Date: 03-01-2017

Case Style: Jeffrey Dale Tiner v. Jeff Premo

Case Number: A150171

Judge: Armstrong

Court: Oregon Court of Appeals on appeal from the Circuit Court, Marion County

Plaintiff's Attorney: Andy Simrin

Defendant's Attorney: David B. Thompson

Description: Petitioner was found guilty by a jury of two counts
of aggravated murder, one count of intentional murder,
and a number of other crimes. He sought post-conviction
relief on a variety of claims. The post-conviction court
denied relief on all of petitioner’s claims involving the guilt
phase of petitioner’s criminal trial but granted relief on
his penalty-phase claims and voided the imposition of the
death penalty. Petitioner appeals the post-conviction court’s
judgment, raising 29 assignments of error. Defendant, the
superintendent of the Oregon State Penitentiary, opposes
the majority of petitioner’s assignments and raises several
cross-assignments of error. The superintendent concedes,
however, that the state committed due process violations
under Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed
2d 215 (1963), when it failed to disclose material impeachment
evidence for two of its witnesses. The superintendent
argues that petitioner is entitled to relief for the Brady violations
only on his conviction for aggravated murder because
the undisclosed impeachment evidence was material only to
the aggravating circumstances that elevated the murder to
aggravated murder.1
For the reasons explained below, we reject the
majority of the Brady claims raised in petitioner’s third
and fourth assignments of error because petitioner failed to
prove that the allegedly withheld information was material
to the jury’s verdicts. As to the Brady violations conceded
by the superintendent, we accept the superintendent’s concession
and agree that petitioner is entitled to relief on his
conviction for aggravated murder. We reject the remainder
of petitioner’s assignments of error and the superintendent’s
cross-assignments of error without written discussion.
We therefore reverse and remand the judgment denying
1 Petitioner was convicted of aggravated murder based on the aggravating
circumstances that he committed murder “in an effort to conceal the commission
of the crime of assault” and “in an effort to conceal the identity of the perpetrators
of the crime of assault.” ORS 163.095(2)(e). The Supreme Court held on direct
review of petitioner’s convictions that the jury’s intentional and aggravated murder
verdicts had to be merged into a single conviction for aggravated murder. See
State v. Tiner, 340 Or 551, 566-68, 135 P3d 305 (2006), cert den, 549 US 1169
(2007).
62 Tiner v. Premo
post-conviction relief with respect to petitioner’s aggravated
murder conviction, but otherwise affirm.
I. THE FACTS AND PROCEDURAL HISTORY
We state the facts consistently with the postconviction
court’s express and implicit findings. See Montez
v. Czerniak, 355 Or 1, 8, 322 P3d 487, adh’d to as modified on
recons, 355 Or 598, 330 P3d 595 (2014).
A. The Underlying Crime
Petitioner was released from prison in California
on parole in December 1992 and became involved in a sexual
relationship with Karlyn Eklof. In early 1993, Eklof and
her children moved to Lane County, Oregon. Eklof’s friend,
Salmu, was renting a house there and had invited Eklof and
her family to stay with him. While Eklof was living with
Salmu, she invited petitioner to visit her. With permission
from his parole officer, petitioner visited Eklof at Salmu’s
house for several weeks in March 1993.
On March 21, Eklof hosted a pizza party at the
Salmu residence. About a dozen people attended the party,
including John Distabile, Keith and Linda Smith, and Alvin
Hope. The party guests began to leave when it started to
get dark. After the Smiths arrived home, Linda received a
phone call from Salmu asking her if he could spend the night
at their place. She told Salmu that she did not have enough
room for him to stay over. Eklof called Linda about 15 to 20
minutes later and seemed to be annoyed because the Smiths
would not allow Salmu to stay at their home overnight.
At around 7:00 to 7:30 p.m., after most of the
party guests had left, Distabile saw a knife “flying” out of
the kitchen and into the living room, but he could not see
who had thrown the knife. About a half hour later, he saw
petitioner palming a small-caliber handgun. Eklof asked
Distabile to take Eklof’s 13-year-old son home with him so
that she could be alone with petitioner. As Distabile was getting
ready to leave, he heard petitioner and Eklof talking
to Salmu about leaving the house for the night so that they
could be alone. Petitioner offered Salmu money so that he
could go to a movie. The conversation escalated when petitioner
asked Salmu who had been “messing around” with
Cite as 284 Or App 59 (2017) 63
Eklof. Distabile saw petitioner hit Salmu, knocking his
glasses off. He also saw petitioner push Salmu to the ground
and straddle him.
Eklof’s son, T, and his 12-year-old friend, S, were
outside on the front porch during the altercation between
petitioner and Salmu. S heard petitioner offer Salmu money
to go somewhere so that he could be alone with Eklof. He
heard fighting noises such as “thuds” and “slaps,” and saw
Salmu come outside, put his dog in a car, and then return
to the house. S heard Eklof yelling and believed that Salmu
was being beaten. S saw Salmu attempt to leave the house,
but Eklof pulled him back inside. Salmu looked as though
he had been in a fight. At some point during the assault, S
heard petitioner say, “Come on, man, I got a gun,” and warn
Salmu that he would shoot him if he did not leave the house.
