Stomps v. Persson

305 Or.App. 47

469 P.3d 218

Hazelynn K. STOMPS, Petitioner-Appellant,

v.Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.

A164247

Court of Appeals of Oregon.

Argued and submitted October 22, 2018.

July 1, 2020

Lindsey Burrows argued the cause for appellant. Also on the briefs was O'Connor Weber LLC.

Susan G. Howe, 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.

ARMSTRONG, P. J.

Petitioner appeals a judgment rejecting her claims for post-conviction relief after her conviction for murder. She asserts that trial counsel who represented her at a hearing on her motion to suppress evidence obtained from a search of her house and property was inadequate and ineffective in failing to present evidence in support of counsel's theory that petitioner had been unable to give consent to the search.¹ We conclude that counsel was not inadequate or ineffective and therefore affirm.

We review the post-conviction court's legal conclusions for legal error and are bound by its findings of fact if they are supported by evidence in the record. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015) ; Montez v. Czerniak , 355 Or. 1, 8, 322 P.3d 487, adh'd to as modified on recons. , 355 Or. 598, 330 P.3d 595 (2014). We summarize the relevant facts as reflected in the record and in the post-conviction court's explicit and implicit findings, which we conclude are supported by evidence in the record.

Early on the morning of February 6, 2009, in a rural area of Multnomah County near the Gordon Creek Bridge in the Columbia Gorge, petitioner waved from the side of the road to a passing vehicle for help. Men in the vehicle found petitioner on the ground, injured and unable to walk. Sheriff's deputies responded to the scene. Petitioner told the officers that she and her husband had come to the river to meet a man named Dave, who was interested in purchasing their boat. Petitioner told officers that they were attacked by Dave and another assailant, that she thought her husband had been abducted by Dave, and that she had been thrown from a bridge by the other assailant.

Petitioner was hospitalized for treatment of pelvic and rib fractures while law enforcement officers searched for her husband and conducted an investigation. Over the next week, officers interviewed petitioner several times. At 10 a.m. on February 6, 2009, the day that she was admitted to the hospital, Multnomah County Sheriff Sergeant Kubic and another officer interviewed petitioner. Petitioner was in pain but alert and coherent. A nurse asked officers to leave so that petitioner could be prepared for a procedure. The officers obtained petitioner's verbal consent to search the couple's residence and property for evidence of criminal activity directed at the couple.

A cursory search of the property did not result in the discovery of incriminating evidence. Officers returned to the hospital on February 6 at 8:30 p.m. to continue interviewing petitioner. Petitioner was coherent but obviously under the effects of medication and would nod off and then regain consciousness.

The following day, February 7, 2009, petitioner's medical chart includes a note that at 7:30 a.m., petitioner's "mental status was essentially normal[,] * * * her speech was clear and [she] followed commands." Officers returned to the hospital that morning at 11:00 a.m., to request petitioner's consent for a more thorough search of the property, which consisted of approximately 60 acres. The nurse who admitted the officers to petitioner's room told them that petitioner was lucid. The officers testified that petitioner was alert and in better shape than the previous night. She engaged in conversation with them, and they requested permission to do a more thorough search of the property. Petitioner initially hesitated and expressed concern that her husband might not approve. But after talking on the telephone to her husband's brother, petitioner gave written consent to the deputies for a more thorough search of her house and property.

In the search of petitioner's property, police discovered a metal trash can that contained burned human remains. The police also found a revolver from which two rounds had been discharged and on which police later discovered blood. Petitioner was charged on February 12 with her husband's murder.

