and submitted May 17, 2018
County Circuit Court 12C11135; Gayle Ann Nachtigal, Senior
Kenneth A. Kreuscher argued the cause and fled the briefs for
Timothy A. Sylwester, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
an inmate at the Oregon State Penitentiary, was convicted of
aggravated murder and sentenced to death for the fatal
stabbing of another inmate. Petitioner appeals the judgment
of the post-conviction court, which rejected his claims that,
during the guilt phase of his criminal trial, his trial
counsel rendered inadequate and ineffective assistance.
Petitioner argues that his trial counsel was inadequate and
ineffective because they failed to (1) perform a reasonable,
independent investigation of the prosecution's blood
spatter evidence, (2) perform a reasonable, independent
investigation of the prosecution's main prison
informant's motives to lie, (3) investigate and develop
evidence that petitioner was "standing jigs" as a
lookout for a tattoo session at the time of the victim's
death, and (4) choose and present a reasonable theory of
defense. Held: The post-conviction court did not err
in denying petitioner's claim for post-conviction relief
with respect to the guilt phase of his criminal trial.
Petitioner did not demonstrate that his trial counsel's
purported failure to investigate caused him prejudice.
Additionally, in light of the defense petitioner insisted
[297 Or.App. 499] upon presenting during his criminal trial,
the post-conviction court did not err in denying
petitioner's claim for post-conviction relief with
respect to trial counsel's purported failure to choose
and present a reasonable theory of defense.
Or.App. 500] TOOKEY, J.
was convicted of aggravated murder and sentenced to death.
See generally State v. Haugen, 349 Or. 174, 243 P.3d
31 (2010) (setting forth facts underlying petitioner's
and co-defendant Haugen's convictions); State v.
Brumwell, 350 Or. 93, 249 P.3d 965 (2011), cert
den, 565 U.S. 1124 (2012) (setting forth facts regarding
penalty phase of petitioner's criminal trial). After
petitioner's conviction and sentence of death were
affirmed by the Supreme Court on direct appeal, id.
at 112, he petitioned for post-conviction relief, contending,
among other points, that his trial counsel rendered
inadequate and ineffective assistance of counsel. The
post-conviction court denied post-conviction relief as to the
guilt phase of petitioner's criminal trial and granted
post-conviction relief as to the penalty phase.
appeal, in his first through third assignments of error,
petitioner contends that the post-conviction court erred in
failing to conclude that his trial counsel rendered
ineffective and inadequate assistance during the guilt phase
of his criminal trial. Among other arguments, petitioner
contends that his trial counsel failed to (1) "perform a
reasonable, independent investigation of the
prosecution's blood spatter evidence," (2)
"perform a reasonable, independent investigation of the
prosecution's main prison informant Robert Cameron's
motives to lie," (3) "investigate and develop
evidence that petitioner was 'standing jigs' as a
lookout for [a] tattoo session" at the time of the
victim's death, and (4) "choose and present a
reasonable theory of defense." For the reasons that
follow, we affirm.
review judgments granting or denying post-conviction relief
for errors of law. Heroff v. Coursey, 280 Or.App.
177, 179, 380 P.3d 1032 (2016), rev den, 360 Or. 851
(2017). "In doing so, however, we are bound by the
post-conviction court's findings of fact if they are
supported by evidence in the record." Id.
(internal quotation marks and citations omitted). "If
the post-conviction court failed to make findings of fact on
all the issues-and there is evidence from [297 Or.App. 501]
which such facts could be decided more than one way-we will
presume that the facts were decided consistently with the
post-conviction court's conclusions of law."
