Date: 02-23-2017

Case Style: Dante R'Marcus Farmer v. Jeff Premo

Case Number: A152447

Judge: Hadlock

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

Plaintiff's Attorney: Hari Nam S. Khalsa

Defendant's Attorney: Paul Smith

Description: In this post-conviction relief case, the state1 appeals
from a judgment granting petitioner relief on a number of
his claims, and remanding the case for a new trial. The state
assigns error to the post-conviction court’s rulings on those
claims, arguing that petitioner failed to establish, as a matter
of law, that he was entitled to relief on any of them. We
conclude that the post-conviction court did err in its legal
analysis of each of the claims on which it granted relief, and
we accordingly reverse the portion of the judgment granting
post-conviction relief and remanding for a new trial.
In his fourth amended petition (the petition), petitioner
alleged claims of inadequate assistance of counsel,
claims of direct due process violations, and a claim of prosecutorial
misconduct. The post-conviction court granted relief
on the basis that petitioner received inadequate assistance
of counsel on the following grounds: Trial counsel failed
to present a defense expert’s bullet-comparison opinion at
trial. Trial and appellate counsel failed to argue that certain
evidence was not hearsay. Trial counsel failed to move
for a continuance of a new-trial hearing and to present testimony
from a witness at that hearing. Trial counsel failed to
make certain objections to prosecution evidence at the newtrial
hearing. Trial counsel failed to make certain constitutional
objections to the new-trial hearing procedures. The
post-conviction court denied relief on all other claims in the
petition.
I. HISTORICAL AND PROCEDURAL FACTS
AND LEGAL FRAMEWORK
To provide a general context for the issues on appeal,
we set out here the background facts relating to the claims
on which the post-conviction court granted relief, as well as
1 When a petitioner for post-conviction relief is imprisoned, as in this case,
ORS 138.570 provides that the petition “shall name as defendant the official
charged with the confinement of petitioner”; in other circumstances, the named
defendant is the state. Because the post-conviction court referred to the party
opposing this petition as “the state” during the proceedings and in its letter opinion,
for convenience, we also refer to defendant as the state. We refer to the trial
court in this post-conviction action as the post-conviction court, and the trial
court in petitioner’s underlying criminal trial as the trial court.
734 Farmer v. Premo
an overview of the applicable legal framework. We state the
facts as the post-conviction court found them, supplemented
with undisputed facts from the record.2 In the analysis of
each assignment of error, we set out additional facts, explanation,
and legal principles as necessary and pertinent to
resolution of the issues under consideration.
A. Petitioner’s Criminal Trial and the Defense Strategy
A jury convicted petitioner of murdering the victim,
Monterroso. Monterroso was killed by a single gunshot to
the chest. State v. Farmer, 210 Or App 625, 627, 152 P3d
904, rev den, 342 Or 645 (2007). Police arrested petitioner
after his then-girlfriend, Jennifer, and her parents, Perkins
and Garvin, reported to police that petitioner told them he
had shot the victim. Id. at 635-37.
At petitioner’s criminal trial, there was evidence
that, on the night of the shooting, petitioner had arrived at
Jennifer and Perkins’s home “looking scared and ‘spooked,
like he [had] seen a ghost.’ ” Id. at 635 (brackets in original).
Initially he told them that he had seen “ ‘his home boy get
shot,’ and that he was only a few feet away when the shooter’s
car drove up.” Id. Jennifer testified that petitioner told her
later the same night “that he had just killed someone and
threatened to kill her if she ever told anyone.” She also said
that he told her the next night, perhaps, “that he had been
threatened and that he had to kill the victim before the victim
killed him.” Id.
Perkins testified that, about a week and a half after
the shooting, petitioner had asked if he could tell her and
Garvin something, and that he had confessed to the shooting,
saying that it was “over a ‘weed deal * * * that went
bad.’ ” Id. at 635-36 (omission in original). She was shocked,
did not think his story made sense, and told him as much.
Garvin was there because he was concerned about a
previous incident of violence by petitioner against Jennifer,
2 We set out the events that led to petitioner’s arrest and prosecution in
detail in our opinion on petitioner’s direct appeal. See State v. Farmer, 210 Or
App 625, 627-38, 152 P3d 904, rev den, 342 Or 645 (2007). The post-conviction
court largely drew its factual findings concerning those events from that opinion,
quoting it extensively, interlineated with its own additional findings in italics.
Cite as 283 Or App 731 (2017) 735
and intended to tell petitioner that he “ ‘had to go.’ ” He “testified
that [petitioner had] appeared very upset and said
that ‘it was either him or the other guy.’ ” Id. at 636. Garvin
testified that petitioner “described the killing, saying that
he walked up to the victim, who did not see him coming, and
shot the victim once with a .357 that [petitioner] had gotten
from a friend.” Id. Garvin also testified that petitioner
told him that he put the gun to the victim’s head, and that
it “ ‘just went off.’ ” Id. Garvin asked what petitioner “was
wearing at the time, and petitioner said that he was wearing
a reversible blue/black coat.” Id.
Neither Perkins nor Garvin initially believed petitioner.
Perkins initially believed that petitioner was “ ‘puffing’
because he feared Garvin and he was trying to avoid
being excluded” from Perkins’s home. Id. Garvin similarly
believed that the story was “just ‘talk’ ” aimed at keeping
Garvin from “kicking him out,” but “out of concern for his
daughter,” he “also wanted to investigate the story.” Id.
The next day, angry about seeing petitioner and
Jennifer together, Garvin called the police and spoke
with Detective Renna, the lead detective investigating
Monterroso’s murder. Garvin told Renna that petitioner
“ ‘walked up on the guy and blew him away.’ ” Id. At some
point after that report, petitioner “confronted Garvin about
‘ratting him out,’ ” and after that confrontation, Garvin
“ ‘look[ed] at it in a different light, yes. He was pretty nervous
and real up-tight. So at that point I saw that this was
going somewhere.’ ” Id.
Petitioner’s descriptions of the murder as recounted
by Jennifer, Perkins, and Garvin in some ways did not match
other evidence—Monterroso was not shot in the head, the
gun was no closer than 6 inches from Monterroso’s chest,
and no one else described a car being involved in the murder.
In addition to those confessions, the prosecution
presented evidence from two other witnesses who linked
petitioner to the murder. One of those witnesses, Feliu, identified
petitioner on the night of the murder as a person who
had been looking for Monterroso about an hour before the
shooting. Feliu had attended middle school with petitioner
736 Farmer v. Premo
and had seen him around the neighborhood a few times
since then, and she recognized petitioner “ ‘the second [she
saw] him.’ ” Id. at 628 (brackets in original). On the night
of the murder, she gave police a description and petitioner’s
first name, “ ‘Dontae.’ ”3 Id. Two days later, she identified
petitioner in a police photo line-up. Id. at 633.
The other witness, Muldrew, had been next to
Monterroso when he was shot. He testified that he saw
petitioner shoot Monterroso with a .357 revolver. Id. at 629.
Muldrew provided a description of the shooter to police on
the night of the shooting, but “[a]lthough Muldrew had seen
[petitioner] a couple of times previously and knew who [petitioner]
was (though only by a nickname), he did not identify
[petitioner] as the perpetrator at that time.” Id. at 633.
Four days after the murder, “[i]dentifying [petitioner] by his
nickname, Muldrew told Feliu that [petitioner] had killed
Monterroso.” Id. About two weeks later, he identified petitioner
in a police photo line-up. Id.
On the night of the murder, Muldrew described the
shooter to police as “about 5' 9" or 5' 10", 16 to 19 years old,
skinny, with a mustache and a goatee.” Id. at 632. He also
told police that the shooter “was wearing a dark, puffy coat”
that had writing on it and “black sweatpants with a white
stripe down the side.” Id. That night, Feliu also described to
police the man she recognized as “Dontae,” who had been
looking for Monterroso earlier, as “a black male, 18 years
old, medium-dark complected, 5' 9" or 5' 10", with light facial
hair, and wearing a blue coat with a hood and a horizontal
stripe.” Id. at 633.
Muldrew called 9-1-1 immediately after Monterroso
was shot. Id. at 629. At about the same time that Muldrew
called 9-1-1, a woman, later identified as Thompson, also
called 9-1-1. Id. She initially was identified by only her first
name, and was not located until after the trial was over.
In the call, Thompson said she had witnessed the shooting
and, among other things, she described the shooter and his
companion as Hispanic. Id. She also described the shooter
3 The quoted spelling of petitioner’s first name corresponds to its spelling in
the caption and record of his criminal trial and direct appeal, rather than the
spelling reflected in the caption of this case.
Cite as 283 Or App 731 (2017) 737
as wearing a black or blue jacket. A recording of the call was
played at trial.4
A police officer at the scene after the murder also
made statements to dispatch, which were recorded, that
a witness had described a suspect who ran away from the
scene as a teenaged Hispanic male. Petitioner is African
American. Id. at 634.
Renna was told during his investigation that “ ‘word
on the street’ ” was that a man named Baines was involved
in the shooting. Id. Baines and petitioner resemble each
other. During an unrelated investigation of Baines, police
seized a Rohm .38-special revolver from a home where he
sometimes stayed. Id. at 637. When shown a photograph of
Baines, both Feliu and Muldrew noted some resemblance to
petitioner, but neither recognized him or had any idea who
he was. Id. at 638.
At trial, to counter the defense theory that Baines
could have been the shooter, the prosecution presented evidence
that the Rohm revolver had been inoperable for years
at the time it was seized. There was testimony from prosecution
witnesses that the gun had to be repaired before
it could be test fired, and that test-fired bullets from it did
not match the bullet fragment recovered from Monterroso’s
body. Id. at 637-38.
A defense expert, Wong, had concluded that the
Rohm revolver “likely fired” the fatal bullet, but trial counsel
did not call him as a witness at trial. Trial counsel was
concerned about Wong’s qualifications, and, in consultation
with Wong and a second expert, she opted instead to rely on
testimony she elicited from the state’s expert.
The defense strategy generally was to suggest that
Baines or another person was the perpetrator rather than
petitioner. Trial counsel’s tactics included eliciting evidence
that the shooter had been described as Hispanic, challenging
the witness identifications of petitioner, focusing attention
on the resemblance between petitioner and Baines,
establishing that the gun that Baines arguably had access
4 The full transcript of Thompson’s 9-1-1 call is set out in our opinion in
Farmer. 210 Or App at 629-32.
738 Farmer v. Premo
to could be the murder weapon, and questioning the motives
of petitioner’s ex-girlfriend and her parents.
At the conclusion of the trial, the jury deliberated
for 15 hours before returning a guilty verdict. Petitioner was
convicted and sentenced for murder with a firearm.
B. Post-Judgment Motion for New Trial
A defense investigator, De La Melena, had attempted
before trial to locate the unidentified 9-1-1 caller. De La
Melena was eventually able to locate Thompson and interview
her, but not until after the trial had ended. Id. at 639.
