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Waldorf v. Premo

Court of Appeals of Oregon

December 26, 2019

BRUCE E. WALDORF, Petitioner-Appellant,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

          Submitted December 19, 2017

          Marion County Circuit Court 14C18923; Linda Louise Bergman, Senior Judge.

          Jason Weber and O'Connor Weber LLC filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: Petitioner appeals a judgment denying his petition for post-conviction relief, arguing that he received inadequate and ineffective assistance of counsel. Specifically, petitioner argues that his trial counsel failed to object when a detective testified in a manner that petitioner contends amounted to impermissible comments on his credibility. Held: The post-conviction court did not err. Petitioner did not establish that all attorneys exercising reasonable professional skill and judgment would have objected to or otherwise sought to exclude the detective's testimony.

         [301 Or.App. 573] DEHOOG, P. J.

         Petitioner, who was convicted of first-degree sexual abuse following a jury trial, appeals a judgment denying his petition for post-conviction relief. In a single assignment of error, petitioner identifies three instances in which the detective who interviewed petitioner was permitted to testify, without objection by petitioner's trial counsel, in a manner that petitioner argues impermissibly commented on his credibility. Petitioner contends that trial counsel's failure to object or move to strike in each of those instances constituted inadequate and ineffective assistance of counsel, and that the post-conviction court erred in denying his petition for relief on that ground. Writing to address two of the three instances of trial counsel's allegedly deficient performance, we conclude that, even if the identified testimony was objectionable "vouching" testimony, petitioner did not establish that all attorneys exercising reasonable professional skill and judgment would have objected to that testimony or otherwise sought to exclude it. As a result, the post-conviction court did not err in denying petitioner's claim for relief, and we, therefore, affirm.

         We review the grant or denial of post-conviction relief for legal error. Alne v. Nooth, 288 Or.App. 307, 308, 406 P.3d 109 (2017). We accept the post-conviction court's express and implicit findings of fact if there is evidence in the record to support them. Id. We state the facts in accordance with that standard.

         The underlying allegations of sexual abuse arose from an incident involving petitioner and J, the 10-year-old friend of one of petitioner's granddaughters. Petitioner drove two of his granddaughters and J from Springfield to Corvallis to watch a high school basketball tournament. According to J, while she and petitioner were alone in the car after the tournament, he tickled her leg. He then moved his hand up her leg until the back of his thumb touched her vagina on the outside of her clothing. J told him to stop, moved his hand away, and got out of the car. Shortly thereafter, all three girls returned to the car, and petitioner drove them home.

         [301 Or.App. 574] Based on that incident and the related investigation, petitioner was indicted for first-degree sexual abuse and, after a jury trial, convicted of that offense.[1] Petitioner appealed his conviction, and we affirmed without opinion. Petitioner then filed this action for post-conviction relief raising numerous claims, all of which the post-conviction court denied. Petitioner now appeals, assigning error only to the post-conviction court's denial of relief on his claim of inadequate and ineffective assistance of counsel under Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution.

         On appeal, as in the post-conviction court, petitioner identifies three statements to which, he contends, his trial attorney should have responded by objecting or moving to strike. Each statement was made by Martin, the detective who had interviewed petitioner in the course of investigating J's allegations. We discuss only the second and third of those statements.[2] In the second statement, made by Martin on direct, he testified that he had "found it curious" that petitioner could recall certain facts from the day in question, but that he did not recall "an issue that in [Martin's] opinion he would have remembered, like touching a ten-year-old girl's vagina." According to petitioner, that testimony effectively told the jury that, in Martin's opinion, petitioner was a liar and his denial of J's accusation could not be believed. That, petitioner contends, constituted an impermissible comment on his credibility to which any competent attorney would have objected.

         Martin made the third statement while being cross-examined by petitioner's trial counsel about the interview. In response to counsel's suggestion that petitioner's conduct-putting his head in his hands and saying "Oh, [301 Or.App. 575] God, Oh God"-had nothing to do with whether he had sexually assaulted J, Martin testified, "Well, if he'd done nothing wrong[, ] I found his behavior to be completely out of character." Martin further testified that, if he himself had been accused of something that he had not done, he would not ask for forgiveness or try to strike a bargain, as petitioner had done during the interview; he would instead say that he had done nothing wrong. Petitioner characterizes that testimony as Martin "expressly offering his opinion that petitioner was acting like a person who was guilty."

         The superintendent responds that petitioner failed to demonstrate that his trial attorney's performance was constitutionally deficient in regard to either of those aspects of Martin's testimony. As to the first instance, the superintendent argues that Martin's statement that he "found it curious" that petitioner did not recall whether he had touched J was not offered as evidence that Martin found petitioner untrustworthy; rather, that testimony provided context for his description of petitioner's conduct-holding his head and saying, "Oh, God." See State v. Chandler, 360 Or. 323, 335-36, 380 P.3d 932 (2016) (trial court's admission of portions of investigative interview in which a detective repeatedly indicated that she believed the alleged victim over the defendant was not error; evidence provided context for defendant's statements in interview and was not offered as evidence that detective found the defendant unbelievable). As to the second instance, the superintendent argues that, even if Martin's statement is properly considered "vouching" testimony, trial counsel reasonably did not object to it. The superintendent reasons that, because counsel elicited that response during cross-examination, either he invited the response and so could not object to it, or it would at least have been reasonable for counsel to believe that he could not object to it under those circumstances. Either way, the superintendent argues, counsel's decision not to object did not fall below constitutionally required standards.

         To succeed on his claim of inadequate assistance of counsel under Article I, section 11, petitioner must prove, by a preponderance of the evidence, that trial counsel did not exercise reasonable professional skill and judgment and [301 Or.App. 576] that petitioner suffered prejudice as a result of counsel's inadequacy. Alne, 288 Or.App. at 312. The requirement that petitioner show prejudice means that he must establish that his trial attorney's acts or omissions tended to affect the outcome of his case. Id.[3]

         Oregon's courts have long held that a witness, expert or otherwise, may not express an opinion as to whether he or she believes that another witness is telling the truth. State v. Middleton,294 Or. 427, 438, 657 P.2d 1215 (1983). We refer to direct testimony to that effect-such as when a witness testifies "'that he or she believes that another witness is or is not credible'"-as "true vouching."[4]Alne, 288 Or.App. at 314 (quoting State v. Corkill,262 Or.App. 543, 552, 325 P.3d 796, rev den,355 Or. 751 (2014)); see also State v. Milbradt,305 Or. 621, 630, 756 P.2d 620 (1988) ("An opinion that a person is not deceptive, could not lie without being tripped up, and would not betray a friend * * * is tantamount to the same thing"). As the Supreme Court has explained, the rule against vouching serves the important policy goals of "ensuring that the jury remains the sole arbiter of witness credibility and that the jury's role in assessing witness credibility is not usurped by another witness's opinion testimony." Chandler, 360 Or at 330; see also Berg v. Nooth,258 Or.App. ...


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