Derschon v. Belleque
|252 Or.App. 465,287 P.3d 1189
|26 September 2012
|Joseph Daniel DERSCHON, Petitioner–Appellant v. Brian BELLEQUE, Superintendent, Oregon State Penitentiary, Defendant–Respondent.
|Court of Appeals of Oregon
James N. Varner, Dundee, argued the cause and filed the brief for appellant.
Inge D. Wells, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
[287 P.3d 1190]
Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.
[252 Or.App. 466]In this post-conviction case, petitioner appeals from a judgment denying him post-conviction relief from 10 convictions arising from a home-invasion robbery.1 Petitioner alleged that he was denied adequate assistance of trial counsel under Article I, section 11, of the Oregon Constitution and effective assistance of trial counsel under the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, he alleged that his counsel was inadequate in failing to object to several hearsay statements, failing to present testimony of two witnesses, failing to timely object to a discovery violation, failing to consult and call an expert regarding cell phone records, and failing to move for a judgment of acquittal on one kidnapping count. We conclude that any errors that trial counsel made in the course of representing petitioner did not prejudice petitioner because the state introduced overwhelming evidence of petitioner's guilt apart from the contested evidence. Accordingly, we affirm.
We are bound by a post-conviction court's findings of fact if they are supported by evidence in the record, and we review its legal conclusions for errors of law. Chew v. State of Oregon, 121 Or.App. 474, 476, 855 P.2d 1120,rev. den.,318 Or. 24, 862 P.2d 1304 (1993). We begin by recounting, in some detail, the evidence that was adduced at petitioner's criminal trial as it is relevant to his post-conviction claims.
Kanewa and Smith lived together in a duplex in Springfield. Kanewa testified that, on November 13, 2002, at approximately 11:00 a.m., their doorbell rang. When she opened the door, two men were outside. One man had a moustache, and Kanewa later identified him as petitioner. The other man, later identified as Davis, pushed Kanewa inside, and both men entered. Davis held a gun to Kanewa's head and demanded that she tell him where she kept her money, jewelry, guns, and drugs.
[252 Or.App. 467]Smith, who was upstairs, heard the robbers enter the house. She retrieved a handgun and came down the stairs, pointing it at Davis. Davis knocked her down and took the gun from her. Petitioner bound Kanewa and Smith with duct tape and ordered them into the kitchen, where he kept watch while Davis ransacked the garage. Then petitioner ordered them into the bathroom, closed the door, and used something to block it closed. After the robbers left, the victims were able to get out of the bathroom. They discovered that jewelry, electronics, two DeWalt drills, cash, and personal identification were missing.
Kanewa and Smith reported the robbery to the police. That afternoon, Kanewa went to the police station and picked Davis out of a photo lineup. The next day, she picked petitioner out of another photo lineup. Smith testified that she could not say for certain that petitioner was one of the robbers, but she noticed that the second robber was about the same size as petitioner, had blond hair and a moustache, and tried to cover his face during the robbery.
The state also called Kramer, the victims' neighbor, who testified that he saw two men wearing hats loitering near his property around 10:30 a.m. on the day of the robbery. Just before noon he saw the men come out of the duplex carrying “a bunch of stuff,” which they put into a black import sedan. Then they got into the car and drove off quickly. One or both of the men had facial hair, and petitioner's appearance was consistent with that of one of the men he saw.
A friend of Davis's, Nestor, testified that, about two weeks before the robbery, she and her partner had given Davis permission to park his trailer on their property and live there temporarily. While he was living there, Davis had occasionally used Nestor's car, a black Nissan Stanza sedan. On the morning of the robbery, Nestor came out of the house around 10:30 a.m., intending to
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leave in the car. Her car was not there, but she noticed an older-model black Corvette parked at Davis's trailer. No one was in the trailer. She called Davis twice, but he did not answer. She called him again around 11:00 a.m., and he told her that he could not return her car right away.
[252 Or.App. 468]At 12:10 p.m., Nestor noticed that her car was back. The Corvette was still parked at Davis's trailer. She went to the trailer to express her anger that Davis had taken her car. Davis and a blond man with a moustache, whom she later identified as petitioner, were in the trailer, sorting through a large amount of jewelry.
