Lamonts Apparel, Inc. v. SI-Lloyd Associates,
153 Or App 227, 956 P2d 1024 (1998), he argues that, because of Judge
Rhoades's ex parte contacts, the trial judge had an obligation to
recuse herself and order a new trial.
The state argues that Judge Leggert's letter does not
demonstrate anything with respect to information that Judge Rhoades
considered in this case. According to the state, the letter speaks only
of information that Judge Rhoades provided to Judge Leggert, not the
other way around. In any event, the state argues, the sort of judge-to-judge
communication that the letter reflects is not impermissible. The state
argues that, even if it were, petitioner has failed to demonstrate any
sort of prejudice that could reasonably be associated with the exchange
that the letter recounts.
We review the trial court's denial of a motion to
recuse for an abuse of discretion. Lamonts Apparel, Inc., 153 Or
App at 231. In this case, we find none.
We note at the outset that we are not confronted with
an ex parte contact. An ex parte contact ordinarily refers
to contacts "[d]one or made at the instance and for the benefit of one
party only[.]" Black's Law Dictionary 616 (8th ed 2004). In this
case, the only relevant contact is a conversation that apparently took
place between two judges.
Conversations between judges about matters in the
record are expressly permitted by the Oregon Code of Judicial Conduct.
Thus, although JR 2-102(B) requires judges to refrain from communicating
with "a lawyer or party about any matter in an adversary proceeding
outside the course of the proceeding," JR 2-102(E) expressly provides
that the code "does not limit * * * any discussions about * * * matters
in the record related to a case that occur between a judge and * * *
another judge of the same level; employees of the court; [or] employees
of the judicial branch of government."
To be sure, that does not mean that judges have
carte blanche to acquire information outside of the record about
matters in dispute. In Lamonts Apparel, Inc., for example, the
dispositive issue was whether a motion for judgment notwithstanding the
verdict had been timely filed. The original of the motion in the trial
court file included a certificate of service showing that it had been
timely filed, but the clerk's stamp on the face of the motion showed
that the clerk's office had received it a day late. One party asserted
that the clerk's stamp was incorrect, while the other asserted that it
was correct. After an evidentiary hearing on the matter, the trial court
took the matter under advisement. The judge then paid a personal visit
to the clerk's office to discuss, among other things, whether the file
stamp was irregular and whether the clocks were properly synchronized.
When one of the parties learned of the conversation, a motion to recuse
quickly followed. The trial court denied the motion, but we reversed. We
concluded that, because the judge's acquisition of information regarding
factual issues reasonably raised a question about his impartiality, the
judge erred in not recusing himself. Lamonts Apparel, Inc., 153
Or App at 229-31; 234-35.
In contrast, in this case, there is no evidence that
Judge Rhoades acquired any information, much less that she acquired the
information by conducting an independent investigation of material
witnesses. Judge Leggert's letter recounts only what she had learned
from Judge Rhoades.
Even assuming that Judge Rhoades acquired information
from her conversations with Judge Leggert, there is no evidence that
petitioner suffered any prejudice as a result. On the contrary, the only
information that Judge Leggert relates in her letter is precisely the
sort of information that petitioner himself was attempting to elicit
from Lundberg-Rogers, namely, that she and the defense team had
performed poorly during the penalty-phase proceeding.
Petitioner appears to acknowledge that point, but,
citing Trice v. Baldwin, 140 Or App 300, 915 P2d 456 (1996),
urges us nevertheless to presume prejudice. In Trice, however,
the judge in the petitioner's underlying criminal trial had conferred
with a detective who had just testified at trial about the very issues
that were the subject of the detective's testimony. We held that such
contact with a witness "is presumptively prejudicial." Id. at
306. In this case, however, there was no improper contact with a
witness. Trice is distinguishable and its presumption of
prejudice inapplicable to this case.
We conclude that the post-conviction trial court did
not abuse its discretion in denying defendant's motion to recuse. As for
the motion for a new trial, petitioner acknowledges that his contention
that the court erred in denying that motion "hinges on the motion to
recuse." Given our disposition of petitioner's arguments concerning the
motion to recuse, it is clear that the court did not err in denying the
motion for a new trial.
2. Impeachment evidence
One of petitioner's post-conviction claims involves
the adequacy of his representation by Bassel, one of his attorneys at
the second penalty-phase proceeding. To respond to that claim, the state
sent a letter to Bassel in which it asked him a series of questions
about his representation of petitioner. Bassel responded by letter. The
state then obtained an affidavit from Bassel concerning his work for
petitioner. The affidavit was admitted into evidence in the post-conviction
trial. It contained, among other things, three statements that are
pertinent to the issues on appeal.
First, Bassel's affidavit stated that, "[p]rior to
the time the second penalty phase commenced, [petitioner] was one of the
most difficult clients I have ever had to work with. After the hearing
actually began, [petitioner] was one of the best clients I have ever
Second, the affidavit stated that "I recall that I
went through a 'dry rehearsal' of [psychologist] Dr. Colby's testimony
in person on two occasions prior to the penalty-phase hearing."
Third, the affidavit stated that, "[n]otwithstanding
any time limitation we may have had, I believe the mitigation team we
assembled was able to gather sufficient information to present to the
jury a picture of [petitioner's] upbringing and the obstacles he had
faced that might explain to the jury his actions the night of [the
victim's] murder." It also states that "I do not recall any particular
matter that was left uninvestigated because of time constraints."
