Jaynes v. Cain

319 Or.App. 659

511 P.3d 58

Jason Jay JAYNES, Petitioner-Appellant,

v.Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A169945

Court of Appeals of Oregon.

Argued and submitted June 1, 2021.

May 18, 2022

Jason Weber argued the cause for appellant. Also on the brief was O'Connor Weber LLC.

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

Before Mooney, Presiding Judge, and Hellman, Judge, and DeVore, Senior Judge.^*

HELLMAN, J.

Petitioner appeals from a judgment denying him post-conviction relief from his convictions related to the sexual abuse of three minors. On appeal, petitioner assigns as error the post-conviction court's denial of one of his inadequate assistance of counsel claims as to three of those convictions, arguing that his trial counsel's failure to impeach a witness for the state deprived him of adequate assistance of counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. For the reasons below, we agree with petitioner that counsel's performance was deficient and that counsel's failure to impeach the witness prejudiced petitioner, that is, the failure had a tendency to affect the outcome of the trial for the challenged counts. Accordingly, we conclude that the post-conviction court erred in denying relief for those convictions and reverse and remand.

I. FACTS

We state the relevant facts consistently with the post-conviction court's express and implicit findings.

Davis v. Kelly , 303 Or. App. 253, 263, 461 P.3d 1043, rev. den. , 366 Or. 826, 470 P.3d 372 (2020).

In 2013, petitioner was charged with 18 counts of sexual offenses involving three minor victims. As relevant to this appeal, five of those counts involved defendant's alleged assault of a 12-year-old victim, A, on March 22, 2000. Those were Count 1 (using a child in a display of sexually explicit conduct), Count 3 (second-degree rape), Count 4 (second-degree sodomy), and Counts 5 and 6 (first-degree sexual abuse).

While in jail awaiting trial on those charges, defendant was placed in an inmate "pod" with Craig Smith. Smith was facing charges related to the injury of one of his children. Smith pleaded guilty to criminal mistreatment on December 27, 2013. After pleading guilty, but before his sentencing on December 31, 2013, Smith informed his lawyer that petitioner had made incriminating statements to him while they were sharing a pod; the statements concerned petitioner's sexual offense charges and petitioner's involvement in a murder.

On the morning of Smith's sentencing, police officers interviewed Smith, who told the officers that petitioner had admitted his guilt on the sodomy charge concerning the "younger" victim, who petitioner described as being "really young," and had described an instance of sodomizing that victim but had denied having sex with her because "the bitch wouldn't give it up." Smith also told officers information that Smith could not have learned by reading police reports related to petitioner's alleged crimes, including that petitioner told Smith that he gave a "high five" to another man as he left the bedroom where he had sex with A. During that interview, Smith told officers that the way petitioner spoke about the victims gave him "goose bumps," which was one of the reasons that he came forward. Smith also answered "right" and "correct" when asked to confirm that "there's nothing that you expect from the DA's office in exchange for providing this information."

Smith was sentenced later that day in accordance with the plea agreement that he had entered into before he disclosed the conversations with petitioner.

On January 7, 2014, a detective called Smith to ask follow-up questions regarding his conversations with petitioner. When asked why he reached out to his attorney to contact investigators, Smith said that he brought petitioner's statements up with his attorney because he was concerned that he may be "guilty by association" if he did not disclose his knowledge of petitioner's confessions but reiterated that he did not expect anything in return and came forward because he "thought it was [his] moral obligation to let somebody know about it[.]"

At the end of the January 7 call, Smith brought up the custody of his children. He stated:

"You know, you know my lawyer did say that you guys, you guys kind of owed me a favor for this? Like, you know, like a favor, but like, you know, something that, you know, could be being of use for me. Can, and one thing I was wondering if, is if, you know, the, my whole thing with my custody case. You know it's looking like I'm probably not going to get custody ‘cause of the spanking thing, and I, and I understand that.

"* * * * *

"But, you know, I mean, uh, it's just, it just sucks being stuck in the situation that I'm in with, uh, my sex offense and, you know, having a felony now.

