Davis v. Armenakis

• Citation: 151 Or.App. 66,948 P.2d 327
• Decision Date: 22 October 1997
• Docket Number: C-13622
• Parties: Jerry Wallace DAVIS, Appellant, v. Nicholas ARMENAKIS, Acting Superintendent of Oregon State Penitentiary, Respondent. 94-; CA A93948.
• Court: Oregon Court of Appeals

Page 327

948 P.2d 327

151 Or.App. 66

Jerry Wallace DAVIS, Appellant, v. Nicholas ARMENAKIS, Acting Superintendent of Oregon State

Penitentiary, Respondent.

94-C-13622; CA A93948.

Court of Appeals of Oregon.

Argued and Submitted May 12, 1997.

Decided Oct. 22, 1997.

Karen Steele Gable, Salem, argued the cause and filed the brief for appellant.

Erika L. Hadlock, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, C.J., and DE MUNIZ and HASELTON, JJ.

DE MUNIZ, Judge.

Petitioner appeals from the judgment denying his petition for post-conviction relief. We affirm in part and reverse in part.

Petitioner was convicted on one count each of robbery in the first degree with a firearm, ORS 164.415, and burglary in the first degree. ORS 164.225. On direct appeal, he argued that he was denied due process and a fair trial because he was shackled throughout the trial. We affirmed the judgment, and the Supreme Court denied review.

In his petition for post-conviction relief, petitioner alleges that his trial counsel was inadequate because he failed to object to petitioner being held in shackles in the presence of the jury and failed to request that the trial court hold an evidentiary hearing to establish cause for the use of the shackles. ¹

The post-conviction court initially dismissed petitioner's petition for post-conviction relief with prejudice, finding it "meritless and frivolous." Petitioner then filed a motion for a new trial. The post-conviction court denied that motion. In an amended judgment, the court imposed a sanction of $100 in attorney fees against petitioner under ORS 138.527. It also sanctioned petitioner's counsel, pursuant to ORS 138.590(5), limiting her court-appointed compensation to fees attributable only to reviewing, rather than pursuing, petitioner's shackling claim, which the court concluded was frivolous.

Petitioner assigns three errors to the post-conviction court. He alleges that the post-conviction court erred in imposing sanctions against him and his post-conviction counsel, in denying his shackling claim, and in denying his motion for a new trial.

Because it is dispositive, we begin with petitioner's second assignment of error. Petitioner contends that the post-conviction court's denial of his shackling claim was erroneous as a matter of law because the court imposed an erroneous legal standard, requiring him, in order to establish prejudice, to prove that at least one juror was aware that he was shackled during the criminal trial. We agree that the court employed an incorrect analysis in deciding petitioner's shackling claim.

In a post-conviction relief 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 prove 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 to the United States Constitution 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 that are supported by evidence in the record. However, we examine anew the court's constitutional determinations. Yeager v. Maass, 93 Or.App. 561, 564, 763 P.2d 184 (1988), rev. den. 307 Or. 340, 768 P.2d 400 (1989).

To make the proper showing here, petitioner faces a two-pronged test. First, petitioner must prove that counsel's conduct demonstrated a failure to exercise reasonable professional skill and judgment. Second, petitioner must prove that he suffered prejudice as a result of counsel's failure. At the post-conviction hearing, defendant conceded that the trial record did not include evidence demonstrating that petitioner needed to be shackled for security purposes. We therefore agree with petitioner that counsel's failure to object to the shackling and to request an evidentiary hearing demonstrates a failure to exercise reasonable professional skill and judgment. See State ex rel. Juv. Dept. v. Millican, 138 Or.App. 142, 145, 906 P.2d 857 (1995), rev. den. 323 Or. 114, 913 P.2d 1384 (1996) ("Oregon has long recognized the right of adult defendants to be free from physical restraints during criminal trials.") Accordingly, we turn to the question of whether petitioner proved that he was prejudiced in the criminal trial as a result of the shackling.