Petitioner offered into evidence the state's letter
to Bassel as Exhibit 6 and Bassel's reply as Exhibit 16. The state
objected on relevancy and hearsay grounds. Petitioner responded that he
was offering the exhibits as prior inconsistent statements with which he
wished to impeach Bassel's affidavit. According to petitioner, Bassel's
affidavit "is in some measure" different from his answers to the state's
letter, although he did not explain in what particular respects that was
so. The post-conviction trial court sustained the state's objection.
On appeal, petitioner renews his contention that the
two exhibits were relevant and admissible prior inconsistent statements.
In response, the state argues that, among other things, the exhibits
were irrelevant, given that they demonstrate no inconsistencies.
We agree with the state. Petitioner contends that the
excluded exhibits demonstrate inconsistencies in Bassel's testimony in
three particulars. But, on examination of the pertinent portions of the
exhibits and Bassel's affidavit, we are not persuaded that any
OEC 613 permits a party to attack the credibility of
a witness with a prior inconsistent statement as long as the declarant
is given the opportunity to explain or deny the supposed inconsistency.
OEC 806, however, provides an exception to that rule:
"When a hearsay statement * * * has been admitted
in evidence, the credibility of the declarant may be attacked * * *
by any evidence which would be admissible for those purposes if the
declarant had testified as a witness. Evidence of a statement or
conduct by the declarant at any time, inconsistent with the hearsay
statement of the declarant is not subject to any requirement under
[OEC 613] relating to impeachment by evidence of inconsistent
In either event, however, the attack on the
declarant's credibility must be by means of an inconsistent
statement. The rules of evidence themselves do not define the term "inconsistent,"
but, in Rigelman v. Gilligan, 265 Or 109, 121, 506 P2d 710
(1973), the Supreme Court explained that statements are "inconsistent"
if there is a "material variance" between them.
Petitioner first contends that, while Bassel's
affidavit states that petitioner was a difficult client, the excluded
exhibits contradict that statement. Petitioner points out that, in
Exhibit 6, the state asked Bassel whether petitioner's "reluctance to
discuss his history or involve his family in his case hinder[ed his]
ability to prepare a defense for the penalty phase," and, in Exhibit 16,
Bassel responded that he did not recall that petitioner's reluctance
hindered the investigation. Petitioner states that Bassel's affidavit is
inconsistent with his response in Exhibit 16, because there is no
mention of petitioner being difficult in Exhibit 16. That Bassel's
letter did not mention whether petitioner was difficult comes as no
surprise. He was not asked that question. Thus, there is no material
Petitioner next contends that Exhibit 16 contradicts
Bassel's statement in his affidavit that he went through a "dry
rehearsal" with Dr. Colby regarding his testimony. What Exhibit 16 says,
however, is that Bassel did not "recall what, if anything was discussed
about the [Minnesota Multiphasic Personality Index]," a particular
psychological test. Bassel also said that "I do recall rather extensive
conversations with Dr. Colby to prepare his testimony, however." Again,
we find nothing inconsistent among the various statements.
Third, petitioner complains that the excluded
exhibits contradict the portion of Bassel's affidavit that states that
the defense team gathered "sufficient information" and that he did not
recall "any particular matter that was left uninvestigated." What the
excluded exhibits reveal, however, is that, although "[t]his was [Bassel's]
first murder case and [he] had a lot of work to do in a very short
period of time," he did not recall having any concerns about not being
present when the judge addressed the jury pool before voir dire.
Again, there is no inconsistency that would justify admission of the
excluded exhibits for the purpose of impeachment. We therefore conclude
that the post-conviction trial court did not err in excluding them.
B. Constitutionality of Oregon's death penalty
Petitioner next contends that the case
should be remanded for resentencing because Oregon's death penalty
statute, ORS 163.150, is unconstitutional for a number of reasons.
First, petitioner contends that the future dangerousness and
deliberateness determinations that the jury must make in order to impose
a sentence of death under ORS 163.150 violate the Due Process Clause of
the Fourteenth Amendment to the United States Constitution. According to
petitioner, the United States Supreme Court's decision in Ring v.
Arizona, 536 US 584, 122 S Ct 2428, 153 L Ed 2d 556 (2002), holds
that the future dangerousness and deliberateness findings are the
functional equivalent of elements that must be pleaded in the indictment
and proved to the jury beyond a reasonable doubt. Petitioner argues that
the future dangerousness provision does not meet the Eighth Amendment's
"heightened reliability requirement" as interpreted in Ring
because it permits the jury to find that a defendant is likely to be
dangerous in the future by a standard that is lower than the necessary "beyond
a reasonable doubt" standard. Second, petitioner also contends that the
death penalty statute is unconstitutional because it permits the use of
evidence that would be inadmissible to prove an element of the
underlying conviction to establish the "elements" necessary to impose
the death penalty. Finally, according to petitioner, the death penalty
statute is unconstitutional because the future dangerousness finding "permits
criminal punishment of future misconduct."
The state responds that, because petitioner failed to
raise in any of his direct appeals the constitutional issues that he now
asserts, he is precluded under Palmer v. State, 318 Or 352,
361-62, 867 P2d 1368 (1994), from raising them for the first time in a
petition for post-conviction relief. Moreover, the state argues,
petitioner failed even to include the constitutional arguments in his
initial petition for relief to the circuit court. Under ORS 138.550(3)
and Bowen v. Johnson, 166 Or App 89, 92-93, 999 P2d 1159, rev
den, 330 Or 553 (2000), the state contends, he is now precluded from
raising them on appeal. Finally, the state contends that, even if
otherwise reviewable, the argument petitioner now asserts has already
been rejected by our Supreme Court in State v. Oatney, 335 Or
276, 66 P3d 475 (2003), cert den, 540 US 1151 (2004), and that,
furthermore, the Oregon Supreme Court's decision in Page v. Palmateer,
336 Or 379, 390, 84 P3d 133, cert den, ___ US ___, 125 S Ct 205
(2004), makes clear that the holding of Ring "does not apply
retroactively to Oregon post-conviction proceedings."
