and submitted November 15, 2018
County Circuit Court 16CV06860; Daniel R. Murphy, Judge.
Lindsey Burrows argued the cause for appellant. Also on the
briefs was O'Connor
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
DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock,
Judge pro tempore.
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.
Or.App. 505] AOYAGI, J.
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.
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.
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.
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.
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
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."
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 ...