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Mitchell v. State

Court of Appeals of Oregon

November 14, 2019

JULIE ANN MITCHELL, Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Argued and submitted November 15, 2018

          Linn County Circuit Court 16CV06860; Daniel R. Murphy, Judge.

          Lindsey Burrows argued the cause for appellant. Also on the briefs was O'Connor

          Weber LLC.

          Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock, Judge pro tempore.

         Case Summary: A jury found petitioner guilty of one count of possession of methamphetamine. She petitioned for post-conviction relief, claiming inadequate and ineffective assistance of trial counsel under Article 1, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. Petitioner contends that her trial counsel's closing argument was so poorly done as to rise to the level of a constitutional violation. The post-conviction court ruled that the closing argument was deficient but that petitioner was not prejudiced, and it therefore denied relief. Petitioner appeals, arguing that the post-conviction court erred in concluding that she failed to prove prejudice. The state cross-assigns error to the post-conviction court's conclusion that the closing argument was deficient. Held: The post-conviction court erred in denying relief. The closing argument was constitutionally deficient, and, on this record, petitioner was prejudiced.

         [300 Or.App. 505] AOYAGI, J.

         A jury found petitioner guilty of one count of possession of methamphetamine. She petitioned for post-conviction relief, claiming inadequate and ineffective assistance of trial counsel under Article 1, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. Petitioner contends that trial counsel's closing argument was so ill-advised as to rise to the level of a constitutional violation. The post-conviction court ruled that the closing argument was deficient but that petitioner was not prejudiced, and it therefore denied relief. Petitioner appeals. We conclude that the trial court erred in denying relief and, accordingly, reverse and remand.

         FACTS

         We are bound by the post-conviction court's factual findings if they are supported by evidence in the record, and we review its legal conclusions for errors of law. Horn v. Hill, 180 Or.App. 139, 141, 41 P.3d 1127 (2002). We state the facts in accordance with the standard of review.

         The police obtained a search warrant for a large property in Albany, based on information that two men (one of whom is petitioner's nephew) had hidden controlled substances throughout the property. While executing the warrant, police officers found petitioner alone in a camper parked on the property. They removed her from the camper and questioned her. Petitioner admitted that the camper was hers. Asked if they would find anything illegal in it, petitioner said that they would find marijuana. In fact, the police found both marijuana and methamphetamine in the camper. Specifically, they found methamphetamine, marijuana, and prescription medication in a cupboard; a glass vial with water residue and a short straw in a vinyl pouch in a kitchen drawer; and a leather pouch containing methamphetamine in a box under the bed (which box also contained a purse with petitioner's driver's license in it). According to the police, when they told petitioner that they had found methamphetamine in the camper, she said that "she didn't know anything about it but that she would take the blame for it." At trial, petitioner denied having said that.

         [300 Or.App. 506] Petitioner was arrested and charged. She ultimately pleaded guilty to one count of possession of less than one ounce of marijuana, former ORS 475.864(3)(c) (2013), repealed by Or Laws 2017, ch 21 §126, and proceeded to a jury trial on one count of possession of methamphetamine, ORS 475.894.

         At petitioner's criminal trial, two police officers testified for the state, describing their search of petitioner's camper and the drugs found therein, as well as the questioning of petitioner. Petitioner testified on her own behalf. She explained that she did not live on the property-her mother owned it, and her sister and nephew lived there- but that she kept a camper there for when she visited. When she visited, petitioner said, she spent most of her time in the main house, where her ailing mother lived. Petitioner admitted to sometimes smoking marijuana. She adamantly denied using methamphetamine, however, stating that she has never used it and that she "blame[s] methamphetamine for every problem [her] family has ever had." Petitioner testified that the methamphetamine found in the camper was not hers and that she did not know it was there. She said that she kept the trailer unlocked when she was not there and that multiple people had access to it. Petitioner's boyfriend also testified that petitioner did not use methamphetamine and that he did not know whose methamphetamine it was in the camper.

         The state waived its initial closing argument. Defense counsel then gave a closing argument on behalf of petitioner. He started by saying that petitioner had admitted to using marijuana and had pleaded guilty to possession of the marijuana found in the camper. He then reminded the jury that the state thought that it was a "cut and dried case" on the methamphetamine and said:

"And certainly from our perspective, I mean I've got to be honest with you, there's some red flags there. You know, there was methamphetamine in that camper. It was [petitioner's] pickup. It was her camper that was on top of the pickup. It was her marijuana that was already there. So certainly, you know, it looks like it must be her methamphetamine as well."

         [300 Or.App. 507] Defense counsel suggested, however, that the jury should consider several things. First, he argued that, although "[i]t's certainly very easy to, I think, think that somebody that illegally *** uses marijuana would also do other drugs such as methamphetamine, you know, maybe heroin for that matter," some people only like beer or wine and do not drink rum, and someone who occasionally goes to a rock and mineral show is not necessarily a "full-blown rock hound," so "there are variations on these sort of things" and "degrees to everything." Second, he reminded the jury that the state had to prove that petitioner was aware of the methamphetamine in the camper. Third, he noted that there was evidence that "people were kind of ...


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