Johnson v. Taylor, A156818.
| Decision Date | 23 August 2017 |
| Docket Number | A156818. |
| Citation | 403 P.3d 427,287 Or.App. 424 |
| Parties | Geddy Lee JOHNSON, Petitioner-Appellant, v. Jeri TAYLOR, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
Jon H. Weiner, Portland, argued the cause and filed the brief for appellant.
Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were Frederick M. Boss, Deputy Attorney General, and Anna M. Joyce, Solicitor General.
Before DeVore, Presiding Judge, and Garrett, Judge, and Flynn, Judge pro tempore.
FLYNN, J. pro temporePetitioner seeks post-conviction relief (PCR) from multiple convictions that arose out of two incidents of domestic violence against his girlfriend. He urges us to conclude that the PCR court erred by denying relief on two of his claims for inadequate assistance of counsel: (1) defense counsel's failure to introduce the content of email messages that the victim and petitioner exchanged that, petitioner contends, would have impeached the victim and demonstrated her "bias and motive to lie," and (2) defense counsel's failure to contact petitioner until the night before trial. Petitioner also urges us to conclude that the PCR court erred when it refused to consider records from the disciplinary office of the Oregon State Bar, which petitioner offered as evidence that defense counsel was regularly failing to exercise reasonable professional skill and judgment during the time that he was representing petitioner.
We reverse and remand for the PCR court to consider whether defense counsel made a considered choice to not introduce the bias emails and, if not, whether the absence of a considered choice amounted to constitutionally inadequate assistance or demonstrates that petitioner proved prejudice from counsel's failure to contact him in the months before trial. Moreover, we conclude that the disciplinary records are relevant to those determinations and are not inadmissible character evidence.
Petitioner was arrested after his girlfriend called police in August 2009 to report that he had assaulted her. She later reported that petitioner had also assaulted her in January 2009. Based on those two incidents, petitioner was charged with multiple counts of assault constituting domestic violence, ORS 163.175 ; ORS 163.160, and one count of third-degree robbery, ORS 164.395.
At the criminal trial, petitioner's defense counsel argued to the jury that the victim had angrily forced a confrontation with petitioner in August, after he announced that he was leaving, and that she then fabricated both assaults. Petitioner testified that he had not assaulted the victim on either occasion. He testified that he had tried to stay away from the victim and that the incident in August arose after he had announced, "I'm tired of you and I want out of here." He also testified that the August argument was precipitated in part by petitioner's refusal to deliver marijuana illegally at the victim's request.
The victim acknowledged that, when she went to the hospital after the January assault, she had reported that she slipped and injured herself without petitioner's involvement. She testified that she had not contemporaneously reported the incident to the authorities because she was worried that her son might be taken away. She also testified that she changed her phone number shortly after the January assault and did not have regular contact with petitioner until June 2009, when they resumed their relationship.
On cross-examination, petitioner's counsel showed the victim a stack of emails that she had exchanged with petitioner between January and June 2009, and she admitted that she had continued to have regular email contact with petitioner during that time. She insisted, however, that "it was only email" contact. The victim also acknowledged that she had not mentioned the January assault in any of the emails to petitioner and that, in some of the emails, petitioner had told the victim that he wanted her to leave him alone.
The jury found defendant guilty on all counts and also found multiple aggravating factors, on the basis of which the trial court imposed enhanced sentences. After his conviction was affirmed on direct appeal, petitioner filed this post-conviction action.
As pertinent to the issues that he raises on appeal, petitioner alleged in his PCR petition that his defense counsel was inadequate and ineffective in failing "to introduce into evidence emails sent between petitioner and the alleged victim" that contradicted some of the victim's testimony and demonstrated bias and a motive to lie and in failing "to contact petitioner for approximately four months immediately preceding trial."