T could hear arguing inside the house but was
unable to understand what was happening. At some point,
he entered the house and saw petitioner punching Salmu. T
returned to the porch and heard continued arguing. After
things “calmed down,” T went back into the house and saw
Salmu sitting on the couch. Salmu’s glasses were off, and he
had a black eye. T and S left the house with Distabile.
The following day, Distabile returned to Salmu’s
house to pick up some kitchen supplies and saw that the
carpet in the front room was gone. That same day, Eklof and
a man went to a floor-covering store to purchase linoleum
and carpeting.2 Hope also returned to Salmu’s house the day
after the party and saw Eklof and petitioner removing some
carpet and furniture. Hope helped them put in the new carpet
and offered to take the old materials to the dump. He
noticed a large stain on the old carpet. Hope testified that
he had previously sold Eklof a .25-caliber handgun and that
petitioner was with Eklof during the sale.
Salmu failed to show up for work the day after the
party. During his lunch break, Keith Smith went to Salmu’s
2 At the criminal trial, an employee of the floor-covering store testified that
he could not identify petitioner as the man who had accompanied Eklof, but he
said that the man looked “like the man at the end of—this end of the table, but he
didn’t have a beard at that time.” The record does not indicate if petitioner was
the man at the “end of the table.”
64 Tiner v. Premo
house and asked Eklof if Salmu was home. She said that
he was not. Keith returned to Salmu’s home the next day
and found Salmu’s possessions on the porch. Petitioner
told Keith that he had bought the personal property from
Salmu, who wanted to go to California. Keith returned to
the house again that evening, and petitioner offered to help
Keith look for Salmu that night, but Keith was unable to
do that because he had a prior engagement. Keith returned
the next day and told petitioner and Eklof that he had filed
a missing-person report with the police regarding Salmu.
Petitioner and Eklof became upset on learning that Keith
had contacted the police.
Springfield Police Officer Michael McCarthy, the
first officer involved in the investigation of Salmu’s disappearance,
went to Salmu’s house a few days after the party.
He spoke with Eklof and saw some replacement carpeting
in the front entrance of the house. Springfield detectives
then contacted Salmu’s landlord, Kathy Shults, and asked
permission to enter Salmu’s house. Shults let them into the
house and, while the detectives were in Salmu’s bedroom,
Eklof entered the house. Shults was aware that Eklof and
her children were staying at the house, but she had not met
Eklof in person. Evidently unaware that Shults was the
landlord, Eklof told the detectives that the landlord had
given Salmu and her permission to change the carpet. Eklof
also claimed that she had purchased everything inside the
house, including appliances that belonged to Shults, for
$1,500. Shults acknowledged that the house was in disrepair,
that the carpet was soiled, and that the linoleum had
been damaged by moisture. She knew that the carpet and
linoleum needed to be replaced, but she testified that she
had not discussed changing them with Salmu.
Springfield Police Detective Steve Walker searched
Salmu’s house on March 30 and found what appeared to be
blood splatter on the bathroom door and on the molding near
the bathroom. Criminalist Terry Bekkedahl examined the
house that same day and found blood on a dryer in a utility
room and on the paneling and molding next to the bathroom
door. He also examined the floor beneath the living room carpet.
He saw stains on the padding, but it was later determined
that there was no blood on the padding or on the wood subfloor.
Cite as 284 Or App 59 (2017) 65
In November 1994, Bret Martin was picking mushrooms
near the McKenzie River when he found a human
skull and a plastic bag containing bones and clothing.
Martin reported his findings to a ranger, who contacted the
sheriff. Criminalist Bradford Putnam arrived at the location
to collect the bones. The remains were partially concealed in
a sleeping bag and appeared to be from a single individual.
When Putnam picked up the skull, he heard something roll
around inside it. Putnam believed that there was a bullet
hole in the skull. No gun shell casings or bullets were found
at the scene.
Through dental records, the bones were identified
as Salmu’s. An autopsy revealed two gunshot wounds
to Salmu’s skull, and a bullet was found inside the skull.
The medical examiner was unable to determine whether
the gunshot wounds were inflicted before or shortly after
death. John Lundy, a forensic anthropologist, also examined
Salmu’s remains. He found two bullet entrance wounds—
one below the left eye and the other through the upper jaw
bone. Lundy also examined three finger bones that appeared
to have been severed by a “sharp instrument of some kind.”
DNA testing revealed that one of the blood stains found in
Salmu’s house matched “the bones [that Martin found] to a
very rare number.”
In December 1995, petitioner was indicted for four
counts of aggravated murder and various other crimes for
Salmu’s murder. Each of the counts alleged that petitioner
had “act[ed] in pursuance of a common intent with Karlyn
Eklof, in [causing] the death of [Salmu].” Three months
before petitioner’s indictment, Eklof was convicted of two
counts of aggravated murder and two counts of intentional
murder for Salmu’s death.3
B. The Criminal Trial
We briefly discuss some of the testimony from
petitioner’s criminal trial that bears on petitioner’s postconviction
case. Eklof testified that she had been convicted
of Salmu’s murder and her conviction had been affirmed on
3 We subsequently affirmed Eklof’s convictions without opinion. See State v.
Eklof, 154 Or App 448, 960 P2d 397 (1998), rev den, 328 Or 331 (1999).
