Cunningham v. Thompson

• Decision Date: 05 February 2003
• Citation: 62 P.3d 823,186 Or. App. 221
• Parties: Clinton Wendell CUNNINGHAM, Appellant, v. S. Frank THOMPSON, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

62 P.3d 823

186 Or. App. 221

Clinton Wendell CUNNINGHAM, Appellant, v. S. Frank THOMPSON, Superintendent, Oregon State Penitentiary, Respondent.

95C-11416; A107806.

Court of Appeals of Oregon.

Argued and Submitted July 9, 2002.

Decided February 5, 2003.

Eric M. Cumfer, Salem, argued the cause for appellant. With him on the brief was James N. Varner.

Kathleen Cegla, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and BREWER, Judge.

BREWER, J.

After a jury trial, petitioner was convicted of aggravated murder and sentenced to death. The Oregon Supreme Court affirmed. State v. Cunningham, 320 Or. 47, 880 P.2d 431 (1994), cert. den., 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). Petitioner sought post-conviction relief, asserting that the trial court violated his constitutional rights in two respects and that his trial counsel provided inadequate assistance in numerous respects. The post-conviction court denied relief. We review for errors of law, ORS 138.220, and affirm.

We summarize the underlying facts from the Supreme Court's opinion on direct review, leaving to our discussion of petitioner's assignments of error a description of other pertinent historical and procedural facts. In October 1991, petitioner and two other men, Travis Allison and Troy Johnson, were traveling in the Coos Bay area in a pickup truck driven by petitioner. On their way to some nearby sand dunes, they picked up a female hitchhiker, Shannon Faith, who accompanied them to the dunes. Later that day, petitioner dropped Allison and Johnson at Johnson's house. Petitioner and Faith then went to the house of Faith's friend, Moyer, where Faith informed Moyer that she was going to Eugene with petitioner. Moyer tried to talk Faith out of leaving and wrote down petitioner's name and the truck license number. Petitioner and Faith left. Cunningham, 320 Or. at 49, 880 P.2d 431. Early the next morning, petitioner returned alone to Johnson's house. Around mid-day, a motorist found Faith's body in a remote wooded area about nine miles west of Drain. She was wearing a shirt and socks, but no pants or underpants. She had been stabbed approximately 37 times on her face, neck, breasts, back, abdomen, and hands; some of the wounds were defensive wounds. The location of various bloodstains indicated that she had not been wearing pants at the time she was stabbed. Id. at 49-50, 880 P.2d 431.

Tests revealed the presence of sperm and seminal fluid in Faith's vagina. Medical examiners also found an abrasion near her perineum and four abrasions along the inside of her thigh. Faith's pants and underpants were later found stuffed into a bag that had been thrown into some nearby bushes. The outside of her pants had little or no blood on them. Neither her pants nor her underpants had sperm or seminal fluid on them. Id. at 50-51, 880 P.2d 431.

After seeing or hearing news reports of the crime, both Moyer and Johnson contacted the police. Petitioner was later arrested in Oklahoma. He admitted driving the pickup truck and picking up the victim but asserted that he and the victim had had consensual sex, that he had then resumed driving, and that, some time later, she grabbed his knife and came at him. Petitioner stated that he cut the victim's hand while taking the knife away from her; that, after she continued coming at him, he pushed her away with the knife; that she fell to the ground; and that, as he dragged her from his truck to a ditch, some of her clothing came off. Petitioner admitted stabbing the victim "three or four times"; he also admitted throwing her bags into the bushes, throwing his knife into a creek, and disposing of his own bloody clothing in a dumpster. The knife and petitioner's clothing were recovered. Petitioner later performed a videotaped reenactment of what he asserted had occurred. Id. at 51-52, 880 P.2d 431.

Petitioner was indicted on two counts of aggravated murder, one count of intentional murder, and two counts of rape in the first degree. ORS 163.095(2)(d); ORS 163.095(2)(e); ORS 163.115(1)(b); ORS 163.375.¹ One of the aggravated murder counts alleged that petitioner murdered the victim in the course of and in furtherance of the crime of rape in the first degree; the other alleged that he murdered the victim in an effort to conceal the commission of the crime of rape in the first degree. After a jury trial, petitioner was convicted on all counts. The trial court merged the convictions and, pursuant to the jury's penalty phase verdict, sentenced petitioner to death. As noted, on direct appeal, the Oregon Supreme Court affirmed the convictions and sentence.

