Davis v. Cain

• Jurisdiction: Oregon
• Parties: Lamar Alex DAVIS, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
• Citation: 467 P.3d 816,304 Or.App. 356
• Docket Number: A168254
• Court: Oregon Court of Appeals
• Decision Date: 20 May 2020

304 Or.App. 356

467 P.3d 816

Lamar Alex DAVIS, Petitioner-Appellant,

v.Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A168254

Court of Appeals of Oregon.

Submitted March 13, 2020

May 20, 2020

Jedediah Peterson and O'Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.

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

AOYAGI, J.

In this post-conviction proceeding, petitioner asserts that the post-conviction court erred in denying him relief on his first claim for post-conviction relief, because his trial counsel was constitutionally inadequate in failing to object when the prosecutor engaged in vouching regarding the state's key witness during opening statement. In response, the superintendent does not dispute that the prosecutor engaged in vouching but argues that petitioner's trial counsel's lack of objection was strategically reasonable or that petitioner did not demonstrate prejudice. As explained below, we agree with petitioner and, accordingly, reverse and remand on the first claim.

FACTS

We are bound by the post-conviction court's factual findings so long as they are supported by evidence in the record. Ayer v. Coursey , 253 Or. App. 726, 728, 292 P.3d 595 (2012). "If the post-conviction court did not expressly make factual findings, and there is evidence from which the facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion."

Ball v. Gladden , 250 Or. 485, 487, 443 P.2d 621 (1968) (internal quotation marks omitted).

Petitioner was convicted of first-degree rape, ORS 163.375, based on the following evidence. On a summer night, J celebrated a birthday with some friends, including Shannon and Spriggs. They eventually went to Spriggs’ apartment. Because Spriggs was moving out, there was no furniture in the apartment, except a mattress and box spring in the living room. Petitioner—who was an acquaintance of J's and Shannon's—arrived while the group was talking. J and Shannon eventually fell asleep on the mattress. A friend named Jason arrived and woke up Shannon, who went to the bathroom. When Shannon had been in the bathroom for five to ten minutes, Jason came to the door and told her that J was having sex. Shannon came out and saw petitioner on top of J, having sex with her. J was moaning. Shannon doubted that J would have sex with petitioner when sober, so she pulled on J's arm to "see if she knew what she was doing" but got no response. Shannon asked petitioner if J had said they could have sex, and petitioner answered affirmatively ("uh-huh"). A few minutes later, Shannon checked on J again and slapped her, but J still did not say anything to Shannon. When Shannon checked on J a third time, petitioner had left.

The next morning, Shannon asked J if she remembered having sex with petitioner. J did not remember. J obtained a sexual assault examination, and petitioner's DNA was found in J's cervix and vagina. Officer Gilhuber interviewed Shannon by telephone within a few days of the incident.

The only witnesses at petitioner's trial were Shannon, Gilhuber, J, and a nurse; petitioner did not testify. The prosecutor and defense counsel both told the jury that the key issue for the entire trial was Shannon's credibility. J did not remember having sex with petitioner, and the prosecutor expressly told the jury that her credibility was not even at issue as a result. The nurse testified about the DNA evidence. Shannon and Gilhuber testified generally consistently with the above description of the facts, but there was at least one significant conflict in their testimony, relevant to the issue of J's physical helplessness.

As to J's physical helplessness, Gilhuber testified that Shannon had told him in her 2011 interview that it "appeared" that J "was asleep" during the sex. By contrast, Shannon testified at trial that J was "[v]ery, very intoxicated," but that her eyes were "a little bit open," and that J sometimes looked like that when she was awake but drunk. Shannon insisted that she had "never told anybody that [J] was sleeping," that she "couldn't honestly say" whether J "was sleeping or not," and that she had thought at the time that J was awake. The prosecutor relied on Gilhuber's testimony and Shannon's actions in pulling on J's arm and slapping her to repeatedly argue that J was "passed out" or "unconscious" when petitioner had sex with her and that Shannon was now changing her story to claim that J was awake. Meanwhile, defense counsel argued that Shannon had never changed her story and that it was Gilhuber who either misunderstood or misreported what Shannon had said.