"* * * * *

"And, you know, like, I mean I thought I was gonna be a player in all this, like, being able to be with my kids and stuff like that. But, I can't even see ‘em right now because the, the judge, the judge made a rule saying that I could, could see the kids as long as it was okay with my PO *** and DHS."

The detective told Smith that he could not help him or give a favor, commended him for coming forward out of a "moral obligation," and told Smith to speak to his PO or attorney about his custody case.

At petitioner's bench trial, the three victims, others present at the house on March 22, 2000, and Smith testified. One of the victims, L, testified that petitioner picked her, A, and another girl, E, up from their foster home on the night of March 22 and drove them to petitioner's friend's home. E testified that at that home, A and L drank alcohol to the point of visible intoxication and that she believed they were also given ecstasy. E testified that she remained sober at the home and identified petitioner as the person who had oral sex with A and later high fived another male after leaving the bedroom where A was undressed and intoxicated.

A testified that she was at the house on March 22 and remembered having sex with an "older" male, but that she was "pretty wasted" and could not identify petitioner as the person who she had sex with.

Smith testified on behalf of the state as to the conversations he had with petitioner in which petitioner admitted to sodomizing A. Toward the end of Smith's testimony, the prosecutor asked Smith if he had received "any kind of special treatment from the District Attorney's Office in order to get [him] to testify about" petitioner's confessions. Smith responded that, other than being flown from Minnesota and put up in a hotel in order to testify, he had not received any benefit. Smith clarified that he had signed his plea deal before speaking to his lawyer about petitioner's statements and that his sentence was not affected by his cooperation.

On cross-examination, petitioner's trial counsel asked Smith whether it was "fair to say that [he] came forward with this information because [he was] offended by what [petitioner] did—or what [petitioner] said he did?" Smith answered that he "came forward with the information because [he] felt [he] had an obligation [due] to that." Petitioner's trial counsel then questioned Smith about his own previous conviction for third-degree sexual abuse and attempted to equate that crime to petitioner's charges. Smith distinguished himself from petitioner on the ground that he did not "speak about [his] victim" in the same negative way, which also motivated him to report his conversations with petitioner. Trial counsel did not attempt to directly impeach Smith by using Smith's request for a possible favor in his custody case to suggest that Smith had a motivation to fabricate petitioner's confessions.

The defense theory was that petitioner was not present at the home. In support of that defense, trial counsel called two witnesses who were also in custody with petitioner. Both testified that they were friendly with petitioner but never heard him talk about his own case. Trial counsel's closing argument focused on the unreliability of the witnesses’ memories who had placed petitioner at the home. He did not directly address Smith's credibility.

As relevant to this appeal, the trial court found petitioner guilty of Counts 4, 5, and 6 concerning A—one count of second-degree sodomy and two counts of first-degree sexual abuse. In explaining its guilty verdict on those counts, the trial court reasoned:

"[A]lthough the direct evidence from [A] was insufficient to prove anything other than her presence at the party on March 22, 2000, her testimony combined with that of others to prove some of the charges that concerned her.

"Specifically, I believed the testimony of Craig Smith, who I find to have been very brave in his decision to come forward and reveal what he learned from [petitioner's] own lips while they were in jail together. I believe that [petitioner] told Mr. Smith that he is, quote, ‘definitely guilty’ of the crime of Sodomy against the, quote ‘really young’ victim, and it is very clear from all the testimony, and even from her physical appearance yesterday on the witness stand, that [A] has always appeared much younger than her years, and younger than the other named victims in all respects.

"I also believe that [petitioner] admitted to Mr. Smith that the younger girl, quote, ‘had a really nice box,’ was, quote, ‘very hot,’ and that he fingered her and gave her oral sex and that she gave him oral sex. But that that was as far as it went, because in [petitioner's] words, quote, ‘the bitch wouldn't give it up.’

"A confession in itself is insufficient under the law to support a conviction without corroborating evidence, but in this trial we do have some corroborating evidence, both from [A], who confirmed that she was at

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