Thompson provided an affidavit in which she stated that
she had been shown photographs of petitioner and that he
“was definitely not the shooter” or the accomplice. Id. Rather
than describing the shooter as Hispanic, as she had during
her 9-1-1 call, she gave a description of the shooter as “a
dark-complected, black male.” She stated that two of the photographs
she had been shown “most closely resemble[d]” the
shooter. Id. at 639. Those two photographs were of Baines.
Id.
Trial counsel filed a motion for new trial based on
the discovery of new evidence, along with Thompson’s affidavit.
On the morning of the new-trial hearing, the prosecutor
submitted an affidavit and police report from Detective
Renna.5 Renna’s affidavit contained information from his
own interview with Thompson, including potential bases
for impeachment. Trial counsel objected to Renna’s affidavit
on several grounds and moved to strike it. The trial court
admitted the affidavit over trial counsel’s objections, but
stated that it would focus primarily on Thompson’s affidavit.
At the conclusion of the hearing, the trial court ruled that it
would not grant a new trial because Thompson’s testimony
would not be likely to change the result of a new trial.
Petitioner appealed his conviction, assigning error
to the trial court’s denial of his motion for new trial. We
5 Renna’s affidavit essentially consisted of a sworn statement that identified
himself and his partner, stated the date and time of his interview with Thompson,
and stated that the attached police report was true and accurate. The evidence at
issue was in the attached report. References in this opinion to Renna’s affidavit
are to the combined affidavit and report.
Cite as 283 Or App 731 (2017) 739
affirmed his conviction and, as part of our analysis in concluding
that the trial court did not abuse its discretion, we
noted that petitioner had offered no evidence to dispute the
information in Renna’s affidavit. Farmer, 210 Or App at
644-45.
C. Applicable Legal Framework
Criminal defendants have a constitutional right
to counsel under both Article I, section 11, of the Oregon
Constitution and the Sixth Amendment to the United States
Constitution. Montez v. Czerniak, 355 Or 1, 6-7, 322 P3d 487,
493, adh’d to as modified on recons, 355 Or 598, 330 P3d 595
(2014).
To prevail on a claim of inadequate assistance of
counsel under Article I, section 11, a petitioner must establish
both “that [counsel] failed to exercise reasonable professional
skill and judgment,” and “that counsel’s failure
had a tendency to affect the result of [the] trial.” Lichau v.
Baldwin, 333 Or 350, 359, 39 P3d 851 (2002). When a court
evaluates trial counsel’s conduct to determine whether it
failed to meet state constitutional standards, the court must
“make every effort to” do so “from the lawyer’s perspective
at the time, without the distorting effects of hindsight” and
must “not second-guess a lawyer’s tactical decisions in the
name of the constitution unless those decisions reflect an
absence or suspension of professional skill and judgment.”
Montez, 355 Or at 7 (internal quotation marks and citations
omitted).
Similar principles apply when evaluating whether
trial counsel’s performance failed to meet federal constitutional
standards.
“To prevail on a Sixth Amendment claim regarding the
ineffectiveness of counsel, a petitioner must demonstrate
that his or her trial counsel’s performance ‘fell below
an objective standard of reasonableness.’ Strickland [v.
Washington], 466 US [668, 688, 104 S Ct 2052 (1984)].
Appellate courts reviewing Sixth Amendment claims ‘must
consider the totality of the evidence before the judge or
jury.’ Id. at 695. At the end of the day, the court must evaluate
the reasonableness of counsel’s representation ‘from
counsel’s perspective at the time of the alleged error and in
740 Farmer v. Premo
light of all the circumstances, and the standard of review
is highly deferential.’ Kimmelman v. Morrison, 477 US 365,
381, 106 S Ct 2574, 91 L Ed 2d 305 (1986). In doing so,
we do not inquire into counsel’s subjective state of mind;
instead, we inquire into the objective reasonableness of
counsel’s performance. Harrington v. Richter, 562 US 86,
110, 131 S Ct 770, * * * 178 L Ed 2d 624 (2011).”
Id. at 7-8.
The Oregon Supreme Court has “recognized that
the standards for determining the adequacy of legal counsel
under the state constitution are functionally equivalent to
those for determining the effectiveness of counsel under the
federal constitution. Id. at 6-7. “Under both constitutions,
the defendant’s right is not just to a lawyer in name only,
but to a lawyer who provides adequate assistance.” Id. at 6
(internal quotation marks omitted).
We review a post-conviction court’s application of
the legal standards for errors of law, and its express findings
of historical fact are binding if there is evidence in the
record to support them. See Green v. Franke, 357 Or 301,
312, 350 P3d 188 (2015) (stating standard of review). If the
post-conviction court did not make findings as to all of the
historical facts that are pertinent to the analysis, and the
evidence would allow the court to find those facts in more
than one way, we will presume that it found the facts consistently
with its conclusions. Ball v. Gladden, 250 Or 485,
487, 443 P2d 621 (1968). That presumption, however, “is
necessarily dependent on the trial court’s application of the
correct legal analysis. If the court is operating under a misunderstanding
as to the applicable legal principles[,] * * *
we will not infer that the court decided facts consistently
with that erroneous legal construct.” State v. Ellis, 252 Or
App 382, 390, 287 P3d 1215 (2012), rev den, 353 Or 428
(2013).
The analysis that follows focuses on fundamental
principles that govern post-conviction proceedings, as
emphasized in two opinions that issued after the postconviction
court decided this case: Montez and Pereida-
Alba v.Coursey, 356 Or 654, 342 P3d 70 (2015). Those cases
stress that, in reviewing the adequacy of petitioner’s trial
Cite as 283 Or App 731 (2017) 741
counsel, a post-conviction court must consider “the lawyer’s
perspective at the time,” instead of viewing the lawyer’s
decision with the benefit of hindsight. Montez, 355 Or
at 7. Moreover, the post-conviction court should not focus
solely on the possible benefits of strategies that trial counsel
did not pursue, but should instead determine “whether
the strategy that defense counsel did employ was reasonable.”
Pereida-Alba, 356 Or at 674 (emphasis added); see
Montez, 355 Or at 24 (“The fact that petitioner would, in
retrospect, have implemented his * * * defense in one or
more different ways is not a ground for post-conviction
relief if counsel acted reasonably in presenting the defense
that they did.”). The discussion below is based on those
core precepts.
II. CLAIMS RELATED TO EVENTS
DURING TRIAL
A. Defense Counsel’s Decision Not to Call Wong as an
Expert Witness
Petitioner made an allegation, as part of an inadequate
assistance of counsel claim in section 7 (1)(e) of his
petition that the post-conviction court summarized as follows:
“Trial [c]ounsel failed to call either Franklin Wong or
Bart Reid as an expert witness to testify that a handgun
* * * found in the possession of * * * Baines, was more likely
than not the firearm that discharged the bullet found in the
deceased.” The post-conviction court granted relief on that
claim, finding that Wong “would have testified that the firearm
found in Baines’s home was operable and * * * was ‘most
likely’ the gun that killed Monterroso.” Accordingly, the
court concluded, “a reasonable attorney would have called
Wong to testify as a defense expert.”6 The state assigns error
to that ruling, arguing that trial counsel’s decision not to
call Wong as a witness was a reasonable tactical choice and
that the post-conviction court erred by not giving proper
6 The state argued before the post-conviction court that petitioner had failed
to prove this claim as to Reid, because he produced no evidence of what Reid’s
opinion was, or that Reid would have provided favorable testimony at trial. The
post-conviction court’s letter opinion did not grant relief based on a failure to call
Reid as a witness. Petitioner does not make any argument on appeal concerning
Reid.
742 Farmer v. Premo
deference to that decision. Petitioner argues that the postconviction
court did not err.7 We agree with the state.
1. Whether the fatal bullet fragment could have been
fired from the Rohm was the subject of expert testimony
at trial.
At petitioner’s criminal trial, the prosecution called
an Oregon State Police (OSP) forensic firearm and tool-mark
examiner, Gover, as a witness to provide evidence about the
bullet fragment that had been recovered from the victim’s
body and about the Rohm revolver and bullets test fired
from it.8 Gover had extensive training from the Bureau of
Alcohol Tobacco and Firearms, including training in firearm
and tool-mark examination as used in bullet comparisons.
Gover explained that his training included comparing
bullets known to have been fired from different firearms
that were “as closely manufactured to each other as possible,”
and bullets known to have been fired from the same
firearm. That training allows examiners to establish baselines
of the most agreement possible between bullets fired
from different firearms, and the level of disagreement one
can expect to see with bullets fired from the same firearm.9
A bullet fragment was recovered from the victim’s
body. Investigators could not determine conclusively what
7 Petitioner filed an answering brief on appeal which asserts, in response to
each assignment of error, that the post-conviction court’s ruling was correct, and
that he relies on the court’s reasoning as expressed in its letter opinion, which he
quotes verbatim. He makes no further arguments.
8 In the record and briefs, this witness’s name is sometimes spelled “Grover.”
We use Gover throughout this opinion, making substitutions as necessary in quotations
for clarity and consistency.
9 Gover defined some of the terminology he used in describing bullet comparisons.
“Class characteristics” refers to characteristics that are shared by groups
of firearms—such as caliber, center or rim fire, and rifling attributes—some of
which may be discerned from examining a recovered bullet and can narrow down
the group of firearms that might have fired it. “Lands and grooves” are raised
or incised areas that are cut by a tool as part of the rifling attributes within the
barrel, and which leave reciprocally incised or raised areas on bullets that have
passed through the barrel. Different models of firearms can have different numbers,
widths, and direction of twist of lands and grooves.
In addition, the barrel of a particular firearm can impart microscopic striations
to the bullet as it passes through, caused by tiny imperfections in the tool
that created the lands and grooves in the barrel. Those striations are individual
characteristics, which can in some circumstances allow a determination that a
particular firearm did or did not fire a particular bullet.
Cite as 283 Or App 731 (2017) 743
caliber it was or what kind of gun had fired it. Gover noted
that the bullet fragment was from a type of ammunition typically
used in revolvers. When he entered data collected from
the bullet fragment into a Federal Bureau of Investigation
database to create a list of firearms that could have fired
the bullet, there were 30 to 40 different types of firearms on
the list. The list included 9mm, .380, .38, and .357 magnum
caliber firearms. Among the listed possible firearms was a
Rohm .38-special revolver.
Gover recounted that he test fired the Rohm revolver
associated with Baines in February 2002 and he compared
test-fired bullets with the fatal bullet fragment. In his opinion,
the amount of “agreement” of individual characteristics
“was insufficient to positively say that that bullet was fired
from that gun.” He explained that, in comparing the testfired
bullets from the Rohm to the fatal bullet fragment,
there was some agreement of the individual characteristics,
but there was also some disagreement. He concluded that
the results of the comparison were inconclusive—it could not
be determined whether the bullet fragment was fired from
the Rohm. Gover’s conclusions were confirmed by another
equally trained analyst in the OSP crime laboratory.
