Wilson v. Laney

317 Or.App. 324

504 P.3d 666

Dale WILSON, Petitioner-Appellant,

v.Garrett LANEY, Superintendent, Oregon State Correctional Institution, Defendant-Respondent.

A173551

Court of Appeals of Oregon.

Submitted on September 7, 2021.

February 2, 2022

Jedediah Peterson and O'Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and Armstrong, Senior Judge.

AOYAGI, J.

In his criminal trial, petitioner was convicted of first-degree burglary, third-degree robbery, and fourth-degree assault, based on an incident in which he was found to have gone to his mother's house, punched his nephew, been told to leave, broken into his nephew's locked room, and stole items from the room. After an unsuccessful appeal of his convictions, petitioner sought post-conviction relief. He contends that the post-conviction court erred in denying relief, because his trial counsel was constitutionally inadequate and ineffective. We conclude that the post-conviction court erred and, accordingly, reverse and remand.

I. BACKGROUND

We begin by summarizing the underlying events that gave rise to the charges against petitioner, specifically as related to the post-conviction claim that we address. Initially, we describe the evidence admitted at petitioner's criminal trial that supports the jury's verdicts. We discuss other evidence later as pertinent.

C is petitioner's mother. Petitioner had recently moved out of C's house. H, who is C's grandson and petitioner's nephew, had moved into petitioner's old room. Petitioner still had some clothes and other items in a closet in his old room and a box in the hallway.

In a phone call with C, petitioner learned that H had gone through his things and taken a bottle of alcohol and that, upon finding H with the bottle, C had poured it down the sink due to H being a minor (aged 17). Upset, petitioner asked C to pay for the alcohol, which she refused. C then put H on the phone, and H too refused to pay for the alcohol. Petitioner told C that he was coming over to talk and to keep H away from him. Shortly after petitioner arrived, he started a physical fight with H in the living room, during which he punched H in the face, hit him with a lanyard, and shoved him into a chair. During the fight, H also punched petitioner, and a lamp got broken. C yelled at them both to get out of her house and to stop breaking her things. H left the house. Petitioner went to his old room and used a butter knife to open the locked door, denting the doorframe molding and damaging the "latch." According to C, petitioner started going through H's stuff, "pulling out drawers and throwing them and throwing his stuff all over the room," while C told him to leave. Petitioner took several items from H's room—a gold necklace, a watch, and $42 from H's wallet—and finally left. As petitioner left the house, H either was coming back inside or was on the front porch.

H called 9-1-1, and a police officer responded within five to 10 minutes. For approximately 45 minutes, the officer took statements from H and C and observed and photographed the scene. H had some redness and minor abrasions on his upper body. The officer then went to petitioner's house, talked to petitioner, and arrested him. H's gold necklace, watch, and $42 were never located.

Petitioner was indicted on multiple charges and tried to a jury. C, H, and the responding officer all testified at trial. C described the incident. H claimed not to remember what happened and essentially gave no substantive testimony. The officer then testified to statements that C and H had made to him on the night of the incident, his observations at C's house, and his contact with petitioner. As to C, her out-of-court statements as described by the officer were similar to her trial testimony but varied in certain respects. As to H, his out-of-court statements were the only evidence of his version of events, given his claimed lack of memory at trial.

After hearing all the evidence, the jury found petitioner guilty of first-degree burglary, ORS 164.225, third-degree robbery, ORS 164.395, and fourth-degree assault, ORS 163.160. We affirmed those convictions on appeal. Petitioner then sought post-conviction relief, which the post-conviction court denied. Petitioner appeals.

II. POST-CONVICTION STANDARD

"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.’ " Green v. Franke , 357 Or. 301, 311, 350 P.3d 188 (2015) (quoting ORS 138.530(1)(a) ). On review, we are bound by the post-conviction court's factual findings if supported by the record, and we review the post-conviction court's legal conclusions for errors of law. Horn v. Hill , 180 Or. App. 139, 141, 41 P.3d 1127 (2002).

