Cartrette v. Nooth

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: LAGESEN, J.
• Citation: Cartrette v. Nooth, 284 Or App 834, 395 P.3d 627 (Or. App. 2017)
• Decision Date: 19 April 2017
• Docket Number: A157225
• Parties: Joshua Ames CARTRETTE, Petitioner-Appellant, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

284 Or.App. 834

395 P.3d 627

Joshua Ames CARTRETTE, Petitioner-Appellant,

v.Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A157225

Court of Appeals of Oregon.

Submitted March 21, 2016.

April 19, 2017

Jed Peterson and O'Connor Weber LLP filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.

LAGESEN, J.

Petitioner is serving a 70-month sentence on a conviction for second-degree assault, ORS 163.175, in the custody of defendant, the Superintendent of the Snake River Correctional Institution (the superintendent). Petitioner's conviction arose from a physical altercation between petitioner and another man, Johnson. Petitioner claimed self-defense at trial and seeks post-conviction relief on the ground that his lawyer provided constitutionally-deficient assistance of counsel, in violation of his rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, by failing to call a particular witness, Smith. Smith, who was under subpoena at the time of petitioner's trial but was not called, would have impeached Johnson's testimony that petitioner started the fight by testifying that Johnson admitted to him that he had started the fight, but that he needed for petitioner to be convicted in order to receive financial assistance for his medical bills. The post-conviction court denied relief. Although the court thought that "trial counsel should have called" Smith, and that Smith's testimony would have been "helpful" to defendant's case, it determined that trial counsel's failure to do so did not amount to a constitutional violation because, under the circumstances of petitioner's criminal case, "it really didn't matter * * * exactly who started the fight," notwithstanding petitioner's claim of self defense. We conclude otherwise and reverse and remand with instructions for the post-conviction court to grant petitioner relief from his conviction for second-degree assault.¹

FACTUAL AND PROCEDURAL BACKGROUND

We state the facts in a manner consistent with the post-conviction court's implicit and explicit factual determinations. In that regard, we note that the post-conviction court expressly opined that Smith's testimony would have been "helpful" to petitioner's case, and that trial counsel "should have" called Smith to testify at petitioner's trial, and presume that the post-conviction court implicitly found the facts about Smith and his likely testimony consistently with those explicitly stated determinations.

The fight that led to petitioner's conviction occurred when petitioner accompanied his girlfriend, Carroll, to drop off her daughter for a visit with Johnson, Carroll's previous boyfriend. Although Johnson was not the father of Carroll's daughter, he had formed a close relationship with her during the course of his five-year relationship with Carroll, and Carroll had agreed to permit her daughter to attend a barbecue at Johnson's uncle's home. Petitioner and another man, Watkins, went with Carroll to drop off her daughter. Shortly after their arrival, petitioner and Johnson became involved in a physical altercation. That altercation left Johnson with significant injuries to the left side of his face, breaking his left eye socket and his nose. As a result, he had to have titanium plates and screws placed in his face, and he suffers from nerve damage and permanent impairment to his vision. Petitioner, who has some skills in mixed martial arts, emerged from the confrontation relatively unharmed.

Although the fight and the injuries that Johnson suffered are not disputed, petitioner's account of the details of the fight differs significantly from Johnson's. According to Johnson, petitioner and Watkins "jump[ed]" him. Petitioner came after Johnson, and Watkins held Johnson while petitioner punched him. Johnson blacked out and fell to the ground and, when he regained consciousness, he was being kicked or kneed in the head.

In contrast, according to petitioner, Johnson started the fight, coming after petitioner while he was still sitting in the front passenger seat of Carroll's car. Petitioner, who has experience with mixed martial arts techniques, man-aged to get himself out of the car and punch Johnson, which caused Johnson to fall to the ground. When Johnson got up, petitioner hit him twice more to make sure that he stayed down. Petitioner and Watkins then fled. Watkins's version of events echoed petitioner's. According to Watkins, Johnson launched a "full on attack" on petitioner, and petitioner simply tried to defend himself. Watkins denied participating in the fight at all.

