Hagberg v. Coursey

• Decision Date: 25 February 2015
• Docket Number: CV101331,A152066.
• Parties: Christopher HAGBERG, Petitioner–Appellant, v. Rick COURSEY, Superintendent, Eastern Oregon Correctional Institution, Defendant–Respondent.
• Court: Oregon Court of Appeals

269 Or.App. 377
344 P.3d 1118

Christopher HAGBERG, Petitioner–Appellant
v.
Rick COURSEY, Superintendent, Eastern Oregon Correctional Institution, Defendant–Respondent.

CV101331
A152066.

Court of Appeals of Oregon.

Argued and Submitted Dec. 19, 2014.
Decided Feb. 25, 2015.

344 P.3d 1119

Michael R. Levine, Portland, argued the cause for appellant. With him on the briefs was Matthew G. McHenry.

Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.

Opinion

GARRETT, J.

269 Or.App. 379

In this post-conviction case, petitioner argues that he was deprived of adequate assistance of counsel in his underlying prosecution for rape, sodomy, unlawful sexual penetration, and sexual abuse. The post-conviction court denied the petition, concluding that petitioner had failed to show that his trial counsel was deficient. On appeal, petitioner raises three assignments of error in which he contends that his trial attorney should have objected to (1) the admission of hearsay evidence, (2) the prosecutor's “vouching” for the victim's credibility, and (3) the trial court's imposition of consecutive sentences. We write to address only the first assignment of error, regarding the admission of hearsay testimony.¹ For the reasons set out below, we affirm the judgment of the post-conviction court.

Article I, section 11, of the Oregon Constitution provides criminal defendants with the right to adequate legal representation, a right that is violated when a defendant's trial counsel fails to “exercise reasonable professional skill and judgment” and the defendant is prejudiced as a result. Kincek v. Hall, 217 Or.App. 227, 235, 175 P.3d 496 (2007). In a post-conviction proceeding, a petitioner has the burden of proving such a violation by a preponderance of the evidence. Id. A similar standard for effective assistance of counsel applies to claims brought under the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We review post-conviction proceedings for legal error, Chew v. State of Oregon, 121 Or.App. 474, 476, 855 P.2d 1120, rev. den., 318 Or. 24, 862 P.2d 1304 (1993), and accept a post-conviction court's factual findings if there is evidence to support them. Brock v. Wright, 98 Or.App. 323, 326, 778 P.2d 999 (1989).

Petitioner was convicted in 2005 of two counts of first-degree rape, ORS 163.375 ; three counts of first-degree sodomy, ORS 163.405 ; one count of first-degree unlawful

269 Or.App. 380

sexual penetration, ORS 163.411 ; and two counts of first-degree sexual abuse, ORS 163.427.² The victim, M, was the daughter of petitioner's girlfriend and was eight-years old at the time of trial.

Approximately one month before trial, the prosecutor sent petitioner's trial counsel a notice pursuant to OEC 803(18a)(b). The letter stated, in relevant part, “I am providing you notice of the state's intent to introduce statements of the victim in the above entitled case at trial pursuant to [OEC 803(18a)(b) ]. These statements have been previously provided to you via discovery.” The letter did not include any detail about the statements that the state intended to introduce. At trial, the state introduced a DVD recording of M's interview at a child advocacy center. The recording contained several statements in which M described various acts by petitioner. Petitioner's attorney did not object to the admission of the DVD, which was played for the jury. In addition to the DVD, the state presented testimony

344 P.3d 1120

from M's older sister, A, in which A described several statements that M had made to A about what petitioner had done to M. Petitioner's attorney did not object to that testimony on hearsay or other grounds.

In his post-conviction petition, petitioner alleged that his counsel should have objected to the foregoing hearsay evidence on the ground that the state failed to give sufficient notice of its intent to use that evidence under OEC 803(18a)(b). That rule provides, in relevant part:

“A statement made by a person concerning an act of [sexual] abuse * * * is not excluded [by the hearsay rule] if the declarant either testifies at the proceeding and is subject to cross-examination, or is unavailable as a witness but was chronologically or mentally under 12 years of age when the statement was made * * *. * * * No statement may be admitted under this paragraph unless the proponent of the

269 Or.App. 381

statement makes known to the adverse party the proponent's intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown.”

Petitioner's theory is that, although the state did provide a notice under OEC 803(18a)(b), that notice was inadequate because it failed to identify “the particulars” of the statements that the state planned to introduce. Thus, according to petitioner, if his counsel had made the appropriate objection, the trial court would have been required to exclude the evidence; furthermore, because that evidence was central to the state's case, its erroneous admission was prejudicial to petitioner.

In the post-conviction proceeding, the state presented deposition testimony from petitioner's trial counsel, Diment, explaining why he did not make the objection. Diment testified that, at the time, he did not need any additional information from the state because, under the circumstances of the case, it was clear what hearsay evidence the state planned to introduce. Diment also testified that he had made motions in other cases for more particularity under OEC 803(18a)(b) and that those motions had been unsuccessful; Diment believed that a motion would similarly have failed in this case.

Petitioner presented evidence from an expert witness, Reese, a criminal defense lawyer, who testified that by the time of petitioner's trial, compliance with OEC 803(18a)(b) was a subject of discussion within the criminal defense bar, and that defense lawyers were making motions pursuant to that rule in other cases.

In ruling against petitioner, the post-conviction court made the following findings:

“Attorney [Diment] testifies that notice in this case [was] within the local practice. He knows this judge and knew he hadn't ever won this motion. He also testifies that he was not surprised by the testimony at trial, had prepared his case knowing it would come in. An objection would have been form over substance. If it were going to be raised, any trial judge would expect it to be raised pretrial, not when the evidence is offered. If [the] court had

269 Or.App. 382

looked at any remedy other than exclusion (and that is the likely response), att[orney] would have had to admit that he didn't need more time to prepare to defend against it, that he was ready to go. The purpose of the notice had been served, even if the letter wasn't. Did not result in an unfair trial and did not [result in] prejudice [to] the pet[itioner] since this court feels strongly that it would have been denied. (This case was tried before the 2011 Chase case.)”

As indicated in the post-conviction court's findings, the scope of the requirement under OEC 803(18a)(b) was addressed by this court in State v. Chase, 240 Or.App. 541, 248 P.3d 432 (2011). The holding in Chase, as explained below, is consistent with petitioner's interpretation of what OEC 803(18a)(b) requires. Petitioner's trial, however, occurred six years earlier, in 2005. Thus, to succeed on his claim that his counsel acted unreasonably, petitioner cannot merely argue that his counsel could have made a winning argument under Chase. Petitioner must show that, based on the law as it existed at the time of his trial, any reasonably competent defense attorney would have made the argument that was ultimately deemed meritorious in Chase.

344 P.3d 1121

See Mesta v. Franke, 261 Or.App. 759, 782–83, 322 P.3d 1136 (2014) (“Although it is tempting * * * to say that competent...