66 Tiner v. Premo
appeal, but she was pursuing post-conviction relief from
her convictions. When asked if she knew who had killed
Salmu, Eklof initially responded, “I take the Fifth on this
trial.” However, on further questioning, Eklof testified that,
when she was in the kitchen in Salmu’s house, she heard
two gunshots come from the bathroom. She stated that she
did not know that petitioner had a gun. She testified that
petitioner shot Salmu twice in the bathroom. During crossexamination,
Eklof denied participating in the murder and
expressed frustration with the police and the prosecution,
stating that she had been falsely accused and “railroaded”
because the police were trying to “drum up business.” On
redirect examination, the prosecutor asked Eklof whether
it was “fair to say * * * that you’ve always been consistent
that it was [petitioner] who killed [Salmu], not you?” Eklof
responded, “It was. It was.”
Distabile testified that, the week after the party, he
saw petitioner at a friend’s house, and petitioner told him
that he and Eklof had “kicked the crap out of [Salmu], put
him in the dirt.” On cross-examination, defense counsel
asked Distabile, “And then after the State of Oregon puts
some serious pressure on you, essentially indicating they
may charge you with various crimes, you changed your story.
Isn’t that right?” Distabile responded that he had retained
an attorney in the case, but only “because they were talking
accessory,” and he insisted that he was not an accessory to
the murder. Defense counsel followed up by asking, “And
you got yourself a lawyer and your story changed after they
were putting serious pressure on you personally. Is that
right?” Distabile responded, “I got more truthful with them,
yes.”
David, petitioner’s brother, also testified for the
state. Although David had changed his last name to Johnson
by the time of the criminal trial, he was permitted to testify
under the name David Tiner due to concerns for his personal
safety and the safety of his family; at that time, petitioner
was unaware of David’s new last name or his home
address. David testified that he was living in an apartment
in Fresno, California, with his family in the spring
of 1993. He offered petitioner a place to stay to “help him
get on his feet,” and petitioner, Eklof, and Eklof’s children
Cite as 284 Or App 59 (2017) 67
came to David’s apartment in late March. They arrived in
a car that was full of clothes, bedding, and other household
items. After unloading the car, petitioner bought some beer
and spray paint, and painted the interior of the car’s trunk.
Then he and David took a car ride “up into the hills.” David
became suspicious that “something wasn’t right” and asked
petitioner what was going on. Petitioner told him that “they
had basically had killed a guy and had cut his fingers off”
with pruning shears. Petitioner told David that they killed
the guy because he was a child molester and explained that
they had cut off his fingers to prevent identification.
Petitioner told David that Eklof had stabbed the
victim 40 to 50 times and that petitioner had shot him. He
said, “ ‘Don’t ever use a .25 to kill anybody, it’ll—you know,
it’ll bounce off their chest.’ ” Petitioner admitted to wrapping
the body in a sleeping bag, loading it into a car, driving it
to the next county, and rolling it down an embankment. He
told David that he and Eklof had moved the victim’s car,
killed the victim’s dog, and had “thrown a bunch of the evidence
in the river.” He also told David that “they had to pay
money to replace the carpeting and linoleum in the house
where it had happened.”
When police contacted David a few weeks after
Salmu’s disappearance, he told them that he “didn’t know
anything about it.” David explained, “I was afraid of [petitioner,]
and I didn’t want to—basically I didn’t want to get
involved.” However, about four months later, in September
1993, David spoke with the police and told them of petitioner’s
admissions. Petitioner and Eklof joined David for
Thanksgiving in 1993. Petitioner commented that “maybe
he would get one of his friends to come out and see [David]
and go out for a drive in the woods.” David interpreted the
comment as “a veiled threat.”
Petitioner’s cousin, Ricky Tiner, testified that petitioner
had called him the night of the murder. Petitioner
called Ricky again a day or two later and told him that he
“would be leaving the area and that there may be somebody
looking for him.” Petitioner visited Ricky in Arkansas
in August 1993. Ricky testified that, when he asked petitioner
why somebody would be looking for him, petitioner
68 Tiner v. Premo
explained that “a man had molested some children and that
they’d got rid of him.”
Linda Little and Willis Morris both testified for
the state. Little had met petitioner in Reno, Nevada, late
in 1993. Little was a heroin addict, and she bought drugs
for and used them with petitioner. Petitioner told Little
that he was involved in “some trouble” in Oregon. Morris
lived with Little but was incarcerated for a portion of 1993.
About a day or two after Morris was released from jail, he
was watching television with petitioner and Little at Little’s
mother’s house. A news story came on about a man wanted
for a murder in Oregon. Little asked petitioner what kind
of trouble he was in, and petitioner told Little and Morris
that he had killed someone in Oregon. Petitioner explained
that it started with a fight between Eklof and Salmu, and
that Eklof had assaulted Salmu. He admitted that “he shot
[Salmu], and he wouldn’t die, he cut his throat and cut up
the body and hid the pieces.”
Little testified:
“They—told me that they had the guy in the bathroom,
and that he was—it was kind of a joke. He said he was
shooting him and the bullets were bouncing off his head
and that he wouldn’t die, because the bullets were bouncing
off his head. So they had to cut his throat and that’s—
then they proceeded after that to cut up the body. He tried
to shoot him in the head and I guess the bullets were
bouncing off.”
According to Morris, petitioner told him that he had used
an electric knife to cut up the body and that he had put
the parts in plastic bags and scattered them around. Morris
also recalled petitioner saying that the bullets were “bouncing
off of him.”