We conclude that each of the state's points is well
taken and reject petitioner's arguments without further discussion.
C. Trial court error in the second penalty-phase
Petitioner next complains that the post-conviction
trial court erred in dismissing his claim for post-conviction relief
arising out of errors that the trial court committed during the second
penalty-phase proceeding. Specifically, petitioner assigns error to the
dismissal of the portion of his claim pertaining to what he regards as "coercion"
by court personnel in that proceeding. According to petitioner, an
affidavit from the jury foreperson in the second penalty-phase
proceeding demonstrates that the jurors were improperly informed by the
court's judicial assistant that the court "would keep us there until we
reached a verdict [and] that this could be very late into the night."
The state argues that the post-conviction trial court
did not err in dismissing petitioner's claim. In the alternative, it
argues by way of a cross-assignment of error that the court should not
have admitted the jury foreperson's affidavit--petitioner's only
evidence of the claimed misconduct--in the first place.
We review the admission of a juror's affidavit
regarding jury deliberations for abuse of discretion. Koennecke v.
State of Oregon, 122 Or App 100, 103, 857 P2d 148, rev den,
318 Or 26 (1993). It is the long-standing rule in Oregon that the "[a]ffidavit[s]
of jurors will not be received to impeach their verdict." Cline v.
Broy, 1 Or 89, 90 (1854). While that flat prohibition has been
relaxed somewhat since the nineteenth century, it is still "'a strong
policy in Oregon to protect jury verdicts from attack, and courts are
hesitant to interrogate jurors after they have reached a verdict in
order to probe for potential misconduct.'" State v. Cheney, 171
Or App 401, 415, 16 P3d 1164 (2000), rev den, 332 Or 316 (2001) (quoting
Koennecke, 122 Or App at 103); see also Leland Properties v.
Burton Engineering and Survey, 152 Or App 557, 563, 954 P2d 851,
rev den, 327 Or 620 (1998) ("Few principles are more time honored in
our jury system than the rule that affidavits of jurors will not be
considered as evidence to impeach the jury's verdict."). Only in cases
in which the misconduct at issue "amounts to fraud, bribery, forcible
coercion or any other obstruction of justice that would subject the
offender to a criminal prosecution" will the court consider "an attack
upon a verdict by a juror's affidavit[.]" Carson v. Brauer, 234
Or 333, 345, 382 P2d 79 (1963).
In this case, the alleged misconduct is a statement
by a member of the court staff to the jury during its deliberations in
the second penalty-phase proceeding. The jury foreperson's affidavit
states that, sometime during deliberations, the jury was advised by the
court's secretary that the court "would keep us there until we reached a
verdict [and] that this could be very late into the night." That does
not amount to the sort of misconduct described in Carson that
would warrant considering "an attack upon [the] verdict by a juror's
affidavit." The post-conviction trial court did not abuse its discretion
in denying petitioner post-conviction relief on the ground that the jury
verdict had been improperly coerced.
D. Inadequate assistance of counsel claims
As we have noted, the post-conviction trial court
dismissed each of petitioner's inadequate assistance of counsel claims.
On appeal, petitioner assigns error to the court's decision with respect
to several of those claims.
To prevail on an inadequate assistance of counsel
claim under the Oregon Constitution, petitioner must prove, by a
preponderance of the evidence, that counsel failed to exercise the
professional skill and judgment necessary to "diligently and
conscientiously advance the defense" and that he was prejudiced as a
result of that failure. ORS 138.620(2); Stevens v. State of Oregon,
322 Or 101, 108, 902 P2d 1137 (1995). Petitioner can prove that he
suffered prejudice under the Oregon Constitution only if counsel's
failure had "a tendency to affect the result of the prosecution."
Krummacher v. Gierloff, 290 Or 867, 883, 627 P2d 458 (1981).
Under the federal constitution, a petitioner must
demonstrate that counsel's performance "fell below an objective standard
of reasonableness * * * under prevailing professional norms" and that "there
is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 US 668, 688, 694, 104 S Ct 2052, 80 L
Ed 2d 674 (1984). A reasonable probability is one that "undermine[s]
confidence in the outcome." Id. at 694. In certain limited cases
under the Sixth and Fourteenth Amendments, prejudice is presumed, such
as when there is an actual or constructive complete denial of
representation or when there is state interference with a defendant's
representation. Id. at 692.
We are bound by the factual findings of the post-conviction
trial court if there is evidence in the record to support them.
Cunningham v. Thompson, 186 Or App 221, 226, 62 P3d 823, adh'd to
as modified on recons, 188 Or App 289, 306, 71 P3d 110 (2003),
rev den, 337 Or 327 (2004). When the post-conviction trial court
does not make factual findings, we assume that it decided the facts
consistently with its ultimate decision on the issue. Id. We
review the post-conviction trial court's legal conclusions for errors of
law. ORS 138.650; ORS 138.220; Cunningham, 186 Or App at 226.
With the foregoing principles in mind, we turn to
petitioner's particular assignments of error.
