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Oregon Supreme Court - October 4, 2018

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by: Rankin Johnson IV • October 12, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

POST-CONVICTION RELIEF - Ineffective assistance of counsel

Post-conviction court correctly decided that trial counsel was ineffective in failing to call an expert to testify that another person’s firearm had been used in the murder. Court of Appeals’ contrary opinion reversed, post-conviction court judgment ordering new trial affirmed.

Defendant was accused of murdering the victim with a firearm. The defense theory was that another man, Baines, was the actual murderer. Police discovered a revolver during an unrelated search of Baines’s residence.

The state’s expert did not think that the gun could be definitively linked to the shooting.

The defense obtained a possible expert, who opined that Baines’s gun matched the bullet taken from the victim. That expert’s qualifications were discussed during a pre-trial hearing, but the defense did not call him to testify.

The post-conviction court held that the defense expert raised a doubt about defendant’s guilt and there was no reason not to call the expert, and therefore it was ineffective not to do so. The court further found that the error was harmful.

The Court of Appeals reversed, reasoning that a reasonable attorney could have chosen not to call the expert, and that counsel has acted reasonably in hiring experts and investigating the ballistics issue. The dissent argued that the choice to investigate and the choice to call a witness were separate, and that failing to call the witness was unreasonable.

In concluding that trial counsel had acted unreasonably, the Supreme Court observed that the post-conviction court found that trial counsel had misunderstood the helpfulness of the defense expert’s testimony. The court held that the misunderstanding was important in determining whether counsel’s choice was ineffective.

Farmer v. Premo 363 Or 679 (October 4, 2018) (Walters) (Marion County, Tripp)

SEARCH AND SEIZURE - Officer safety

Handcuffing defendant when they encountered him outside a house to be searched, and taking him inside the house, were justified to protect officer safety, but keeping him in the house, taking him to a separate room, and questioning him were not. Reversed and remanded.

Defendant and a companion were sitting in a parked car in a driveway when police arrived to search the house for evidence of methamphetamine crimes. Police recognized defendant’s companion as a drug-dealer and knew him to carry nunchucks. They handcuffed defendant and the companion and took them into the house. After securing the house, they took them to a separate room to ask questions and seek consent to search the car. When police obtained consent, drugs and weapons were found in the car.

The court decided that the police had reasonable suspicion to stop defendant, and that officer-safety concerns permitted handcuffing defendants and taking them inside, but there was no basis for subsequent questioning. The case was remanded to the trial court for further proceedings.

State v. Madden 363 Or 703 (September 19, 2018) (Nelson) (Lane County, Holland)