Hussick v. State

• Citation: 19 Or.App. 915,529 P.2d 938
• Parties: Marvin Leroy HUSSICK, Appellant, v. STATE of Oregon, Respondent.
• Decision Date: 11 February 1975
• Court: Oregon Court of Appeals

Page 938

529 P.2d 938

19 Or.App. 915

Marvin Leroy HUSSICK, Appellant, v. STATE of Oregon, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Nov. 22, 1974.

Decided Dec. 23, 1974.

Rehearing Denied Jan. 22, 1975.

Review Denied Feb. 11, 1975.

Donald H. Upjohn, Salem, argued the cause for appellant. With him on the brief were Heltzel & Byers, Salem.

Timothy Wood, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen. and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

FOLEY, Judge.

A demurrer was sustained to petitioner's amended petition for post-conviction relief. The petition was dismissed upon his refusal to plead further and he appeals from the order dismissing the petition.

The petition for its second cause of action ¹ alleges that petitioner was originally charged with second degree robbery in a one-count information. A grand jury subsequently indicted him and a co-defendant with two counts of second degree robbery arising out of the same transaction. He pleaded not guilty at arraignment, was found guilty by a jury and sentenced to three years' imprisonment on each count, the sentences to run concurrently. Petitioner alleges that his court-appointed attorney committed the following acts and omissions:

'(1) Waived the reading of the indictment at petitioner's arraignment and thereafter failed to notify him that he had been indicted on two counts of robbery so that petitioner was unaware of this crucial fact until the morning of the trial, the result of which was to deny petitioner the right to prepare an effective defense to the crimes with which he was charged.

'(2) Failed to request a severance so petitioner would not have to endure the prejudice of facing a single jury charged with more than one offense.

'(3) Failed to object to the following misstatement of law made by the prosecutor to a member of petitioner's jury panel before the full panel that eventually heard the case:

"You realize when a case gets to trial there are two stories. The defendant says he didn't do it. And he has to have witnesses to take the stand. And the State has witnesses that say he did do it. Then it is up to you, as a juror, to decide which story you believe. After you have done that, if you believe the state's witnesses, the State's story, you will find him guilty?' (Emphasis supplied.)

'(4) Failed to cross-examine officers Ron Brown and Stephen L. Baumgarte about the crucial circumstances surrounding the arrest and search of petitioner on the evening of July 22, 1972. Officer Baumgarte testified that he found a watch belonging to one of the victims in the petitioner's pocket. Officer Brown's police report stated that this watch was found on the co-defendant. This inconsistency was a very important element of petitioner's defense. The petitioner testified at trial that he was unaware that a robbery occurred. Moreover, he was unable to explain the fact that the watch was found in his pocket.

'(5) Failed to point out to the jury in final argument the many inconsistencies in the testimony of the alleged victims.'

Petitioner claims the effect of the above was to deprive him of the effective assistance of counsel in violation of the applicable provisions of the state and federal constitutions. In his third cause of action he also alleges that to sentence him on both counts of robbery in the second degree constituted impermissible multiple punishment.

The state argued that the petitioner failed to allege facts sufficient to show he was prejudiced in the criminal process and that the petition did not allege facts which showed that counsel was "so incompetent or inefficient as to make the trial a farce or mockery of justice." Benson v. Gladden, 242 Or. 132, 140, 407 P.2d 634, 638 (1965), cert. denied, 384 U.S. 908, 86 S.Ct. 1345; 16 L.Ed.2d 360 (1966). The trial court sustained the demurrer to the whole of petitioner's post-conviction amended and supplemental petition without opinion.

The demurrer admits the facts stated in the petition. Bryan v. Cupp, 1 Or.App. 52, 458 P.2d 697 (1969).

We conclude that petitioner's second cause of action sufficiently alleged, so as to require a hearing thereon, that he had received 'unreasonable (assistance of counsel) under the circumstances.' Rook v. Cupp, Or.App., 99 Adv.Sh. 1610, 1615, 526 P.2d 605, Sup.Ct. review denied (1974), and was prejudiced thereby.

In connection with the allegations of incompetency of counsel, this court in Rook v. Cupp, supra, reviewed state and federal decisions and concluded that:

"Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.' State v. Thomas, 203 S.E.2d 445, 461 (W.Va.1974).

'This brings into consideration counsel's skills as a lawyer and applies a test of reasonableness under the circumstances. We adopt that test. It does not change the rule that a petitioner has the burden of producing evidence supporting the claim of incompetence--Benson v. Gladden, 242 Or. 132, 407 P.2d 634 (1965), cert. denied, 384 U.S. 908, (86 S.Ct. 1345, 16 L.Ed.2d 360) (1966); Storms v. Cupp, (13 Or.App. 273, 508 P.2d 450), supra; Cole v. Cupp, 3 Or.App. 616, 475 P.2d 428, Sup.Ct. review denied (1970)--and it includes the thought that if any shown incompetence had no effect on the outcome of the case it will be treated as harmless. Storms v. Cupp, supra; State v. Goddard, 5 Or.App. 454, 485 P.2d 650 (1971).' (Footnote omitted.) 99 Adv.Sh. at 1614, 526 P.2d at 607.

Examining the allegations with respect to the Rook standard, the first specification is an allegation that counsel failed to...