Gorham v. Thompson

Decision Date18 October 2001
Citation34 P.3d 161,332 Or. 560
PartiesA. Kent GORHAM, Petitioner on Review, v. S. Frank THOMPSON, Superintendent, Oregon State Penitentiary, Respondent on Review.
CourtOregon Supreme Court

Marc D. Blackman, Ransom Blackman, Portland, argued the cause and filed the briefs for petitioner on review. With him on the briefs was Kendra M. Matthews.

Katherine H. Waldo, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent on review. With her on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, and RIGGS, Justices.2


In this post-conviction proceeding, petitioner contends that his convictions for sex abuse and rape must be set aside because he received inadequate assistance of trial counsel in violation of Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution.3 The post-conviction court held that, by not investigating experts regarding impeachment and credibility issues for petitioner's third trial before deciding not to use them, petitioner's trial counsel had not exercised reasonable professional skill and judgment. Nonetheless, that court denied relief on the ground that petitioner had not shown prejudice. The Court of Appeals affirmed. Gorham v. Thompson, 159 Or.App. 570, 978 P.2d 443 (1999). We allowed petitioner's petition for review and now affirm the decision of the Court of Appeals and the judgment of the post-conviction court on a different ground.

The relevant events giving rise to petitioner's post-conviction challenge in this proceeding are as follows. In 1991, a grand jury indicted petitioner on three counts of first-degree rape and three counts of first-degree sexual abuse against his daughter L,4 in 1989 and 1991, when she was five and seven years old. Petitioner was tried three times. The first trial, in July 1992, ended in a mistrial. Thereafter, petitioner retained Morrow, the lawyer whose conduct is at issue in this proceeding, to represent him at the second trial.

Petitioner's second trial began in October 1992. At that trial, Morrow cross-examined prosecution witnesses and presented defense witnesses to undermine the reliability of L's reports of petitioner's sexual acts. Morrow also offered the testimony of two expert witnesses, a physician, Dr. Moore, and a child psychiatrist, Dr. Boverman. The purpose of Moore's testimony was to challenge the physical examination methodology that a pediatrician, Dr. Young, had used when she had examined L's genitalia in 1990 and 1991, and had reported "nonspecific" findings of sexual abuse, based in part on "bumps" and "dips" in L's hymen. The purpose of Boverman's testimony was to establish that children of L's age are susceptible to suggestion, that inappropriate questioning can lead children to make false disclosures of sexual abuse, that the inconsistencies in L's accounts of what had occurred were the result of improper questioning and "contamination" through play therapy with a psychologist, Gregory-Mull, and that Gregory-Mull inappropriately had used anatomically correct dolls with L before L had made a clear disclosure of sexual abuse.

During its deliberations in the second trial, the jury informed the trial court that it had seen an exhibit that it did not believe had been introduced as evidence. The court had the exhibit removed, instructed the jury to disregard it, and told the jury to continue its deliberations. The jury convicted petitioner on all counts.

After the verdict, Morrow talked to one of the jurors. He learned that, before seeing the exhibit, five of the twelve jurors had voted to acquit petitioner. However, after seeing the exhibit, at least three of the five jurors who had voted to acquit changed their votes. Morrow also learned that, in the jury's view, the prosecution's cross-examination had discredited both Moore's and Boverman's testimony. Morrow then wrote a letter to petitioner explaining that the information that he had obtained from the juror meant that the trial court probably would grant a motion for mistrial, that petitioner had a chance of prevailing in a third trial, and that "[t]here are things we can do better next time." The trial court subsequently granted petitioner's motion for a mistrial.

Petitioner's third trial began in May 1993, approximately seven months after the second trial had begun. Before trial, Morrow learned that the prosecution's case at the third trial would be a replay of the second trial and that the prosecution would call the same witnesses. According to Morrow's affidavit in this proceeding, he decided that it would be "a better tactic at the third trial not to call expert witnesses, subjecting them to cross-examination by the prosecutor." The accused testified on his own behalf at the third trial, as he had previously. He denied having had any sexual contact with L. After hearing all the evidence, the jury returned guilty verdicts on all counts, and the Court of Appeals affirmed the convictions. State v. Gorham, 131 Or.App. 267, 884 P.2d 1230, rev den 320 Or. 493, 887 P.2d 794 (1994).

