Hale v. Belleque

• Decision Date: 20 March 2013
• Docket Number: 04C13562,A143075.
• Citation: 255 Or.App. 653,298 P.3d 596
• Parties: Conan Wayne HALE, Petitioner–Appellant, v. Brian BELLEQUE, Superintendent, Oregon State Penitentiary, Defendant–Respondent.
• Court: Oregon Court of Appeals

255 Or.App. 653

298 P.3d 596

Conan Wayne HALE, Petitioner–Appellant,

v.Brian BELLEQUE, Superintendent, Oregon State Penitentiary, Defendant–Respondent.

04C13562; A143075.

Court of Appeals of Oregon.

Argued and Submitted July 9, 2012.

Decided March 20, 2013.

Daniel J. Casey argued the cause and filed the opening and reply briefs for petitioner. Conan Wayne Hale filed the supplemental brief pro se.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, Pamela J. Walsh, Assistant Attorney General, and Joanna L. Jenkins, Assistant Attorney General.

Before WOLLHEIM, Presiding Judge, and HASELTON, Chief Judge, and NAKAMOTO, Judge.

WOLLHEIM, P.J.

In 1998, petitioner was convicted of 13 counts of aggravated murder and sentenced to death for the murders of three victims committed in 1995. Defendant was also convicted of a number of other offenses, including burglary, theft, criminal mischief, kidnapping, rape, sodomy, unlawful sexual penetration, and sexual abuse. On direct review, the Supreme Court reversed six of the 13 aggravated murder convictions and affirmed seven of the convictions and the death sentences and remanded for resentencing. The court remanded the seven affirmed convictions for entry of corrected judgments reflecting three convictions for aggravated murder and imposing a single sentence of death for each conviction. State v. Hale, 335 Or. 612, 75 P.3d 448 (2003), cert. den.,541 U.S. 942, 124 S.Ct. 1667, 158 L.Ed.2d 366 (2004). In this post-conviction proceeding, petitioner sought to have the remaining seven convictions for aggravated murder and his other convictions set aside due to constitutionally inadequate and ineffective assistance of counsel during the guilt and penalty phases of his trial and on appeal, and he also raised independent constitutional arguments challenging the death sentences. The post-conviction trial court rejected petitioner's post-conviction claims. For the reasons explained herein, we reverse and remand two burglary convictions and otherwise affirm.

I. THE UNDERLYING CRIMES

We begin with the facts of the underlying crimes, as described by the Supreme Court on direct review:

“In late 1995, defendant, then 19, and his friend, Jon Susbauer, then in his early twenties, began committing a series of burglaries and robberies in the Eugene area. As pertinent here, on December 14, 1995, defendant and Susbauer broke into a woman's home, stole several thousand dollars worth of her property, and slashed a couch and a stereo speaker with a knife before leaving.

“At around midnight on December 16, 1995, defendant and Susbauer drove up beside a car parked on an isolated road in a remote wooded area in Eugene. The men were in a silver Chevrolet Suburban that Susbauer had stolen a few weeks earlier. Two teenagers, Kara Krause and Jesse Jarvis, were in the parked car. The person on the passenger side of the Suburban got out, approached the parked car, and knocked on the window. He told the couple that they were on his property but that they could stay. He then returned to the Suburban and Jarvis heard laughter. The Suburban drove off.

“A few minutes later, Jarvis heard a man yelling. Jarvis got out of the parked car to investigate and, he later testified, a man ‘jumped out of nowhere.’ The man was large and stocky. He was dressed in dark clothing and wore a long coat. His head and face were covered with some kind of mask or scarf; only his eyes were visible. He carried something that looked like a machete and was swinging it like a sword. He spoke in a low rough growl and threatened Jarvis with the machete. He ordered Krause out of the car and told them both to take off their clothes and shoes. When they had complied, the man threw the couple's car keys, clothes, and shoes into the woods. The man forced Jarvis to lie on the ground and Krause to lie across the hood of the car. He threatened Krause with the blade of the machete and sexually assaulted her.

“Jarvis later told police that he thought that the person who claimed to be the ‘property owner’ and the rapist were different people. Weeks later, at two police lineups, Jarvis identified Susbauer as the ‘property owner’ and defendant possibly as the rapist. Krause was not able to identify the rapist when shown the same lineups.

“On December 19, 1995, defendant and Susbauer broke into another house and again stole thousands of dollars worth of property including, among other things, a rabbit-fur jacket, a .38 caliber Taurus revolver with wooden grips, and 25 rounds of ammunition for the revolver. Before they left, they again slashed the furniture with a knife.