1. Trial counsel's failure to call LaPine as a
witness at trial
Petitioner argues that his guilt-phase trial
counsel's decision not to call LaPine as a witness at trial constitutes
inadequate assistance of counsel. According to petitioner, LaPine's
testimony would have directly contradicted the testimony of Varzali--a
state's witness whose testimony placed petitioner at the crime scene at
the time of the murder--regarding the order in which petitioner and his
accomplice, Cornell, entered the victim's apartment. According to
petitioner, "[i]f Varzali could be shown to be wrong about even the most
basic details of the crime, her credibility in the remainder of her
testimony would likely have been destroyed." The state counters that
LaPine's testimony did not contradict Varzali's and that petitioner's
trial counsel reasonably declined to call LaPine because her testimony
would have only reinforced the conclusion that petitioner had gone to
the victim's apartment at the time of the murder--a fact to which
Varzali was unable to testify.
We do not understand how LaPine's testimony would
have impeached that of Varzali as petitioner contends. The victim was
found dead in his apartment on Friday, September 20, 1985. At trial,
Varzali testified that, on the night of Wednesday, September 18, 1985,
she had driven with petitioner and Cornell to a grocery store pay phone
where they had met "someone" whom she could not identify but who drove a
truck "like a Toyota." Varzali testified that she, petitioner, and
Cornell then followed the truck to the apartment complex in which the
victim was later found dead, that petitioner parked and left the car,
and that approximately five minutes later, Cornell followed. Varzali
could not state where the two had gone. Varzali testified that she slept
in the car until Cornell returned and drove to the front of "an
apartment" from which petitioner and Cornell began removing various
LaPine was a neighbor of the victim. She testified in
a pretrial hearing that she had seen the victim near midnight one night
"during the first part of the week" of September 20, 1985. She stated
that she saw the victim with Cornell as she was walking to her
apartment, which was near the victim's apartment.
As the state points out, nothing in LaPine's pretrial
testimony contradicts the testimony of Varzali. The two versions of
events are not incongruent, particularly given that Varzali could not
testify to anything that occurred after petitioner and Cornell left the
car. Furthermore, given that Varzali was unable to identify the person
with whom petitioner and Cornell met after leaving the car on the night
of September 18, LaPine's testimony appears to do petitioner more harm
than good; it makes it more likely that the person whom they met was
indeed the victim.
Given that LaPine's testimony could do little, if
anything, to impeach Varzali's testimony, but could connect petitioner
and Cornell to the victim near the time of the murder, it was a
reasonable tactical decision not to call LaPine as a witness at trial.
Thus, we cannot say that, in declining to call LaPine as a witness,
petitioner's trial counsel failed to "diligently and conscientiously
advance the defense." The post-conviction trial court did not err in
denying petitioner post-conviction relief on that ground. See
Cunningham, 186 Or App at 226 (reviewing court will not second-guess
counsel's tactical decisions unless those decisions "reflect an absence
or suspension of professional skill and judgment").
2. Trial counsel's cross-examination of witness
Petitioner contends that his guilt-phase trial
counsel's performance was constitutionally inadequate because, on cross-examination
of Dr. Larry Lewman, the state medical examiner, trial counsel "attacked"
Lewman's opinion that the victim had likely died in a matter of minutes.
According to petitioner, because of that cross-examination, trial
counsel undermined petitioner's theory of the case, which was that the
homicide was unintentional and thus felony murder rather than aggravated
murder. The state argues that trial counsel's line of questioning was
reasonably calculated to lead the jury to the conclusion that the
victim's death was accidental and that, in any event, petitioner has
failed to demonstrate that trial counsel's conduct prejudiced him.
At trial, the state called Lewman to testify as to
his opinion regarding the cause and manner of the victim's death. Lewman
testified on direct examination that, as the result of a ligature around
his neck and a "three-inch wad of mucus and blood soaked tissue paper *
* * crammed in his mouth" the victim's airway was "completely occluded"
and he died because his "air supply * * * was cut off." When asked about
how long the victim might have lived under such conditions, Lewman
offered that he didn't "think very long" and that "generally speaking,
if somebody's airway is completely occluded * * * it takes about three
minutes to put them in a position where they can't recover."
At that point in Lewman's testimony, petitioner's
trial counsel objected and asked, "[Y]ou don't know at what point the
tissue occluded the airway, do you sir?" Lewman answered, "That's
correct * * * [but] I can say sooner rather than later." Petitioner's
trial counsel then asked, "[Y]ou can't say [whether the tissue] occluded
it right away or [whether it] may have been hours,* * * [y]ou can't tell
the jury at what point in time the airway was occluded." On redirect,
Lewman testified that he thought that the victim had likely died "sooner
rather than later. I don't think he lay there for several hours[,] * * *
it was probably a few minutes[.]"
Petitioner contends that his trial counsel's
cross-examination undermined his theory of the case. According to
petitioner, establishing a short time of death was "critical [to his
defense] in two respects." First, it would have negated the element of
torture that was the basis for one of petitioner's aggravated murder
charges, and second, establishing a short time of death also would have
"increased the likelihood that [the victim's]
death was accidental rather than intentional, because it shortened
the time that the defendants, who were busy ransacking the
apartment, could have seen that [the victim] was in serious,
life-threatening distress, rather than just suffering the
significant discomfort one would expect from being hogtied."
Thus, according to petitioner, his trial counsel's
cross-examination actually increased the likelihood that the jury would
find him guilty of the aggravated murder charges.
The state counters that establishing that a long
period of time had elapsed between the time when the victim was bound
and gagged and when he died would have made it more likely that the
victim's death was accidental. The state points out that, as the post-conviction
court noted, "[i]f the victim's airway became occluded at some point
after petitioner left the victim's apartment, * * * then [petitioner's
trial counsel's] argument that petitioner had not intended to cause the
victim's death gains credibility." Thus, according to the state, it was
reasonable for petitioner's trial counsel to question Lewman's
conclusion that the victim had died quickly and to attempt to establish
that the victim instead died at some later point in time.
