Brumwell v. Premo

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: TOOKEY, J.
• Citation: Brumwell v. Premo, 297 Or.App. 498, 443 P.3d 661 (Or. App. 2019)
• Decision Date: 15 May 2019
• Docket Number: A160622
• Parties: Jason Van BRUMWELL, Petitioner-Appellant, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

297 Or.App. 498

443 P.3d 661

Jason Van BRUMWELL, Petitioner-Appellant,

v.Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A160622

Court of Appeals of Oregon.

Argued and submitted May 17, 2018.

May 15, 2019

Kenneth A. Kreuscher argued the cause and filed the briefs for appellant.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

Petitioner was convicted of aggravated murder and sentenced to death. See generally State v. Haugen , 349 Or. 174, 243 P.3d 31 (2010) (setting forth facts underlying petitioner's and co-defendant Haugen's convictions); State v. Brumwell , 350 Or. 93, 249 P.3d 965 (2011), cert. den. , 565 U.S. 1124, 132 S.Ct. 1028, 181 L.Ed.2d 757 (2012) (setting forth facts regarding penalty phase of petitioner's criminal trial). After petitioner's conviction and sentence of death were affirmed by the Supreme Court on direct appeal, id. at 112, he petitioned for post-conviction relief, contending, among other points, that his trial counsel rendered inadequate and ineffective assistance of counsel. The post-conviction court denied post-conviction relief as to the guilt phase of petitioner's criminal trial and granted post-conviction relief as to the penalty phase.

On appeal, in his first through third assignments of error, petitioner contends that the post-conviction court erred in failing to conclude that his trial counsel rendered ineffective and inadequate assistance during the guilt phase of his criminal trial. Among other arguments, petitioner contends that his trial counsel failed to (1) "perform a reasonable, independent investigation of the prosecution's blood spatter evidence," (2) "perform a reasonable, independent investigation of the prosecution's main prison informant Robert Cameron's motives to lie," (3) "investigate and develop evidence that petitioner was ‘standing jigs’ as a lookout for [a] tattoo session" at the time of the victim's death, and (4) "choose and present a reasonable theory of defense." For the reasons that follow, we affirm.¹

We review judgments granting or denying post-conviction relief for errors of law. Heroff v. Coursey , 280 Or. App. 177, 179, 380 P.3d 1032 (2016), rev. den. , 360 Or. 851, 389 P.3d 1140 (2017). "In doing so, however, we are bound by the post-conviction court's findings of fact if they are supported by evidence in the record." Id. (internal quotation marks and citations omitted). "If the post-conviction court failed to make findings of fact on all the issues—and there is evidence from which such facts could be decided more than one way—we will presume that the facts were decided consistently with the post-conviction court's conclusions of law." Id. (internal quotation marks and citations omitted).

I. THE UNDERLYING CRIME AND PROCEDURAL BACKGROUND

Evaluating petitioner's post-conviction claim requires an understanding of the events underlying petitioner's prosecution, the defense and prosecution theories at trial, and the evidence presented at trial. Accordingly, we first summarize the facts concerning the underlying crime—a murder committed at the Oregon State Penitentiary (OSP)—which we largely draw from the Supreme Court's opinions in Haugen and Brumwell, 350 Or. at 95 , 249 P.3d 965 (noting "[t]he facts relating to the inmate's murder and the joint guilt phase of defendant's trial are set out in [ Haugen ]"), but supplement as necessary to analyze petitioner's arguments on appeal.² We then briefly discuss petitioner's underlying criminal trial, direct appeal, and the post-conviction proceeding. In our analysis of petitioner's arguments in this appeal, we provide additional facts and procedural details that are relevant to each particular argument.

A. The Underlying Crime

In 1996, petitioner was sentenced to life imprisonment without the possibility of parole for the aggravated murder of one person and the attempted aggravated murder of another. In 2003 he was serving that sentence at OSP. His codefendant in the guilt phase of the underlying criminal trial, Gary Haugen, was also serving a life sentence for murder. Petitioner, Haugen, and another inmate, Robert Cameron, played together in a band at OSP.

