Antoine v. Taylor
| Decision Date | 15 April 2020 |
| Docket Number | A163943 |
| Citation | 465 P.3d 238,303 Or.App. 485 |
| Parties | Jeremy Emil ANTOINE, Petitioner-Respondent, v. Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Doug M. Petrina, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Lindsey Burrows argued the cause for respondent. Also on the brief was O'Connor Weber LLC.
Before Aoyagi, Presiding Judge, and Egan, Chief Judge, and Linder, Senior Judge.*
The superintendent of the Eastern Oregon Correctional Institution appeals the post-conviction court's judgment vacating petitioner's convictions and remanding the case for further proceedings. The post-conviction court granted relief on the ground that the failure of petitioner's trial counsel to move for the state to elect the criminal acts it intended to prosecute before the start of trial constituted ineffective assistance of counsel, in violation of petitioner's rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution.
The superintendent assigns error to the post-conviction court's rulings on petitioner's claims. The superintendent argues that petitioner failed to establish (1) that a reasonable attorney, at the time of petitioner's trial, would have moved for a pretrial election and (2) that petitioner was prejudiced by trial counsel's failure to move for a pretrial election.
We conclude that petitioner did not establish that his trial counsel failed to exercise reasonable professional skill and judgment. Therefore, the post-conviction court erred in its grant of relief to petitioner.1 Accordingly, we reverse.
We begin with the undisputed facts of the proceedings that gave rise to the claims on which the post-conviction court granted relief.
The charges against petitioner over a two-year period when petitioner was living with the victim and her mother. State v. Antoine , 269 Or. App. 66, 68, 344 P.3d 69, rev. den. , 357 Or. 324, 354 P.3d 696 (2015) ( Antoine I ). A grand jury indicted petitioner on nine felonies: four counts of first-degree sodomy; four counts of first-degree sexual abuse; and one count of furnishing explicit material to a child. Id. at 68-69, 344 P.3d 69. Each charge was pleaded in the statutory wording of the relevant ORS provision and did not include specifics about the particular set of facts to which each allegation related.2 After petitioner was indicted, the state provided him with Id. at 70, 344 P.3d 69.
Petitioner filed a demurrer under ORS 135.630(2)3 contending that, even in combination with the discovery from the state, the indictment was not sufficiently definite and certain as required by ORS 132.550(7).4 Petitioner argued that "the indictment's counts * * * were not tied to specific facts and the discovery disclosed that the counts charged in the indictment were but a subset of the number of criminal acts that the victim had reported." Id.
The state opposed the demurrer and argued that "the state could adequately resolve the problem by making an election of the specific criminal acts for which it would seek convictions at trial." Id. at 70, 344 P.3d 69. The state described the purpose of an election as ensuring that all the jurors consider the same incident for each charge during deliberations. The state indicated that it would make its election after presenting its case-in-chief, and petitioner did not object to that timing during the hearing on the demurrer.
The trial court concluded that the indictment was sufficient and overruled the demurrer in a letter opinion. The court also explained that, "[w]hen the prosecution makes its election during the course of trial, it must only choose to rely upon factual incidents relied upon by the grand jury in returning the indictment." Id. at 71, 344 P.3d 69.
Petitioner moved for an order requiring the state to disclose grand jury notes because there was discovery evidence that indicated that the acts alleged by the victim may not have corresponded with the charges in the indictment. The state responded that the grand jury had "selected a subset of incidents of abuse for the indictment" and that the Id. at 72-73, 344 P.3d 69. The state also reiterated both that it would make its election at the close of its case-in-chief and that jury concurrence was the reason for such an election. Petitioner again did not object to the timing of the state's election. The trial court denied petitioner's motion for disclosure of grand jury notes.
At trial, the victim testified to multiple instances of petitioner making her watch pornography, touching her "private part" or making her touch his "private part" in different rooms of the house. Petitioner's defense theory was that the abuse did not happen, or, if it did, that he was not the abuser. After presenting its case-in-chief, the prosecutor made the following elections:
Petitioner moved for a judgment of acquittal on all eight of the sodomy and sexual abuse counts after the state's election.5 Id. at 74, 344 P.3d 69. Petitioner contended that the state's method of charging and subsequent election resulted in a trial on counts never specified by a grand jury and the denial of petitioner's right to notice of the exact charges against him. Id. The state acknowledged that the indictment was not tied to specific incidents, but it asserted that the grand jury had properly considered the factual information. Id. The trial court denied petitioner's motion. Id. at 75, 344 P.3d 69.
To address the problem of the nonspecific and repeated statutory language in the charges, the trial court added descriptors to the jury instructions that matched the state's elections (e.g. , "Sexual Abuse in the First Degree, Count 5, master bedroom"). Id. Petitioner objected to the additional wording as an improper amendment to the indictment because it was not presented to the grand jury, and "he took exception to the identifying language that the court added." Id.
The jury found petitioner guilty on all nine counts. Id. Petitioner appealed his convictions, assigning error to the trial court's adverse rulings on his demurrer, motion for judgment of acquittal, and objection to the jury instructions. Id. at 68, 344 P.3d 69. On appeal, we affirmed. Id. at 86, 344 P.3d 69.
In our analysis, we "agree[d] with [petitioner] that the indictment itself did not provide him with sufficient notice, and the problem with inadequate notice, which arose before trial, was not cured during trial." Id. at 76, 344 P.3d 69. However, we concluded that the trial court had not erred in overruling petitioner's demurrer or denying his motion for judgment of acquittal. Id. at 86, 344 P.3d 69. We reasoned that petitioner's "lack of notice was something that he should have attempted to cure by moving to require the state to make its election before trial."
Id. at 84, 344 P.3d 69. A pretrial election would have allowed petitioner to have the information "in time for [him] to tailor his defense to those specific incidents."6 Id. at 79, 344 P.3d 69. Further, we interpreted the Supreme Court's decision in State v. Hale , 335 Or. 612, 75 P.3d 448 (2003), cert. den. , 541 U.S. 942, 124 S.Ct. 1667, 158 L.Ed.2d 366 (2004), as "plac[ing] the burden on a defendant to attempt to procure adequate and timely notice of the charges against him, even when an indictment that is alleged in the words of the statute does not provide such notice." Antoine I , 269 Or. App. at 78, 344 P.3d 69.
Thereafter, petitioner initiated this post-conviction proceeding. He alleged that his trial counsel was inadequate and ineffective for not moving for the state to make a pretrial election, both to give petitioner the required notice of the charges against him and to preserve the issue for appellate review.
The post-conviction court concluded that our opinion in Antoine I "compel[led] a finding" in favor of petitioner, and the court granted relief. The post-conviction court reasoned that, because we determined that petitioner "could have and should have moved for the state to elect the criminal acts it wished to prosecute before the start of trial," petitioner's trial counsel was ineffective and inadequate for failing to do so. Additionally, the post-conviction court determined that the deficiency prejudiced petitioner because, had his trial counsel moved for a pretrial election, petitioner would either have been provided with the proper notice if the motion were granted or his conviction would have been reversed if the motion were denied.
The superintendent appeals. The superintendent assigns error to the post-conviction court's grant of relief and contends that the court...
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