, and denied ever having provided or even seen the shank that petitioner used to kill Davis. He further explained that he was unaware of any club member sharpening the shank in the club and expressed why he would not have participated in such a thing. Pope also explained that members of the Lakota Club would never have used a white inmate like petitioner to conduct its illicit business. According to Pope, inmates "stay within their own" for their business dealings. Pope also disputed McPhail's claim that he was the "war chief" of the Lakota Club.

         On cross-examination, the prosecutor asked Pope, who was already serving time for aggravated murder, if he knew that he was "potentially looking at capital murder * * * for supplying the weapon that was used to kill * * * Davis." [297 Or.App. 309] The state also elicited testimony from Pope that his own overture to police to provide help with the Davis murder investigation had been rebuffed, and that testifying about another inmate could put him in physical jeopardy.

         After a jury trial in two phases (guilt and penalty phases), petitioner was convicted of the charges and sentenced to death. Defense counsel filed a motion for a new trial based on an irregularity in the proceedings, i.e., the inconsistencies in McPhail's police interviews and his trial testimony, arguing that prosecutors should have known that McPhail's testimony was perjured and that no grand jury proceedings for aggravated murder had been initiated against McPhail, Graham, Kentta, and Pope. That is, the crux of their argument was that the prosecution had violated ethical ...


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