Petitioner sought post-conviction relief. He alleged in part that the trial court in his criminal proceeding erred in failing to assure that he personally waived his right to testify and in failing to conduct a hearing on the question of whether he should be restrained by leg irons at trial. Petitioner also alleged that his trial counsel was inadequate in numerous respects in violation of his right to counsel guaranteed by Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. The post-conviction court made findings as to each of petitioner's allegations and denied relief. Petitioner appeals.

We begin by considering petitioner's claims based on the described actions of the criminal trial court. In those regards, the state² responds that petitioner could have, and did not, raise those issues in his criminal trial or on direct appeal and that he does not argue in these claims that his failure to do so was the result of inadequate assistance of counsel in those proceedings. The state contends that petitioner therefore is barred from raising those issues in this post-conviction proceeding. We agree and therefore do not consider the issues further. See ORS 138.550(1); Palmer v. State of Oregon, 318 Or. 352, 358, 867 P.2d 1368 (1994).

We turn to petitioner's numerous claims of inadequate assistance of criminal trial counsel. To prevail on a post-conviction claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, petitioner has the burden of showing, by a preponderance of the evidence, facts demonstrating that his criminal trial counsel failed to exercise reasonable professional skill and judgment and that counsel's failure had a tendency to affect the result of his criminal trial, that is, that petitioner suffered prejudice as a result. ORS 138.620(2); Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991); Horn v. Hill, 180 Or.App. 139, 149, 41 P.3d 1127 (2002). To show that trial counsel's representation violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution, petitioner must show that counsel's acts or omissions were not the result of an exercise of reasonable professional judgment and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See ORS 138.530(1)(a) (post-conviction relief is available for substantial denial of rights under the state or federal constitution); see also Lichau v. Baldwin, 333 Or. 350, 358-59, 39 P.3d 851 (2002)

(setting out standards and methodology for considering ineffective assistance of counsel claims under state and federal constitutions). The reviewing court will not second-guess a lawyer's tactical decisions unless those decisions reflect an absence or suspension of professional skill and judgment; however, tactical decisions must be grounded on a reasonable investigation, that is, one that is legally and factually appropriate to the case. Gorham v. Thompson, 332 Or. 560, 567, 34 P.3d 161 (2001); see also Carias v. State of Oregon, 148 Or.App. 540, 544-45, 941 P.2d 571 (1997) (professional skill requires at least an attempt to find out the facts before a final tactical decision is made).

We are bound by the factual findings of the post-conviction court if they are supported by evidence in the record. Lichau, 333 Or. at 359, 39 P.3d 851; see also Krummacher v. Gierloff, 290 Or. 867, 869, 627 P.2d 458 (1981)

. If the post-conviction court does not make express findings on an issue, we assume that it decided the facts in a manner that is consistent with its ultimate conclusion on that issue. Lichau, 333 Or. at 359,

39 P.3d 851 (citing Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968)). We review the post-conviction court's legal conclusions for errors of law. ORS 138.650; ORS 138.220.

In his first assignment of error, petitioner argues that his criminal trial counsel was inadequate by reason of failing to obtain a private polygraph examination that, according to petitioner, would have demonstrated that he and the victim had had consensual sex and therefore "would have impacted plea negotiations" between petitioner and the prosecutor.³ In the post-conviction hearing, petitioner presented the testimony and written report of a private polygraph examiner, Wygant. Wygant testified that, in November 1998, he had administered a polygraph examination to petitioner, during which he had asked petitioner three questions: "Did you physically force [the victim] to submit to sex while she was refusing or resisting?"; "Did you have sex with [the victim] at the same location where she died?"; and "When you had sex with [the victim], did she put up any resistance?" Wygant testified that petitioner's negative answers to the first and third questions were "definitely truthful," and that his negative answer to the second question was "inconclusive" as to truthfulness.

Petitioner also presented testimony by two lawyers, Bernier and Arneson, who had practiced criminal...