We agree with the state that petitioner's trial
counsel's cross-examination of Lewman did not fall below the
constitutional standard. Attempting to insert doubt into the precise
timing of the victim's death was a reasonable strategy because, as the
post-conviction trial court reasoned, establishing that the victim's
airway became occluded at some time after petitioner left the apartment
would have lent credibility to the argument that petitioner had not
intended to cause the victim's death. In short, pursuing that strategy
was a reasonable decision by petitioner's trial counsel that did not "reflect
an absence or suspension of professional skill or judgment." The post-conviction
trial court did not err in denying petitioner post-conviction relief on
3. Trial counsel's failure to locate and present
Petitioner also contends that his guilt-phase trial
counsel's performance was constitutionally inadequate because counsel
failed to locate certain witnesses--a paper boy and two police officers--who
petitioner contends saw him at the victim's apartment complex and would
have been able to testify that petitioner was not in the victim's
apartment at the time that the victim was bound and gagged. The state
counters that, even if trial counsel failed to investigate adequately
those witnesses, petitioner has failed to show what their testimony
would have been and, thus, has failed to demonstrate that he was
prejudiced by that failure. We agree with the state.
As the post-conviction trial court found, "[p]etitioner
did not present evidence in this proceeding to demonstrate what [the]
witnesses would have said had they been found by petitioner's counsel."
Such an absence of evidence regarding the content of potential witness
testimony is insufficient to demonstrate prejudice. New v. Armenakis,
156 Or App 24, 28-29, 964 P2d 1101 (1998), rev den, 328 Or 594
(1999). The trial court did not err in denying petitioner post-conviction
relief on that ground.
4. Trial counsel's supervision of investigator
Petitioner next contends that his guilt-phase trial
counsel's performance was inadequate because he failed to supervise
adequately the defense investigator, Eldred. According to petitioner,
Eldred disclosed privileged information to Varzali, causing her to
substantially alter her testimony in a manner that prejudiced petitioner.
The state responds with a number of arguments, the dispositive point
being that, even if petitioner's guilt-phase trial counsel acted
unreasonably in his supervision of Eldred, petitioner failed to prove
that he was prejudiced as a result.
According to petitioner, Varzali was an alibi witness
for him. Regarding the events of the night of the murder, Varzali
initially testified at a pretrial hearing that she had stayed at
petitioner's apartment, where petitioner and Cornell had spent the
evening "doing laundry." According to Varzali, she slept at the
apartment that night and, when she awoke, she saw a number of items of
property that had not been there previously. Varzali originally stated
that petitioner had claimed that he had gotten the items from his ex-wife.
Eldred conducted a follow-up interview of Varzali.
According to petitioner, during that interview, Eldred told Varzali that
petitioner had admitted his involvement in the murder and that
petitioner had claimed that Varzali drove him and Cornell to the
victim's apartment. According to petitioner, as a result of Eldred's
disclosures, Varzali changed her testimony and admitted to police that
she had been in the car with petitioner and Cornell on the night of the
murder and that she had accompanied them to the apartment complex where
the victim had lived. That, contends petitioner, amounted to inadequate
assistance of counsel because trial counsel should have supervised
Eldred more closely, thereby preventing such a disclosure of privileged
information, and because the failure to do so prejudiced petitioner by
causing a potential alibi witness to change her testimony.
Even assuming that Eldred disclosed client
confidences to Varzali, however, petitioner has failed to demonstrate
that he was prejudiced as a result of those disclosures. As the post-conviction
trial court found, "[d]uring the investigation of petitioner's alibi
witness, [Varzali,] counsel and his investigators learned that, in fact,
petitioner had been with this witness. However, this witness placed
petitioner and herself at the scene of the crime." Varzali testified
that, had she not had the conversation with Eldred, she would not have
testified as she ultimately did. Varzali, however, also testified that
her conversation with Eldred "was just like the little thing that
knocked me over the edge to go out and tell the complete truth about
We read that statement to mean that any alibi Varzali
may have provided petitioner would have been based on perjured testimony
and that her ultimate testimony at trial was, in Varzali's words, "the
complete truth about what happened." Petitioner is not entitled to
perjured alibi testimony and, thus, even if trial counsel's supervision
of Eldred was inadequate, petitioner has failed to prove that he was
prejudiced by Eldred's conversation with Varzali. See Howe v. Cupp,
55 Or App 247, 252, 637 P2d 933 (1981), rev den, 292 Or 863
(1982) (failure to contact witness not prejudicial because witness had
only perjured alibi testimony to offer); see also Nix v. Whiteside,
475 US 157, 171-175, 106 S Ct 988, 89 L Ed 2d 123 (1986) ("Whatever the
scope of a constitutional right to testify, it is elementary that such a
right does not extend to testifying falsely."). The post-conviction
trial court did not err in denying petitioner relief on that ground.
5. Trial counsel's opening statement
Petitioner next contends that his trial counsel's
performance was constitutionally inadequate because, "for all practical
purposes, [trial counsel] pled [petitioner] guilty to felony murder
during his opening statement[.]" According to petitioner, trial counsel
failed to obtain his consent to make that "concession of guilt on the
felony murder charge" and, in making that concession, failed to subject
the state's theory of the case to "meaningful adversarial testing."
Therefore, according to petitioner, prejudice must be presumed under the
The state counters that the post-conviction trial
court found as fact that "[petitioner's trial counsel] did not concede
in his opening statement that petitioner was guilty of felony murder."