Petitioner told Little and Morris that he and Eklof
had killed the man to “keep him from talking.” Little
testified:
“He said he was on parole and that [Eklof] had injured
[Salmu] by assaulting him and that [Salmu] would go to
the police. And [petitioner] couldn’t have that because he
was on parole, so they were going to have to kill him to
keep it quiet.”
Cite as 284 Or App 59 (2017) 69
Little acknowledged at trial that she had been convicted
of forgery and prostitution and was in state custody,
having been transported to the Lane County Jail from a
prison in Iowa. Morris admitted at trial that he had been
convicted of robbery in 1983 and felony “drunk driving.”
A jury convicted petitioner of two counts of aggravated
murder, one count of intentional murder, and various
other crimes. The aggravated murder convictions were
based on petitioner having killed Salmu “in an effort to
conceal the commission of the crime of assault” and “in an
effort to conceal the identity of the perpetrators of the crime
of assault.” Petitioner appealed his judgment of conviction,
and the Supreme Court affirmed his convictions and sentences
but reversed in part and remanded the case to the
trial court to merge the aggravated and intentional murder
counts into a single conviction for aggravated murder. See
State v. Tiner, 340 Or 551, 566-68, 135 P3d 305 (2006), cert
den, 549 US 1169 (2007).
C. The Post-Conviction Proceedings
Petitioner timely filed a petition for post-conviction
relief, alleging 15 claims for relief. The post-conviction court
issued a 12-page written decision denying all of petitioner’s
claims regarding the guilt phase of petitioner’s criminal
trial. The court ruled that none of petitioner’s claims was
procedurally barred, but they were meritless.
Among the many claims that petitioner raised with
regard to the guilt phase of the trial, he argued that his
right to due process, under Brady, was violated when the
state failed to turn over evidence that was either exculpatory
or that had impeachment value against several of its
witnesses. He also argued that his right to due process,
under Napue v. Illinois, 360 US 264, 269-70, 79 S Ct 1173,
3 L Ed 2d 1217 (1959), was violated when the state knowingly
permitted the presentation of false testimony and
then made misleading arguments to the jury. The postconviction
court rejected all of petitioner’s Brady and Napue
claims.
Petitioner appeals, arguing that the post-conviction
court erred because the collective materiality of the Brady
70 Tiner v. Premo
and Napue violations “ ‘undermines confidence in the outcome
of the trial.’ ” (Quoting Kyles v. Whitley, 514 US 419,
434, 115 S Ct 1555, 131 L Ed 2d 490 (1995).) The superintendent
opposes the majority of petitioner’s arguments, but
concedes that the state committed Brady violations with
regard to two of its witnesses. The superintendent contends
that petitioner is entitled only to limited relief as a result of
those violations. For the reasons discussed below, we agree
with the superintendent.
II. LEGAL ANALYSIS
Post-conviction relief is warranted when there has
been a “substantial denial” of “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.” ORS 138.530(1)(a). “We review the post-conviction
court’s judgment for legal error, accepting as true the court’s
supported factual findings.” Boyles v. Myrick, 282 Or App
517, 520, 385 P3d 1227 (2016). “Additionally, ‘[i]f findings
are not made on all such facts, and there is evidence from
which such facts could be decided more than one way, we
will presume that the facts were decided in a manner consistent
with the [post-conviction court’s] ultimate conclusion.’ ”
Lichau v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002) (quoting
Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968)).
A. Brady and Napue Legal Standards
“Under [Brady], a prosecutor’s withholding of favorable
evidence from a criminal defendant ‘violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution.’ ” Eklof v. Steward, 360 Or 717, 719, 385 P3d
1074 (2016) (quoting Brady, 373 US at 87). A prosecutor has
an affirmative duty to disclose favorable evidence, even if
there has been no request for disclosure by the defendant.
United States v. Agurs, 427 US 97, 107, 96 S Ct 2392, 49
L Ed 2d 342 (1976). That duty to disclose applies to impeachment
evidence as well as exculpatory evidence. United States
v. Bagley, 473 US 667, 676, 105 S Ct 3375, 87 L Ed 2d 481
(1985). Evidence is material “if there is a reasonable probability
that, had the evidence been disclosed to the defense,
Cite as 284 Or App 59 (2017) 71
the result of the proceeding would have been different.”
Id. at 682. Thus, “[t]here are three components of a true
Brady violation: The evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it
is impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertently; and prejudice
must have ensued.” Strickler v. Greene, 527 US 263, 281-82,
119 S Ct 1936, 144 L Ed 2d 286 (1999).
In Napue, the Supreme Court held that “a conviction
obtained through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth
Amendment.” 360 US at 269. “The same result obtains when
the State, although not soliciting false evidence, allows it to
go uncorrected when it appears.” Id. “A claim under Napue
will succeed when (1) the testimony (or evidence) was actually
false, (2) the prosecution knew or should have known
that the testimony was actually false, and (3) the false testimony
was material.” Henry v. Ryan, 720 F3d 1073, 1084 (9th
Cir 2013) (internal quotation marks omitted). False testimony
is material when there is “any reasonable likelihood
that the false testimony could have affected the judgment of
the jury.” Agurs, 427 US at 103.
Although the standards for determining materiality
under Brady and Napue are different, we analyze those
claims collectively to determine whether petitioner was
denied due process of law. See Jackson v. Brown, 513 F3d
1057 (9th Cir 2008); see also Kyles, 514 US at 436 (stating
that materiality should be considered “collectively, not item
by item”).