In response to questions from trial counsel, Gover
acknowledged that the test-fired bullets and the bullet fragment
had agreement of all discernible class characteristics
and some agreement of individual characteristics. He conceded
that he could not exclude the Rohm as the murder
weapon. Specifically, Gover’s response to trial counsel’s
question was, “That is correct, it cannot be excluded.” He
also agreed with trial counsel’s characterization of his previous
testimony as being that he was “not one hundred percent
certain that this was a match.”
The prosecution also presented evidence that the
Rohm had been inoperable at the time of the murder. The
former owner, Baker, testified that it did not work the last
time she tried to fire it, more than a decade before the
murder. About two to three months before police seized it,
Baker gave the gun to her daughter, Waller. Waller testified
that it did not work and that she had not cleaned or
repaired it. An OSP firearms examiner, Alessio, testified
744 Farmer v. Premo
that another criminalist had reported that the Rohm was
inoperable when examined in April 2001. Alessio had also
observed that the Rohm was inoperable before he repaired
it in August 2001.
Before the defense case began, the prosecutor
requested a hearing to determine whether Wong, who had
been present at the February 2002 test firing of the Rohm,
was qualified as an expert in bullet comparison. At that
hearing, outside the presence of the jury, trial counsel and
the prosecutor questioned Wong about his qualifications. In
response to trial counsel’s questions, Wong agreed that he
had “extensive experience in the comparison study of bullets.”
He elaborated that he had worked on “over a dozen
cases involving firearms,” three or four of which involved
bullet comparisons, during his nine years of professional
experience. Wong recounted his education and experience in
metallurgy and mechanical engineering, and described how
they provided relevant expertise in the area of bullet comparison.
On cross-examination, Wong acknowledged that
he had no formal training in bullet comparison. The court
ruled that Wong could testify on the subject, and noted that
evidence of Wong’s specific experience and training would be
for the jury to weigh.
2. Trial counsel made a tactical decision not to call her
own expert.
In advance of the post-conviction trial, trial counsel
was deposed and her deposition testimony was admitted
at the post-conviction trial. In that testimony, trial counsel
explained that while preparing for petitioner’s trial she had
pursued the possibility that Baines had actually been the
shooter. She had hired Wong initially as an expert in crime
scene reconstruction to analyze the trajectory of the fatal
bullet. After she learned of Baines and the Rohm revolver,
trial counsel had Wong attend OSP’s test-firing and compare
the fatal bullet fragment with the test-fired bullets.
Wong analyzed the bullets and concluded that the fatal bullet
“was likely fired from the Rohm.” Trial counsel became
concerned, however, that Wong might not make a persuasive
witness on that issue because he did not have an extensive
background in ballistics and tool-mark identification. When
Cite as 283 Or App 731 (2017) 745
she decided that she needed someone who had more expertise
in that area, trial counsel hired another expert, Reid,
who was also present when the Rohm was test fired. Trial
counsel’s recollection was that Reid’s conclusions were similar
to Gover’s: the results of the comparison were inconclusive,
and the Rohm could not be excluded as the murder
weapon.
Explaining her decision not to call either defense
expert, trial counsel said that the prosecution could challenge
Wong, and that “Reid was not going to be as strong
as Wong.” Trial counsel recalled that, consulting with Wong
and Reid after Gover testified, she knew neither of them
would say conclusively that the fatal bullet came from the
Rohm. Although Wong would have said it was “likely,” she
thought that the prosecutor would attack his qualifications—
which were far less extensive than Gover’s—thereby damaging
credibility with the jury, which would “detract from
* * * the strength of” the defense case. Counsel also believed
that Wong ultimately would have to admit that the bulletcomparison
result was inconclusive, which would essentially
be a rehashing of Gover’s testimony. In consultation with
both of her experts, trial counsel ultimately decided not to
call either of them to testify about the bullet comparison
because she thought that Gover’s acknowledgment on crossexamination
that he could not exclude the Rohm as the
murder weapon “was the best * * * coming from the [s]tate’s
witness.”
3. Trial counsel’s decision at trial not to call Wong as a
witness was a reasonable tactical choice that did not
reflect an absence or suspension of professional skill
and judgment.
Tactical decisions made in the course of preparing
for trial must involve “a conscious choice by a lawyer either
to take or to omit some action on the basis of an evaluation
of the nature and complexity of the case, the likely costs and
potential benefits of the contemplated action, and other factors.”
Stevens v. State of Oregon, 322 Or 101, 109, 902 P2d
1137 (1995). A lawyer’s tactical decision “must be grounded
on a reasonable investigation.” Gorham v. Thompson, 332 Or
560, 567, 34 P3d 161 (2001). If it is based on an appropriate
746 Farmer v. Premo
evaluation, a tactical decision is entitled to considerable deference.
Lichau, 333 Or at 360.
The post-conviction court analyzed this claim as
follows:
“When the defense hired an expert to examine the bullet
fragment and the weapons seized, this Court is sure,
the defense was hoping that the expert would find that the
bullet fragment in question came from the gun found at
the home of the other suspect, Baines. However, when the
expert the defense hired found that the bullet fragment
was likely fired from the gun found at Baines’[s] home * * *
the defense chose not to call their expert as a witness. The
defense attorney has stated that, (1) despite the expert’s
findings that were very favorable to the defense, she did
not realize that the defense expert’s findings would be that
much different than the State’s findings when presented at
trial. Further, she decided not to call the forensic expert as
a witness because the expert did not have the training and
experience to withstand cross-examination. Counsel goes
on to state that she hired Bart Reid as a second opinion,
because Reid had better credentials. However, in her deposition
she goes on to say, ‘Bart Reid was not going to be as
strong as Wong.’ This Court misses the logic in trial counsel’s
analysis.
“Although tactical choices by a trial lawyer do not usually
provide grounds for post-conviction relief, relief may be
available if [petitioner] shows the decisions of counsel were
not based on a reasonable evaluation of costs and benefits,
or a reasonable evaluation of the evidence. In a cost versus
benefit analysis undertaken by a reasonable attorney,
a reasonable attorney would have called Wong to testify as
a defense expert. Regardless of the ability of the State to
impeach his credentials, even if he were impeached regarding
the analysis of the bullet fragment lands and grooves,
his testimony when combined with the State expert Gover’s
testimony would be: one expert who testified that the Rohm
revolver could have been the weapon that fired the bullet
that killed Monterroso and one expert who testified that
the Rohm revolver was likely [the] weapon that fired the
bullet that killed Monterroso. Therefore, what was the
down side of calling Wong to testify?
“Further, if the credentials of the forensic expert hired
by the defense, Wong, were such that the defense would not
Cite as 283 Or App 731 (2017) 747
call their expert to testify: (1) why did the defense hire this
person as an expert? and (2) given the expert’s opinion that
the bullet fragment was likely fired from the gun found at
Baines’[s] home, why did the defense not attempt to hire a
more qualified defense expert to either confirm or refute
the analysis of Wong, and potentially put that expert on the
stand?”
(Citation omitted; ellipsis in original.)
The state argues that the post-conviction court
erred in its legal analysis of trial counsel’s tactical decision.
We agree. In evaluating trial counsel’s tactical choice, the
question is not whether a reasonable attorney could have
come to a different conclusion, or whether, in hindsight, the
chosen tactic was successful or effective. Nor is the question
whether it appears that the path not chosen, considered in
isolation, would have had no “downside.” Green, 357 Or at
314. Rather, the question is whether no attorney exercising
reasonable professional skill and judgment could have made
the tactical choice that trial counsel did, such that the choice
reflects an absence or suspension of professional skill and
judgment.
Here, trial counsel’s decision was grounded in a
reasonable investigation, and she weighed the likely costs
and potential benefits of her chosen trial tactic. Trial counsel
hired Wong at the outset of the case to reconstruct the
crime scene, which is Wong’s primary area of expertise. She
later sought his opinion when the bullet comparison issue
arose. She also decided to hire another expert with better
credentials, as the case developed. Both experts were present
for the test firing of the Rohm, and provided opinions
on the bullet comparison. Once the state had presented
Gover’s testimony, including his formal training and experience
in bullet comparison, trial counsel decided, in consultation
with her experts, that calling Wong as a witness ran
the risk of undermining the defense’s credibility with the
jury and detracting from the strength of the defense case.
She did not call Reid, the better-qualified expert, because
his testimony evidently would have added nothing to what
Gover had already told the jury. In addition, there were
tactical advantages in not presenting a defense expert if
it might detract from the impression that the defense had
748 Farmer v. Premo
elicited testimony from the prosecution’s own expert that
damaged the prosecution’s case. The likely costs of calling
Wong as her own expert witness in that scenario would be
that, although Wong would provide a more favorable bulletcomparison
opinion on direct examination, he was vulnerable
on cross-examination and could leave the jury with an
impression that the defense was not credible and its case
was weak.
In sum, trial counsel performed a reasonable investigation
after which she made a conscious tactical choice
following an appropriate evaluation of the likely costs and
potential benefits of calling Wong as a witness to give an
opinion about whether the fatal bullet had been fired from
the Rohm. Her decision to rely instead on Gover’s testimony
that he could not rule out the Rohm as the murder weapon is
the kind of tactical choice by defense counsel that is entitled
to considerable deference, and does not reflect an absence
or suspension of professional skill and judgment. The postconviction
court, therefore, erred in concluding that trial
counsel provided inadequate assistance of counsel on that
basis.10
The post-conviction court also concluded that trial
counsel’s failure to call Wong constituted inadequate assistance
of counsel because Wong would have testified that the
Rohm was operable at the time of the fatal shooting. The
10 In disagreeing with this analysis, the dissent relies on cases in which the
Supreme Court held that post-conviction relief was warranted because trial lawyers
had decided not even to investigate potential witnesses or lines of defense.
Lichau, 333 Or at 356, 360-61 (holding that lawyer conducted inadequate investigation
where, despite the petitioner’s repeated assertions that military documents
and witnesses would create an alibi for him, the lawyer did not seek out
the documentary evidence and did not attempt to contact possible alibi witnesses
other than the petitioner’s parents); Stevens, 322 Or at 109 (holding that lawyer
conducted inadequate investigation in a rape case that turned on the credibility
of the petitioner and the complainant, given the lawyer’s “fail[ure] to interview
several witnesses whose testimony might well have had bearing on the [complainant’s]
credibility” and who were “the first people with whom [the complainant]
had contact after the alleged rape”). In this case, though, petitioner’s
counsel did investigate, in a way that led her to hire experts whom she hoped
would bolster the defense theory that Baines may have committed the murder.
Counsel’s decision not to call one of those experts for fear that his weak testimony
would diminish the effectiveness of the defense case, cannot be analogized to a
fundamental failure to investigate.
