Maney v. Angelozzi

285 Or.App. 596

397 P.3d 567

Patrick Joseph MANEY, Petitioner-Appellant,

v.Rick ANGELOZZI, Superintendent, Columbia River Correctional Institution, Defendant-Respondent.

A156638

Court of Appeals of Oregon.

Submitted May 18, 2016.

May 17, 2017

Jed Peterson and O'Connor Weber LLP filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

DEHOOG, J.

Petitioner appeals the denial of his petition for post-conviction relief, contending that his trial attorney rendered inadequate assistance of counsel by failing to address purportedly improper comments and interruptions by the trial court. In the underlying criminal case, a jury convicted petitioner of various offenses arising from allegations that he had beaten his 14-year-old daughter with a wooden board and subjected her to other assaultive conduct. During petitioner's trial, the court repeatedly interrupted the proceedings to chastise defense counsel, address witnesses, and instruct the jury, usually without prompting by the prosecution or defense counsel. Petitioner argues that, because those unilateral actions disproportionately favored the prosecution and, therefore, conveyed to the jury the impression of judicial bias, that conduct deprived him of a fair trial. Petitioner contends that, as a result, his attorney's failure to move for a mistrial in response to the court's actions constituted inadequate assistance of counsel. Defendant superintendent¹ disputes petitioner's assertion that the trial court's actions were inappropriate but argues that, in any event, the post-conviction court did not err in concluding that petitioner had not been prejudiced by his attorney's failure to take corrective action. Because we conclude that defense counsel's inaction resulted in a substantial denial of petitioner's constitutional right to adequate assistance of counsel, we reverse the judgment of the post-conviction court.

BACKGROUND

The material facts are procedural and undisputed. Petitioner's convictions arose from two separate incidents involving his teenage daughter, A. In the first incident, the state charged petitioner with assault in the second degree, felony assault in the fourth degree, and criminal mistreatment, all for disciplining A with "boarding"—striking her on the buttocks and legs with a wooden board. Petitioner did not deny using a board to discipline his daughter, but denied that his actions had been criminal. As a defense to those charges, petitioner argued that ORS 161.205(1) rendered his conduct lawful because, as a parent, he had used only the degree of physical force reasonably "necessary to maintain discipline or to promote the welfare" of A.² In addition to raising a reasonable-discipline defense, petitioner argued that the state had not proved certain elements of the charges arising from that incident, including that the board that he had used had been a "dangerous weapon" within the meaning of ORS 163.175(1)(b) (defining offense of assault in the second degree),³ and that another of his children had witnessed the alleged felony assault in the fourth degree, without which that alleged conduct would at most constitute a misdemeanor.⁴ In the second incident, petitioner purportedly "bumped" A into a wall as they walked past each other, leading to a separate misdemeanor charge of assault in the fourth degree.

In the course of petitioner's trial, the court repeatedly interrupted defense counsel and certain witnesses. The court first interrupted defendant's attorney shortly into his opening statement. Counsel appears to have been explaining to the jury that petitioner could not be found guilty of assault in the second degree unless he was shown to have used a "dangerous weapon."⁵ Counsel stated:

"[DEFENSE COUNSEL]: First off, you're going to have the—he's charged with Assault in the Second Degree, that's the big one here. That's the physical injury with a dangerous or deadly weapon, very serious charge. This is a charge you get when you put a bullet in somebody or when you put someone in a wheelchair, okay? Serious physical injury—"

The court abruptly intervened sua sponte , leading to the following exchange:

"THE COURT: You know, I'm going to—ladies and gentlemen, I'm going to interrupt at this point in time. Physical injury does not require a bullet in somebody or putting them in a wheelchair, and I think I'd better instruct you because I don't—I don't want us to be off on a—

"[DEFENSE COUNSEL]: I was talking about the dangerous weapon, what a dangerous weapon is.

"THE COURT: All right.

"[DEFENSE COUNSEL]: I apologize.

"THE COURT: All right. Physical injury does not require the same—it does not have the same requirements. Maybe I should instruct you even so, so we don't have any issues here regarding that matter."