Id. (internal quotation marks and citations
UNDERLYING CRIME AND PROCEDURAL BACKGROUND
petitioner's post-conviction claim requires an
understanding of the events underlying petitioner's
prosecution, the defense and prosecution theories at trial,
and the evidence presented at trial. Accordingly, we first
summarize the facts concerning the underlying crime-a murder
committed at the Oregon State Penitentiary (OSP)- which we
largely draw from the Supreme Court's opinions in
Haugen and Brumwell, 350 Or at 95 (noting
"[t]he facts relating to the inmate's murder and the
joint guilt phase of defendant's trial are set out in
[Haugen]"), but supplement as necessary to
analyze petitioner's arguments on appeal. We then briefly
discuss petitioner's underlying criminal trial, direct
appeal, and the post-conviction proceeding. In our analysis
of petitioner's arguments in this appeal, we provide
additional facts and procedural details that are relevant to
each particular argument.
The Underlying Crime
1996, petitioner was sentenced to life imprisonment without
the possibility of parole for the aggravated murder of one
person and the attempted aggravated murder of another. In
2003 he was serving that sentence at OSP. His codefendant in
the guilt phase of the underlying criminal trial, Gary
Haugen, was also serving a life sentence for murder.
Petitioner, Haugen, and another inmate, Robert Cameron,
played together in a band at OSP.
August 2003, petitioner and Haugen suspected that someone was
informing prison officials about their drug use. Prisoners
had noticed that prison officials usually administered drug
tests during the week. Accordingly, prisoners timed their
drug use for weekends so that they could produce a clean
urinalysis during the week. In a deviation [297 Or.App. 502]
from the ordinary timing, on Saturday, August 23, 2003,
prison officials gave a drug test to a friend of
petitioner's, inmate Christopher Lawrence, which
identified him as having used drugs. On Sunday, August 31,
2003, prison officials gave a drug test to petitioner and
Haugen. Petitioner and Haugen were upset about the
drug tests and suspected the presence of an informant. They
believed, incorrectly, that the victim, David
"Sleepy" Polin, was the informant.
September 1, 2003, the day after petitioner's and
Haugen's drug test, an inmate overheard either petitioner
or Haugen say "we've got to get him," referring
to the victim. The inmate then saw petitioner walk toward the
victim clenching his fist until Haugen stopped petitioner and
said, "Stop, not here."
next day-September 2, 2003-shortly after 9:00 a.m., the
victim's body was found in the band room of the
activities section of OSP. The victim had sustained 84 stab
wounds and a blunt-force trauma to the head resulting in a
skull fracture. The victim's hands reflected wounds that
appeared to have been suffered in defending himself against
an attack. The attack had occurred in an alcove outside the
band room, which was smeared with blood. Subsequently, the
victim's body had been dragged into the band room. The
victim's blood also was found in a trash can just outside
the alcove. Inside the trash can was a t-shirt soaked with
the victim's blood, one of his shoes, his inmate
identification, bloody rags, and a large threaded metal rod
with the victim's blood on it. The rod was part of a
stool from the band room. Two "shanks" or homemade
knives also were found in the vicinity; one in the drain of a
nearby bathroom and one outside the bathroom window. Strands
of petitioner's hair were found on the victim's
cameras captured images of petitioner and Haugen, shortly
before and after 8:00 a.m. Images from several cameras at
different locations in the activities section showed
petitioner, Haugen, and the victim in the general area near
the band room in the minutes before the attack. [297 Or.App.
503] The images showed petitioner and Haugen repeatedly
visiting the nearby bathroom, in which one of the shanks
later was found, and then showed Haugen shortly before the
attack with an oddly shaped item concealed under his t-shirt,
possibly the metal rod from the stool. Another camera was
located in the band room. That camera showed petitioner and
Haugen dragging the victim's body into that room. Images
from the camera also showed movement through a window in the
door to the alcove, just before petitioner and Haugen dragged
the body into the band room. Images taken shortly after the
attack showed petitioner and Haugen leaving the area and
wearing at least some different clothing than they had been
wearing 15 minutes earlier.
