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Oregon Appellate Court – December 6, 2017

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by: Mary A. Sofia • December 11, 2017 • no comments

Written by Erin Severe, OPDS | Edited by Mary A. Sofia, OCDLA

EVIDENCE

Expert Witnesses—Comment on Credibility

Expert testimony regarding specific deficiencies in interview methodology amounts to a comment on the credibility of interviewed witnesses.

Defendant appeals from a judgment of conviction for multiple sex offenses involving minors. On appeal, defendant asserts that the trial court erred in preventing his expert from testifying that a detective’s interviews with child witnesses did not meet established protocols for interviewing children who have reported sexual abuse. Defendant also claims that the trial court erred in prohibiting defendant from calling two surrebuttal witnesses who would have testified as to a rebuttal witness’s character for truthfulness.

At trial, defendant sought to admit expert testimony regarding a detective’s failure to follow established methodologies for interviewing two victims. The trial court permitted defendant to present general evidence about how interviews should be conducted, but prevented the expert from testifying as to deficiencies of the particular interviews of the child witnesses on the grounds that such testimony would amount to a comment on the credibility of the witnesses. The court affirms the trial court’s ruling, reasoning that expert testimony regarding how the interviews were deficient would suggest to the jury that the witnesses were not telling the truth and would not have provided the jury information sufficiently beyond the ordinary experience of a lay finder of fact such that it would help the jury make an informed decision about credibility. The court also rejects defendant’s second assignment of error because defendant’s offer of proof was insufficient to show that the trial court erred in excluding the evidence and that the evidence was harmful.

State v. Black, 289 Or Ap 256 (2017) (Shorr, J.)

PCR/Habeas Corpus

Post-Conviction Relief—Inadequate Investigation of Penalty-Phase Mitigation Evidence

Trial counsel’s decision to forgo presenting mitigation evidence to the jury regarding the horrendous circumstances of defendant's childhood during penalty phase absent reasonable investigation into those circumstances fell below professional standards and prejudiced petitioner.

Petitioner/defendant, who was convicted of aggravated murder for killing a 12-year old girl and received a death sentence, petitioned for post-conviction relief claiming that he received inadequate assistance of trial counsel during the guilt- and penalty-phases of his trial. Specifically, petitioner claimed that trial counsel failed to adequately prepare to cross-examine the state’s pathologist, failed to retain and present evidence from a forensic pathologist, and did not timely retain a forensic scientist or call the forensic scientist at trial. Petitioner also claimed that he received inadequate assistance of counsel during the penalty phase because his trial counsel did not make a reasonable strategic choice to focus solely on the future dangerousness question because he did not adequately investigate potential mitigating evidence.

The PCR court denied relief as to petitioner’s guilt-phase claims, but granted relief as to his penalty-phase claim that his trial counsel’s decision to forgo presenting mitigating evidence to the jury was not supported by reasonable investigation and prejudiced petitioner. Petitioner appeals and superintendent cross-appeals from that judgment.

The court concludes that the PCR court did not err in concluding that trial counsel exercised reasonable professional skill and judgment in failing to hire a forensic pathologist where trial counsel had no reason to doubt the state’s pathologist’s expertise or credentials, his testimony was not controversial, and undermining it was not central to the defense theory. The evidentiary points that petitioner claims trial counsel failed to raise were addressed in other ways or were not significant enough that trial counsel was compelled to raise them. The court also concludes that the PCR court did not err in determining that trial counsel’s decisions with respect to the hiring and calling of the forensic scientist were adequate where petitioner failed to establish that the forensic scientist was hampered in her ability to adequately prepare for petitioner’s defense and the main points she would have testified to were addressed in other ways at trial.

The court further concludes that the PCR court did not err in concluding that trial counsel performed inadequately during the penalty phase. Petitioner presented a vast amount of evidence at his PCR trial regarding the horrendous circumstances of his childhood, which was available or reasonably discoverable at the time of his trial. Yet, trial counsel elected to forego presenting mitigating evidence having uncovered virtually no evidence of petitioner’s childhood and based on limited interviews of petitioner, two family members, and a review of the state’s discovery. Trial counsel’s decision to forego presenting mitigation evidence to the jury absent reasonable investigation into those circumstances fell below professional standards. That failure prejudiced petitioner because the mitigating evidence could have helped to explain petitioner’s actions and created a narrative that would have counterbalanced the state’s evidence of petitioner’s history of criminality and sexual assaults on women and children, which had gone unchallenged.

Sparks v. Premo, 289 Or App 159 (2017) (Ortega, P.J.)

Post-Conviction Relief—Trial counsel’s failure to prevent or remedy prosecutor’s impermissible cross-examination prejudiced petitioner

Prosecutor lacked a reasonable basis for cross-examining witnesses about petitioner’s purported prior bad acts. Post-conviction court erred in concluding that jury instructions, petitioner’s conduct, and evidence on rebuttal eliminated prejudice caused by trial counsel’s failure to prevent or remedy prosecutor’s impermissible cross-examination.

Petitioner/defendant, who was convicted of one count of first-degree sexual abuse, appeals from a judgment denying him post-conviction relief. On appeal, petitioner assigns error to the PCR court’s determination that, although trial counsel had performed inadequately in failing to prepare for and object to questions that the prosecutor asked of two defense character witnesses at trial suggesting that petitioner had an inappropriate relationship with an underage girl, petitioner was not prejudiced by those errors. In concluding that no prejudice occurred, the PCR court pointed to the trial court’s instructions to the jury regarding the questioning, petitioner’s conduct, which provided reasons for the jury to question his credibility, and the source of the hearsay statements, who testified to those statements later during trial.

The court concludes that prosecutor lacked a reasonable basis for his questions and that those questions prejudiced petitioner. The court also concludes that trial counsel’s errors prejudiced petitioner. Because the prosecutor’s questions were improper for any purpose, the only correct instruction would be one that told the jury not to consider the questions at all. But the trial court’s actual limiting instruction was ambiguous with respect to whether the jury could consider the conduct implied in the questions as affirmative evidence of petitioner’s bad character. The fact that the same evidence was presented during rebuttal also did not alleviate the prejudice because had counsel not preformed inadequately, the jury would never had heard the rebuttal testimony or the appellate court would have held that the trial court erred in allowing it and determined that the error harmed petitioner. Consequently, the court holds that the PCR court erred in denying petitioner post-conviction relief.

Holbrook v. Amsberry, 289 Or App 226 (2017) (DeHoog, J.)