Following that exchange, the trial court instructed the jury by reading various uniform jury instructions defining the terms "dangerous weapon," "physical injury," and "serious physical injury." The court then reminded the jurors that they were not to attempt to apply that law to the facts until the conclusion of the trial and allowed defense counsel to continue.⁶

The court again interrupted during the evidentiary portion of the trial. Petitioner's 18-year-old son, who had been a minor at the time of the "boarding" incident, was alleged to have witnessed that offense, but testified in support of petitioner. In response to cross-examination by the prosecutor on another matter,⁷ the son replied, "I do not remember." Again without provocation, the trial court stepped in, as follows:

"THE COURT: Now, I'd [implore] you—let me tell you, Mr. Maney—

"THE WITNESS: Yes.

"THE COURT: —you're here under oath, I expect you to tell the truth, the whole truth, and the whole truth only.

"THE WITNESS: I understand.

"THE COURT: I don't want—expect you to sort of scat around, you may want to consider that question and answer it again , if you would."

(Emphasis added.) Two questions later, the court again interrupted the same witness—once again without prompting—this time to instruct the witness not to volunteer information beyond the specific questions he had been asked.

The court later interrupted petitioner himself during his direct testimony. Petitioner's attorney had asked him to look at pictures of his daughter's injuries and to provide his opinion as to whether he "went a little too far this time." Petitioner answered:

"[PETITIONER]: I made the decision based on what I knew at the time. The pictures, as you've seen, they show bruises. They don't show any—any physical injury other than contusions in the skin, although I have a little question about the last two. * * * [I]f my remembrance is right these last two * * * were taken a day later. Well, obviously the bruises you see on the date that she left are much more apparent than these two. And I'm saying this because of—

"THE COURT: Well, I think we'll just—

"[PETITIONER]: —the severity—my—

"THE COURT: Just a moment, * * * I think we're going to let the attorneys argue * * * to the jury. I don't think we need the witnesses making arguments so * * * if you have questions you wish to ask this witness, [counsel], please go ahead and ask those questions."

Defense counsel acknowledged the court's comments, but the admonition continued: "I've let a little bit beyond what I would consider to be appropriate cross-examination [sic ] where * * * ‘you just tell the jury whatever you want to tell them,’ that's not an appropriate question."

Finally, the trial court repeatedly interrupted defense counsel in the course of his closing argument. The first such interruption came when counsel was explaining the reasonable-discipline defense, which, as noted, permits a parent or similarly situated person to use "reasonable physical force * * * when and to the extent the person reasonably believes it necessary" for the discipline or welfare of a child under the person's care or supervision. ORS 161.205(1)(a) (emphases added). Counsel explained that the issue of "when and to the extent the person reasonably believes it necessary" required the jurors to ask themselves, "Well, what was [petitioner] thinking?"

The trial court abruptly stopped counsel and requested a sidebar, after which it permitted counsel to continue.⁸ The following argument and subsequent interruption ensued:

"[DEFENSE COUNSEL]: Anyhow, the judge is going to read this to you, but pay close attention. Two parts to this, one part kind of talks about what the person reasonably believes is necessary, and the first part just says ‘may use reasonable physical force on a minor.’ So it seems to have the objective reasonable person standard. And a part that talks about, well, what did the person think at the time.

"THE COURT: It's still the reasonable person standard, ladies and gentlemen.

"[DEFENSE COUNSEL]: Right .

"THE COURT: Now, [counsel], I'm not going to allow you to confuse the jury here . I told you before and I'll tell you again: Reasonable person is the standard."

(Emphases added.)

Another interruption followed shortly thereafter, as defense counsel prepared to read the legal definition of "dangerous weapon" to the jury. The court interjected, stating:

"Why don't you let me read them that, and you just make your argument, [counsel]? * * * [L]adies and gentlemen. Wait a minute. My responsibility is to instruct you as to the law. You can make whatever argument within the range of that, but let's just let me instruct them, and you just go ahead and argue the law—argue what you think it's going to be ."

(Emphasis added.) Notably, the trial court had permitted the prosecutor to read various instructions to the jury without interruption or correction, including the same "dangerous weapon" instruction that the court would not allow defense counsel to read.

The court intervened twice more during closing...