of the murder was "shower" day, when inmates take
showers and exchange their clothing. During petitioner's
trial, an inmate testified that he observed Haugen in the
shower clipping his fingernails with fingernail clippers and
scrubbing his fingernails with a toothbrush, and that
Haugen's hands were soiled by some dark substance. The
inmate also testified that he saw petitioner, whose hands
were also soiled, doing the same after Haugen handed him the
fingernail clippers and toothbrush, and that the dark
substance turned red as petitioner washed. In a clothing bin
in the shower area, police recovered pants and t-shirts,
stained with the victim's blood, matching the sizes worn
by petitioner and Haugen. One pair of pants had DNA material
in the thigh area matching Haugen's DNA; those pants also
had a splatter pattern of liquid that matched the
victim's blood. The victim's blood was also found on
a pair of shoes belonging to petitioner.
that day, a detective examined petitioner and observed that
petitioner had a scratch on his neck and two "minor
injuries" on the back of both of his hands.
petitioner and Haugen were each charged with one count of
aggravated murder for committing murder after previously
having been convicted of murder, ORS 163.095(1)(c), and one
count of aggravated murder for committing murder while
confined in prison, ORS 163.095(2)(b).
Or.App. 504] B. The Underlying Trial and Direct
noted above, petitioner and Haugen were tried together in the
guilt phase of their criminal trial. Before that trial,
petitioner, Haugen, and their respective counsel, entered
into a joint defense agreement to, among other things,
memorialize their understanding that during the trial there
would not be "finger pointing" between them.
trial, the state's theory was that petitioner and Haugen
had "lured" the victim to the band room to kill him
because they believed that the victim was an informant.
Petitioner's and Haugen's strategy was, essentially,
to argue that the state had failed to prove its case, and
petitioner's trial counsel attempted to "distance
[petitioner] as much as [they] could from the activity
outside the band room."
state's evidence at trial included (1) the testimony of a
forensic scientist, Jennifer Riedel, who testified regarding
the blood stains on petitioner's shoes, and (2) the
testimony of Cameron, who testified that petitioner and
Haugen had both confessed to killing the victim shortly after
the murder had occurred.
found petitioner and Haugen each guilty of two counts of
aggravated murder, and petitioner was sentenced to death.
Petitioner appealed to the Supreme Court, which affirmed
petitioner's conviction and sentence of death.
Brumwell, 350 Or at 112.
The Post-Conviction Proceeding
the Supreme Court's rejection of petitioner's direct
appeal, petitioner filed the instant action for
post-conviction relief. As discussed further below, at the
post-conviction proceeding, petitioner introduced, among
• testimony from Riedel regarding bloodstain pattern
analysis and the opinions that she presented during
petitioner's underlying criminal trial, which petitioner
points to in support of his argument that trial counsel
failed to "perform a reasonable, independent
investigation of the prosecution's blood spatter
[297 Or.App. 505] • affidavits from other inmates
stating that Cameron owed gambling debts that he could not
pay and thus "had a motive to be placed in protective
custody, for his safety[, ] as well as to walk away from his
debts," which petitioner points to in support of his
argument that trial counsel failed to "perform a
reasonable, independent investigation of the
prosecution's main prison informant Robert Cameron's
motives to lie";
• affidavits from other inmates stating that Haugen
intended to get a tattoo from the victim on the day of the
murder and that petitioner was observed "standing
jigs"-i.e., standing lookout-around the time of
the murder, as well as testimony from petitioner's trial
counsel concerning petitioner's trial strategy, which
petitioner points to in support of his arguments that his
trial counsel failed to (1) "investigate and develop
evidence that petitioner was 'standing jigs' * * *
for [a] tattoo session at the time" of the killing and
(2) "choose and present a reasonable theory of
defense"-viz., that petitioner was acting as a
lookout for a tattoo session between Haugen and the victim,
and that petitioner's "participation was at most
limited to helping to move an already dead body and helping
to clean up."
noted above, the post-conviction court granted
post-conviction relief as to the penalty phase of
petitioner's trial but denied it as to the guilt phase.