The state charged petitioner and Watkins with second-degree assault and third-degree assault.² Watkins was tried first. The state's theory of the case was that petitioner and Watkins had attacked Johnson. The testimony of Johnson and his nephew, who had been present at the fight, provided the primary support for that theory. Johnson testified that petitioner came after him and that Watkins held him while petitioner hit him numerous times until he went down. Johnson's nephew testified similarly that, although he had been inside and not witnessed the start of the fight, he had heard someone shout "grab him." When Johnson's nephew ran outside, he saw petitioner and Watkins kicking or hitting Johnson while Johnson was on the ground.

Watkins's defense theory, in contrast, was that Johnson attacked petitioner and that Watkins's involvement was, at most, a brief attempt to pull Johnson off of petitioner. The defense supported that theory both through the testimony of Watkins and Carroll about the events of the night in question, and through an impeachment witness, Smith. Watkins testified that Johnson started the fight while petitioner was still in the car, that petitioner had struck Johnson a few times in self defense, and that Watkins was not involved at all, except possibly for a brief attempt to pull Johnson away from petitioner. Watkins explained that he and petitioner fled after Johnson's nephew said that he was going to get his gun. Likewise, Carroll testified that Johnson had attacked petitioner while petitioner was still in the car, at which point Carroll went into the house to get her daughter to leave.

The impeachment witness, Smith, testified that he shared a cell with Johnson for three days a little over a month after the fight. During that time, Johnson told Smith several different versions of what had happened during the fight. The first version was that Johnson had been attacked by two of his friends. Later, Johnson changed the story "a little bit," and then, on the last night that they shared a cell, Johnson told Smith "the version of what really happened." Johnson told Smith that he had initiated the attack on petitioner while petitioner was still in the car, and then someone had pulled him off of petitioner, at which point petitioner hit Johnson. Johnson also told Smith that he needed for petitioner and Watkins to be found guilty so that he could get victim's assistance to cover his medical bills because Johnson's family "didn't really have a lot of money to pay for the bills." Smith testified that, about a week after Johnson's disclosures, he met petitioner in jail, and recounted what Johnson had said to him. Smith never met Watkins. Smith also admitted to having convictions for Theft I, malicious mischief, and criminal trespass.

The jury acquitted Watkins. More than a month before petitioner's trial, Watkins's defense team alerted petitioner's defense team that Smith had been "a good witness, jail clothes [and] all." Trial counsel's investigator met with Smith, confirmed that he was willing to testify at petitioner's trial, and trial counsel subpoenaed Smith to testify at petitioner's trial.

At his trial, petitioner's defense was self-defense; petitioner did not dispute that he hit the victim three times, or the extent of the victim's injuries. The state argued that the jury should reject petitioner's claim of self-defense for two reasons. First, the state argued that, if the jury believed Johnson that petitioner had been the initial aggressor, then "there's no need to consider the self-defense claim. That would be the first theory that we would submit to you folks would apply in this particular case." Second, the state argued that the jury should find that the force used by petitioner was not reasonable under the circumstances and reject petitioner's claim of self-defense for that reason. In support of the state's case, Johnson and his nephew testified in much the same way that they had at Watkins's trial. Petitioner's trial counsel impeached Johnson with text messages he had sent to Carroll after the fight. The text messages indicated that Johnson still had strong feelings for Carroll, and that he would do "all I can to see to it that [petitioner and Watkins] get the most time I can."

The defense relied primarily on the testimony of Carroll and Watkins, which was along the same lines as their testimony at Watkins's trial. The prosecution impeached Carroll with the fact that she had previously told investigators that she had not seen the start of the fight, contrary to her trial testimony. It impeached Watkins with the facts that he did not like Johnson because of how he treated Carroll, that he was "more friends" with Carroll and petitioner than he was with Johnson, and that he originally lied to police about being present at the fight. Trial counsel did not call Smith to testify as an impeachment witness, even though he was under subpoena and available to testify.

The jury convicted petitioner of second-degree assault. Petitioner appealed, but this court granted petitioner's later motion for dismissal of that appeal. He then initiated this...