Oregon Supreme Ct - June 4, 2015

by: Abassos • June 4, 2015 • no comments

PCR - Sex Case with Multiple Victims - Jury Instruction That Evidence for Each Count Must Be Considered Separately

The Supreme Court reverses the appellate court and the PCR trial court regarding whether the failure to request the following instruction in a 9 victim sex abuse trial was constitutionally inadequate assistance of counsel:

“[Defendant] has been charged with several unrelated counts in a single indictment. A separate crime is charged in each count of the Indictment. Each charge and the evi- dence pertaining to it must be considered separately by the jury. In other words, it is your duty to consider the evidence solely for the charge it pertains to and no other charge.” Approved in Kitzman.

The Court reverses the appellate decision (and remands to the PCR trial court) because:

"(1) the parties did not expressly litigate before the post-conviction court the issue of the effect, if any, of counsel’s trial strategy on the adequacy of counsel’s performance in failing to request a limiting instruction; (2) this court has not expressly decided whether a post- conviction petitioner’s procedural and evidentiary burdens include anticipating the argument that counsel made a tactical decision that was inconsistent with the act or omission complained of, and the parties have not addressed that issue on appeal or review; (3) neither the post-conviction court nor the Court of Appeals had the benefit of this court’s decision in Pereida-Alba in considering the adequacy of counsel’s performance in this case; and (4) the record before us would permit the post-conviction court to draw opposing inferences as to whether trial counsel did or did not consider requesting a limiting instruction and how such an instruction would have fit with counsel’s overall trial strategy."

The Court reverses the post-conviction court's decision that there was no prejudice because, where the effect of inadequate assistance on the outcome of a trial is at issue, the appropriate standard for prejudice is more than mere possibility but less than probability. Greene v Frank, 357 Or 301 (2015)