In August 2003, petitioner and Haugen suspected that someone was informing prison officials about their drug use. Prisoners had noticed that prison officials usually administered drug tests during the week. Accordingly, prisoners timed their drug use for weekends so that they could produce a clean urinalysis during the week. In a deviation from the ordinary timing, on Saturday, August 23, 2003, prison officials gave a drug test to a friend of petitioner's, inmate Christopher Lawrence, which identified him as having used drugs. On Sunday, August 31, 2003, prison officials gave a drug test to petitioner and Haugen.³ Petitioner and Haugen were upset about the drug tests and suspected the presence of an informant. They believed, incorrectly, that the victim, David "Sleepy" Polin, was the informant.

On September 1, 2003, the day after petitioner's and Haugen's drug test, an inmate overheard either petitioner or Haugen say "we've got to get him," referring to the victim. The inmate then saw petitioner walk toward the victim clenching his fist until Haugen stopped petitioner and said, "Stop, not here."

The next day—September 2, 2003—shortly after 9:00 a.m., the victim's body was found in the band room of the activities section of OSP. The victim had sustained 84 stab wounds and a blunt-force trauma to the head resulting in a skull fracture. The victim's hands reflected wounds that appeared to have been suffered in defending himself against an attack. The attack had occurred in an alcove outside the band room, which was smeared with blood. Subsequently, the victim's body had been dragged into the band room. The victim's blood also was found in a trash can just outside the alcove. Inside the trash can was a t-shirt soaked with the victim's blood, one of his shoes, his inmate identification, bloody rags, and a large threaded metal rod with the victim's blood on it. The rod was part of a stool from the band room. Two "shanks" or homemade knives also were found in the vicinity; one in the drain of a nearby bathroom and one outside the bathroom window. Strands of petitioner's hair were found on the victim's clothing.

Security cameras captured images of petitioner and Haugen, shortly before and after 8:00 a.m. Images from several cameras at different locations in the activities section showed petitioner, Haugen, and the victim in the general area near the band room in the minutes before the attack.

The images showed petitioner and Haugen repeatedly visiting the nearby bathroom, in which one of the shanks later was found, and then showed Haugen shortly before the attack with an oddly shaped item concealed under his t-shirt, possibly the metal rod from the stool. Another camera was located in the band room. That camera showed petitioner and Haugen dragging the victim's body into that room. Images from the camera also showed movement through a window in the door to the alcove, just before petitioner and Haugen dragged the body into the band room. Images taken shortly after the attack showed petitioner and Haugen leaving the area and wearing at least some different clothing than they had been wearing 15 minutes earlier.

The day of the murder was "shower" day, when inmates take showers and exchange their clothing. During petitioner's trial, an inmate testified that he observed Haugen in the shower clipping his fingernails with fingernail clippers and scrubbing his fingernails with a toothbrush, and that Haugen's hands were soiled by some dark substance. The inmate also testified that he saw petitioner, whose hands were also soiled, doing the same after Haugen handed him the fingernail clippers and toothbrush, and that the dark substance turned red as petitioner washed. In a clothing bin in the shower area, police recovered pants and t-shirts, stained with the victim's blood, matching the sizes worn by petitioner and Haugen. One pair of pants had DNA material in the thigh area matching Haugen's DNA; those pants also had a splatter pattern of liquid that matched the victim's blood. The victim's blood was also found on a pair of shoes belonging to petitioner.

Later that day, a detective examined petitioner and observed that petitioner had a scratch on his neck and two "minor injuries" on the back of both of his hands.

Subsequently, petitioner and Haugen were each charged with one count of aggravated murder for committing murder after previously having been convicted of murder, ORS 163.095(1)(c), and one count of aggravated murder for committing murder while confined in prison, ORS 163.095(2)(b).

B. The Underlying Trial and Direct Appeal

As noted above, petitioner and Haugen were tried together in the guilt phase of their criminal trial. Before that trial, petitioner, Haugen, and their respective counsel, entered into a joint defense agreement to, among other things, memorialize their understanding that during the trial there would not be "finger pointing" between them.

At trial, the state's theory was that petitioner and Haugen had "lured" the victim to the band room to kill him because they believed that the victim was an informant. Petitioner's and Haugen's strategy was, essentially, to argue that the state had failed to prove its case, and petitioner's trial counsel attempted to "distance [petitioner] as much as [they] could from the activity outside the band room."

The state's evidence at trial included (1) the testimony of a forensic scientist, Jennifer Riedel, who testified regarding the blood stains on petitioner's shoes, and (2) the testimony of Cameron, who testified that petitioner and Haugen had both confessed to killing the victim...