After Davis was arrested, Nestor saw Owcarz, a friend of Davis's, going through Davis's things at the trailer. She described the man that she had seen with Davis to Owcarz and, based on her description of the man and the Corvette, Owcarz told her that the man was Jody. (Jody is a nickname that petitioner uses.)
Desler, a delivery driver, testified that, on the day of the robbery, he saw a black Nissan Stanza park at a convenience store across the street from he victims' home. Two men wearing fedora hats and sunglasses got out and “walked briskly across the street.”
Owcarz testified that he had met petitioner a few times and that petitioner always had a moustache. On the afternoon of the robbery, Owcarz went to Davis's trailer. He saw the jewelry and Davis described the robbery to him. Davis did not say who the other robber was, but Nestor later told him that petitioner was the other robber.
On the evening of the robbery, Davis wanted Owcarz to drive him around town, but Owcarz did not want to be involved. He called the police and arranged to be pulled over with Davis in the car so that the police could arrest Davis. The arrest took place as planned, and Davis had Smith's credit cards and identification cards with him when he was arrested.
Coble, a former roommate of Davis's, testified that he had recently bought a television and two computers from Kanewa. He also testified that, after visiting the victims' home, he told several friends, including petitioner—but not Davis—about “an opportunity for a guy to buy some things at a reasonably cheap price” from the victims. According to Coble, there was “bad blood” between petitioner and Davis arising from a disagreement about a robbery in Junction City. The victim of that robbery was the new boyfriend of [252 Or.App. 469]petitioner's ex-girlfriend, and Coble testified that he had heard that petitioner had asked Davis to commit it.
The state called Davis as a witness, and he invoked his Fifth Amendment right to remain silent. Then Myers, the lead detective on the case, testified about a confession Davis had made to him. Among other things, Davis had said that Coble had told him about the victims and how easy it would be to rob them. He also said that, in payment for the tip, Davis had given Coble a gun and a video camera. At first, Davis refused to identify the second robber. However, Davis eventually admitted to another detective, Lewis, that petitioner was his accomplice.
After Kanewa identified petitioner in the photo lineup, the detectives looked for petitioner at his sister's house in Eugene. They found the Corvette there and learned from a neighbor that petitioner was inside. Myers knocked on the door several times and then called petitioner's sister's home phone and left several messages on the answering machine. After 30 to 40 minutes, petitioner answered the door. He had no moustache. His face was red and it appeared that he had just shaved. The state introduced several photographs of petitioner taken over the previous eight years; in all of them, petitioner had a moustache. While the detectives were taking petitioner to the police station, petitioner told Lewis that he had shaved his moustache “a while ago.”
Myers also testified that he had been present in court when Davis pleaded guilty to the charges arising from the robbery, and Davis said that he had committed the crime with petitioner. Lewis also testified about Davis's statement that petitioner was the other robber.
Sullivan, a waitress who was acquainted with petitioner, testified that, on the evening of the robbery, petitioner came into the restaurant
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where she worked. He showed her a large stack of bills in his wallet.
Dowty, one of petitioner's friends, testified that, on the evening of the robbery, petitioner left some things, including a DeWalt drill, a knife, and a gun, at her house. Dowty's roommate, Russell, also testified. She heard petitioner tell Dowty that he had “tubs” of gold jewelry and that [252 Or.App. 470]she could have some of it. Dowty later told Russell that petitioner had left the drill and the gun at their house on the night of the robbery.
Kanewa testified again and explained that the robbers took $2,000 in a variety of bills from her bedroom. Also, she never recovered a DeWalt drill that was taken during the robbery.
Petitioner raised an alibi defense. Petitioner's girlfriend, Steinmetz, testified that, on the day of the robbery, she dropped her son off at kindergarten at 11:05 a.m. Then she called petitioner, who promptly came to her house in Eugene and was in bed with her until 12:45 p.m. That evening around 5:00 p.m., petitioner spoke with her for about 25 minutes at the bar where she worked. Steinmetz had never seen petitioner without a moustache in the 13 years that...
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