Carias v. State

• Decision Date: 25 June 1997
• Parties: Ronald CARIAS, Appellant, v. STATE of Oregon, Respondent. 9503-01693; CA A92361.
• Court: Oregon Court of Appeals

Page 571

941 P.2d 571

148 Or.App. 540

Ronald CARIAS, Appellant, v. STATE of Oregon, Respondent.

9503-01693; CA A92361.

Court of Appeals of Oregon.

Argued and Submitted Feb. 19, 1997.

Decided June 25, 1997.

Garrett A. Richardson, Portland, argued the cause and filed the brief for appellant.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Petitioner appeals from the judgment denying his petition for post-conviction relief in which he alleged that he was denied adequate assistance of trial counsel. We affirm.

Petitioner was convicted of one count of delivery of a controlled substance arising from a drug buy made by an undercover officer. Petitioner was in the company of Brandy, a female juvenile. It was Brandy who handed the drugs to the officer and who had the money when arrested. At trial, petitioner testified, admitting that he was present when the officer purchased drugs from Brandy but denying that he negotiated the drug deal with the officer. At the post-conviction hearing, petitioner's trial counsel recounted that the officer had testified that he had engaged in conversation with petitioner that was specific in terms of drug dealing. Petitioner's trial counsel did not contact Brandy or call her as a witness at trial.

Petitioner assigns error to the trial court's denial of his petition for post-conviction relief, arguing that the trial court erred in finding that trial counsel's decision not to investigate the involvement of Brandy was a permissible "tactical" choice. In a post-conviction proceeding, the petitioner has the burden to prove the allegations of the petition by a preponderance of the evidence. ORS 138.620(2). Under the Oregon Constitution, to prove inadequate assistance of trial counsel, the petitioner must show that counsel failed to do the things reasonably necessary to advance the defense and that the petitioner suffered prejudice as a result. Stevens v. State of Oregon, 322 Or. 101, 108, 902 P.2d 1137 (1995). Denial of adequate assistance of counsel under the Sixth and Fourteenth Amendments is demonstrated when the petitioner shows that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). On review of a denial of post-conviction relief, we are bound by the post-conviction court's findings supported by evidence in the record, but we examine anew the court's constitutional determinations. Krummacher v. Gierloff, 290 Or. 867, 869, 627 P.2d 458 (1981).

Petitioner argues that his position at trial was that he had no involvement in the drug transaction, and the state's theory was that he was acting in concert with Brandy. He contends that, as tried, the case was "a swearing contest" between him and the arresting officer. He argues that the state's theory could not have been sustained if trial counsel had established that Brandy was the one who negotiated the transaction but that counsel made no efforts to contact Brandy or anyone else in order to determine what had occurred during the encounter. He argues that trial counsel's omission requires reversal of the post-conviction judgment under Mellem v. State of Oregon, 106 Or.App. 642, 809 P.2d 1348 (1991).

In Krummacher, the Supreme Court noted that standards for measuring ineffective assistance of counsel are necessarily general and a degree of subjectivity "cannot be avoided." 290 Or. at 873, 627 P.2d 458. The most difficult assessments are those involving decisions made "in the course of representing a defendant at trial." Id. at 875, 627 P.2d 458. Counsel must investigate the facts and prepare on the law "to the extent appropriate to the nature and complexity of the case," id. at 875, 627 P.2d 458, but errors that are "inconsequential in the context of the entire trial" do not demonstrate inadequate assistance. Id. Each claim is assessed in the totality of the circumstances. See id. at 874 n. 5, 627 P.2d 458.

At the post-conviction hearing, petitioner's trial counsel testified that he made no attempt to contact Brandy, explaining:

"Well, I thought that I was looking at it as a Hobson's choice there. What we had here in my evaluation was a 40-something year-old guy, defendant, and a 15-year-old, as it were defendant. I felt that if I had contacted her, she would have told me one of two things. She would have said, 'No, he didn't have anything to do with it.' I would call her as a witness in view of the--well, I'll get to that later, but I'd call her as a witness and either the District Attorney would have torn her up in cross examination by saying, 'You had really nothing to lose in this situation. You were a juvenile. You were not subject to the criminal justice system. He is your friend. You want to do what you can to help him.' Her motive, interest, and bias would have knocked her utility out as a witness. The alternative situation would have been that I contact her and she would have said something to the effect that, 'Yeah, it was his dope. He just had me do the sale for him.' Then I would be in an ethical dilemma in terms of whether or not I could further represent my client. Neither of those two situations were very appealing to me.

"Q: Was [Brandy] represented?

"A: I don't know, Your Honor. My assumption was that she was. I didn't check that out.

"Q: What's been your experience with representing the folks who are representing, having their lawyers be willing to have them testify.

"A. Well, my experience is that I contact the attorneys and the attorneys indicate no. I don't want my client subject to this type of interrogation or to be called as a witness."

The post-conviction court accepted counsel's explanation as a "tactical" decision. Petitioner contends that the failure to investigate was "a complete failure to exercise professional judgment[.]" DeHart v. State, 55 Or.App. 254, 258, 637 P.2d 1311 (1981). He argues that the explanations given were the same kind of "gross generalization" that we rejected in Mellem. There, the petitioner had been convicted of forgery after she cashed a check. Her defense was that two other persons had the check and were going to repay money owed to her when it was cashed. She contended that she had no knowledge that the check had been stolen or that it was forged. Her trial counsel did not investigate the witnesses.

Because the witnesses were the petitioner's only defense, we concluded that the counsel's failure to verify the petitioner's story entitled her to a new trial. We reasoned:

"The state argues, and trial counsel testified, that his choice not to look for [the witnesses] was a reasonable tactical decision, because it was doubtful that they could be located; if located, they would likely refuse to testify; if they testified, they would not be believable. Reasonable tactical decisions generally cannot be made without some investigation or research. The decision not to call a witness or to put on certain evidence is, in the abstract, a tactical decision; but that characterization is not a complete answer to the question of adequate representation. A tactical decision must have some kind of factual predicate. Consequently, professional skill requires at least an attempt to find out the facts before a final tactical decision is made.

" * * * * * "It may well have been true, after investigation, that the people could not have been located or, if found, that their value to the defense would have been as counsel speculated that it would be. However, his conclusions were not based on any investigation but on generalizations about human conduct. We decline, in this case, to accept those generalizations as an adequate basis for decisions about representing petitione...