Cite as 283 Or App 731 (2017) 749
court drew that conclusion from a portion of the report that
Wong wrote for trial counsel, in which he stated:
“The Rohm revolver was function tested by depressing
the trigger and lowering the hammer by hand to slow the
speed of the action. When the trigger was depressed and
held, the cylinder rotated properly, the hammer was able
to strike the firing pin, and the firing pin protruded from
the frame. When the trigger was depressed to release the
hammer and then immediately released, the trigger linkage
prevented the firing pin from being contacted by the
hammer. No binding or malfunction of the mechanisms
was noted.”
The court noted that Wong’s assertion that the gun worked
was consistent with testimony from Officer Santos, who had
seized the gun from Waller’s home. When asked if he knew
whether the gun was operable when he seized it, Santos
replied, “Ms. Waller indicated it was.” The post-conviction
court also noted that trial counsel had made a hearsay objection
to that response, and found it “unusual” that defense
counsel would have objected to that favorable testimony.11
The state argues that trial counsel could reasonably
have made a strategic decision not to call Wong to testify
that the Rohm was operable. According to the state,
11 The state argues that we should reject as unsupported by the record the
post-conviction court’s factual finding that Santos testified that Waller told police
that the gun was functional. The state points out that Santos was interrupted by
a hearsay objection that the trial court sustained. In context, the state argues,
it is clear that, had he not been interrupted by the objection, Santos would have
testified that “Ms. Waller indicated it was” not functional. The exchange was as
follows:
“[Prosecutor]: To your knowledge was that revolver functional when you
retrieved it?
“[Santos]: Ms. Waller indicated it was.
“[Trial counsel]: Objection, hearsay.
“The Court: It is hearsay.”
The state also asserts that other evidence shows that Waller told the police that
the gun was not functional, citing Renna’s testimony that a police report states
that Waller told officers that the gun was broken and would not fire.
We need not resolve the issue, however, because we conclude, as discussed
below, that the post-conviction court erred in granting relief on the basis that
trial counsel should have called Wong as a witness even if, as the court found,
“Santos testified that Waller told him that the Rohm * * * was functional when [it]
was seized from Waller’s home.”
750 Farmer v. Premo
the evidentiary record does not support the conclusion that
Wong’s testimony would have been useful to petitioner’s
defense. The state points out that three witnesses at the
criminal trial testified that the gun did not work at the
time it was seized: Waller, who owned the gun, her mother,
who gave her the gun, and Alessio, the OSP firearms examiner
who repaired the gun so that it could be test fired. The
state also argues that Wong’s report is undermined by the
fact that he wrote the report in March 2002, more than six
months after Alessio had repaired the Rohm.
We agree with the state that trial counsel did not
perform deficiently by not calling Wong to testify that the
Rohm was operable. Trial counsel exercising reasonable
professional skill and judgment could choose not to elicit
Wong’s testimony on that subject, based on concern that
the disadvantages of doing so would have exceeded the
advantages. The evidence would have been weak and easy
to discredit if it were presented as showing that the Rohm
was operable at the time of the murder, given the evidence
that the Rohm had been inoperable from approximately
1989 until Alessio repaired it in August 2001. The record
includes no evidence that Wong examined the gun before
that repair. And Wong’s testimony would not have appreciably
advanced the defense case if merely directed at showing
operability at the time that OSP personnel test fired it,
which was not in dispute.
Santos’s testimony does not aid petitioner on this
issue. The post-conviction court found that Santos testified
that Waller had told police that the gun was functional
when they seized it, but that testimony would not have been
reinforced by Wong testifying that the gun was operable six
months after the date that Alessio said he had repaired it.
The jury could as easily weigh Santos’s testimony about what
he recalled Waller having said to police against Waller’s testimony
at trial that the Rohm was not functional when police
seized it, with or without Wong’s testimony that the gun was
operable months later, at a time when its operability was not
in dispute. Thus, the presence of Santos’s testimony would
not have prompted all reasonable trial counsel to call Wong
to testify on that latter point.
Cite as 283 Or App 731 (2017) 751
In sum, trial counsel did not perform deficiently by
not calling Wong as a witness at petitioner’s criminal trial.
The trial court erred in concluding that petitioner was entitled
to post-conviction relief on that basis.
B. Trial and Appellate Counsels’ Failure to Argue That
Statements on a Dispatch Recording Were Not Hearsay
We turn next to petitioner’s claim that both trial
and appellate counsel were inadequate because they failed
to argue that recorded statements between police and dispatch
were not hearsay. Petitioner alleged a claim in section
7 (1)(c) of his petition that trial counsel was inadequate for
failing to argue that the evidence “was not hearsay because
it impeached the description of the killer given by another
witness,” and in section 7 (1)(d), he alleged that appellate
counsel was inadequate for failing to make the same
argument on appeal. The post-conviction court granted
relief on both claims. The state assigns error to the postconviction
court’s rulings on both claims, arguing that the
post-conviction court erred in concluding that petitioner had
demonstrated prejudice resulting from trial counsel’s deficient
performance, and in concluding that appellate counsel
performed deficiently. We agree with the state.
At petitioner’s criminal trial, a recording of
exchanges between police and dispatch was the subject of
a dispute concerning admissibility. Defense counsel argued
for admission of that recording, which apparently contained
statements relaying information from 9-1-1 calls and referring
to suspects as Hispanic males. It also contained statements
by an officer, Padilla, that a witness had reported
seeing a suspect running from the scene, and had described
him as a teenaged Hispanic male, 5'10", with black hair,
wearing a turquoise sweater and a black jacket. The trial
court did not initially admit the dispatch recording, but ultimately
it ruled that the recording was admissible because
Defense Exhibit 102, which had already been admitted
without objection, was a print-out containing the same
information.12
12 Petitioner did not introduce as evidence in the post-conviction case the
dispatch recording or a transcript of it, and did not provide Defense Exhibit 102
from the criminal trial, which the trial court determined contained the same
752 Farmer v. Premo
As we discuss further below, the state did not call
the post-conviction court’s attention to the fact that trial
counsel had, in fact, argued for admission of the dispatch
recording and that the trial court had actually ruled the
evidence admissible. It seems that the dispatch recording
was not, however, played for the jury. The parties and the
post-conviction court apparently all proceeded under the
mistaken understanding that the dispatch recording had
been excluded by the trial court.
The post-conviction court analyzed the claims as
follows:
“During trial, the court excluded evidence of the dispatcher’s
out-of-court statements relaying information
to the police that the shooter was Hispanic. Based on
the statements of the eye witness and the circumstances
under which the 911 call was made, the statements of the
911 caller regarding the race of the shooter were likely not
hearsay, and the defense should have argued that point.
Failure to argue that the evidence was not hearsay was
ineffective assistance of counsel, both in failing to attempt
to change the Judge’s ruling and also in failing to protect
[petitioner’s] rights on appeal.
“Some might argue that, even if admitted, this evidence
alone would not be sufficient to show ineffective assistance
of counsel, in that it could not affect the outcome of the
trial. However, counsel’s failure to argue for the admission
of useful evidence that supported [petitioner’s] theory
of the case, shows an ongoing pattern of counsel’s failure
to exercise reasonable professional skill and judgment.
Trial counsel’s failure to argue to allow the evidence, when
information as the dispatch recording, but in written form. The state has not
argued on that basis that the record would therefore preclude petitioner from
establishing prejudice. See Horn v. Hill, 180 Or App 139, 148-49, 41 P3d 1127
(2002) (“Where evidence omitted from a criminal trial is not produced in a postconviction
proceeding * * * its omission cannot be prejudicial.”). We presume, for
purposes of analysis of this claim, that the statements at issue are those that
were the subject of discussion during trial counsel’s arguments for admission of
the recording. That discussion indicated that the recording included statements
by officers suggesting they had information that the suspects were Hispanic. The
discussion also indicated that the recording included statements from dispatch
relaying information from 9-1-1 calls. Audio recordings of the 9-1-1 calls themselves,
including Thompson’s, had already been ruled admissible, and the prosecution
played those recordings at trial.
Cite as 283 Or App 731 (2017) 753
combined with the other poor decisions of counsel, caused
[petitioner] to suffer prejudice.
“* * * * *
“The state argues that appellate counsel’s choice not
to assign error to the ruling discussed above was reasonable,
based on the proposition that the appellate courts
may affirm the judgment of a trial court notwithstanding
evidentiary error, if there is little likelihood that the error
affected the verdict. However, as stated above, although
some might argue that the failure to argue for the admission
of this evidence alone would not be sufficient to affect
the verdict in this case, a significant amount of evidence
exists that calls to question whether there is sufficient
proof to prove that this [petitioner] was the shooter. The
failure of appellate counsel to assign error to the ruling
was not reasonable given the fact that this piece of evidence
would have supported [petitioner’s] theory of the case.”
The post-conviction court granted relief on both claims.
We first address the claim relating to trial counsel.
The state, as noted, points out that trial counsel in fact did
argue that the statements on the dispatch recording were
admissible, and that the trial court agreed, but, as the state
acknowledges, it failed to preserve before the post-conviction
court any argument that trial counsel did not perform deficiently
on that basis. Rather, before the post-conviction
court, the state agreed that the trial court had excluded the
recording and agreed that the evidence was “probably not
hearsay.” The state argued only that petitioner had failed to
establish that trial counsel’s deficiency had caused prejudice,
because the jury heard other evidence that the shooter had
been described by witnesses at the scene as Hispanic. On
appeal, the state asserts that the post-conviction court erred
by concluding that trial counsel’s failure to ensure that the
jury heard the dispatch recording prejudiced petitioner.
At least in the context of a trial, to establish prejudice
in an inadequate assistance of counsel claim under
Article I, section 11, a petitioner must show that the deficient
performance by trial counsel “could have tended to
affect the outcome of the case.” Green, 357 Or at 323, 323
n 13. “That standard requires a determination that there is
‘more than mere possibility, but less than probability’ that
754 Farmer v. Premo
counsel’s inadequacy affected the outcome of the proceeding.”
Everett v. Premo, 279 Or App 470, 479, 380 P3d 1099
(2016) (quoting Green, 357 Or at 322). “Whether a criminal
defense counsel’s failure to investigate, discover, or adduce
evidence had a tendency to affect the outcome of a case must
be assessed in light of the totality of the circumstances.”
Galloway v. Nooth, 247 Or App 164, 181, 268 P3d 736 (2011).
Similarly, a claim under the Sixth Amendment requires a
showing that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 US at 694.
Here, the evidence that defense counsel failed to
present to the jury—the dispatch recording—was not evidence
that, had the jury heard it, could have tended to affect
the outcome of petitioner’s criminal trial. The jury received
the same evidence from other sources. When trial counsel
cross-examined Renna, he testified about receiving Padilla’s
written report containing a named witness’s description
of a suspect seen running from the scene on the night of
the murder. The description was of a Hispanic male, about
5'10", with a medium build, wearing a turquoise shirt and
a black jacket—the same information that was in the dispatch
recording. In addition, Defense Exhibit 102, which
was admitted at trial, contained the same information as
the dispatch recording, but in written rather than audio
form. And because the jury heard the recordings of the 9-1-1
calls themselves, they would have heard the same information
that dispatch relayed to officers from those calls.
