A blog produced by the Oregon Justice Resource Center discussing the death penalty (capital punishment) in Oregon and in the Ninth Circuit.
Appeal from rejection of post-conviction relief claim in Marion County Circuit Court before Judge Albin W. Norblad.
Argued and Submitted: November 21, 2011 – Salem, Oregon
Filed: February 12, 2012
Before: Robert Wolleheim, Presiding Judge, and Rex Armstrong, Judge, and Lynn Nakamoto, Judge – Oregon Court of Appeals
Issue: Whether assistance of trial counsel was inadequate based on: (1) failing to object to the admission of evidence regarding petitioner’s interest in “death metal” music and Satanism; (2) failing to adequately investigate, develop, and present mitigating evidence about petitioner’s “background and social history involving family dynamics”; and (3) ”failing to make timely pretrial motions, timely specific trial objections, and a timely motion for mistrial regarding the admissibility of victim-impact evidence concerning the testimony of [Daniel] Wall at the guilt phase * * * and at the penalty phase.”
Holding (Wollheim): Petitioner failed to prove that his counsel’s performance was deficient or that any deficiency had a tendency to to effect the outcome of the proceeding. AFFIRMED.
* ”the post-conviction court found that trial counsel’s decision not to file a motion in limine to exclude the evidence [of Satanism and "death metal"] was a tactical one in light of trial counsel’s familiarity with the trial court’s practice of denying motions in limine. There is evidence to support the post-conviction court’s findings, and we conclude that the decision to not file the motion in limine was a reasonable exercise of defense counsel’s professional judgment. For that reason, we conclude that petitioner has failed in his burden to show that defense counsel was ineffective in not seeking a motion in limine. . . any objection based on OEC 403 would not likely have led to the conclusion that all of the evidence should have been suppressed, because the probative value of that evidence far outweighed its prejudice to defendant.”
* “At the post-conviction hearing, petitioner offered the testimony of an attorney, Grefenson; a mitigation expert, Miller; and a psychologist, Cooley, each of whom offered the opinion that more could have been done to cast petitioner in a positive light. * * * In rejecting petitioner’s contention that counsel was inadequate in failing to investigate and present mitigation evidence, the post-conviction court found: * * *Petitioner’s trial counsel did the best investigation that they could under the circumstances. Petitioner did not prove that the investigation by his trial counsel was objectively unreasonable * * * We have reviewed the post-conviction record, and we conclude that the post-conviction court’s findings relating to mitigation evidence are supported by the evidence. Considering the deference to be accorded to trial counsel . . . we conclude that the post-conviction court did not err in rejecting petitioner’s claims concerning the adequacy of counsel’s investigation and presentation of mitigation evidence.”
* “The [Oregon Supreme Court] further held that, in light of the 1999 amendment to the Oregon Constitution, Article I, section 42, the admission of victim impact evidence on remand would not violate the ex post facto clause of the state constitution. State v. Acremant, 338 Or 302, 311-15, 108 P3d 1139, cert den, 546 US 864 (2005) (citingGuzek III). In essence, the court held, Article I, section 42, trumps Article I, section 21, with respect to the admissibility of victim impact evidence. Therefore, it is undisputed that, if we were to remand this case for a new penalty-phase proceeding, the same victim impact evidence would be admissible under both the state and federal constitutions.”
* “With respect to the guilt phase of trial, we reject petitioner’s contention that trial counsel was ineffective in failing to object to the introduction of Daniel Wall’s brief testimony on ex post factogrounds as “victim impact evidence.” As we have previously noted, the reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances. Kimmelman, 477 US at 381. Before the Supreme Court’s opinion on direct appeal on petitioner’s case, we do not think that counsel could reasonably have predicted that a failure to object to the brief foundational testimony that Daniel Wall provided to allow identification of the victim in a photograph could result in a waiver of subsequent objections to additional victim impact evidence in a subsequent penalty phase. We accordingly conclude that petitioner’s counsel was not deficient during the guilt phase of trial in failing to object to the testimony of Daniel Wall.”
* A petitioner proves prejudice of a constitutional magnitude by showing that counsel’s failure had a tendency to affect the result of the prosecution. Stevens, 322 Or at 110. The court will not presume prejudice in the absence of proof. Pinnell v. Palmateer, 200 Or App 303, 323, 114 P3d 515 (2005), rev den, 340 Or 483 (2006). Petitioner’s expert witness offered the opinion at the post-conviction hearing that Daniel Wall’s testimony was “terribly damaging.” However, other than that conclusory opinion, petitioner offered no evidence as to how, in light of the evidence concerning the brutality of the crime and defendant’s lack of remorse, the relatively brief victim impact evidence had a tendency to cause the jury to choose a death sentence over imprisonment.
