Nelson v. Cain

556 P.3d 1

334 Or.App. 326

Quandray J. NELSON, Petitioner-Appellant,

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

A175380

Court of Appeals of Oregon.

Argued and Submitted May 10, 2023

August 14, 2024

Malheur County Circuit Court, 19CV02030; J. Burdette Pratt, Senior Judge.

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

Ryan Kahn, Assistant Attorney General, argued the cause for respondent. Also on the brief were Lisa M. Udland, Deputy Attorney General, and Benjamin Gutman, Solicitor General.

Before Powers, Presiding Judge, Hellman, Judge, and Armstrong, Senior Judge.

POWERS, P. J.

₃₂₇Petitioner appeals from a judgment denying post-conviction relief in which he alleged that his attorneys, in two separate trials, provided inadequate and ineffective assistance of counsel. As explained below, because petitioner did not meet his burden of proving prejudice, we conclude that the postconviction court did not err in rejecting petitioner’s claim of inadequate assistance of counsel for failing to move for a mistrial after jurors saw him in wrist cuffs and ankle shackles in the hallway. We further conclude that trial counsel in both trials did not provide inadequate assistance of counsel for failing to object to the nonunanimous jury verdicts. Accordingly, we affirm.

The pertinent facts are relatively few and undisputed. Petitioner was twice tried for charges arising out of a domestic violence incident in which he punched his domestic partner in the face, had sex with her against her will, and took her vehicle. After he was convicted in the first trial, petitioner appealed, and we affirmed his convictions for fourth-degree assault and unauthorized use of a vehicle and reversed his convictions for first-degree rape and first-degree sexual abuse based on an erroneous jury instruction. See State v. Nelson, 241 Or App 681, 251 P.3d 240 (2011), rev. dismissed, 354 Or. 62, 308 P.3d 206 (2012).

On remand, the state retried petitioner for the sexual offenses. During jury deliberations of that second trial, a group of at least three jurors saw petitioner in the hallway wearing his jail clothes, wrist cuffs with a belly chain, and ankle shackles as sheriff’s deputies were transporting petitioner from the courthouse to the jail for the weekend. Petitioner told his trial counsel about the incident, and trial counsel "made inquiries of the deputy sheriffs involved and brought the matter to the court’s attention." The substance of those inquiries does not appear in the record, and trial counsel made no motions regarding the matter. Ultimately, the jury found petitioner guilty of two counts of first-degree sexual abuse, third-degree sexual abuse, and first-degree rape. In both trials, the juries’ verdicts included nonunanimous guilty verdicts.

₃₂₈Petitioner sought post-conviction relief, alleging various claims of inadequate assistance of counsel, including that his attorney for the second trial failed to request a mistrial after the jurors viewed petitioner shackled in the hallway and that his trial counsel at both trials failed to object to the nonunanimous guilty verdicts. The post-conviction court denied petitioner relief on both claims. In so doing, the post-conviction court explicitly found that there "is no evidence that the juror[s] recognized [petitioner] or that it had any impact on them. There is no evidence from the viewpoint of the jurors."

[1, 2] We review the post-conviction court’s decision for errors of law. Rojo-Garfias v. State of Oregon, 319 Or App 595, 596, 510 P.3d 924 (2022). We are bound by the post-conviction court’s findings of historical fact if there is evidence in the record to support them. Id. A criminal defendant’s right to adequate and effective assistance of counsel is established by Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Antoine v. Taylor, 368 Or. 760, 767, 499 P.3d 48 (2021). To establish a claim of inadequate assistance of counsel, a petitioner must prove by a preponderance of the evidence that (1) trial counsel failed to exercise reasonable professional skill and judgment and (2) petitioner suffered prejudice as a result. Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991); see also Montez v. Czerniak, 355 Or. 1, 6-7, 322 P.3d 487, adh’d to as modified an recons., 355 Or. 598, 330 P.3d 595 (2014) (recognizing that the standards for determining the adequacy of legal counsel under the state constitution are functionally equivalent to those for determining the effectiveness of counsel under the federal constitution).

[3] On appeal, petitioner argues that an attorney exercising reasonable professional skill and judgment would have sought a mis- trial after learning that jurors had seen him in shackles in the hallway. Visibly shackling a defendant in the courtroom during trial violates—absent exceptions not applicable in this case—state and federal constitutional principles about the presumption of innocence. See State v. Washington, 355 Or. 612, 628, 330 P.3d 596, cert. den., 574 U.S. 1016, 135 S Ct 685, — L.Ed.2d — (2014) (explaining that the use of ₃₂₉physical restraints during a criminal trial "can impinge on the presumption of innocence to which a defendant is entitled"); see also Deck v. Missouri, 544 U.S. 622, 629, 125 S Ct 2007, 161 L Ed 2d 953 (2005) (observing that the right to remain free of physical restraints that are visible to the jury has a constitutional dimension). Petitioner, however, has not cited to any Oregon authority—and we have found none—that addresses the issue of jurors briefly observing a criminal defendant in restraints outside of the courtroom and whether that constitutes grounds for a mistrial.

As the post-conviction court observed, courts in other jurisdictions have concluded that jurors’ brief sightings of a shackled defendant, without more, does not constitute grounds for relief under the Sixth Amendment. See, e.g., United State v. Taylor, 562 F.2d 1345, 1359 (2d Cir 1977) (observing that "[n]umerous cases support the proposition that an inadvertent view by jurors of defendants in handcuffs, without more, is not so inherently prejudicial as to require a mistrial" and citing cases); United States v. Olano, 62 F.3d 1180, 1190 (9th Cir 1995) (observing that, even if some jurors had seen the defendant in handcuffs as he entered the courtroom, "a jury’s brief or inadvertent glimpse of a defendant in physical restraints is not inherently or presumptively prejudicial to a defendant"); Ghent v. Woodford, 279 F.3d 1121, 1133 (9th Cir 2002) (explaining that where "a few jurors at most glimpsed [the defendant] in shackles in the hallway and as he was entering the courtroom," that sort of "brief or inadvertent glimpse of a shackled defendant is not inherently or presumptively prejudicial, nor has [the defendant] made a sufficient showing of actual prejudice" necessary to sustain a constitutional claim (internal quotation marks omitted)). Given that case law, it is not clear that every trial counsel exercising reasonable skill and judgment would have necessarily sought a mistrial under the circumstances of this case. See Miller v. Lampert, 340 Or. 1, 16, 125 P.3d 1260 (2006) (explaining that, "[m]easured against the law in effect at the time of petitioner’s sentencing hearing, the performance of petitioner’s trial counsel was constitutionally adequate").

[4, 5] Moreover, even if we were to assume that trial counsel provided deficient performance by failing to seek a ₃₃₀mistrial, petitioner has failed to prove the requisite prejudice necessary for post-conviction relief. To show prejudice, petitioner must prove that his trial counsel’s acts or omissions could have tended to affect the outcome of the case. Green v. Franke, 357 Or. 301, 323, 350 P.3d 188 (2015)....