Peters v. Belleque, 08C22007 A141739.

• Decision Date: 30 March 2011
• Docket Number: 08C22007 A141739.
• Citation: 241 Or.App. 701,250 P.3d 456
• Parties: Joshua Douglas PETERS, Petitioner–Appellant,v.Brian BELLEQUE, Superintendent, Oregon State Penitentiary, Defendant–Respondent.
• Court: Oregon Court of Appeals

241 Or.App. 701
250 P.3d 456

Joshua Douglas PETERS, Petitioner–Appellant,
v.
Brian BELLEQUE, Superintendent, Oregon State Penitentiary, Defendant–Respondent.

08C22007 A141739.

Court of Appeals of Oregon.

Argued and Submitted Aug. 25, 2010.Decided March 30, 2011.

[250 P.3d 457]

David B. Kuhns, Salem, argued the cause and filed the brief for appellant.Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.DUNCAN, J.

[241 Or.App. 703] Petitioner, who was convicted of murder, appeals from a judgment denying his petition for post-conviction relief. He asserts two assignments of error. In the first, he argues that he is entitled to post-conviction relief because his criminal trial counsel was constitutionally inadequate in various respects related to the presentation of his defense of extreme emotional disturbance, which, if successful, would have resulted in a conviction for first-degree manslaughter, rather than murder. As explained below, we conclude that the post-conviction court did not err in denying petitioner's petition on that ground. In his second assignment of error, petitioner challenges the denial of his petition based on asserted trial court error—specifically, that the trial court in his criminal case “unconstitutionally erred” in its analysis and ultimate conclusion that petitioner failed to prove the defense. We reject that assignment without discussion. See Palmer v. State of Oregon, 318 Or. 352, 867 P.2d 1368 (1994) (a petitioner is generally barred from raising an issue during post-conviction proceedings that reasonably could have been raised in the underlying criminal proceeding, except as to an inadequate assistance of counsel claim). Accordingly, we affirm.

To give context to the parties' arguments, we first set out the elements of the extreme emotional disturbance defense, as defined in ORS 163.135 (2001). ¹ That statute provided, in part:

“(1) It is an affirmative defense to murder for purposes of ORS 163.115(1)(a) ²

[250 P.3d 458]

that the homicide was committed under the influence of extreme emotional disturbance when [241 Or.App. 704] such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation. The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor's situation under the circumstances as the actor reasonably believes them to be. Extreme emotional disturbance does not constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

ORS 163.135(1). The defense of extreme emotional disturbance under ORS 163.135 has three components, which the Supreme Court has explained this way:

“(1) Did the defendant commit the homicide under the influence of an extreme emotional disturbance? (2) Was the disturbance the result of the defendant's own intentional, knowing, reckless, or criminally negligent act? (3) Was there a reasonable explanation for the disturbance?”

State v. Counts, 311 Or. 616, 623, 816 P.2d 1157 (1991) (footnote omitted). Because it is an “affirmative defense,” ORS 163.135, the defendant has the burden of proving each component by a preponderance of the evidence. ORS 161.055(2) (“When a defense, declared to be an ‘affirmative defense’ by chapter 743, Oregon Laws 1971, is raised at a trial, the defendant has the burden of proving the defense by a preponderance of the evidence.”); State v. Haley, 64 Or.App. 209, 667 P.2d 560 (1983) (absent express direction or contextual requirement to the contrary, the defendant bears the burden of proof with respect to all affirmative defenses, including those created after 1971).

We turn to the facts and history of this case. In 2003, petitioner shot and killed his girlfriend, with whom he had a “tumultuous on-again/off-again relationship.” He was charged with murder, and the case was tried to the court. Petitioner stipulated to the homicide; the issue at trial was [241 Or.App. 705] whether petitioner was suffering from an extreme emotional disturbance under ORS 163.135 at the time of the shooting and, therefore, should be found guilty of manslaughter in the first degree, rather than murder. ORS 163.115(1)(a); ORS 163.118(1)(b).