Because the audio of the dispatch recording would
have been cumulative of other evidence in the record, petitioner
did not establish that he was prejudiced by counsel’s
purported failure to make an argument supporting the
admission of that recording. The post-conviction court erred
in concluding that petitioner had established prejudice from
that alleged failure.13
We next turn to the claim that appellate counsel
performed deficiently by failing to assign error to exclusion
13 Moreover, to the extent that the court applied a theory of cumulative
error in finding prejudice on that claim, it also erred. The court concluded that
petitioner had established prejudice as to trial counsel by showing “an ongoing
Cite as 283 Or App 731 (2017) 755
of the same evidence in petitioner’s direct appeal. In analyzing
petitioner’s appellate counsel claim, we focus on the
deficient-performance element of the claim rather than the
prejudice element discussed above. Although the particular
legal question it presents results in a similar analysis, it
also differs in some respects.
Under the Oregon Constitution, petitioners who
seek “post-conviction relief stemming from a claim of inadequate
assistance of appellate counsel for failing to assert a
claimed error must establish * * * that a competent appellate
counsel would have asserted the claim,” in order to establish
deficient performance. Guinn v. Cupp, 304 Or 488, 496, 747
P2d 984 (1987); see also Field v. Coursey, 264 Or App 724,
728, 333 P3d 340, rev den, 356 Or 400 (2014) (quoting Guinn,
304 Or at 496). Similarly, under the Sixth Amendment,
appellate counsel need not raise every nonfrivolous claim,
but may use professional judgment to choose among them.
Jones v. Barnes, 463 US 745, 754, 103 S Ct 3308, 77 L Ed 2d
987 (1983). To overcome the presumption of effective assistance
of counsel, a petitioner whose appellate attorney filed
a merits brief must show that the omitted issue was “clearly
stronger than issues that counsel did present.” Smith v.
Robbins, 528 US 259, 288, 120 S Ct 746, 145 L Ed 2d 756
(2000).
pattern of counsel’s failure to exercise reasonable professional skill and judgment,”
and thus, trial counsel’s failure to present the recording to the jury, “when
combined with the other poor decisions of counsel, caused [petitioner] to suffer
the prejudice.”
No Oregon appellate court has endorsed application of a cumulative-error
analysis in post-conviction claims, and the United States Supreme Court has not
adopted the approach. See Ryan v. Palmateer, 338 Or 278, 290, 108 P3d 1127, cert
den, 546 US 874 (2005) (rejecting as incompatible with Oregon law the petitioner’s
contention that “trial counsel’s errors, taken together, were so egregious that he
should be granted a new trial without” being required to show actual prejudice,
“because the entire underlying trial was infected with ‘structural error.’ ”); id. at
298-99 (explaining that, although “structural error”—error in which prejudice
is presumed—is a viable theory under federal law in some circumstances, the
United States Supreme Court has limited its application in the ineffective assistance
of counsel context to cases in which the attorney’s failure is so complete as
to amount to a constructive denial of the right to counsel altogether).
We need not determine, in this case, whether such a “cumulative error”
analysis could apply, because we have concluded, as explained both earlier and
later in this opinion, that petitioner failed to establish any other deficiencies by
trial counsel. Thus, there are no additional deficiencies to cumulate with this one.
756 Farmer v. Premo
The state argued below and reiterates on appeal
that petitioner’s appellate counsel did not perform deficiently
because competent appellate counsel could have concluded
that the alleged error was harmless. In its explanation of
its ruling on this claim, the post-conviction court applied an
analysis similar to its prejudice analysis discussed above.
“[A]lthough some might argue that the failure to argue for
the admission of this evidence alone would not be sufficient
to affect the verdict in this case, a significant amount of
evidence exists that calls to question whether there is sufficient
proof to prove that this [petitioner] was the shooter.
The failure of appellate counsel to assign error to the ruling
was not reasonable given the fact that this piece of evidence
would have supported [petitioner’s] theory of the case.”
That explanation does not reflect the correct analysis for
determining whether appellate counsel performed inadequately.
Any assessment of a lawyer’s decision not to raise
a claim of evidentiary error on direct appeal from a criminal
conviction must take into account whether the lawyer
could reasonably conclude that we would affirm the conviction,
notwithstanding any such error, because the error was
harmless, that is, because “there [was] little likelihood that
the error affected the verdict.” State v. Gibson, 338 Or 560,
576, 113 P3d 423, cert den, 546 US 1044 (2005). In determining
whether erroneously excluded evidence had little
likelihood of affecting the verdict, we assess the excluded
evidence “in light of other evidence in the record pertaining
to that issue.” State v. Johnson, 225 Or App 545, 550, 202
P3d 225 (2009). We do not reverse a conviction merely on
the basis that excluded evidence would have supported the
defendant’s theory of the case if the excluded evidence was
cumulative of other admitted evidence, and there is, therefore,
little likelihood that its exclusion affected the verdict.
Here, even under the assumption that the evidence
was excluded, competent appellate counsel could have concluded
that the omission would have been harmless because
the recording was cumulative of other evidence presented
to the jury at trial, as discussed above. The post-conviction
court erred in concluding that appellate counsel performed
Cite as 283 Or App 731 (2017) 757
deficiently by failing to assign error to exclusion of the dispatch
recording.
III. CLAIMS RELATED TO POST-JUDGMENT
NEW-TRIAL HEARING
A. Trial Counsel’s Failure to Move for a Continuance and to
Call Thompson as a Witness at the New-Trial Hearing
Petitioner made multiple claims in his petition
alleging that trial counsel’s failure to move for a continuance
on the morning of the new-trial hearing constituted
ineffective assistance of counsel.14 The post-conviction court
granted relief on those claims, concluding that, after receiving
Renna’s affidavit on the morning of the hearing, trial
counsel should have moved for a continuance for the purpose
of presenting additional live or affidavit testimony from
Thompson to challenge the contents of Renna’s affidavit. The
state assigns error to the post-conviction court’s rulings,
arguing that the court erred in concluding that trial counsel
had performed deficiently, and in concluding that petitioner
had established prejudice. We agree that the court erred in
concluding that trial counsel was deficient on those bases.
As explained below, the strategy and course of action that
trial counsel adopted were reasonable and did not reflect a
suspension of professional skill and judgment.
14 The parts of the petition that the post-conviction court referred to as
containing those claims are 7 (1)(a) (failure to call Thompson as a witness);
7 (1)(b) (failure to move for continuance of new-trial hearing); 8 (1) (failure to “crossexamine
Thompson” at new-trial hearing); and 8 (2) (failure to move for continuance
or to call Thompson as a witness at new-trial hearing). The post-conviction
court did not grant relief on the claims alleging inadequacy of counsel based on the
failure to call Thompson as a witness at the new-trial hearing independently of the
claims asserting the failure to seek a continuance. The court consistently linked,
in its analysis of the claims on which it granted relief, the failure of trial counsel
to call Thompson as a witness to the failure to move for a continuance for that purpose.
That is, the court did not grant relief on the basis that trial counsel should
have subpoenaed Thompson to the new-trial hearing before she had any reason to
know of Renna’s affidavit. We refer to all of the above claims collectively as the continuance
claim. The post-conviction court granted relief on the continuance claim,
as contained in parts 7 (1)(a), 7 (1)(b), and 8 (2) of the petition.
We note that, although the post-conviction court’s opinion also found fault
with trial counsel’s failure to “investigate” the contents of Renna’s affidavit, and
the failure to file a counteraffidavit, it did so in the context of specifying reasons,
in its view, for trial counsel to seek a continuance; petitioner did not allege in his
petition corresponding claims based on those failures.
758 Farmer v. Premo
1. Defense counsel filed a post-judgment motion for new
trial based on newly discovered evidence after locating
Thompson.
At the criminal trial, the jury heard Thompson’s
9-1-1 call, but she had given only her first name during the
call, and had not been located or identified. Once the defense
investigator, De La Melena, identified Thompson as the
caller and located her, he interviewed her, and trial counsel
obtained an affidavit setting out what her testimony would
be. By that time the trial had already ended. Trial counsel
filed a motion for new trial pursuant to ORS 136.535 (2001)
and ORCP 64, based on the discovery of new evidence.15 The
trial court scheduled a hearing on the motion.
On the morning of that hearing, the prosecutor
filed written opposition to the new-trial motion and submitted
Renna’s affidavit. That affidavit contained information
about Renna’s own interview with Thompson, and included
some information and statements that could potentially be
used to impeach her, or to weaken the impact of her testimony.
16 Trial counsel objected to Renna’s affidavit on multiple
grounds and moved to strike it. The trial court admitted
Renna’s affidavit over trial counsel’s objections, but stated
that it would focus primarily on Thompson’s affidavit in
making its ruling on the new-trial motion:
“All right. I’m not going to strike it. I will consider it
in light of the difficulty in reaching the witness. However,
frankly, I think that of far more importance is the affidavit
of Miss Thompson herself. And I am focusing on that
primarily.”
15 ORS 136.535 (2001) has since been amended twice. Or Laws 2003, ch 288,
§ 1; Or Laws 2009, ch 112, § 1. All references to ORS 136.535 are to the 2001 version.
That statute provided that “ORCP 64 A, B and D through G shall apply to
and regulate new trials in criminal actions,” except as otherwise provided. ORCP
64 (2001) is the version of that rule that applied to petitioner’s motion for new
trial. The rule has since been amended. See Or Laws 2003, ch 194, § 12 (adding
declarations as alternative to affidavits); Oregon Council on Court Procedures,
Dec 9, 2006 (adding provision concerning effect of notice of appeal to ORCP 64 F).
All references to ORCP 64 are to the 2001 version.
16 For example, Renna stated that Thompson had told him that as the shooter
and his companion had run past her, she had seen a “ ‘glimpse of one face, but not
anything [she] could pinpoint,’ ” that she did not know whether that was the face
of the shooter or of his companion, and that she would not recognize either of the
two men who ran by her that night if she saw them again.
Cite as 283 Or App 731 (2017) 759
The trial court ultimately concluded that Thompson’s
testimony would not probably change the result of the trial,
and it denied petitioner’s motion for new trial for that reason.
In explaining its decision, the court focused primarily
on the fact that the jury had heard the 9-1-1 recording of
Thompson’s call in which she described the shooter as a
Hispanic man, and that Thompson’s testimony as presented
in her affidavit (e.g., that she was certain that petitioner was
not the shooter) would be undercut or contradicted by several
discrepancies between the call—“made moments after
the homicide occurred when the events were fresh in her
mind”—and her affidavit. Further, the court reasoned, her
testimony would not probably change the result in light of
petitioner’s admissions to Jennifer, Perkins, and Garvin,
Muldrew’s identification of petitioner as the person he saw
shoot Monterroso, and Feliu’s identification of petitioner as
the person she saw looking for Monterroso shortly before the
shooting.
