Running v. Kelly

306 Or.App. 589

475 P.3d 450

Eric Walter RUNNING, Petitioner-Appellant,

v.Brandon KELLY, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A163582

Court of Appeals of Oregon.

Argued and submitted June 10, 2019

September 23, 2020

Daniel J. Casey argued the cause and filed the opening and reply brief for appellant. Eric Walter Running filed the supplemental briefs pro se.

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

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

In 1998, petitioner killed two women in a Portland restaurant and was convicted of two counts of aggravated murder and one count of being a felon in possession of a firearm. See generally State v. Running , 336 Or. 545, 87 P.3d 661, cert. den. , 543 U.S. 1005, 125 S.Ct. 611, 160 L.Ed.2d 467 (2004) (setting forth facts underlying petitioner's convictions). For one count of aggravated murder, petitioner was sentenced to death. For the other count of aggravated murder, petitioner was sentenced to life without the possibility of parole. On direct review, the Supreme Court affirmed petitioner's convictions and sentences. Id. at 564, 87 P.3d 661. He then petitioned for post-conviction relief, contending that, during his criminal trial, his trial counsel rendered constitutionally inadequate and ineffective assistance of counsel.

More specifically, in the post-conviction proceeding, petitioner alleged, among other points, that his trial counsel rendered inadequate and ineffective assistance because they failed to retain an expert and present expert testimony on the topic of petitioner's "future dangerousness" during the penalty-phase of petitioner's criminal trial. The post-conviction court concluded that petitioner's trial counsel's failure to present expert testimony during the penalty phase on the issue of future dangerousness was "inexcusable under the circumstances of this case and [that] this failure falls below the acceptable standard of conduct." Nevertheless, it concluded that that failure did not prejudice petitioner and denied petitioner post-conviction relief.

Petitioner appeals the judgment denying him post-conviction relief and, in his first assignment of error, argues that the post-conviction court erred when it concluded that he was not prejudiced by his trial counsel's failure to call an expert witness on the subject of future dangerousness. We agree with petitioner.

Consequently, we reverse and remand the judgment and instruct the post-conviction court to grant petitioner relief by vacating his sentence of death.¹

We review judgments granting or denying post-conviction relief for errors of law. Heroff v. Coursey , 280 Or. App. 177, 179, 380 P.3d 1032 (2016), rev. den. , 360 Or. 851, 389 P.3d 1140 (2017). "In doing so, however, we are bound by the post-conviction court's findings of fact if they are supported by evidence in the record." Id. (internal quotation marks omitted).

I. THE UNDERLYING CRIMES AND PROCEDURAL BACKGROUND

A. Petitioner's Crimes and the Guilt Phase of Petitioner's Criminal Trial

As context for our discussion, we first recount the facts regarding the aggravated murders committed by petitioner and the guilt phase of petitioner's trial, largely drawn from the Supreme Court's opinion in State v. Running , 336 Or. 545, 87 P.3d 661, cert. den. , 543 U.S. 1005, 125 S.Ct. 611, 160 L.Ed.2d 467 (2004).

Petitioner was romantically involved with one of the victims, Anderson. At some point prior to the murders, it appeared to petitioner that Anderson would end her relationship with petitioner and return to a previous romantic partner, Gilpin.

On the day of the shootings, Anderson and petitioner were at a restaurant. Petitioner left the restaurant, and later Gilpin joined Anderson at the restaurant.

Petitioner returned to the restaurant armed with a shotgun. When petitioner entered the restaurant, he encountered Gilpin and shot her in the abdomen. Petitioner went to another room in the restaurant. Anderson was in that room, and petitioner shot her in the hip at close range. After Anderson fell to the floor, petitioner aimed the gun very close to her cheek and fired, killing her. Petitioner then left the room and walked toward the entrance of the restaurant. As he approached the entrance, he encountered Gilpin's body. Petitioner stopped, kicked the body and, although it appeared that she already had died, placed the gun above Gilpin's ear and shot her again. Petitioner left the restaurant.

Petitioner was arrested and charged with two counts of aggravated murder and one count of being a felon in possession of a firearm.