B. Petitioner’s Brady and Napue Claims
Petitioner alleged that the state withheld the following
materials that it was required to disclose under Brady:
“1. Notes apparently written by an investigator working
for Eklof (and provided to prosecutors) that revealed
she had implicated James Davis in connection with Salmu’s
murder and that a roll of new carpet had been observed in
Salmu’s house shortly before he was killed
“2. Information that the prosecution knew that Eklof
thought that, by speaking to law enforcement officers and
72 Tiner v. Premo
implicating Petitioner in Salmu’s murder, she thought she
was going to receive favorable treatment, including immunity
from prosecution and travel arrangements to anyplace
she wanted to go
“3. A letter from Washoe County (Nevada) Deputy
District Attorney Roger Whomes to Deputy District
Attorney Frederick Hugi indicating that Linda Little and
Willis Morris were strongly biased against Petitioner
“4. A report by an investigator working for the Lane
County District Attorney indicating that Eklof had confessed
to a cellmate, and that confession was inconsistent
in virtually every detail with other statements Eklof had
made about the Salmu murder
“5. Evidence that Eklof had made a false complaint of
sexual misconduct against a law enforcement officer investigating
Salmu’s homicide
“6. Journals kept by Eklof detailing her recollections
about Salmu’s murder
“7. Reports by Detectives Walker and Warthen indicating
that they had interviewed John Distabile regarding
Salmu’s murder, that Distabile initially indicated that he
learned about Salmu’s disappearance by reading about it
in the newspaper, that the detectives threatened Distabile
with arrest and prosecution in connection with the case,
that the detectives suggested to Distabile that Petitioner
and Eklof were responsible for Salmu’s murder, and that
the detectives required Distabile to be photographed for a
‘mugshot profile’ in connection with Salmu’s murder
“8. Statements by Distabile in a report by Detective
Kennedy that Petitioner told him ‘Karlyn kicked the Shit
out of James’ and ‘I buried him.’
“* * * * *
“9. David Tiner’s criminal history
“10. The fact that, before Petitioner’s trial, Deputy
District Attorney Lane made a promise to Linda Little that
he would write a letter on her behalf to her Iowa parole
board and judge if she testified against Petitioner[.]”
Petitioner alleged several Napue violations related
to his Brady claims: (1) the prosecutor, knowing that Eklof
had once implicated Davis in the murder, asked Eklof the
Cite as 284 Or App 59 (2017) 73
following leading question: “[I]s it fair to say * * * that you’ve
always been consistent that it was [petitioner] who killed
[Salmu], not you?”; (2) the prosecutor allowed petitioner’s
brother to testify under the name David Tiner, even though
David had changed his name to David Johnson by the time
of petitioner’s trial; (3) the prosecutor allowed Distabile to
testify that he did not have “any reason to particularly want
to get [Eklof and petitioner] into trouble,” despite the existence
of undisclosed police reports indicating that Distabile
had said that he wanted “just to get rid of the woman”
and wanted Eklof “to be out of his life,” and the prosecutor
argued to the jury that there was no evidence that Distabile
had received any favors or that he needed “to lie to save his
own skin”; and (4) the prosecutor had promised to write a
letter to the parole board on Little’s behalf and knew that
Morris held a grudge against petitioner, but the prosecutor
nonetheless argued to the jury that Little and Morris had no
motive to lie and were not receiving any favors in exchange
for their testimony.
The post-conviction court rejected all of petitioner’s
Napue claims without written explanation. The court also
rejected all of petitioner’s Brady claims, making express
findings as to some of the allegedly withheld information.
On appeal, the parties dispute whether the post-conviction
court made explicit or implicit findings on whether some of
the alleged Brady material—namely, everything other than
the Washoe County prosecutor’s letter, prosecutor Lane’s
promise to write Little a letter, and David Tiner’s criminal
convictions—had actually been withheld from the defense.
However, we need not decide whether the court made such
findings because we agree with the post-conviction court’s
ultimate conclusion that any nondisclosure of the disputed
evidence did not cause petitioner to suffer prejudice and,
thus, that that evidence was not material under Brady.
1. Eklof and Distabile
We begin with the alleged Brady and Napue violations
involving Eklof and Distabile. The post-conviction
court determined that the information pertaining to Eklof
was not material impeachment evidence because Eklof had
been “convicted of felony assault and she had a violent past
74 Tiner v. Premo
and questionable mental stability. There is only speculation
that her testimony could have been discredited any further[,]
causing the jury to reach a completely different result.” The
court came to a similar conclusion regarding Distabile:
“As to Distabile, he was cross[-]examined at trial and
admitted that he had told more than one story to the police.
At trial he stated he knew there was conflict between
Salmu and the Petitioner and Eklof and that they would
physically abuse Salmu at times. If there was a discovery
violation regarding Distabile, it was pretty much cured by
cross[-]examination.”
We agree with the post-conviction court’s conclusion that
petitioner failed to prove prejudice as a result of any nondisclosure
of evidence impeaching Eklof and Distabile. That
is, there is no “reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different.” Bagley, 473 US at 682.
As the post-conviction court concluded, both Eklof
and Distabile had been significantly impeached during petitioner’s
trial. Eklof, who at times refused to testify and at
times implicated petitioner in the murder, acknowledged
that she had been convicted of Salmu’s murder and felt
that she had been falsely accused of that crime. Her brief
testimony signaled a potential bias in testifying against
petitioner—that is, if petitioner were solely responsible
for Salmu’s murder, her conviction might be overturned.