At the time of the crime, petitioner was 32 years old and the victim was 52. Their relationship was consistently described as turbulent. According to petitioner's mother and other witnesses, petitioner had a history of depression that worsened after he became involved with the victim. The victim was emotionally volatile and had frequent angry outbursts; one witness, a neighbor, testified that the victim would be “nice and happy one moment and then flip the switch, she's yelling and screaming.” The victim also had a history of alcohol and drug abuse, as well as dental and other physical problems that caused her significant pain.

Petitioner and the victim lived together for several years before the murder, but, on several occasions, petitioner either left or asked the victim to move out as a result of the conflicts between them. Those separations lasted anywhere from a few days to one and one-half months. Petitioner testified that the victim often became full of rage and would storm around the house, slamming doors and screaming at petitioner. Petitioner and his mother both testified to one incident in July 2003 when they came back from a weekend trip to the coast to find that the victim had splattered blood all over the walls and surfaces of the home where petitioner and the victim then lived. The victim claimed that she had cut her finger and was looking for a Band–Aid. Petitioner also testified that the victim had threatened suicide on several occasions, although he also indicated

[250 P.3d 459]

that she had never actually made a suicide attempt while she was with him.

There was evidence of prior physical violence between the couple; twice petitioner came to work with a black eye; another time, he had scratch marks on his neck, where, he said, the victim had tried to choke him. Although petitioner was described as a shy, quiet person who was not generally aggressive, there was also evidence that, in previous altercations with the victim, petitioner became anxious [241 Or.App. 706] to the point where he was physically violent toward her. Petitioner himself testified as to two incidents in which the victim “would come at me physically and just push me and push me and push me until I would have to push her back.” In one of those incidents, petitioner testified that he pushed the victim and she fell onto the bed frame, injuring her ankle; another time, he pushed her and she fell onto a coffee table, badly cutting her calf.

The wife of one of petitioner's coworkers testified that petitioner sometimes stayed at their house because “[h]e wanted to get away from [the victim] because she was being physically abusive to him and he didn't want to hurt her and so he stayed away.” Petitioner also testified that he slept in his truck to avoid confrontations with the victim; several months before the murder, petitioner moved into the spare room in their house because he was so upset by the victim's chaotic behavior. Friends and family members testified that petitioner stayed with the victim because he felt responsible for her and because he worried that she did not have a job or financial resources and would not be able to sustain herself without him.

A few days before the murder, petitioner and the victim spent a nice evening together in celebration of petitioner's birthday. Later that night, however, the victim became upset and angry, slamming doors and screaming. Petitioner testified that

“[the victim] was saying she wanted people * * * to run into the house and kill her. She wanted—she screamed out to God to take her out. She screamed things like, I'm going to rob a bank, I'm going to go down and kill my mom, just all those kind of—I mean, just she was sick of the pain she said.”

According to petitioner, he was unable to console her. The following day, petitioner went to work and, when he came home, the house was a mess—“there were dishes all over the place, broken dishes, glasses, things strewn around the house, her clothes.” The next day, petitioner again went to work. When he came home that evening, he avoided the victim, staying in the master bedroom for the most part. However, he could hear the victim in other parts of the house [241 Or.App. 707] slamming doors and saying the same things over and over about having “someone come in and take her out.” At some point, petitioner decided to leave and began packing some clothes. When the victim came into the bedroom and realized what petitioner was doing, she ran out of the room and came back, flicking blood on him and pushing him, telling him that she would not let him leave. Petitioner testified that he pushed her off of him and onto the bed. He then grabbed her and pushed her to the ground so that she was in a kneeling position and he was holding her hair. He asked her if she “really want[ed] to die,” reached into his closet, pulled out a gun, and asked her again, “are you sure this is what you want?” When she said “yes,” he shot her twice in the head.

The trial court rejected petitioner's defense of extreme emotional disturbance and found him guilty of murder. The trial court concluded that petitioner established the first component of the defense—that the homicide was committed under an extreme emotional disturbance,³ but failed to prove the second—that “such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act.” The court did not address the third element. The court explained:

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