As noted, petitioner brought this post-conviction proceeding, alleging that he had received inadequate assistance of counsel at his third trial. See ORS 138.530(1)(a) (post-conviction relief available for substantial denial of rights under state and federal constitutions).5 To prevail on his claim of inadequate assistance of counsel, petitioner had to make two showings. First, petitioner had to demonstrate by a preponderance of the evidence that Morrow had failed to exercise reasonable professional skill and judgment. See Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991) (identifying two-pronged test for post-conviction relief). Second, even if Morrow had failed to exercise reasonable professional skill and judgment, petitioner had to demonstrate that that failure would have had a tendency to affect the result. Id.

As relevant to the issue on review in this proceeding, petitioner alleged that Morrow had failed to exercise reasonable professional skill and judgment in failing to present expert opinion evidence on credibility and impeachment matters. Petitioner submitted an affidavit from Dr. Bruck, a developmental psychologist, stating that, in Bruck's opinion, L's trial testimony

"* * * is characterized by so many poor investigative techniques as to render the reports unreliable. Their reports appear to be products of coercive and pressurized interview techniques conducted over a period of 18 months. As well there are a number of milder suggestive influences that could interact with these more coercive techniques to produce her testimony."

The petition also averred that a "behavior pediatrician," Dr. Sabin, would testify that the manner in which Young had conducted her examination and obtained L's medical history did not meet minimum professional standards, and that Young's interpretation of her findings conflicted with medically accepted standards.

At the post-conviction hearing, petitioner submitted Bruck's affidavit as well as the testimony of a defense lawyer, Matasar. Matasar expressed the opinion that, to provide adequate assistance of counsel, Morrow had to present expert testimony to the jury at petitioner's third trial, that it was unreasonable not to present such testimony, that there was no tactical reason not to present expert testimony if it were available, and that he, Matasar, had found no evidence that Morrow had investigated the use of expert witnesses at petitioner's third trial. Matasar expressed no opinion about Morrow's investigation and use of experts at petitioner's second trial.

Following the hearing, the post-conviction court found that Morrow had presented expert testimony from Moore and Boverman at petitioner's second trial; that Boverman had testified about circumstances that could create a risk that children would make false accusations of sexual abuse; that the prosecution had discredited both Moore and Boverman on cross-examination; that Morrow had chosen not to use expert witnesses in the third trial; and that Morrow instead had "extensively cross-examined the complaining witness and the prosecution's witnesses, including experts." Those findings are not contested. The post-conviction court then held:

"1. Trial counsel, in failing to investigate experts on the impeachment and credibility issues, failed to exercise reasonable professional skill and judgment in defending petitioner.
"2. Petitioner did not establish that the trial counsel's decision to rely on extensive cross-examination of the complaining witness and the prosecution witnesses had a tendency to affect the result of the prosecution.
"3. Trial counsel's omissions cannot be regarded as of a constitutional magnitude.
"4. In the underlying criminal proceedings resulting in petitioner's conviction, petitioner was not denied assistance of trial counsel as guaranteed by either the United States Constitution or the Constitution of the State of Oregon."

(Emphasis added.)

In a letter to counsel that clarified its findings and conclusions about Morrow's failure to investigate experts before deciding not to use them at petitioner's third trial, the post-conviction court explained:
"The credibility and the impeachment of the complaining witness issue was a major focus of defense counsel. * * * A decision not to pursue expert witnesses for possible impeachment of the child and to preclude cross examination by the District Attorney should logically be made after investigating what experts had to say on the subject. It does not seem that `a tactic' could be determined to be the `better' until the experts' input was known. The same rationale carries to defense counsel's decision to focus solely on cross

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