With respect to the guilt phase, the post-conviction court
found, in pertinent part:
"[Petitioner] and Mr. Haugen were friends within [OSP]
and they shared similar interests and beliefs. Although there
was no video tape evidence of the actual murder, there was
video of Mr. Haugen and [petitioner] moving Mr. Polin's
body to the location where it was discovered. Additionally[,
] there was blood stain and hair evidence tying [petitioner]
to Mr. Polin's body. Following his arrest for aggravated
murder in the death of Mr. Polin, [petitioner] was appointed
Mr. Storkel who requested Mr. Brownlee be appointed as
co-counsel. Mr. Storkel then put together the rest of the
[297 Or.App. 506] From the very beginning, [petitioner] made
it clear that he and Mr. Haugen were in this trial together
and neither would testify or in any way point the finger at
anyone. There was abundant evidence that [petitioner] was
totally immersed in what he called 'the law of the
land' and others called 'the code of the con'. He
would allow no testimony or defense that pointed toward Mr.
Haugen committing the acts resulting in the death of Mr.
Polin or implicated him in any way. That left Mr. Storkel
with the only possible defense of while [petitioner] helped
move the body the state would have to prove who actually
killed Mr. Polin. The discovery shows that the defense team
discussed using self-defense, [petitioner] would not agree.
Given [petitioner's] strongly held position, there were
few options other than the approach taken by his attorneys.
Motions were discussed with [petitioner] and it was clear
from the testimony during this hearing and in the pages of
discovery, that they were prepared to change course if at any
time [petitioner] indicated a desire to take a different
position. He never did.
“* * * *
"Given the position [petitioner] held during the trial,
his attorneys made the best decisions available to them. No
additional witnesses, tests or arguments were going to be
used given the defense [petitioner] insisted upon. It is
[petitioner's] obligation in this matter to offer
evidence supporting his individual claims. In the guilt phase
of his trial, there is not a sufficient showing to find
ineffective assistance of coun[sel] on any of his
post-conviction court issued a judgment reflecting that, with
respect to the claims for relief that are the subject of this
appeal, "[p]etitioner did not carry his burden to prove
[(1)] the merits of th[ose] claim[s] and [(2)] that he
suffered prejudice as a result that would warrant
ANALYSIS OF PETITIONER'S APPEAL
I, section 11, of the Oregon Constitution guarantees a
criminal defendant the constitutional right to
'adequate' representation." Sparks v.
Premo, 289 Or.App. 159, 168, 408 P.3d 276 (2017),
rev den, 363 Or. 119, cert den, ___US
___, 139 S.Ct. 569 (2018). "Similarly, the
Sixth Amendment to the United States Constitution guarantees
[297 Or.App. 507] the right to 'effective' assistance
of counsel." Id. (citing Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)). Although we interpret and apply Article
I, section 11, independent of the Sixth Amendment, "the
standards for determining the adequacy of legal counsel under
the state constitution are functionally equivalent to those
for determining the effectiveness of counsel under the
federal constitution." Johnson v. Premo, 361
Or. 688, 699, 399 P.3d 431 (2017) (internal quotation marks
Article I, section 11, "[t]o demonstrate that he is
entitled to post-conviction relief, petitioner must show that
counsel failed to exercise reasonable professional skill and
judgment, and that petitioner suffered prejudice as a result
of counsel's inadequacy." Sparks, 289
Or.App. at 169. The pertinent inquiry under the Sixth
Amendment is whether counsel's performance "fell
below an objective standard of reasonableness" and
whether the deficiencies in counsel's performance
"prejudiced" the defense. Strickland, 466
U.S. at 687-88, 692.
Article I, section 11, "the exercise of reasonable
professional skill and judgment generally requires an
investigation that is legally and factually appropriate to
the nature and complexity of the case so that the lawyer is
equipped to advise and represent the client in an informed
manner." Stevens v. State of Oregon, 322 Or.