Distabile, in turn, acknowledged that, at one point, he had
been considered a possible suspect in the murder, signaling
that he might have an interest in testifying favorably for
the prosecution. Distabile also acknowledged that he had
changed his story after his initial interview with the police.
Thus, the allegedly withheld impeachment evidence pertaining
to Eklof and Distabile was qualitatively similar to
other impeachment evidence that was adduced at trial. The
allegedly withheld evidence would have been cumulative of
other evidence of bias and would not have enabled counsel
to further discredit either witness. See Morris v. Yist, 447
F3d 735, 741 (9th Cir 2006) (where undisclosed impeachment
evidence would not have enabled counsel to further
discredit a witness, nondisclosure does not give rise to a
Brady violation).
Cite as 284 Or App 59 (2017) 75
Moreover, although Eklof’s and Distabile’s testimony
was relevant to proving that petitioner had participated
in the intentional murder of Salmu, it was not crucial
to proving petitioner guilty of that offense. Indeed, there
was ample other evidence of petitioner’s guilt, including eyewitness
testimony from S and T about the assault on Salmu;
testimony from the Smiths and Hope about observations
made in the days after the crime, including that the carpet
had been replaced and that petitioner and Eklof had taken
all of Salmu’s belongings out of the house; petitioner’s admissions
to multiple witnesses of his role in the murder, including
to Ricky Tiner, whose testimony was unimpeached; and
physical evidence corroborating much of petitioner’s admissions
about the murder. See id. (potential Brady evidence not
material in light of other compelling evidence of guilt).
Viewing the Eklof/Distabile impeachment evidence
in the context of the trial as a whole, we are not persuaded
that there is a reasonable probability that the undisclosed
information would have affected the jury’s assessment of
Eklof’s and Distabile’s credibility, or its assessment of petitioner’s
guilt. That is, the alleged withholding of the information
regarding those witnesses does not undermine our
confidence in the outcome of petitioner’s trial. See Bagley,
473 US at 678; see also Strickler, 527 US at 290 (materiality
involves questioning whether “the favorable evidence could
reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict” (quoting
Kyles, 514 US at 435)). Accordingly, petitioner has not
demonstrated that the impeachment evidence pertaining to
Eklof and Distabile was material under Brady, and he has
not demonstrated a basis for post-conviction relief based on
the state’s alleged failure to disclose it.
Petitioner’s Napue claims involving Eklof and
Distabile fail as well. Once again, petitioner’s claims fall
short in terms of materiality. Petitioner claims that the
prosecutor elicited false testimony from Eklof that she had
“always been consistent” that it was petitioner who had
killed Salmu, despite the existence of a police report indicating
that Eklof had once implicated a man named Davis
in the murder. He claims that the prosecutor knowingly
allowed Distabile to testify that he did not have a reason
76 Tiner v. Premo
to want to get petitioner in trouble, despite the existence of
police reports indicating that Distabile wanted “to get rid of”
Eklof and wanted Eklof “to be out of his life.” Assuming that
petitioner’s proof at the post-conviction proceeding was sufficient
to show that the prosecution knowingly elicited false
testimony from Eklof and Distabile, petitioner’s proof was
insufficient to demonstrate that there was “any reasonable
likelihood that the false testimony could have affected the
judgment of the jury.” In light of the overwhelming evidence
of petitioner’s involvement in the murder, any evidence that
his codefendant had implicated someone else while she was
being investigated for her own participation in the murder,
or that Distabile had a motivation to testify falsely against
petitioner, would not likely have had any effect on the jury’s
verdict.4 See, e.g., Agurs, 427 US at 103.
2. David Tiner
With regard to David Tiner’s criminal history, petitioner
argues that the nondisclosure of David Tiner’s two
prior criminal convictions was material because they were
relevant to explain why David, who had changed his last
name to Johnson before petitioner’s trial, testified under
the last name Tiner. Petitioner argues that David testified
under the Tiner name to “escape from his admittedly ‘checkered
past’ ” and not, as the trial court had found, for reasons
of personal and family safety. The superintendent acknowledges
that David’s criminal history was not disclosed to the
defense but argues that David’s two criminal convictions did
not constitute material Brady information because the convictions
would have been inadmissible as impeachment evidence
under OEC 609. We agree with the superintendent.
“Under Brady, no due process violation occurs if the
evidence withheld by the prosecution would have been inadmissible.”
State v. Deloretto, 221 Or App 309, 322 n 3, 189
P3d 1243 (2008), rev den, 346 Or 66 (2009) (citing Wood v.
Bartholomew, 516 US 1, 8, 116 S Ct 7, 133 L Ed 2d 1 (1995)).
“Whether evidence is admissible is, in the first instance,
4 Moreover, as to the purportedly false statement by Eklof, the prosecutor
can be understood to have asked Eklof whether, between Eklof and petitioner,
Eklof had consistently identified petitioner as the person who had murdered
Salmu. Nothing in the record suggests that that is other than a true statement.