Because that finding is supported by evidence in the record, the state
argues, we are bound by it. In the alternative, the state contends that,
if we conclude that trial counsel's statements amount to a concession of
guilt, in light of the evidence that the state intended to present,
conceding petitioner's guilt to felony murder was a reasonable tactical
decision for which defense counsel was not required to obtain
petitioner's consent. In any event, the state concludes that, in light
of the strength of the state's evidence, petitioner cannot prove
prejudice by any concession by trial counsel.
In his opening statement at trial, petitioner's trial
"The evidence in this case will not show [that]
this is an aggravated murder. It will not show that the death of
[the victim] was caused by an intentional killing. The evidence will
not show that there was an intent to kill [the victim]; rather, what
the evidence will show is [that] the intent was the same as
[petitioner's intent in carrying out an earlier burglary]: tie him
up, keep him there so he doesn't move. They took his property. Why?
Same purpose: sell it, use the credit cards, use the checks, get
money for drugs, other things--but for money."
Even were we to read that opening statement as a
concession of guilt regarding petitioner's commission of a felony
murder, we could not say, in light of the state's overwhelming evidence
of petitioner's involvement in the burglary of victim's apartment, that
such a concession was an unreasonable trial tactic.
At trial, Varzali testified that she had accompanied
petitioner and Cornell to the victim's apartment complex on the night of
the murder and that petitioner had entered the complex. Petitioner's
fingerprint was found inside the victim's apartment. The circumstances
of the victim's death and the manner in which the victim had been bound
and gagged were nearly identical to the circumstances and method of an
earlier burglary in which petitioner had been involved. Finally, the
state presented evidence that petitioner and Cornell were in possession
of property of the victim and that the victim had died of asphyxiation
due to the manner in which he had been bound and gagged.
In light of that evidence, it was a reasonable tactic
to, in effect, concede guilt as to the predicate burglary charge--and
thus to the felony murder charge--but to contest the aggravated murder
charges. The facts that the state intended to present could reasonably
be argued as virtually certain proof that petitioner intended to
restrain the victim in the course of a burglary. A concession of
petitioner's involvement in a felony murder reasonably could have been
made in order to preserve his credibility with the jury and avoid
convictions for aggravated murder, thus avoiding the death penalty. Such
a decision strikes us as a reasonable exercise of professional skill and
judgment. Cf. Burdge v. Palmateer, 338 Or 490, 497 , ___ P3d ___
(2005) (reasonable skill and judgment is exercised when counsel
apprehends issue, sees a course of action that could benefit client, and
concludes that the benefits of that course of action outweigh the risks).
Furthermore, such a concession by counsel does not amount to a guilty
plea and, thus, does not require petitioner's consent. Florida v.
Nixon, 543 US ___, 125 S Ct 551, 560-61, 160 L Ed 2d 565 (2004) (provided
that a defendant is informed of counsel's decision, reasonable strategy
of conceding guilt to murder in order to preserve the defendant's
credibility did not require the defendant's express consent because it
is not the functional equivalent of a guilty plea). Petitioner does not
contend that he was not informed of his trial counsel's strategy to
focus on a defense theory that the victim's death was the unintended
consequence of a burglary.
We therefore conclude that trial counsel's opening
statement, even if it is understood as an admission of petitioner's
guilt of felony murder, did not fall below the constitutional minimum.
See Gorham v. Thompson, 332 Or 560, 567, 34 P3d 161 (2001) (reviewing
court "will 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"). Because it was a
reasonable strategy, we need not decide whether prejudice may be
presumed under the Sixth and Fourteenth Amendments. The post-conviction
trial court did not err in denying petitioner relief on that ground.
6. Trial counsel's performance during voir
dire and jury selection
Petitioner next contends that his guilt-phase trial
counsel was inadequate for failing to "conduct voir dire which
would adequately ascertain the jurors' willingness to presume [petitioner]'s
innocence until proven guilty beyond a reasonable doubt" and for "failing
to adequately question obviously biased jurors and exercise necessary
cause challenges during jury selection." The state responds that
petitioner failed to preserve both issues. The state argues that,
although petitioner's petition vaguely alleged that criminal trial
counsel failed to adequately question and pursue various prospective
jurors for the purposes of establishing bases for challenge, it did not
identify any particular jurors whom counsel should have questioned
further or what each of them said that would justify additional
questioning. In any event, the state argues, petitioner failed to
establish any basis for concluding that counsel's questioning during
voir dire and jury selection was unreasonable. In particular, the
state relies on the findings of the post-conviction trial court to the
effect that criminal trial counsel "had available to him [the results of]
an extensive jury questionnaire * * * which apparently answered many of
the questions traditionally asked verbally in voir dire" and the
court's conclusion that it would not--and that we, likewise, should not--"supplant
the judgment of trial counsel in not asking more probing questions in
the absence of evidence that the questionnaire was insufficent."
We agree with the state in each respect and reject
petitioner's arguments without further discussion.
7. Trial counsel's closing argument
Petitioner contends that his guilt-phase trial
counsel provided inadequate assistance by "pursuing totally inconsistent
defenses in his closing argument, thereby failing to properly argue the
case to the jury." The state counters that petitioner's trial counsel's
closing argument was constitutionally adequate and that, even if we
conclude that it was not, petitioner has failed to prove that he was
prejudiced by that closing. We agree with the state that petitioner's
trial counsel was not constitutionally inadequate.
