Farmer v. Premo

• Decision Date: 23 February 2017
• Docket Number: A152447
• Citation: 390 P.3d 1054,283 Or.App. 731
• Parties: Dante R'Marcus FARMER, Petitioner-Respondent, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Appellant.
• Court: Oregon Court of Appeals

283 Or.App. 731
390 P.3d 1054

Dante R'Marcus FARMER, Petitioner-Respondent,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Appellant.

A152447

Court of Appeals of Oregon, En Banc.

Argued and submitted October 28, 2014;
resubmitted en banc December 21, 2016.
February 23, 2017

Paul L. Smith, Assistant Attorney General, argued the cause for appellant. On the brief were Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, David B. Thompson, Assistant Attorney General, and Rebecca M. Johansen, Assistant Attorney General.

Hari Nam S. Khalsa filed the brief for respondent.

Before Hadlock, Chief Judge, and Armstrong, Ortega, Sercombe, Egan, DeVore, Tookey, Garrett, Flynn, DeHoog, and Shorr, Judges.

HADLOCK, C.J.

283 Or.App. 733

In this post-conviction relief case, the state¹ appeals from a judgment granting petitioner relief on a number of his claims, and remanding the case for a new trial. The state assigns error to the post-conviction court's rulings on those claims, arguing that petitioner failed to establish, as a matter of law, that he was entitled to relief on any of them. We conclude that the post-conviction court did

390 P.3d 1057

err in its legal analysis of each of the claims on which it granted relief, and we accordingly reverse the portion of the judgment granting post-conviction relief and remanding for a new trial.

In his fourth amended petition (the petition), petitioner alleged claims of inadequate assistance of counsel, claims of direct due process violations, and a claim of prosecutorial misconduct. The post-conviction court granted relief on the basis that petitioner received inadequate assistance of counsel on the following grounds: Trial counsel failed to present a defense expert's bullet-comparison opinion at trial. Trial and appellate counsel failed to argue that certain evidence was not hearsay. Trial counsel failed to move for a continuance of a new-trial hearing and to present testimony from a witness at that hearing. Trial counsel failed to make certain objections to prosecution evidence at the new-trial hearing. Trial counsel failed to make certain constitutional objections to the new-trial hearing procedures. The post-conviction court denied relief on all other claims in the petition.

I. HISTORICAL AND PROCEDURAL FACTS AND LEGAL FRAMEWORK

To provide a general context for the issues on appeal, we set out here the background facts relating to the claims on which the post-conviction court granted relief, as well as

283 Or.App. 734

an overview of the applicable legal framework. We state the facts as the post-conviction court found them, supplemented with undisputed facts from the record.² In the analysis of each assignment of error, we set out additional facts, explanation, and legal principles as necessary and pertinent to resolution of the issues under consideration.

A. Petitioner's Criminal Trial and the Defense Strategy

A jury convicted petitioner of murdering the victim, Monterroso. Monterroso was killed by a single gunshot to the chest. State v. Farmer , 210 Or.App. 625, 627, 152 P.3d 904, rev. den. , 342 Or. 645, 158 P.3d 508 (2007). Police arrested petitioner after his then-girlfriend, Jennifer, and her parents, Perkins and Garvin, reported to police that petitioner told them he had shot the victim. Id . at 635-37, 152 P.3d 904.

At petitioner's criminal trial, there was evidence that, on the night of the shooting, petitioner had arrived at Jennifer and Perkins's home "looking scared and ‘spooked, like he [had] seen a ghost.’ " Id . at 635, 152 P.3d 904 (brackets in original). Initially he told them that he had seen " ‘his home boy get shot,’ and that he was only a few feet away when the shooter's car drove up." Id . Jennifer testified that petitioner told her later the same night "that he had just killed someone and threatened to kill her if she ever told anyone." She also said that he told her the next night, perhaps, "that he had been threatened and that he had to kill the victim before the victim killed him." Id .

Perkins testified that, about a week and a half after the shooting, petitioner had asked if he could tell her and Garvin something, and that he had confessed to the shooting, saying that it was "over a ‘weed deal * * * that went bad.’ " Id. at 635-36, 152 P.3d 904 (omission in original). She was shocked, did not think his story made sense, and told him as much.