During petitioner's criminal trial, he did not deny that he had shot Anderson and Gilpin. Instead, his theory of defense was that he lacked the requisite mental state—intent—to support the charge of aggravated murder and that he was under the influence of an extreme emotional disturbance at the time that he killed Anderson and Gilpin.

The jury found petitioner guilty of all three counts.

B. The Penalty Phase of Petitioner's Criminal Trial

The penalty phase of petitioner's criminal trial was governed, in part, by ORS 163.150(1)(b)(B) (1997), which required that the jury, as a prerequisite to the trial court imposing a death sentence, determine "[w]hether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society[.]"² Unless the jury unanimously voted "yes" on that question, a death sentence could not be imposed. ORS 163.150(1)(e), (2)(a) (1997). Accordingly, during the penalty phase of petitioner's trial, the prosecutor sought to convince the jury that there is a probability that the petitioner would commit criminal acts of violence that would constitute a continuing threat to society.

1. The prosecutor's opening statement

During the prosecutor's opening statement, the prosecutor told the jury that "the best predictor of future behavior is past conduct." In the prosecutor's view, "the circumstances of the [murders themselves], the deliberateness, the calculated nature of the [murders], the brutality of the [murders], that the [petitioner] killed two defenseless, unarmed women by itself shows that the [petitioner] constitutes a continuing threat to society." The prosecutor further told the jury that the murders were not an "aberration in the [petitioner's] conduct," because petitioner "led a life of crime for 35 years," and asserted that the deaths of Gilpin and Anderson "were the predictable result of the [petitioner's] lifetime of criminal and antisocial behavior." The prosecutor told the jury that "more often than not the victims of the [petitioner's] acts of violence were women," a "common theme" of petitioner's criminal conduct "is a complete lack of respect for people in positions of authority," and that, while petitioner was in jail awaiting trial, he "got[ ] into fights with inmates."

2. Petitioner's trial counsel's opening statement

During petitioner's trial counsel's opening statement, petitioner's trial counsel highlighted that when petitioner was previously in prison he never had any "disciplinary write-up or bad conduct." Additionally, petitioner's trial counsel noted that they intended to call Captain Hepler of the Oregon State Penitentiary (OSP) to testify that OSP is "equipped to handle any individual who acts out, who acts out towards other inmates, [or] who acts out towards other staff," and that OSP "is an appropriate place" for petitioner.

3. The state's evidence

The state's evidence during the penalty of phase included information regarding petitioner's numerous prior criminal convictions, military court martial, and witnesses who testified about petitioner's long history of violent and criminal conduct. Testimony presented by the state reflected, among other facts, that petitioner had stabbed people, pointed a loaded gun at two women who had apparently angered him, masturbated in a car parked in downtown Portland on 30 or more occasions while women walked by, grabbed a female strangers’ buttocks and called her derogatory names, threatened to kill a police officer who had arrested him for DUII, and drove a semi-truck while high on methamphetamine.

Petitioner's ex-wife, who was called as a witness, testified (1) that petitioner committed numerous violent acts against her, (2) that when the her daughter was 12-years old, petitioner put a gun to his step daughter's head, and (3) that, after she left petitioner, petitioner got a tattoo depicting a woman's throat being cut by a knife and told her, "See my new tattoo[,] I got this just for you," which she understood to be a threat to kill her. Additionally, petitioner's ex-wife's daughter testified that, when she was a minor, petitioner had "offered" her to strangers for sex, sexually abused her, and threatened to kill her family if anyone found out about his conduct toward her.

As for evidence of petitioner's conduct while jailed for the murders of Anderson and Gilpin but prior to the penalty phase of his criminal trial, petitioner was observed in fistfights with inmates, petitioner told a corrections officer that he would kill the corrections officer if given the opportunity, and petitioner made a sexual comment to a female corrections officer.

4. Petitioner's evidence

During the penalty phase of his trial, petitioner called Hepler to support the argument that, if petitioner was sentenced to life in prison, he would not pose a threat to other inmates or corrections officers because inmates at OSP are "well-managed" and OSP has facilities to "deal with incorrigible inmates."

Hepler described what life was like for an inmate in the general prison population at OSP and noted that the general prison population includes some convicted murderers serving life sentences. Hepler also described the special housing units at OSP, one...