2. Trial counsel’s considerations and actions at the
time of the new-trial hearing
As we have emphasized throughout this opinion, a
post-conviction court considering an inadequate-representation
claim must “evaluate the reasonableness of trial counsel’s
‘skill and judgment’ under the circumstances existing
at the time of the challenged act or omission” and must not
“ ‘second guess’ an attorney’s handling of a case ‘with the
benefit of hindsight.’ ” Sullivan v. Popoff, 274 Or App 222,
231, 360 P3d 625 (2015), rev den, 358 Or 833 (2016) (quoting
Pereida-Alba, 356 Or at 662). We therefore consider the
circumstances that existed when trial counsel moved for a
new trial based on her investigator’s belated identification of
Thompson as the 9-1-1 caller.
Trial counsel’s written memorandum in support
of her motion for new trial, her statements at the new-trial
hearing, and her deposition for this post-conviction proceeding
reveal some of the considerations she had in mind at
the new-trial hearing. Trial counsel stated at her deposition
that she did not subpoena Thompson to the new-trial hearing
because she was following the procedure described in
ORCP 64. That rule provided that, when a motion for new
760 Farmer v. Premo
trial is based on newly discovered evidence, “it shall be upon
affidavit setting forth the facts upon which the motion is
based,” and that “the affidavits or declarations of any witness
or witnesses showing what their testimony will be,
shall be produced.” She filed the motion within the time
allowed and with Thompson’s affidavit. As she put it at her
deposition, she “got bombarded” the morning of the hearing
with Renna’s affidavit and the prosecutor’s response to
the motion. She objected to the affidavit as untimely and
moved to strike it, and she objected that it was not “an affidavit
of the affiant.” The trial court seemed to understand
the latter objection as akin to a hearsay objection, telling
the prosecutor, “Talk to me about your view on the argument
that [trial counsel] makes that this is an out of court
statement made by the witness, * * * Thompson, rather than
a statement made by her in affidavit form.” The prosecutor
argued that Renna’s account of Thompson’s statements
to him would be admissible as impeachment evidence. The
trial court overruled trial counsel’s objection and denied her
motion to strike.
At her 2010 deposition, trial counsel questioned
whether she should have requested time to attempt to call
Thompson to the hearing to challenge Renna’s statements:
“[I]n retrospect, you know, should I have said ‘Hey, wait a
minute, I want her here because I haven’t had an opportunity
to * * * challenge the statements of Detective Renna.’ ”
But counsel’s concerns at the time were ensuring that she
was complying with ORCP 64, ensuring that the new-trial
issues were preserved, and taking the opportunity to argue
the motion to the court at a hearing. Trial counsel noted
that the trial court “doesn’t even have to have a hearing” on
a motion for new trial. She also knew that there are strict
time constraints, and that delay can be fatal to the motion:
“They can just take the—the motion and as the time lapses,
you know, then the motion is deemed denied[.]”
The laws governing motions for new trial, and the
legal requirements for granting a new trial, provide additional
context for trial counsel’s decisions. Trial counsel
cited ORS 136.535 and ORCP 64 in her motion, and had set
out ORS 136.535 in full in her memorandum supporting the
motion. ORS 136.535 provided:
Cite as 283 Or App 731 (2017) 761
“(1) A motion in arrest of a judgment or a motion for
a new trial, with the affidavits, if any, in support thereof
shall be filed within five days after the filing of the judgment
sought to be set aside, or such further time as the
court may allow.
“(2) Any counteraffidavits shall be filed by the state
within five days after the filing of the motion, or such further
time as the court may allow.
“(3) The motion shall be heard and determined by the
court within 20 days after the time of the entry of the judgment,
and if not heard and determined within that time,
the motion shall conclusively be considered denied.
“(4) Except as otherwise provided in this section, ORS
19.430 and ORCP 64 A, B and D through G shall apply to
and regulate new trials in criminal actions, except that a
new trial shall not be granted on application of the state.”
Trial counsel also referred to the time limit in ORS
136.535(3) at the hearing on the motion for new trial.
“[Trial Counsel]: I want to thank the Court for having
the oral argument.
“THE COURT: Sure. It’s important.
“[Trial counsel]: It’s not always granted though, so I
appreciate that.
“THE COURT: I’m surprised.
“[Trial counsel]: Sometimes 20 days goes by and you
don’t hear from the court.
“THE COURT: I thought it was important.”17
3. Post-conviction court’s ruling
The post-conviction court began its written analysis
of the continuance claim by stating, “To evaluate the
17 The date of the hearing on the motion for new trial appears to have been
more than 20 calendar days after entry of the judgment. The statute that governs
how the 20-day time period in ORS 136.535(3) is calculated, however, provides
for several ways in which a day might be excluded from the end of the calculation,
resulting in a longer time period. See ORS 174.120 (2003), amended by Or Laws
2003, ch 228, § 1; Or Laws 2013, ch 1, § 14 (setting out method for calculating day
by which specified act must be done). The trial court and trial counsel appear to
have considered the hearing to be within the time limitation, of which they were
aware.
762 Farmer v. Premo
ineffective assistance of trial counsel claim[s,] * * * counsel’s
performance must first be viewed in light of the Court
of Appeals decision on [petitioner’s] Motion for New Trial.”
The post-conviction court set out the legal requirements for
obtaining a new trial based on newly discovered evidence,
and reviewed our decision in petitioner’s direct appeal,
Farmer. It emphasized a statement in the opinion that
“ ‘Defendant offered no evidence to dispute Renna’s
account of that interview, in which Thompson acknowleged
that she had seen only a glimpse of one face and would
not be able to recognize the person whom she had seen.’ ”
(Quoting Farmer, 210 Or App at 644 (boldface added by postconviction
court)). The post-conviction court explained its
view:
“And with that final paragraph, the Court of Appeals found
that the trial court had not abused its discretion in denying
the Motion for New Trial. The appellate court found that
since [petitioner] offered no evidence to dispute Renna’s
account of the interview, it was not an abuse of discretion to
deny the Motion for New Trial. However, reading between
the lines, it seemed to be a close call.”
The court further opined that trial counsel should have
investigated the statements in Renna’s affidavit in a number
of ways, including whether the affidavit accurately reflected
Thompson’s statements to Renna, and whether Thompson
“had said what she meant to say.”
“This affidavit changed the Motion for New Trial from a
motion the defense should have won, to a motion the defense
lost. Defense counsel had a duty to investigate whether or
not the affidavit was accurate.
“Trial counsel did move to strike the affidavit, and the
Court denied the request. But, there were other options
available that trial counsel should have attempted.5 At
least trial counsel could have asked for a continuance for
long enough to analyze her options. The detective called
Thompson and she called him back. There is no evidence
that counsel even asked for a 30 minute recess to try to call
Thompson. If counsel had spoken with Thompson, counsel
could have filed a counter affidavit. Given the opportunity
to speak through a counter affidavit, Thompson would
have provided testimony to rebut Renna’s affidavit, which
Cite as 283 Or App 731 (2017) 763
would have potentially changed the opinion of the Court of
Appeals.
“As stated in State v. Ben, 310 Or 309[, 317, 798 P2d
650 (1990),] there were other options. ‘On the other hand,
a remedy short of preclusion, such as a recess or postponement,
conceivably could have avoided any prejudice caused
by the late disclosure by allowing the state time to talk
to the witnesses.’ Trial counsel should have made use of
the other options available. Failure to ask for a recess or
postponement allowed the prejudice of the late disclosure
to turn [petitioner’s] Motion for New Trial from a winning
motion to a losing motion. Trial counsel failed to exercise
reasonable professional skill and judgment, resulting in
prejudice to [petitioner].
“And if trial counsel had been thoroughly advocating for
her client, she should have petitioned the Court to hear the
testimony of the eyewitness. The State’s brief says it well,
‘If the trial court had granted a continuance of the hearing,
both parties would have had the opportunity to prepare
and present two witnesses, * * * Thompson and * * *
Renna.’ * * * Exactly!
______________
“5 One of the reasons the [trial court] cited in the [its]
decision not to strike the affidavit was the difficulty in
reaching the witness, Thompson. However, at the Motion
for New Trial, the prosecutor stated that Detective Renna
first tried to contact Thompson on Monday, April 15,
2002. Later that week Thompson called him back, but
the Detective was not able to interview her until Friday,
April 19, 2002. Thompson was then interviewed on Friday
as arranged. The Detective first tried to make contact with
the witness on a Monday, and had interviewed the witness
by Friday. Although originally difficult to find due to the
glitches in the 911 system, Thompson was easy to find at
the time of the Motion for New Trial.”
(Boldface and underlining in original.) The post-conviction
court went on to find, based on Thompson’s testimony before
that court during the post-conviction trial, that “Thompson
could convincingly testify to a trier of fact that the shooter
was not [petitioner],” and “she comes across as credible.” The
court also found that Thompson’s reluctance to testify was
related to her “fear for her family, including her small child,
given the potential gang nature of the shooting.”
764 Farmer v. Premo
The court concluded that trial counsel’s deficiency
prejudiced petitioner because, had trial counsel called
Thompson as a witness, or filed a counteraffidavit, the trial
court “may well have” decided the new-trial motion differently,
and, even if it did not, the Court of Appeals “would
not have based” the decision in Farmer “on the fact that,
‘Defendant offered no evidence to dispute Renna’s account of
that interview.’ ” (Quoting Farmer, 210 Or App at 644 (boldface
by post-conviction court omitted).) Ultimately, the postconviction
court concluded that trial counsel failed to exercise
reasonable professional skill and judgment by failing to
request a continuance, and by failing to call Thompson as a
witness, and that petitioner had been prejudiced as a result
of those deficiencies.
4. Analysis under correct legal standards
The state argues that the post-conviction court
erred because it did not apply the correct legal standards
for determining whether counsel performed deficiently and
for determining whether any deficiency caused prejudice. As
part of that argument, the state asserts that, underlying the
post-conviction court’s analysis is an incorrect assumption,
in light of our later decision in petitioner’s direct appeal,
that trial counsel should have recognized that Renna’s affidavit
would be critical to the ultimate outcome of the motion
for new trial.
We agree with the state that the post-conviction
court erred in its legal analysis of the deficient performance
element, and because we reverse on that basis we need not
reach the state’s prejudice argument. The post-conviction
court failed to confine its analysis to whether trial counsel
exercised reasonable professional skill and judgment under
the circumstances from her perspective at the time of the
new-trial hearing, and without the “ ‘distorting effects of
hindsight.’ ” Montez, 355 Or at 7 (quoting Lichau, 333 Or at
359). Instead, the post-conviction court incorrectly focused
on our later decision in Farmer, and in particular the single
statement in that opinion that petitioner had “offered no
evidence to dispute Renna’s account of [his] interview” with
Thompson, 210 Or App at 644, providing a crucial backdrop
for its analysis of trial counsel’s actions. The post-conviction
Cite as 283 Or App 731 (2017) 765
court accordingly viewed trial counsel’s failure to take
additional steps to oppose or challenge Renna’s affidavit as
reflecting a deficiency, or a complete lack, of professional skill
and judgment. It correspondingly discounted the soundness
of the choices that trial counsel did make, which in hindsight
were unsuccessful.