101, 108, 902 P.2d 1137 (1995). Under the Sixth Amendment,
"counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular
investigations unnecessary." Strickland, 466
U.S. at 691. In determining whether counsel failed to
exercise reasonable professional skill and judgment, "we
'make every effort to evaluate a lawyer's conduct
from the lawyer's perspective at the time, without the
distorting effects of hindsight.'" Sparks,
289 Or.App. at 169 (quoting Lichau v. Baldwin, 333
Or. 350, 360, 39 P.3d 851 (2002)). "Accordingly, we do
not 'second guess a lawyer's tactical decisions in
the name of the constitution unless those decisions reflect
an absence or suspension of professional skill and
judgment.'" Id. (quoting Gorham v.
Thompson, 332 Or. 560, 567, 34 P.3d 161 (2001)).
"In fact, the test 'allows for tactical choices that
backfire, because, [297 Or.App. 508] by their nature, trials
often involve risk.'" Id. (quoting
Krummacher v. Gierloff, 290 Or. 867, 875, 627 P.2d
458 (1981)). "Further, a defendant does not have a
constitutional right 'to a perfect defense-seldom does a
lawyer walk away from a trial without thinking of something
that might have been done differently or that he would have
preferred to have avoided." Id. 169-70 (quoting
Krummacher, 290 Or at 875). "Nevertheless, the
Supreme Court has also noted that, in cases where the
petitioner was charged with aggravated murder and the state
sought the death penalty, 'no type of criminal case
requires more care in preparation.'"Id. at
170 (quoting Johnson, 361 Or at 701).
Article I, section 11, in determining whether a petitioner
suffered prejudice as a result of counsel's inadequacy,
"we evaluate whether petitioner demonstrated that
counsel's failure had a tendency to affect the result of
his trial." Id. (citing Lichau, 333 Or
at 359). The "question for the court is not simply
whether counsel's failure had any negative effect
regarding a particular issue. Rather, the question is whether
the negative effect, if any, as to that issue in turn tended
to affect the result in the proceeding as a whole."
Derschon v. Belleque, 252 Or.App. 465, 474, 287 P.3d
1189 (2012), rev den, 353 Or. 208 (2013) (internal
quotation marks and brackets omitted); see also
Richardson v. Belleque, 362 Or. 236, 268, 406 P.3d 1074
(2017) (concluding that petitioner established prejudice
where "there was more than a mere possibility that
counsel's [deficient representation] could have tended to
affect the outcome of the dangerous-offender
proceeding"). Under the Sixth Amendment, we evaluate
whether "there is a reasonable probability that the
result of the proceeding would have been different."
Sparks, 289 Or.App. at 170 (citing
Strickland, 466 U.S. at 694).
Trial Counsel's Purported Failure to Perform a
Reasonable, Independent Investigation of the
Prosecution's Blood Spatter Evidence
noted above, on appeal, petitioner contends that his trial
counsel were inadequate and ineffective because they failed
to perform a reasonable, independent investigation of the
prosecution's "blood spatter evidence."
Or.App. 509] We begin by summarizing the evidence and
argument from the underlying criminal trial, as well as the
evidence adduced at the post-conviction proceeding, that is
relevant to petitioner's contention. During
petitioner's criminal trial, the state called Riedel, who
testified regarding the blood stains on petitioner's
shoes. In particular, she testified that (1) the blood on the
"left lateral toe portion" of the left shoe was a
"impact" "spatter pattern," which meant
it was formed by "free-flying drops" of blood, (2)
for such a pattern to exist the shoe would have had to
"be in an environment where blood had been spattered
with a good amount of force behind it," (3) one
possibility for how the blood spatter got on the shoe is that
it was "expirated," (4) the kind of spatter on the
left shoe would not come from merely "walk[ing] through
a scene," and (5) "there can be * * * different
events that can cause a spatter that looks similar." She
also testified that a blood ...