Even if we were to conclude that counsel's closing
argument at the guilt-phase trial demonstrated a lack of professional
skill and judgment, petitioner has failed to demonstrate that he was
prejudiced by that closing. He merely speculates that prejudice was
likely. As noted, we will not presume prejudice in the absence of proof
offered by the party bearing that burden--petitioner. Ryan, 338
Or at 291. The post-conviction trial court did not err in denying
petitioner relief on the ground that trial counsel's closing argument
was constitutionally inadequate.
8. Second penalty-phase counsel's investigation of
Petitioner contends that his attorney's performance
during the second penalty-phase proceeding was constitutionally
inadequate because that counsel failed to investigate mitigation
evidence that petitioner contends proved he would not be dangerous in
prison. According to petitioner, counsel at the second penalty-phase
proceeding failed to uncover "widely available" evidence indicating that
homicide rates in prisons are lower than in the general population and
that death-row inmates tend to exhibit "far better institutional
adjustment than average inmates." According to petitioner, this evidence
was "essential to counteract probable juror misconceptions about the
rate of violence in prison and by murder convicts." The state counters
that petitioner's counsel during the second penalty-phase proceeding did
produce mitigation evidence that petitioner would be unlikely to be
dangerous in prison and, thus, provided petitioner with constitutionally
In the second penalty phase, petitioner's counsel
called a number of experts to testify about the likelihood of
petitioner's future dangerousness in prison. All agreed that, although
it was difficult to predict the future dangerousness of any offender,
petitioner was unlikely to pose a threat in prison. As the
post-conviction trial court found,
"[i]n the second penalty phase, counsel presented
testimony of Drs. Larsen and Colby that petitioner had generally
been non-violent in his many years of incarceration and that they
believed he would continue that pattern if incarcerated in the
future. Testimony of individuals who had contact with petitioner
while he was incarcerated bolstered the doctors' testimony."
We do not understand how evidence regarding general
rates of crime in prison and on death row would have bolstered in any
significant manner the testimony of those experts who testified
specifically about petitioner's relative dangerousness in prison.
Thus, even assuming that the evidence that petitioner cites supports his
position, it was not a failure of constitutional magnitude for counsel
to have failed to adduce such evidence in the second penalty-phase
proceeding. Pratt v. Armenakis, 199 Or App 448, 457, ___ P3d ___
(2005) (failure to adduce additional evidence urged by petitioner was
not inadequate assistance because that evidence "would merely have
supplemented the existing expert testimony with additional expert
testimony as to the same conclusion"); see also Krummacher, 290
Or at 874. (counsel need not "expend time and energy uselessly or for
negligible potential benefit under the circumstances of the case"). The
post-conviction trial court did not err in denying petitioner relief on
8. Trial counsel's failure to raise voluntary
intoxication/diminished capacity defenses and failure to investigate
evidence of petitioner's organic brain deficiency and fetal alcohol
Petitioner also contends that his counsel during the
guilt-phase trial was constitutionally inadequate for failing to
properly develop and raise a voluntary intoxication defense and for
failing to "properly investigate and secure evidence of [petitioner's]
organic brain deficiency and fetal alcohol syndrome." According to
petitioner, because Varzali testified that petitioner had taken heroin
shortly before going to the victim's apartment, defense counsel should
have further developed a voluntary intoxication defense beyond merely
requesting a jury instruction regarding voluntary intoxication.
Petitioner contends that trial counsel should have obtained expert
witnesses to testify regarding the physical and psychological effects of
heroin use. Petitoner argues that such testimony would have supported
his argument that the victim's death was unintentional. Similarly, he
argues, because there was evidence adduced at the second penalty-phase
proceeding that he may have suffered from an organic brain disorder, his
guilt-phase trial counsel was inadequate for failing to discover that
possibility and for failing to put on a guilty except for insanity
defense under ORS 161.295.
The state counters that there was no evidence that
petitioner was affected by heroin at the time of the murder, nor any
evidence that his heroin use impaired his ability to form the requisite
intent to commit aggravated murder. The state notes that Varzali could
not testify to petitioner's mental state at the time that he went to the
victim's apartment, nor could she state whether petitioner had taken a
significant quantity of the drug. The state also points out that there
was "other evidence of petitioner's conduct" that indicated that "petitioner
was in full possession of his mental faculties" on the night of the
murder and that petitioner was "fully capable of comprehending the
consequences of his conduct." The state relies on the following findings
of the post-conviction trial court:
"The evidence available to petitioner's defense
team concerning the murder of [the victim] would not have supported
a diminished capacity defense. Contrarily, the evidence demonstrated
that petitioner carefully executed a plan to commit the robbery and
murder of [the victim]. Specifically, petitioner and his
co-defendant planned and executed the robbery of [the victim] after
finding his personal ad in a magazine called 'Swing and Sway.' * * *
In order to carry out their plan, petitioner called [the victim] to
arrange a time to meet at his apartment[,] * * * then drove from
Northwest Portland to Tualatin. Once they reached Tualatin,
petitioner called [the victim] a second time so that [the victim]
could meet them and direct them to his apartment. The careful
execution of [that] plan * * * does not support a defense premised
on the assertion [that] petitioner was too intoxicated to form the
intent to commit the crime."
Thus, according to the state, the evidence was such
that any additional expert testimony as to the effect of heroin
intoxication would have been unnecessary and petitioner failed to prove
that his trial counsel's decision to refrain from further pursuing a
voluntary intoxication defense was unreasonable.
The state further points out that petitioner has
failed to prove that the psychiatrist who examined him for the second
penalty-phase proceeding would have reached the same conclusion at the
guilt-phase trial. The state also notes that testimony from mental
health professionals at the first penalty-phase trial supported the
conclusion that petitioner did not suffer from the sort of brain
damage that would impair his ability to appreciate the criminality of
his conduct or conform his conduct to the requirements of the law.