But rather than measuring trial counsel’s choices
by the ultimate outcome in our decision in Farmer, a correct
analysis of whether trial counsel performed deficiently must
begin—and end—by viewing trial counsel’s performance
only in light of the information, circumstances, and options
that she had before her at the time of the new-trial hearing.
When analyzed in that correct context, trial counsel’s strategic
and tactical choices reflect an exercise of reasonable
professional skill and judgment.
Petitioner had the burden of demonstrating that
no reasonable counsel could have chosen to forgo asking
for a continuance under the circumstances and from trial
counsel’s perspective at the time of the hearing. Pereida-
Alba, 356 Or at 663-64. After receiving Renna’s affidavit
on the morning of the hearing, trial counsel objected to it
as untimely, objected to statements attributed to Thompson
being included in it, and moved to strike it. The trial court
overruled those objections and denied the motion to strike,
but stated that it would focus primarily on Thompson’s affidavit
rather than Renna’s.
Under those circumstances, there could be both
advantages and disadvantages to seeking a continuance.
Advantages might include presenting Thompson’s testimony
in person, potentially challenging or rebutting Renna’s affidavit,
to blunt its effect on Thompson’s affidavit. However,
there were also sound strategic reasons to move ahead rather
than delay. Reasonable counsel could choose to rely on the
trial court’s assurance that it would focus on Thompson’s
affidavit rather than on Renna’s. In addition, relying on the
affidavit would avoid causing inconvenience or anxiety for
Thompson, who was a reluctant, fearful witness. Further,
relying on the affidavit—which already contained statements
that were inconsistent with Thompson’s 9-1-1 call—
had the advantage of presenting known, fixed testimony
766 Farmer v. Premo
from Thompson. By contrast, calling her as a live witness
at the new-trial hearing would give the prosecution an
opportunity before any retrial to cross-examine Thompson
on the record, possibly risking creation of additional inconsistencies
that could be exploited in cross-examination at a
new trial if the motion were granted. The prosecution also
would have had an opportunity to bring Renna, an experienced
detective who had testified in court many times, as
its own live witness.18 Thus, moving forward in light of the
trial court’s stated intention to focus on Thompson’s affidavit
rather than Renna’s avoided the possibility, if both sides
presented live witnesses, that Renna’s in-person testimony
would capture more of the trial court’s attention than it
intended to devote to his affidavit. Finally, forgoing a continuance
would take into account the time constraints in
ORS 136.535, and would recognize that delay could be fatal
to the motion. In light of those considerations, trial counsel
could reasonably decide not to seek a continuance in order to
obtain Thompson’s live testimony.
We observe, however, although petitioner does not
emphasize it, that the post-conviction court found that
trial counsel “failed to take time to reasonably evaluate the
options” available at the new-trial hearing. To the extent
that the statement may be construed as a finding that trial
counsel did not consciously consider the option of moving for
a continuance, but simply overlooked that possibility, the
finding nonetheless does not present a basis for affirmance.
In Pereida-Alba, the Supreme Court set out the analysis that
must be conducted when a claim rests upon an allegation
that counsel unreasonably failed to consider an option, and
the petitioner contends that that failure amounted to constitutionally
deficient performance. Resolving such a claim
depends upon,
“among other things, whether the strategy that defense
counsel did employ was reasonable, the relationship
between the evidence or theory that defense counsel failed
to consider and the strategy that counsel did pursue, and
18 Renna testified at the post-conviction trial that he would have been available
to testify at the hearing, he was “right across the street” from the courthouse,
and that he would have testified consistently with his affidavit.
Cite as 283 Or App 731 (2017) 767
the extent to which counsel should have been aware of the
strategy that petitioner now identifies.”
Pereida-Alba, 356 Or at 674.
Here, the strategy that trial counsel did pursue
was, as discussed, reasonable. Counsel should also have
been aware, however, of the strategy of seeking a continuance
when she was presented with an affidavit on the morning
of the new-trial hearing.
As set out above, there would have been both advantages
and disadvantages to seeking a continuance from trial
counsel’s perspective at the time. We also consider the relationship
between the strategy petitioner asserts counsel
should have pursued and the one she actually did pursue.
Significantly, the two strategies were mutually exclusive. If
counsel sought, and was granted, a continuance in order to
call Thompson as a witness, she could not simultaneously
press forward with the hearing. Consequently, seeking a
continuance would mean giving up the many advantages
associated with the latter strategy, which we have previously
discussed, such as avoiding Renna testifying as a live
witness, and taking advantage of the court’s stated intention
to focus on Thompson’s affidavit. Although the strategy
that trial counsel did pursue did have some disadvantages
in addition to its advantages, it would not have been unreasonable
to select that strategy over seeking a continuance.
In those circumstances, failure to consider what reasonably
could have been viewed as a risky course of action—
delaying resolution of the new-trial motion to present testimony
of a fearful, reluctant witness and giving the prosecution
an additional opportunity for cross-examination of that
witness—does not represent a suspension of professional
skill and judgment.
To be sure, in her deposition trial counsel expressed
doubts about whether she perhaps should have taken any of
several actions that, “in retrospect” might have been more
successful. She wondered whether she should have “anticipated
that [Thompson’s] affidavit” would be challenged on
the day of the hearing, and should have, “in retrospect, * * *
said ‘Hey, wait a minute, I want [Thompson] here because I
haven’t had an opportunity to * * * challenge the statements
768 Farmer v. Premo
of Detective Renna.’ ” She considered whether, in light of the
Court of Appeals opinion in Farmer, she should have “called
her at the motion for new trial” hearing, or otherwise should
have done more to challenge Renna’s affidavit. Although
trial counsel’s concerns about her tactical choices, viewed
in hindsight, are understandable, a court evaluating a postconviction
claim is to evaluate the lawyer’s conduct using
the legal analysis we have applied here. That analysis may
sometimes be informed by the lawyer’s recollections and
opinions, but it is not determined by the lawyer’s retrospective
regret about strategic and tactical choices. See Burdge v.
Palmateer, 338 Or 490, 492, 112 P3d 320 (2005) (court evaluating
a post-conviction claim must view the circumstances
from the lawyer’s perspective at the time, without the benefit
of hindsight, and is not to second guess tactical decisions
unless they reflect an absence of professional skill and judgment).
As the Supreme Court observed, “[t]he constitution
gives no defendant the right to a perfect defense—seldom
does a lawyer walk away from a trial without thinking of
something that might have been done differently or that [the
lawyer] would have preferred to have avoided.” Krummacher
v. Gierloff, 290 Or 867, 875, 627 P2d 458 (1981).
Trial counsel did not render inadequate assistance
of counsel as alleged in the continuance claim. The postconviction
court erred in granting relief on that basis.
B. Failure to Raise Constitutional Challenges to New-Trial
Evidence and Procedures
Citing Crawford v. Washington, 541 US 36, 124
S Ct 1354, 158 L Ed 2d 177 (2004), the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution,
and Article I, section 11, of the Oregon Constitution, petitioner
asserted claims that trial counsel was inadequate for
failing to object to the procedures that apply to new-trial
hearings, and to object to the contents of Renna’s affidavit.
The gravamen of both claims was that trial counsel should
have taken additional steps to prevent Renna’s affidavit
from being admitted, or the contents of it from being considered,
at the new-trial hearing. The post-conviction court
granted relief on those claims. In concluding that trial counsel
performed deficiently, the court again failed to confine
Cite as 283 Or App 731 (2017) 769
its analysis to whether trial counsel exercised reasonable
professional skill and judgment under the circumstances
from her perspective at the time of the new-trial hearing,
without the “distorting effects of hindsight,” and failed to
give appropriate consideration to sound strategic and tactical
considerations for not raising the objections petitioner
asserts. See Cullen v. Pinholster, 563 US 170, 196, 131 S Ct
1388, 179 L Ed 2d 557 (2011) (courts analyzing claims of
ineffective assistance of counsel are “required not simply to
give the attorneys the benefit of the doubt, but to affirmatively
entertain the range of possible reasons [a petitioner’s]
counsel may have proceeded as they did” (internal quotation
marks, brackets, and citations omitted); see also Hayward
v. Belleque, 248 Or App 141, 155-56, 273 P3d 926 (2012),
rev den, 353 Or 208, cert den sub nom Hayward v. Premo,
___ US ___, 134 S Ct 101 (2013) (analyzing counsel’s performance
using similar approach).
For the same and similar strategic reasons as those
we identified as applicable to the continuance claim, reasonable
trial counsel could have pursued the course of action
that petitioner’s counsel did rather than raise the objections
petitioner asserts. After receiving Renna’s affidavit,
trial counsel objected to it as untimely, made an objection to
statements by Thompson being included in it, and moved to
strike it. The trial court overruled trial counsel’s objections,
stating, as we have discussed, that it would focus primarily
on Thompson’s affidavit and not on Renna’s.
Although the post-conviction court acknowledged
that trial counsel did object to the statements in Renna’s
affidavit, it concluded that she should have objected to and
moved to strike each statement, line by line. But, under the
circumstances, reasonable trial counsel could have chosen
not to require the trial court to focus its attention on Renna’s
affidavit by asking it to rule on line-by-line objections. In
addition, trial counsel could have considered that a successful
objection to Renna’s affidavit or its contents would
not likely result in the evidence ultimately being excluded.
Rather, it would likely result in Renna being called as a live
witness. Because trial counsel had sound tactical reasons
not to further object to admission of Renna’s affidavit or its
770 Farmer v. Premo
contents, petitioner failed, as a matter of law, to establish
that trial counsel provided inadequate or ineffective assistance
of counsel on these claims.
In addition, as noted above, a successful objection
to Renna’s affidavit or its contents would not have resulted
in the exclusion of the evidence altogether. Rather, the evidence
at the post-conviction trial was that Renna was readily
available and close by. The likely result of a successful
objection to the use of his affidavit, or to its contents,
would have been that Renna would have been called as a
live witness. Accordingly, even if trial counsel’s failure to
make the specified objections could have led to the exclusion
of Renna’s affidavit or certain statements in it, petitioner
failed to establish that such a failure caused prejudice.
The post-conviction court erred in granting relief on
the basis that trial counsel should have objected to the contents
of Renna’s affidavit, and to the new-trial procedures
permitting submission of affidavits.
IV. CONCLUSION
In sum, the post-conviction court erred in concluding
that petitioner was entitled to post-conviction relief on
any of the claims on which it granted relief. Accordingly,
we reverse the portion of the judgment granting relief and
remanding for a new trial.
Portion of judgment granting post-conviction relief
and remanding for new trial reversed; otherwise affirmed.
ORTEGA, J., dissenting.
