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Van Brumwell v. Premo

Court of Appeals of Oregon

May 15, 2019

JASON VAN BRUMWELL, Petitioner-Appellant,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

          Argued and submitted May 17, 2018

          Marion County Circuit Court 12C11135; Gayle Ann Nachtigal, Senior Judge.

          Kenneth A. Kreuscher argued the cause and fled the briefs for appellant.

          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 General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Petitioner, 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.

         Affirmed.

         [297 Or.App. 500] TOOKEY, J.

         Petitioner 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.

         On 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.[1]

         We 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 omitted).

         I. THE UNDERLYING CRIME AND PROCEDURAL BACKGROUND

         Evaluating 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.[2] 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.

         A. The Underlying Crime

         In 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.

         In 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.[3] 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.

         On 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."

         The 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 clothing.

         Security 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.

         The day 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.

         Later 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.

         Subsequently, 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).

         [297 Or.App. 504] B. The Underlying Trial and Direct Appeal

         As 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.

         At 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."

         The 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.

         A jury 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.

         C. The Post-Conviction Proceeding

         Following 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 other evidence:

• 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 evidence";
[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."

         As 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 team.
[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 claims."

         The 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 post-conviction relief."

         II. ANALYSIS OF PETITIONER'S APPEAL

         "Article 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 omitted).

         Under 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.

         Under 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).

         Under 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).

         A. Trial Counsel's Purported Failure to Perform a Reasonable, Independent Investigation of the Prosecution's Blood Spatter Evidence

         As 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."

         [297 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 ...


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