Therefore, according to the state, petitioner has failed to prove that a
guilty except for insanity defense would have been available. Further,
the state points out that the deliberate and premeditated nature of the
crime was inconsistent with a guilty except for insanity defense. For
those reasons, the state argues, a reasonable attorney would not have
pursued a guilty except for insanity defense and, even if it was
unreasonable for counsel not to pursue that defense, petitioner has
failed to prove that he was prejudiced by that failure.
As the state points out, there was no evidence in the
record of whether or to what degree petitioner was intoxicated at the
time of the murder. Cf. Short v. Hill, 195 Or App 723, 730-31, 99
P3d 311 (2004), rev den, 338 Or 374 (2005) (in order to establish
availability of a diminished capacity defense on the basis of
methamphetamine withdrawal, the petitioner would have had to establish:
(1) severity of withdrawal necessary to impair capacity and (2) how
severe the petitioner's withdrawal was at time of crime). Furthermore,
expert psychiatric testimony provided at the second penalty-phase
proceeding indicated that "taken by itself * * * [heroin use] doesn't do
much to impair your thinking." Petitioner adduced no contrary evidence
at the post-conviction trial. In light of the evidence of petitioner's
planning and deliberation in executing the crime, it strikes us that
expert testimony that would likely establish only that heroin use "doesn't
do much to impair [one's] thinking" would have offered "negligible
potential benefits" to petitioner's voluntary intoxication defense.
Furthermore, the deliberation in planning and the successful execution
of the crime contradict the idea that petitioner was so intoxicated that
he was unable to form the requisite mental state for any of the elements
of the crime. We therefore conclude that petitioner has failed to prove
that trial counsel acted unreasonably in declining to further pursue a
voluntary intoxication defense. Krummacher, 290 Or at 874.
Likewise, petitioner has failed to prove that he
would have been able to establish the existence of an organic brain
disorder at the time of the guilt-phase trial. In petitioner's first
penalty-phase proceeding, a psychologist testified that, while there was
some speculation that petitioner may have "organic brain syndrome due to
numerous head injuries," petitioner did "not appear to have a thought
disorder." Petitioner cites no evidence that, at the time of his guilt-phase
trial, any mental health professional would have been willing to
diagnose petitioner with the sort of mental disease or defect that would
support a guilty except for insanity defense. See Short, 195 Or
App at 729 (in order to prevail on claim that failure to investigate was
inadequate assistance, "petitioner must adduce evidence at the post-conviction
hearing that would have been discovered and introduced at the criminal
trial had counsel undertaken the proposed investigation"). We thus
conclude that it was not unreasonable for trial counsel to decline to
pursue such a defense. The post-conviction trial court did not err in
denying petitioner relief for his guilt-phase trial counsel's failure to
pursue either a voluntary intoxication or guilty-except-for-insanity
9. Second penalty-phase counsel's failure to
object to verdict form
Petitioner contends that his counsel's performance in
the second penalty-phase was inadequate because counsel failed to object
to the verdict form on the ground that it improperly implied that any
verdict returned by the jury must be unanimous. As the state points out,
petitioner failed to submit the verdict form at issue to the post-conviction
trial court and, therefore, this court "cannot determine whether the
form impermissibly suggested to the jury that the verdict had to be
unanimous." Petitioner replies that the second penalty-phase court's
instruction to the jury regarding the signature page of the verdict form
provides a sufficient basis to review the verdict form. We do not agree.
It is axiomatic that documentary evidence that is not
included in the record cannot be reviewed on appeal. E.g.,
Cathcart v. Marshfield, 89 Or 401, 403, 174 P 138 (1918); Fisher
v. Kelly, 26 Or 249, 250-51, 38 P 67 (1894). That rule is no
different in post-conviction proceedings. ORS 138.580 ("Affidavits,
records, or other documentary evidence supporting the allegations of the
petition shall be attached to the petition."). Furthermore, we do not
agree with petitioner's assertion that we can adequately review whether
the verdict form properly stated the law, based on the second penalty-phase
trial court's instruction regarding the signature page of the verdict
form. As the post-conviction court concluded, based on this record, we "cannot
determine whether the form impermissibly suggested to the jury that the
verdict had to be unanimous." The post-conviction trial court did not
err in declining to review that issue or in denying petitioner relief on
10. Trial and appellate counsels' failure to move
to dismiss indictment
Petitioner argues that both his trial and appellate
counsel were constitutionally inadequate for their failure to move to
have the indictments against him dismissed as void under ORS 132.020(4).
According to petitioner, he was charged and tried on two separate
indictments that were issued by two different grand juries, yet were
based on the events of a single criminal episode. The state counters
that petitioner failed to raise that defect before the post-conviction
trial court and that he is now precluded from raising the issue on
appeal. Petitioner concedes that he did not raise the issue below, but
he contends that we may address it as an error apparent on the face of
the record. Petitioner is mistaken.
Post-conviction proceedings are commenced by the
filing of a petition that must "set forth specifically the grounds upon
which relief is claimed." ORS 138.580. All grounds for relief must be
stated in the original or an amended petition, and "any grounds not so
asserted are deemed waived." ORS 138.550(3). The post-conviction trial
court must determine whether "the petition states a ground for relief."
ORS 138.620(2). As we have previously stated, the allegations in a post-conviction
petition limit the issues before the court, and any claim that a
petitioner fails to include in the original or amended petition is
waived. Bowen, 166 Or App at 92-93. Because he failed to include
that claim in his petition for relief, he has waived it in this