I agree with most of the majority’s decision in this
post-conviction case. However, I disagree with the majority’s
conclusion that the post-conviction court erred when it
concluded that petitioner received inadequate assistance of
counsel because his trial counsel “failed to call * * * Franklin
Wong * * * as an expert witness to testify that a handgun
* * * found in the possession of * * * Baines, was more likely
than not the firearm that discharged the bullet found in the
deceased.” The post-conviction court granted relief after concluding
that “a reasonable attorney would have called Wong
Cite as 283 Or App 731 (2017) 771
to testify as a defense expert.” Because I would affirm that
portion of the post-conviction court’s judgment, I dissent.
Petitioner, then a teenager, was convicted of killing
the victim by shooting him in the chest. No physical evidence
tied defendant to the murder. At trial, the evidence
against him included testimony from a witness who identified
defendant as someone who had been looking for the victim
before the shooting, testimony from a witness who identified
him as the person who shot the victim, and testimony
from defendant’s ex-girlfriend and her parents who testified
that defendant confessed to the killing, although they did
not initially believe the confession. Petitioner’s defense in
his criminal trial was that he was not the killer; in addition
to undermining the certainty of the identification testimony
and questioning the motives of his ex-girlfriend and
her parents, petitioner introduced evidence that the police
had information that Baines, who closely resembled defendant,
was seen near the crime scene and was reputed in
the neighborhood to have been involved in the killing. Other
than interviewing Baines, the police did little to investigate
him for the murder and did not include pictures of him in
any photo throw-downs, but during trial, a police investigator
mistakenly identified a photo of Baines as a photo of
defendant.
Thus, in order to create reasonable doubt that he
was the shooter, petitioner set out not only to undermine
the eyewitness identifications of him (as the shooter and as
someone looking for the victim) and the testimony about his
confession, but also to bolster the possibility that Baines was
the shooter, despite the fact that police had not extensively
investigated Baines for the murder.
As it happened, the police had recovered a Rohm
revolver associated with Baines and had compared test-fired
bullets from that revolver with the bullet fragments recovered
from the victim. Petitioner’s trial counsel had access to
an expert witness, Wong, who would have testified affirmatively
regarding the likelihood that the Rohm was the murder
weapon, but counsel chose not to call that witness in favor of
much more equivocal testimony elicited on cross-examination
from a state witness, Gover. Although counsel offered a reason
772 Farmer v. Premo
for that choice, her decision did not meet the constitutional
standard for adequate assistance of counsel, because it was
not based on a reasonable evaluation of the likely costs and
potential benefits of presenting affirmative testimony in support
of that important aspect of the defense theory.
The majority correctly notes that tactical decisions
of defense counsel are entitled to deference if they are based
on an appropriate evaluation. 283 Or App at 745-46 (citing
Gorham v. Thompson, 332 Or 560, 567, 34 P3d 161 (2001),
and Lichau v. Baldwin, 333 Or 350, 360, 39 P3d 851 (2002)).
It concludes that trial counsel’s evaluation was appropriate
in this case because she consciously weighed the likely costs
and potential benefits of her chosen trial tactic and concluded
that, although Wong would provide a more favorable
bullet-comparison opinion on direct examination, he was
vulnerable on cross-examination and could undermine the
credibility of the defense case. 283 Or App at 747-48.
However, the majority defers too much to counsel’s
weighing of the costs and benefits. As the Supreme Court
has explained:
“A ‘tactical decision in the course of an investigation is a
conscious choice by a lawyer either to take or to omit some
action on the basis of an evaluation of the nature and complexity
of the case, the likely costs and potential benefits of
the contemplated action, and other factors. But the fact that
a lawyer has made a ‘tactical decision’ does not mean that
the lawyer’s choice meets the constitutional standard for
adequate assistance of counsel.”
Stevens v. State of Oregon, 322 Or 101, 109, 902 P2d 1137
(1995) (emphasis added). Consequently, some tactical decisions,
such as counsel’s decision not to interview certain
potential witnesses in Stevens, will turn out not to be “a reasonable
evaluation of the likely costs and potential benefits
of pursuing the investigation.” Id. Likewise, in Lichau, 333
Or at 361-63, the court concluded that counsel’s decision not
to pursue certain avenues of investigation and to withdraw
an alibi defense, though made consciously, did not constitute
reasonable exercises of professional skill and judgment.1
1 I cite Stevens and Lichau only to indicate the fundamental standard under
which we must review any tactical decision made by defense counsel. In this case,
Cite as 283 Or App 731 (2017) 773
Here, petitioner’s trial counsel considered and
rejected the idea of presenting Wong as a witness, but that
tactical decision was not a reasonable exercise of professional
skill and judgment. Even assuming that Gover’s credentials
were better than Wong’s, the concession that petitioner’s
counsel was able to elicit from Gover was not an adequate
substitute for Wong’s affirmative testimony. Although Gover
allowed on cross-examination that he could not exclude the
Rohm as the murder weapon, he did so only after lengthy
direct testimony about the 30 or 40 different types of firearms
that could have fired the bullet, conveying the distinct
impression that he did not believe that the Rohm was the
murder weapon. The jury would have had to go out onto a
limb to conclude, with only Gover’s sliver of conceded doubt
to guide them, that the possibility that the Rohm was the
murder weapon, which Gover could not eliminate, created
reasonable doubt as to defendant’s guilt.
Wong’s testimony, by contrast, would have offered
the jury an affirmative basis—otherwise lacking—for concluding
that Baines was the shooter, not petitioner. Although
Wong had no formal training in bullet comparison, he had
“extensive experience in the comparison study of bullets”
and had worked on “over a dozen cases involving firearms.”
Indeed, the court in petitioner’s criminal trial concluded
that Wong was qualified to testify on the subject. The misgivings
of trial counsel about how Wong would fare under
cross-examination had only to do with the difference in his
credentials compared with Gover’s, and do not establish an
adequate reason for depriving the jury of the opportunity to
hear and weigh testimony that offered an otherwise-missing
affirmative expert opinion supporting the defense theory:
“Well, I really thought that if I called Wong that [the prosecutor]
would be effective in cross-examination and in
I recognize that counsel’s decision to investigate potential expert witnesses was
a tactical decision subject to review; however, so too was the choice not to use the
fruits of her investigation. That latter decision is what is truly at issue in this
case—a decision that is also subject to review for its adequacy. See Martinez v.
Baldwin, 157 Or App 280, 972 P2d 367 (1998), rev den, 329 Or 10 (1999) (engaging
in a searching inquiry of counsel’s decision not to call the defendant’s mother
as a witness); Pinnell v. Palmateer, 200 Or App 303, 319-20, 114 P3d 515 (2005),
rev den, 340 Or 483 (2006) (engaging in a similar examination of counsel’s decision
not to call a witness).
774 Farmer v. Premo
challenging his lack of ballistics training and tool mark
identification. * * * So I just thought that the jury would
perceive my expert as, you know, less credible, and * * * I
thought it would detract from * * * the strength of our case.”
As understandable as those doubts may have been,
they did not provide an adequate justification for depriving
the jury of the opportunity to hear an expert who actually
believed that the Rohm likely was the murder weapon.
Indeed, such testimony, even if challenged, likely would have
enhanced the value of Gover’s acknowledgement that he
likewise could not exclude the Rohm as the murder weapon.2
Although the majority justly cautions against evaluating,
with the unfair benefit of hindsight, whether trial
counsel’s tactic was successful or effective, 283 Or App at
747, we must also be wary of according deference to counsel’s
decisions simply because they appear to be understandable
and might even be decisions that one of us might have made
in her shoes. We are not called upon to decide whether counsel’s
assessment was understandable; rather, we are called
upon to assess whether it was based on “a reasonable evaluation
of the likely costs and potential benefits” at issue.
Stevens, 322 Or at 109. As we have previously indicated,
the “question in each case is whether trial counsel’s investigation
was legally and factually appropriate to the case.”
Thompson v. Belleque, 268 Or App 1, 17, 341 P3d 911 (2014),
rev den, 357 Or 300 (2015) (emphasis added). That is, in
assessing whether counsel engaged in a reasonable evaluation,
we must not consider any explanation in the abstract;
rather, we must consider it within the overall context of the
case. Here, given that there was no physical evidence connecting
defendant to the crime and that part of defendant’s
trial strategy was to connect Baines to the crime, it was not
reasonable to deprive the jury of the opportunity to weigh
affirmative expert testimony that the Rohm likely was the
2 There is a separate issue of whether Wong’s testimony would have been
helpful in establishing that the Rohm was operable at the time of the shooting.
The state’s evidence does tend to suggest that the Rohm was inoperable, whereas
it is unclear what Wong’s testimony would have been regarding operability.
However, given that Gover still did not rule out the Rohm even in the face of the
state’s evidence regarding operability, any problems with Wong’s testimony do
not make it reasonable to deprive the jury of an opportunity to weigh the value of
that testimony.
Cite as 283 Or App 731 (2017) 775
gun used in the shooting, especially when the only apparent
factor weighed by counsel in reaching her decision was that
the expert at issue had less impressive credentials than the
state’s expert. There is no indication that counsel considered
the effect of failing to present a defense expert altogether.
With Wong’s affirmative testimony, Gover’s concession
likely would have become more, not less, useful in providing
the jury with a basis for finding reasonable doubt that
petitioner was the shooter. Without it, Gover’s concession,
standing alone, was not a reasonable substitute; it required
the jury to invent its own opinion without the validation of
an expert.
Indeed, the United States Supreme Court has
recognized the importance of retaining defense experts to
address the testimony offered by prosecution experts, given
that prosecution experts can and do make mistakes regarding
forensic science. Hinton v. Alabama, 571 US ___, 134
S Ct 1081, 1090, 188 L Ed 2d 1 (2014). The Court has noted
that there is a threat posed to the fairness of criminal trials
by faulty forensic science and that such threat is “minimized
when the defense retains a competent expert to counter the
testimony of the prosecution’s expert witnesses.” Id. Here,
although we acknowledge that there is little indication that
Gover’s testimony was faulty, it was woefully inconclusive,
at least with regard to the point that defendant set out to
prove—that the Rohm was the murder weapon. Without the
testimony of a defense expert, I cannot conceive how defendant
received a fair opportunity to establish that Baines
was the shooter.
For those reasons, I would conclude that the postconviction
court applied the correct legal standard and that
there was a sufficient basis for it to conclude that no reasonable
attorney would have chosen to exclude Wong’s testimony.
Because I would affirm that portion of the trial court’s
decision, I dissent.
Egan, and Flynn, JJ., join in this dissent.

Outcome: In sum, the post-conviction court erred in concluding
that petitioner was entitled to post-conviction relief on
any of the claims on which it granted relief. Accordingly,
we reverse the portion of the judgment granting relief and
remanding for a new trial.
Portion of judgment granting post-conviction relief
and remanding for new trial reversed; otherwise affirmed.

Plaintiff's Experts:

Defendant's Experts:

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