Petitioner argues that he met the prejudice prong because State v. Kessler, 57 Or.App. 469, 645 P.2d 1070 (1982), holds that when a defendant is shackled in the presence of the jury during a criminal trial without a proper record of the necessity having been made, the prejudice "is manifest and need not be proven in an individual case." Id. at 475, 645 P.2d 1070. Petitioner also relies on Guinn v. Cupp, 304 Or. 488, 747 P.2d 984 (1987), a post-conviction case in which the Supreme Court stated:

"In a post-conviction case involving a claim of inadequate assistance of appellate counsel for failure to raise the shackling issue on appeal, the post-conviction plaintiff would make a prima facie case simply by showing that he or she was shackled during the trial and that no record was made in the trial court to support the decision to shackle." Id. at 498, 747 P.2d 984 (emphasis supplied).

Defendant contends that petitioner is incorrect in asserting that prejudice is shown by "the mere fact of shackling, without more[.]" Defendant argues that, in post-conviction cases, the petitioner has the burden of proving that any constitutional error did prejudice the petitioner's case and that, to demonstrate prejudice based on unnecessary shackling, a petitioner must prove both that a juror saw the restraints and that an insufficient record was made regarding the need for them. Defendant asserts that only at that point do prejudicial inferences follow.

In spite of the language in Kessler and Guinn that appears contrary to defendant's position, defendant argues that neither case assists petitioner. Defendant asserts that Kessler was a direct appeal in which this court, in disagreeing with the state that the jury's observation of the defendant's leg irons was unimportant because the leg irons were not "terribly obtrusive," stated that the relevant issue was whether the jury could see the shackles "at all." Thus, defendant concludes, Kessler stands only for the proposition that, "if jurors observe a shackled defendant during trial, all the defendant must prove on direct appeal is that an insufficient record was made regarding the need for shackling." (Emphasis defendant's.)

Likewise defendant argues that in Guinn the post-conviction court had specifically held that the petitioner was prejudiced by being shackled "in the presence of the jury," and that the state did not challenge that finding on appeal. Thus, defendant contends, it was "established fact for purposes of appeal" that the petitioner had suffered prejudice. Therefore, defendant argues, the language on which petitioner relies here should not be construed to mean that a petitioner in post-conviction proceedings does not have to prove that jurors observed the shackles.

Defendant's argument regarding Kessler, however, ignores that

"[i]t is difficult to accept the proposition that defendant could sit through a jury trial and constantly maintain a posture such that the jury would not see the leg irons. It is not a question whether the jury will be constantly exposed to the vision of a shackled defendant, but whether they see the shackles at all." Id. 57 Or.App. at 474, 645 P.2d 1070.

In other words, Kessler establishes that, when a defendant is shackled in the courtroom, there is a presumption that the shackles are seen by the jury and prejudice results. ² In context, much of our discussion in Kessler was meant to reject the state's claim that if the shackles were not "terribly obtrusive," then no prejudice resulted.

We also reject defendant's attempt to narrow the holding of Guinn. That the issue of prejudice was not before the court does not detract from the Supreme Court's clear directive that a post-conviction petitioner can establish a prima facie case "simply by showing that he was shackled during the trial and that no record was made in the trial court to support the decision to shackle." 304 Or. at 498, 747 P.2d 984.

The post-conviction court erred in that it failed to realize that, as petitioner maintained, under Kessler and Guinn he had established, prima facie, that he had been denied adequate assistance of counsel by proving that he was shackled in the presence of the jury without a proper record having been made.

Although the trial court failed to apply Kessler and Guinn properly, that error does not require reversal of the court's denial of post-conviction relief. In State v. Schroeder, 62 Or.App. 331, 661 P.2d 111, rev. den. 295 Or. 161, 668 P.2d 380 (1983), we held that, given the overwhelming evidence of the defendant's guilt, the trial court's error in denying the defendant's motion to remove his shackles during trial was harmless beyond a reasonable doubt. That analysis is also applicable in the post-conviction context.

Here, the court found that "[t]he evidence of petitioner's guilt was overwhelming and, therefore, any error that might have occurred was harmless beyond any reasonable doubt."

We agree with the court's finding that any error in shackling was harmless. The victim identified petitioner at...