Garvin was there because he was concerned about a previous incident of violence by petitioner against Jennifer,

283 Or.App. 735

and intended to tell petitioner that he " ‘had to go.’ " He "testified that [petitioner had] appeared very upset and said that ‘it was either him or the other guy.’ " Id . at 636, 152 P.3d 904. Garvin testified that petitioner "described the killing, saying that he walked up to the victim, who did not see him coming, and shot the victim once with a .357 that [petitioner] had gotten from a friend." Id . Garvin also testified that petitioner told him that he put the gun to the victim's head, and that it " ‘just

390 P.3d 1058

went off.’ " Id . Garvin asked what petitioner "was wearing at the time, and petitioner said that he was wearing a reversible blue/black coat." Id .

Neither Perkins nor Garvin initially believed petitioner. Perkins initially believed that petitioner was " ‘puffing’ because he feared Garvin and he was trying to avoid being excluded" from Perkins's home. Id. Garvin similarly believed that the story was "just ‘talk’ " aimed at keeping Garvin from "kicking him out," but "out of concern for his daughter," he "also wanted to investigate the story." Id .

The next day, angry about seeing petitioner and Jennifer together, Garvin called the police and spoke with Detective Renna, the lead detective investigating Monterroso's murder. Garvin told Renna that petitioner " ‘walked up on the guy and blew him away.’ " Id . At some point after that report, petitioner "confronted Garvin about ‘ratting him out,’ " and after that confrontation, Garvin " ‘look[ed] at it in a different light, yes. He was pretty nervous and real up-tight. So at that point I saw that this was going somewhere.’ " Id .

Petitioner's descriptions of the murder as recounted by Jennifer, Perkins, and Garvin in some ways did not match other evidence—Monterroso was not shot in the head, the gun was no closer than 6 inches from Monterroso's chest, and no one else described a car being involved in the murder.

In addition to those confessions, the prosecution presented evidence from two other witnesses who linked petitioner to the murder. One of those witnesses, Feliu, identified petitioner on the night of the murder as a person who had been looking for Monterroso about an hour before the shooting. Feliu had attended middle school with petitioner

283 Or.App. 736

and had seen him around the neighborhood a few times since then, and she recognized petitioner " ‘the second [she saw] him.’ " Id . at 628, 152 P.3d 904 (brackets in original). On the night of the murder, she gave police a description and petitioner's first name, " ‘Dontae.’ "³ Id. Two days later, she identified petitioner in a police photo line-up. Id . at 633, 152 P.3d 904.

The other witness, Muldrew, had been next to Monterroso when he was shot. He testified that he saw petitioner shoot Monterroso with a .357 revolver. Id . at 629, 152 P.3d 904. Muldrew provided a description of the shooter to police on the night of the shooting, but "[a]lthough Muldrew had seen [petitioner] a couple of times previously and knew who [petitioner] was (though only by a nickname), he did not identify [petitioner] as the perpetrator at that time." Id . at 633, 152 P.3d 904. Four days after the murder, "[i]dentifying [petitioner] by his nickname, Muldrew told Feliu that [petitioner] had killed Monterroso." Id . About two weeks later, he identified petitioner in a police photo line-up. Id .

On the night of the murder, Muldrew described the shooter to police as "about 5' 9? or 5' 10?, 16 to 19 years old, skinny, with a mustache and a goatee." Id. at 632, 152 P.3d 904. He also told police that the shooter "was wearing a dark, puffy coat" that had writing on it and "black sweatpants with a white stripe down the side." Id. That night, Feliu also described to police the man she recognized as "Dontae," who had been looking for Monterroso earlier, as "a black male, 18 years old, medium-dark complected, 5' 9? or 5' 10?, with light facial hair, and wearing a blue coat with a hood and a horizontal stripe." Id . at 633, 152 P.3d 904.

Muldrew called 9-1-1 immediately after Monterroso was shot. Id . at 629, 152 P.3d 904. At about the same time that Muldrew called 9-1-1, a woman, later identified as Thompson, also called 9-1-1. Id . She initially was identified by only her first name, and was not located until after the trial was over. In the call, Thompson said she had witnessed the shooting and, among other things, she described the shooter and his companion as Hispanic. Id . She also described the...