Mclaughlin v. Pedro

1

336 Or.App. 9

DONALD McLAUGHLIN, Petitioner-Appellant, v. David PEDRO, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

No. A180102

Court of Appeals of Oregon

November 6, 2024

Argued and submitted September 24, 2024.

Umatilla County Circuit Court 20CV17899; J. Burdette Pratt Judge.

Mark Kimbrell argued the cause for appellant. Also on the briefs was Michael R. Levine.

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

Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce, Judge.

EGAN, J.

Petitioner appeals a judgment denying his petition for post-conviction relief from convictions for first-degree sodomy, ORS 163.405; first-degree sexual abuse, ORS 163.427; and first-degree unlawful sexual penetration, ORS 163.411 after a jury trial. Petitioner presents four assignments of error. Reviewing for legal error and accepting the post-conviction court's supported implicit and explicit factual findings, Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015), we affirm.

This case relates to sexual assault allegations against petitioner by two people: S and M. After a jury trial that resulted in his convictions, petitioner sought postconviction relief. He alleged, among other things, that his trial counsel was constitutionally ineffective and inadequate because counsel (1) did not object or move for a mistrial when the trial court made statements during closing arguments that petitioner argues made the court "an advocate for the prosecution"; (2) did not move for the court to instruct the jury that it had to decide each count separately; (3) did not object or move for a mistrial when witnesses and the prosecutor referred to the complainants as "victims"; and (4) failed to elicit testimony that a witness saw M hug petitioner immediately after the sexual assault. In the postconviction proceeding, petitioner argued that those deficiencies required reversal because they prejudiced him. The post-conviction court denied relief on all claims. Petitioner now appeals that decision.

"Post-conviction relief is warranted when there has been a 'substantial denial' of a petitioner's 'rights under the constitution of the United States, or under the constitution of the State of Oregon, or both, and which denial rendered the conviction void.'" Delgado-Juarez v Cain, 307 Or.App. 83, 90, 475 P.3d 883 (2020) (quoting Green, 357 Or at 311). A criminal defendant has a constitutional right to adequate and effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Krummacher v. Gierloff, 290 Or. 867, 872, 627 P.2d 458 (1981). Under Oregon law, a petitioner claiming inadequate assistance of counsel must prove by a preponderance of the evidence that (1) his trial counsel failed to exercise reasonable professional skill and judgment and that, (2) because of that failure, the petitioner suffered prejudice. Pereida-Alba v. Coursey, 356 Or. 654, 661-62, 342 P.3d 70 (2015); ORS 138.620. The federal standard is similar, requiring that petitioner establish that "counsel's performance was deficient" and that "the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial." Strickland, 466 U.S. at 687. The state and federal standards are "functionally equivalent."^[1] Montez v. Czerniak, 355 Or. 1, 6-7, 322 P.3d 487 (2014). With that legal background, we turn to petitioner's assignments of error.

Closing Argument. Petitioner argues that his counsel was ineffective for failing to object or move for a mistrial on the ground that, during defense counsel's closing argument, the court "became an advocate for the prosecution." During trial, S and M testified that a witness, Garbowski, saw petitioner sexually assault S and attempted to pull petitioner away from S during the sexual assault. Garbowski testified for the state, and he denied that the events took place and being present for them. During closing argument, defense counsel argued that, if the jury had reasonable doubt as to whether Garbowski was present during S's assault, then the jury must have reasonable doubt about the entirety of S's and M's testimony, including whether they were sexually assaulted. The state objected to that argument, and the trial court sustained the objection. The trial court explained to defense counsel that his argument was an incorrect description of the reasonable doubt standard. During that explanation, the trial court described Garbowski as a "tangential" witness. The trial court also told the jury that it must follow the court's instructions as to reasonable doubt.

On appeal, petitioner argues that the trial court's responses to the state's objections "created an unacceptable risk that the jury's decision would be influenced by the court's attitude toward petitioner," and the jury would disregard a critical defense witness as "tangential." Petitioner relies on Maney v. Angelozzi, 285 Or.App. 596, 397 P.3d 567 (2017), to argue that his counsel performed inadequately by not addressing the court's interruptions and comments. In that case, the trial court, without any objection from the state, "repeatedly interrupted defense counsel," and it interrupted the examination of two witnesses to admonish them and ask additional questions. Id. at 598, 616-17. The trial court had "intervened on behalf of the state, weakened the credibility of a significant defense witness, afforded preferential treatment to a state's witness, and conveyed the court's apparent belief that defense counsel was an unreliable and perhaps untrustworthy advocate." Id. at 613. We concluded that the trial court's actions "would have alerted any reasonable attorney that defendant's right to a fair trial was at risk and there was a need to for counsel to bring that risk to the court's attention through an appropriate motion." Id.

This case is distinguishable from Maney. In this case, the prosecutor objected to defense counsel's arguments about the reasonable doubt standard, so the trial court had reason to respond to that objection. See id. at 616-17 ("[N]one of the court's more notable criticisms were prompted by objections from the state, and the transcript reveals relatively little reason to object, much less anything that would seem to justify the court's unilateral decision to repeatedly admonish counsel in front of the jury."). The trial court corrected trial counsel's argument as to the reasonable doubt standard, and it told the jury that it must follow the court's instructions. None of those actions or statements would have alerted defense counsel that petitioner's right to a fair trial was at risk.

We conclude that the post-conviction court did not err in concluding that petitioner did not prove that his trial attorney failed to exercise reasonable professional skill and judgment. When read in context, the record indicates that the trial court sought to clarify that the jury must look at the evidence as a whole, and that the jury could determine, beyond a reasonable doubt, that S had been sexually assaulted even if they also determined that they had a reasonable doubt as to whether Garbowski was present or tried to stop the assault. Thus, the trial court's statements during defense's closing argument did not deny petitioner a fair trial, and, under the circumstances of this case, the post-conviction court did not err in ruling that defense counsel did not fail to exercise reasonable professional skill and judgment, and petitioner was not entitled to post-conviction relief.

Jury Instruction. Petitioner argues that trial counsel was inadequate for failing to ask the court to instruct the jury that it had to "consider separately the evidence on each count and determine guilt or innocence separately on each count." In the post-conviction proceeding, trial counsel testified that the fact that M and S were friends and "had discussed the allegations against [petitioner] together before going forward to police *** was evidence that [he] strategically wanted the jury to hear? (Emphasis added.) Trial counsel "wanted the jury to consider [M's and S's] testimony to police in concert to underscore [his] argument that it was fabricated and rehearsed," and he "spent considerable time in [his] closing argument addressing all the reasons why their version of events as they told police did not make any logical sense." The post-conviction court determined that trial counsel made a reasonable strategic decision to not request the instruction, because it "would have worked against the central defense theory of the case." According to the post-conviction court, "[h]ad the jury been asked to consider the charges separately, trial counsel would not have been able to make the arguments he made to the jury."

On appeal, petitioner argues that trial counsel was deficient because his conscious decision not to request the limiting instruction was "premised on a misapprehension of the law, rather than an appropriate consideration of the risks and benefits of seeking the instruction." See Delgado-Juarez, 307 Or.App. at 93 ("[I]f defense counsel's cost-benefit analysis is based on an erroneous or incomplete understanding of the law, the resulting choice, much like a choice based upon a flawed perception of the facts, is unlikely to be the product of competent representation."). Petitioner argues that the instruction would not have limited counsel from making the arguments that he made in closing; rather, the instruction would have limited the jury from using the state's evidence for propensity purposes.

In response, the superintendent argues that trial counsel made a...