In support of his allegation that defense counsel was inadequate in failing to introduce the emails, petitioner offered emails to show the information that he asserted counsel should have used at trial. They show that, during an exchange of emails in May 2009, petitioner and the victim made offensive slurs against one another and the victim made threats, including that she would "fuck the rest of [petitioner's] life up" and make him regret having met her. Defense counsel used the emails to impeach the victim's statement that she had not been in contact with petitioner from January to June 2009. However, counsel did not use the email evidence to show the victim's threats against petitioner. Neither petitioner nor the state1 provided an affidavit from petitioner's defense counsel to explain why he did not introduce the content of the emails. The PCR court concluded that petitioner failed to prove that defense counsel performed inadequately with respect to his failure to introduce the emails.
In support of his allegation that defense counsel was inadequate in failing to contact petitioner prior to trial, petitioner submitted a declaration that he had made multiple attempts to contact his defense counsel by mail and telephone but that counsel met with him only twice: at arraignment and, four months later, at 9:00 p.m. the night before trial. The PCR court stated: "That is clearly not what any court would expect of a defense attorney[.]" However, the court concluded that petitioner failed to establish prejudice from counsel's unreasonable performance.
Finally, in support of his allegations generally, petitioner offered evidence that, approximately two weeks before petitioner's criminal trial began, the Oregon State Bar (the Bar) had filed a disciplinary complaint against defense counsel for neglecting an extensive list of clients and client matters and had filed a petition for counsel's immediate suspension. The evidence also showed that less than two weeks after petitioner's criminal trial, the Bar sought and obtained an order of default based on defense counsel's failure to respond to the formal complaint and then, several months later, it obtained an order permanently disbarring petitioner's defense counsel. The PCR court ruled that the Bar records were inadmissible.2
A petitioner is entitled to post-conviction relief when there has been a "substantial denial" of a federal or state constitutional right, "which denial rendered the conviction void." ORS 138.530(1)(a). Article I, section 11, of the Oregon Constitution, guarantees a criminal defendant "adequate performance by counsel concerning the functions of professional assistance which an accused person relies upon counsel to perform on his behalf."3 Montez v. Czerniak , 355 Or. 1, 6, 322 P.3d 487, adh'd to as modified on recons. , 355 Or. 598, 330 P.3d 595 (2014) (internal quotation marks omitted).
Our analysis of whether the PCR court erroneously denied relief on a claim of inadequate assistance under the Oregon Constitution ordinarily involves two inquiries:
" "
Montez , 355 Or. at 7, 322 P.3d 487 (quoting Lichau v. Baldwin , 333 Or. 350, 359, 39 P.3d 851 (2002) (internal citations omitted)). We are bound by the PCR court's findings of fact that are supported by evidence in the record. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015).
With respect to the performance element of a PCR claim, we review as a matter of law whether the facts proved by petitioner demonstrate that defense counsel failed to exercise reasonable professional skill and judgment. Cartrette v. Nooth , 284 Or.App. 834, 841, 395 P.3d 627 (2017) (citing Pereida-Alba v. Coursey , 356 Or. 654, 663, 342 P.3d 70 (2015) ). With respect to whether defense counsel's failure may have had a tendency to affect the outcome, if the petitioner was convicted after a jury trial, "the tendency to affect the outcome standard demands more than mere possibility, but less than probability." Green , 357 Or. at 322, 350 P.3d 188. In such cases, "the issue is whether trial counsel's acts or omissions ‘could have tended to affect ’ the outcome of the case." Id. at 323, 350 P.3d 188 (quoting Lichau , 333 Or. at 365, 39 P.3d 851 (emphasis in Green )).
We begin by considering petitioner's claim that defense counsel provided inadequate assistance because he failed to introduce the email content. Petitioner acknowledges that his defense counsel "did manage to use the content of the emails to elicit helpful admissions from the victim at trial." He contends, however, that his defense counsel was inadequate in failing "to take the next obvious step of introducing the emails into evidence to allow the jury to examine the emails during deliberations." According to petitioner, the...
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...been a ‘substantial denial’ of a federal or state constitutional right, ‘which rendered the conviction void.’ " Johnson v. Taylor , 287 Or. App. 424, 429, 403 P.3d 427 (2017) (quoting ORS 138.530(1)(a) ). Both the Oregon and United States constitutions guarantee the right to "adequate perfo......
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