Petitioner sought to suppress the evidence found as a result of the February 7 search, contending that, because of medications administered at the hospital, she was cognitively impaired and unable to give consent to the search. See State v. Larson , 141 Or. App. 186, 198, 917 P.2d 519, rev. den. , 324 Or. 229, 925 P.2d 908 (1996) (among factors to consider in determining the voluntariness of a consent to search is whether drug or alcohol use has impaired the defendant's ability to make a knowing, voluntary, and intelligent choice). At the suppression hearing, petitioner's counsel called Dr. Izenberg, a trauma surgeon and attending physician. Izenberg had admitted petitioner to the hospital and had performed two procedures on petitioner while she was there—a procedure on February 6 and a pelvic surgery on February 9. Counsel testified at the post-conviction hearing that, after telephone conferences with Izenberg, she decided to call him as a witness. Counsel testified that Izenberg came off on the telephone as dynamic, and she thought that he would be the perfect witness because he had treated petitioner, he had excellent credentials, and he had a previous positive relationship with an investigator in counsel's office. Additionally, Izenberg had experience with pharmaceuticals and a criminal-justice background. Counsel believed that Izenberg could testify as to facts but could also give an expert opinion as to the effects of the drugs that petitioner was taking at the time that she gave her consent. Counsel did not expect Izenberg to be able to testify as to whether the medications had, in fact, affected petitioner, but she thought that he could describe their possible side effects. Counsel did not request funding for Izenberg as an expert.

Shortly before the hearing, counsel learned that Izenberg was not happy that he would not be paid an expert-witness fee. Counsel tried at the last minute to obtain a fee for him but was unable to do so.

Thus, Izenberg was a challenging witness. However, after the trial court's encouragement and in response to counsel's questions, Izenberg described petitioner's medications and their general effects.² Izenberg testified from petitioner's medical record, which was received as an exhibit at the post-conviction hearing. He testified that he had not personally administered medications to petitioner on February 7, the day that she consented to the search, but he described in detail the medications that she had received and their general effects. He explained that some of the medications were opiates that could have "variable" sedative effects.

Izenberg testified that the medical record for February 7 includes a nurse's note at 7:30 a.m. that petitioner's "mental status was essentially normal[,] * * * her speech was clear and [she] followed commands." Izenberg testified that the medications he ordered that day were given intravenously at low doses to control their effects, and were short acting:

"We gave these for pain medication. We gave them in low doses. We gave them in the IV route, so they were quickly metabolized and wore off. And that's how we give the medications."

The medical record shows that, on the morning of February 7, petitioner received an intravenous dose of valium at 8:00 a.m. and an intravenous dose of morphine at 9:00 a.m. Izenberg testified that the dose of valium that petitioner received would not last longer than 90 minutes (9:30 a.m.) and that the dose of morphine that petitioner received would wear off in 20 to 30 minutes or as long as 45 minutes (9:45 a.m.). Petitioner signed the consent to search at 11:00 a.m. Thus, Izenberg's testimony supported a finding that, when she signed the consent to search at 11:00 a.m., petitioner was no longer under the effects of the two medications that she had received two and three hours before. Other witnesses testified that, on the morning that she gave her consent to the search, petitioner was lucid, alert, and eager to talk to the officers and remain informed about the search for her husband.

The trial court considered all of the factors relevant to a determination whether a person's consent to search is voluntary, see State v. Stevens , 286 Or. App. 306, 399 P.3d 1053 (2017), rev'd on other grounds , 364 Or. 91, 430 P.3d 1059 (2018) ("whether physical force was used or threatened"; "whether weapons were displayed"; "whether the consent was obtained in public"; "whether the person who g[ave] consent [was] the subject of an investigation"; "the number of officers present"; "whether the atmosphere surrounding the consent [was] antagonistic or oppressive"; and whether drug use impaired the defendant's "capacity to make a knowing, voluntary, and intelligent choice." (citing Larson , 141 Or. App. at 198, 917 P.2d 519 )), and found that, with the exception of the possible effects of medication, all the factors militated in favor of a conclusion that the consent was voluntary. As to the effects of medication, the court found that petitioner had been given "mild" amounts of morphine, valium, and other drugs during her hospitalization as necessary for her treatment and pain. The court cited Izenberg's testimony that the drugs’ effects would have been "mild," based on both the "nature of the drugs and the amounts given." The court found that on the morning of February 7, petitioner was "lucid and alert," that police officers thoroughly discussed the purpose of their search with petitioner on the...