Under Article I, section 11, of the Oregon Constitution, a criminal defendant has the right to adequate assistance of counsel. Krummacher v. Gierloff , 290 Or. 867, 871, 627 P.2d 458 (1981). To succeed on a post-conviction claim based on that right, a "petitioner must establish, by a preponderance of the evidence, that defense counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result of counsel's inadequacy." Delgado-Juarez v. Cain , 307 Or. App. 83, 90-91, 475 P.3d 883 (2020) (internal quotation marks omitted). With respect to inadequacy, we look to whether all reasonable lawyers would have acted as petitioner claims his lawyer should have. Maney v. Angelozzi , 285 Or. App. 596, 608, 397 P.3d 567 (2017). We will not second-guess a lawyer's tactical decisions unless they reflect an absence or suspension of skill or judgment. Montez v. Czerniak , 355 Or. 1, 7, 322 P.3d 487, adh'd to on recons. , 355 Or. 598, 330 P.3d 595 (2014). If inadequate assistance was provided, then we next determine whether the petitioner proved that it tended to affect the result of the trial. Id. There must be more than a mere possibility that it affected the outcome, but it need not be a probability. Green , 357 Or. at 322, 350 P.3d 188.¹

III. ANALYSIS

Petitioner contends that his trial counsel was constitutionally inadequate in four ways: (1) failing to move for judgment of acquittal on the burglary charge; (2) failing to object to the jury instruction on burglary; (3) failing to object to vouching in the prosecutor's opening statement; and (4) failing to object to admission of C's and H's out-of-court statements to the police officer. We begin with the fourth assignment of error, which proves dispositive.

Petitioner argues that his trial counsel was constitutionally inadequate for failing to object to the admission into evidence of C's and H's hearsay statements to the police officer who responded to the 9-1-1 call. In his post-conviction affidavit, trial counsel did not provide any reason for not making a hearsay objection. The post-conviction court denied petitioner's claim, however, concluding that petitioner had not shown that trial counsel would have been successful in excluding the statements. Like the superintendent, we understand that ruling to go to both the adequacy of performance and a lack of prejudice. The post-conviction court did not specify on what legal basis it believed the statements would have been admissible over a hearsay objection.

In his opening brief on appeal, petitioner addresses the only potential basis for admissibility that the superintendent raised below. The superintendent summarily asserted in his post-conviction trial memorandum that the statements were admissible under OEC 613(2) as prior inconsistent statements. As he did below, petitioner contests that assertion. He argues that H's statements were not admissible under OEC 613(2), given H's lack of memory at trial. See State v. Staley , 165 Or. App. 395, 401, 995 P.2d 1217 (2000) (prior out-of-court statements could not be used to impeach a witness who testified only to a lack of memory, because "logically the only impeachment of that testimony would be to show that she in fact did remember something relevant"). And he suggests that, even if C's statements were admissible under OEC 613(2), they were not admissible for their truth, only as impeachment. See State v. Derryberry , 270 Or. 482, 486-87, 528 P.2d 1034 (1974) ("testimony of prior inconsistent statements by a witness is admissible solely for purposes of impeachment, and not as substantive evidence"); see also State v. Ramirez , 310 Or. App. 62, 65, 483 P.3d 1232 (2021) ("Confronting a witness with the witness's own prior inconsistent statements is not hearsay, but rather a type of impeachment evidence not offered for the truth of matter asserted but to cast doubt on the credibility of the witness.").

In response, the superintendent abandons the argument he made below under OEC 613(2). He now argues instead that it was not inadequate assistance for petitioner's trial counsel not to object to the hearsay evidence, because H's and C's statements were admissible both as excited utterances under OEC 803(2) and as statements concerning domestic violence under OEC 803(26a).²

We first consider whether reasonable defense counsel would not have made a hearsay objection because it would have been apparent that the statements were admissible as excited utterances under OEC 803(2). "Excited utterances are received against a hearsay objection for the purpose of proving the truth of the matter stated * * * on the rationale that the excitement caused by the startling event or condition temporarily stills the capacity for reflection and thus produces statements free of conscious fabrication." State v. Carlson , 311 Or. 201, 215, 808 P.2d 1002 (1991). "In other words, the spontaneity of a...