The jury found petitioner guilty of first-degree rape, based on J having been incapable of consent due to physical helplessness. See ORS 163.375(d) ("A person who has sexual intercourse with another person commits the crime of rape in the first degree if *** [t]he victim is incapable of consent by reason of *** physical helplessness."). Petitioner unsuccessfully appealed the resulting conviction.

Petitioner subsequently filed a petition for post-conviction relief, alleging in the first claim for post-conviction relief that his trial counsel was constitutionally inadequate for failing to object to vouching statements made by the prosecutor during opening statement. In his opening statement, the prosecutor had commented on the "great job" that Gilhuber did interviewing witnesses and documenting what they said. Without explanation, the prosecutor then raised the possibility that Shannon might change her story at trial. He told the jury that, if Shannon told "the truth" and testified consistently with what she told Gilhuber, it would be an easy conviction, but that, if she did not tell the truth and changed her story, he (the prosecutor) would "not back off" because that was his job.

Because it goes to the heart of petitioner's appeal, we quote in its entirety the relevant portion of the prosecutor's opening statement:

"Brandae Shannon was one of those people that he talked to, and Brandae Shannon laid the whole thing out, okay? A couple of months pass—two and a half months and guess what? Things have changed in the meantime.

"Why? I don't know. I'm not sure it's going to make much difference. You're going to be searching and listening, probably to Brandae to find out why things have changed.

"Now, she might tell you things have not changed, that I've been telling the truth about this from the get-go. Get somebody into Court, got to take somebody to grand—you know, we've got to take witnesses to Grand Jury. They testify under oath. It's not a two-part system, and there is no defense attorney there and stuff—but they come, and they tell their story under oath. Now, if Brandae Shannon comes in here and tells you, you know what? I've been telling the truth all along about this case. I spoke to Officer Gilhuber. I told him the truth about what happened and what I told Officer Gilhuber is, in fact, what I'm going to testify to. If that happens, this case is over. You are going to have an easy decision because what Brandae Shannon tells the officer is that the Defendant did exactly what he's charged with.

"I asked, I think maybe, I guess I asked all of you—when I was asking general questions—about whether you are going to be comfortable if there gets to be a little bit of conflict here, okay?

"There may or may not be, okay, but Brandae Shannon assures us that she will tell the truth and does tell the truth, probably not going to be much conflict. If she doesn't, I can tell you right now, do not expect me to back off. Do not expect me to just let her change her story and say, okay, well, whatever, we'll just go home. "

(Emphasis added.)

Later in his opening statement, the prosecutor returned to the issue again, while describing who would testify and what the evidence would be:

"In the end, it's going to come down to Brandae Shannon, and she may not want to, like I told you, to tell you how this happened . Again, you may be curious about the motive, but does it really matter, does it really matter? Why she changed her statement? The question is, did she change her statement, and it may be like pulling teeth. I don't know, but if we have to pull teeth, we are going to pull teeth . If she just tells you, this will go easy . I hope you don't hold that against me because that's what my job is and, in all honesty, I can't imagine any of you would expect me to back down from it ."

(Emphases added.)

In his petition for post-conviction relief, petitioner claimed that his trial counsel provided constitutionally inadequate assistance when he did not object to the prosecutor's statements as impermissible vouching regarding the state's key witness, Shannon.¹ In response, the superintendent submitted a declaration from petitioner's trial counsel. Trial counsel attested that he had no "independent recollection of the prosecutor's opening statement." However, he described his "standard practice" as being "to pay close attention to the argument the prosecution makes during opening statement and closing and to how the jury is responding to the prosecution's arguments." Then, if he "believe[s] a potentially improper argument made by the prosecutor is having an impact on the jury that could be negative to my client, I object." Trial counsel concluded, "Based on that standard practice, I presume that I did not believe the argument made by the prosecutor during opening in this case was having an impact on the jury."²

The post-conviction court denied relief. In its written judgment, the court concluded that it was not improper or objectionable for the prosecutor to state that a witness's trial testimony "may differ from the initial police report," that defense counsel's decision not to object...