Cite as 284 Or App 59 (2017) 77
a matter of state law.” Id. Thus, we look to Oregon law to
determine whether David’s convictions would have been
admissible as evidence at petitioner’s criminal trial. Under
OEC 609(1)(a), evidence of a witness’s prior conviction for
a crime is admissible to attack the witness’s credibility if
the crime was “punishable by death or imprisonment in
excess of one year under the law under which the witness
was convicted” or if the crime involved a false statement
or dishonesty. Under OEC 609(3), a prior conviction is not
admissible as impeachment evidence if “more than 15 years
has elapsed since the date of the conviction or of the release
of the witness from the confinement imposed for that conviction,
whichever is the later date.”
Here, both of David’s convictions were misdemeanor
offenses that were punishable by less than one year of imprisonment,
and neither was a crime involving a false statement
or dishonesty. Petitioner contends, however, that one
of the convictions, a 1980 California conviction for assault
with a deadly weapon, should be treated as a felony under
OEC 609(1)(a). In California, assault with a deadly weapon,
Cal Penal Code section 245(a)(1), is considered a “wobbler”
offense that can be charged as either a misdemeanor or a
felony. See In re Grayden N., 55 Cal App 4th 598, 600 n 1, 64
Cal Rptr 2d 277 (1997) (explaining that “Penal Code section
245, subdivision (a)(1) is a ‘wobbler’ punishable either as a
felony or a misdemeanor”); see also People v. Park, 56 Cal 4th
782, 789, 299 P3d 1263 (2013) (“There is * * * a special class
of crimes involving conduct that varies widely in its level
of seriousness. Such crimes, commonly referred to as ‘wobbler[
s],’ are chargeable or, in the discretion of the court, punishable
as either a felony or a misdemeanor[.]” (Emphasis
in original; internal citations omitted.)). Petitioner acknowledges
that David was punished as a misdemeanant for that
offense but argues that the conviction should nevertheless
be considered a felony for purposes of OEC 609(1)(a) because
the offense was, in theory, subject to punishment as a felony.
We are not persuaded that David’s 1980 misdemeanor conviction
was admissible under OEC 609(1) merely because the
offense could have been prosecuted as a felony. In any event,
as the post-conviction court noted, the 1980 conviction was
over 15 years old at the time of petitioner’s criminal trial
78 Tiner v. Premo
and was thus inadmissible under OEC 609(3). Accordingly,
David’s criminal history is not material under Brady, and
the state’s withholding of that information does not entitle
petitioner to post-conviction relief.
Petitioner’s Napue claim regarding David is likewise
unavailing. Petitioner claims that the prosecutor knowingly
allowed David to testify under the last name Tiner,
which was false because David had changed his last name
to Johnson before petitioner’s criminal trial. However, the
prosecution cannot be faulted for permitting false testimony
when the issue of David’s name was litigated at the criminal
trial, and the court ruled that David would be permitted to
testify under the name Tiner to protect his new identity from
his brother. Thus, petitioner failed to demonstrate that the
prosecutor committed a Napue violation by simply adhering
to the court’s order.
3. Little and Morris
We turn to petitioner’s Brady and Napue claims
involving Little and Morris. The impeachment evidence
about them that was withheld from the defense included a
letter from a Nevada prosecutor to the state indicating that
Little and Morris were strongly biased against petitioner,
and that the state had promised to write a letter to Little’s
parole board in exchange for her testimony against petitioner.
Petitioner claims that the withholding of that material
constituted Brady violations. He claims further that,
despite the prosecutor’s awareness of that impeachment
evidence, the prosecutor improperly argued to the jury that
Little and Morris had no motive to lie and were not receiving
any favors in exchange for their testimony, thus violating
Napue.
The post-conviction court rejected petitioner’s Brady
and Napue claims, and petitioner assigns error to those rulings.
We affirm the court’s denial of petitioner’s Napue claims
regarding Little and Morris. Petitioner complains that the
prosecutor committed Napue violations by making improper
closing argument about Little and Morris, despite the fact
that information existed that suggested that the witnesses
were biased against petitioner. However, the statements an
attorney makes during closing argument are not evidence.
Cite as 284 Or App 59 (2017) 79
See, e.g., State v. Dugan, 177 Or App 545, 550, 34 P3d 726
(2001). In fact, at the start of petitioner’s trial, the jury was
specifically instructed that “[t]he opening statements and
closing arguments of the attorneys are intended to be helpful
to you to understand the evidence, although their statements
are not part of the evidence.” Thus, petitioner’s claim
does not establish that the prosecutor knowingly elicited
or permitted false testimony or evidence, as required under
Napue. Petitioner is not therefore entitled to relief based on
his claim that the prosecutor improperly argued that Little
and Morris had no motive to lie and had not received any
favors for their testimony.
As to petitioner’s Brady claims related to Little
and Morris, the post-conviction court denied relief on those
claims on the ground that the undisclosed evidence would not
have been useful as further impeachment evidence because
those witnesses had already been significantly impeached
through cross-examination. Petitioner assigns error to that
ruling, and the superintendent concedes that the court erred
in part, contending that the impeachment evidence related
to Little and Morris was material as it pertained to the
aggravating circumstances giving rise to petitioner’s aggravated
murder convictions and, thus, that the state had violated
petitioner’s due process rights under Brady. However,
the superintendent contends that the impeachment evidence
was not material to the jury’s intentional-murder verdict,
and argues that petitioner is entitled to relief only on
the aggravated-murder verdicts. Again, we agree with the
superintendent.
Little and Morris both testified about admissions
that petitioner had made to them months after the murder.