“Late in the evening on December 20, defendant and Susbauer were riding around in the stolen Suburban. Susbauer was driving. They saw defendant's former girlfriend, Kristal Bendele, 15, her current boyfriend, Brandon Williams, 15, and two other young people, Patrick Finley, 13, and Michael Black, 15. Defendant and Susbauer drove toward them and parked the Suburban. Defendant got out of the Suburban. He was wearing a black trench coat and jeans. Defendant offered the teenagers a ride, which Bendele, Williams and Finley accepted. Black declined. As Black walked away, he saw the Suburban slowly drive off in a different direction.

“The next afternoon, December 21, 1995, two men found the nude bodies of Williams and Bendele at a logging landing on McGowan Creek. Bendele had been shot twice, once in the back and once in the left temple. Williams had been shot five times; three shots were to the head and face, one to the chest, and one to the back. Finley, barely alive, also was lying nearby. He, too, had been shot twice, once in the head and once in the shoulder. Among other things, he was wearing the rabbit-fur jacket that defendant and Susbauer had stolen in the earlier burglary. Finley died four days later without ever regaining consciousness.

“Police visited Susbauer at his home on December 24, 1995, and seized the .38 caliber Taurus revolver stolen during the December 19 burglary. On December 26, police searched defendant's bedroom. There, they seized a black trench coat and a machete.

“The Taurus revolver later was proved to be the murder weapon; all the bullets recovered at the scene and from the bodies of the victims had been fired from that gun. Testing of the grip of the revolver revealed a mixture of DNA patterns, the most predominant of which matched that of Bendele. Semen obtained from Bendele's mouth, vagina, and anus was identified as Susbauer's. Semen on Bendele's shirt and on the rabbit-fur jacket that Finley was wearing was identified as defendant's.

“Defendant and Susbauer both were charged with aggravated murder and various other crimes in the murders of Bendele, Williams, and Finley, in the assault on Jarvis and Krause, and in the December 14 and December 19 burglaries. Susbauer agreed to cooperate and pleaded guilty to, among other things, three counts of aggravated murder. Thereafter, the district attorney decided to seek the death penalty only against defendant.

“At the ensuing trial, defendant's theory was that Susbauer was the rapist and killer and that he, defendant, merely was in the wrong place at the wrong time. Susbauer's story was the opposite: Defendant was the director of the abuse and murderer of all the victims; Susbauer was a secondary—and, in part, unwilling—accomplice. The jury rejected defendant's theory and convicted him of 13 counts of aggravated murder and multiple noncapital crimes arising out of the burglaries and the attack on Krause and Jarvis.

“Defendant was sentenced on the noncapital crimes at the conclusion of the guilt-phase trial. The trial court then conducted a penalty-phase trial on the aggravated murder convictions. In that proceeding, the jury determined that defendant had acted deliberately in committing the murders, that he posed a continuing risk to society, and that he should receive a death sentence. The trial judge then entered a sentence of death.”

Hale, 335 Or. at 614–17, 75 P.3d 448 (footnote omitted).

II. THE POST–CONVICTION CASE AND APPLICABLE LAW

Petitioner's petition for post-conviction relief alleged 17 claims, and included claims of inadequacy of trial counsel during both the guilt and penalty phases of trial ¹ and inadequacy of appellate counsel. Petitioner also raised several stand-alone claims challenging the constitutionality and imposition of the death penalty.

A petitioner is entitled to raise on post-conviction relief only those issues that he could not reasonably have raised on direct appeal. SeeORS 138.550(2) (post-conviction relief available only if ground for relief “was not asserted and could not reasonably have been asserted in the direct appellate review proceeding”); Palmer v. State of Oregon, 318 Or. 352, 354, 867 P.2d 1368 (1994) (holding that a post-conviction petitioner may not assert, as a ground for relief, any issue “that was not raised at trial in the underlying criminal proceeding, when the petitioner reasonably could have been expected to raise that issue in the trial court and when the petitioner does not assert the failure to raise that issue constituted inadequate assistance of trial counsel.”). Palmer identifies a number of examples: A post-conviction court can consider arguments not made at trial where counsel was incompetent or guilty of bad faith, where the right subsequently sought to be asserted was not generally recognized to be in existence at the time of trial; where counsel was excusably unaware of facts which would have disclosed a basis for the assertion of the right; and where duress or coercion prevented assertion of the right. 318 Or. at 357–58, 867 P.2d 1368.

To prevail on his claims regarding the effectiveness of counsel under Article I, section 11, of the Oregon Constitution, petitioner was required to prove, by a preponderance of the...