Background: Petitioner was charged with and convicted of one merged count each of aggravated murder and attempted aggravated murder for his role in a murder and assault at the Dari Mart in Eugene on April 1o, 1994. Petitioner was sentenced to death by a Lane County jury. The conviction and sentence were affirmed by the Oregon Supreme Court on direct review in 1998. In petitioning for post-conviction relief, Hayward raised 16 claims that were rejected by the post-conviction court. On appeal, petitioner raises two assignments of error encompassing 13 separate specifications regarding trial counsel’s deficiencies.
Procedural Posture: Petitioner Hayward was convicted of aggravated murder and sentenced to death in Lane County in 1996. The conviction and sentence were affirmed in State v. Hayward, 327 Or 397 (1998). Hayward filed a petition for post-conviction relief in Marion County Circuit Court raising 16 claims related to the the effectiveness of his trial counsel during the guilt and penalty phases of his trial. Marion County Circuit Court Judge Norblad rejected the claim and Petitioner appealed to the Oregon Court of Appeals.
Standard of Review: The Court of Appeals is bound to the findings of the post-conviction court if they are supported by evidence in the record. Wyatt v. Czerniak 223 Or App 307 (2008). If the post-conviction court did not expressly make such findings, and there is evidence from which the facts could be decided more than one way, the Court of Appeals will presume that the facts were decided in a manner consistent with the court’s ultimate conclusion. Ball v. Gladden, 250 Or 485 (1968). (See cases cited below for standard of review for claims based on ineffective assistance of counsel).
Significant Laws and Cases Cited:
U.S Constitution, Sixth Amendment (stating that an accused in criminal proceedings shall “enjoy the right . . . to have the assistance of counsel for his defense.”)
Strickland v. Washington, 466 US 668 (1984)(to prevail on his claims under the United States Constitution, petitioner was required prove that trial 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.”)
Kimmelman v. Morrison, 477 US 365 (1986) (the reasonableness of counsel’s performance is evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances; the post-conviction court’s standard of review is a highly deferential one).
Burger v. Kemp, 483 US 776 (1987) (the right to effective assistance of counsel extends to the penalty phase of the trial).
OR Constitution Article I, Sec. 11 (“In all criminal prosecutions, the accused shall have the right . . . to be heard by himself and counsel”)
Trujillo v. Maass, 312 Or 431 (1991) (to prevail on a claim under Article I, section 11, of the Oregon Constitution, petitioner was required to prove, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result).
Montez v. Czerniak, 237 Or App 276 (2010) (the federal and state constitutional standards are functional equivalents. The post-conviction claim based on ineffective assistance of counsel essentially encompasses two elements: (1) that counsel performed deficiently and (2) that counsel’s deficient performance prejudiced the petitioner, that is, that it had a tendency to affect the result of the trial).
Cunningham v. Thompson, 186 Or App 221 (2003) (in reviewing a post-conviction claim of ineffective assistance of counsel, the court “will not second-guess a lawyer’s tactical decisions unless those decisions reflect an absence or suspension of professional skill and judgment[.]“).
Ashley v. Hoyt, 139 Or App 385 (1995) (to prove prejudice of constitutional magnitude, petitioner was required to show that “counsel’s advice, acts, or omissions had `a tendency to affect the result of the prosecution.’ Whether a petitioner has demonstrated prejudice is a question of law that, in turn, may depend on predicate findings of fact.)
Peiffer v. Hoyt, 339 Or 649 (2005) (when a petitioner in a post-conviction proceeding contends that trial counsel provided constitutionally inadequate assistance by failing to object to evidence, the petitioner is not entitled to post-conviction relief unless such an objection actually would have legal merit.)
Bowen v. Johnson, 166 Or App 89 (2000) (the post-conviction court could not grant relief on a ground not raised in the petition, ORS 138.550(3))
Ramirez v. Oregon, 214 Or App 400 (2007) (we will not consider on appeal a post-conviction claim not raised in the post-conviction court)
State v. Barone, 328 Or 68 (1998) (evidence is “unfairly prejudicial” if it appeals to the preferences of the factfinder for reasons that are unrelated to its capacity to establish a material fact.)
State v. Wagner, 309 Or 5 (1990) (pursuant to ORS 163.150(1), in the penalty phase of an aggravated murder prosecution, a defendant is entitled to introduce general mitigating evidence that militates against imposition of the death penalty.)
State v. Guzek, 336 Or 424 (2004) (the federal ex post facto clause does not bar victim impact evidence admitted pursuant to ORS 163.150(1) in the penalty phase of a trial for a crime committed before the effective date of ORS 163.150(1) (1995). [i]n light of the 1999 amendment to the Oregon Constitution, Article I, section 42, the admission of victim impact evidence on remand would not violate the ex post facto clause of the state constitution.)
Stevens v. Oregon, 322 Or 101 (1995) (a petitioner proves prejudice of a constitutional magnitude by showing that counsel’s failure had a tendency to affect the result of the prosecution.)
Pinnell v. Palmateer, 200 Or App 303 (2005) (the court will not presume prejudice in the absence of proof.)