Those admissions included details about the murder
itself, which were largely corroborated and cumulative of
other evidence of petitioner’s involvement in Salmu’s death.
However, Little and Morris also testified about admissions
that petitioner had made about his motivation for killing
Salmu. They testified that petitioner had admitted to them
that he had murdered Salmu because petitioner was on
parole and was afraid that Salmu was going to report to the
police the assault perpetrated against him by petitioner and
Eklof, which led petitioner to conclude that it was necessary
80 Tiner v. Premo
to kill Salmu to “keep it quiet” and forestall revocation of
petitioner’s parole. That testimony was uncorroborated
by other evidence in the record. Indeed, several other witnesses
testified that petitioner had said that he had killed
Salmu because Salmu was a child molester. Thus, Little’s
and Morris’s testimony about the reasons that petitioner
had killed Salmu was qualitatively different from any of the
other evidence admitted at trial.
The superintendent concedes that Little’s and
Morris’s testimony about petitioner’s motivation for killing
Salmu was crucial to the prosecution’s aggravated-murder
charges, which alleged that petitioner had committed the
murder “in an effort to conceal the commission of the crime
of assault” and “in an effort to conceal the identity of the
perpetrators of the crime of assault.” Hence, the undisclosed
impeachment evidence—namely, information of witness
bias—was material Brady evidence as to the aggravating
circumstances that elevated the murder to aggravated murder,
and the withholding of that evidence was a violation
of due process. But, the superintendent argues, because
Little’s and Morris’s testimony about petitioner’s admissions
regarding the details of the murder itself was qualitatively
similar to and cumulative of other evidence in the record,
the withheld impeachment evidence was not material to
the jury’s verdict on the underlying murder. As a result,
the superintendent argues that petitioner is entitled only
to a limited remedy: “[R]etrial on the aggravating circumstances
that made petitioner’s murder of [Salmu] an aggravated
murder,” with no relief on the underlying verdict for
intentional murder. (Emphasis in original.)
In his reply brief, petitioner characterizes the
superintendent’s argument to be that, although the state
committed Brady violations, those violations should have no
effect on the verdict for intentional murder because they are
harmless. He argues that the superintendent is foreclosed
from making that argument because, once a Brady violation
is established, the violation cannot be found to be harmless.
See Kyles, 514 US at 435 (“[O]nce a reviewing court applying
Bagley has found constitutional error, there is no need
for further harmless-error review[.]” (Emphasis added.)).
However, as the Supreme Court explained in Kyles, there
Cite as 284 Or App 59 (2017) 81
is no need for further harmless-error analysis once a Brady
violation is established because the materiality test under
Brady “necessarily entails” the harmless-error test set out
in Brecht v. Abrahamson, 507 US 619, 113 S Ct 1710, 123
L Ed 2d 353 (1993). Kyles, 514 US at 435. That is, the test
for materiality under Brady is more rigorous than the test
for harmless error under Brecht, which asks whether a constitutionally
significant trial error had a “substantial and
injurious effect or influence in determining the jury’s verdict.”
5 Brecht, 507 US at 623. Thus, the “materiality standard
in traditional Brady claims supplants harmless-error
review.” Rosencrantz v. Lafler, 568 F3d 577, 584 n 1 (6th Cir
2009). We therefore analyze the superintendent’s argument
in light of Brady’s materiality test, not in terms of the Brecht
harmless-error test.
We conclude that Little and Morris provided critical
testimony regarding the circumstances that elevated
petitioner’s murder of Salmu to aggravated murder. Indeed,
they were the only witnesses to testify that petitioner killed
Salmu to conceal petitioner’s assault of Salmu, thereby avoiding
disclosure of petitioner’s parole violation for assaulting
Salmu. Had the jury heard evidence that Little and Morris
were strongly biased against petitioner, and that the prosecutor
had offered Little a favor in exchange for her testimony,
there is a reasonable probability that the jury would
have acquitted petitioner of aggravated murder. Thus, the
state’s withholding of that impeachment evidence was material
to the jury’s aggravated-murder verdicts.
We do not reach the same conclusion with respect
to the verdict for intentional murder. Little’s and Morris’s
testimony added minimal value to the state’s case for intentional
murder. Their testimony was qualitatively similar to
and cumulative of other—more reliable—evidence of petitioner’s
involvement in the murder. Viewing the Little/
Morris impeachment evidence in the context of the trial as a
whole, we are not persuaded that the impeachment evidence
5 The Brecht harmless-error standard applies to federal habeas corpus proceedings
dealing with constitutional violations and is less rigorous than the
harmless-error standard applied on direct review under Chapman v. California,
386 US 18, 24, 87 S Ct 824, 17 L Ed 2d 705 (1967), which requires the state to
prove that an error was harmless beyond a reasonable doubt.
82 Tiner v. Premo
could have put the intentional murder case “ ‘in such a different
light as to undermine confidence in the verdict.’ ”
Strickler, 527 US at 29 (quoting Kyles, 514 US at 435).

Outcome: The post-conviction court erred in denying petitioner
relief on his Brady claims involving Little and Morris.
However, because the withheld impeachment evidence
regarding them was material only to the aggravated-murder
verdicts, petitioner is entitled to relief only on those verdicts.
Reversed and remanded with respect to petitioner’s
conviction for aggravated murder; otherwise affirmed.

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