DeHart v. State
| Decision Date | 21 December 1981 |
| Docket Number | No. 26981,26981 |
| Citation | 55 Or.App. 254,637 P.2d 1311 |
| Parties | Buster R. DeHART, Respondent, v. STATE of Oregon, Appellant. ; CA A20458. |
| Court | Oregon Court of Appeals |
William F. Nessly, Jr., Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.
Fred E. Avera, II, Dallas, argued the cause for respondent. With him on the brief was Avera & Avera, Dallas.
Before RICHARDSON, P. J., and THORNTON and VAN HOOMISSEN, JJ.
The state appeals from an order granting defendant's petition for post-conviction relief on the basis of a finding that "(d)efendant was deprived of due process of law in connection with (his) trial in that he was not effectively represented by counsel." 1 We affirm.
Defendant was charged with 14 counts of cruelty to animals. ORS 167.850. He was acquitted on five counts that alleged he had starved five horses to death, but was convicted on nine counts that alleged he had caused nine other horses to suffer from malnutrition. Defendant's convictions were affirmed by this court without opinion. State v. DeHart, 42 Or.App. 837, 601 P.2d 917 (1979), rev. den. 288 Or. 519 (1980).
Thereafter, defendant filed a petition for post-conviction relief, which alleged in part:
In August, 1977, defendant took possession of 32 wild horses under an agreement with the Bureau of Land Management (BLM). The horses were emaciated and were apparently suffering severe parasitic infection. Under the agreement, defendant was responsible for any necessary medical care. Defendant attempted to rid the horses of their parasites by mixing medicine with grain, but the animals would not eat the grain. They were then put to pasture, and hay was left in a feeder bunk. While the horses survived the first winter, one was found dead in April, 1978. The condition of the horses worsened during the next winter. Some of them stopped returning to the barn for their feed, and defendant was required to make deliveries of hay to the pasture. After receiving a complaint, a BLM officer visited defendant's property in December, 1978, and found eight of the horses were dead.
At trial the factual issues were cause of death, defendant's efforts to cure the horses of their parasites and the quality and quantity of defendant's pasture and supplementary feed. A veterinarian who performed an autopsy on one of the horses testified that the animals had died of malnutrition, that the parasitic infection he found was only secondary and that a parasitic infection by itself would not have caused death. He also testified that he had examined defendant's pasture and feed and that both were of poor quality and nutritionally inadequate. A BLM representative testified that defendant's pasture was overgrazed and his feed of poor quality. Other witnesses testified to defendant's unsuccessful efforts at deworming the horses. The only witnesses called by the defense were the defendant and his wife. Defendant testified that the cause of death was the parasitic infection and that his pasture and feed were of good quality.
Prior to trial, defendant suggested to his attorney the names of several witnesses he thought could provide testimony favorable to the...
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Dotta v. Keeney, C-10215
...Tarwater v. Cupp, supra, 304 Or. 639, 748 P.2d 125; Krummacher v. Gierloff, supra, 290 Or. 867, 627 P.2d 458; Dehart v. State of Oregon, 55 Or.App. 254, 637 P.2d 1311 (1981); see also Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). There is no......
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Carias v. State
...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,......