Kincek v. Hall

• Decision Date: 26 December 2007
• Docket Number: CV060391.,A133859.
• Parties: Marian KINCEK, Petitioner-Respondent, v. Guy HALL, Superintendent, Two Rivers Correctional Institution, Defendant-Appellant.
• Court: Oregon Court of Appeals

175 P.3d 496

217 Or. App. 227

Marian KINCEK, Petitioner-Respondent, v. Guy HALL, Superintendent, Two Rivers Correctional Institution, Defendant-Appellant.

CV060391.

A133859.

Court of Appeals of Oregon.

Argued and Submitted August 5, 2007.

Decided December 26, 2007.

Carolyn Alexander, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Andy Simrin, Salem, argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

LANDAU, P.J.

Petitioner was convicted of attempted murder, assault, and unlawful use of a weapon, arising out of an incident in which he shot his wife. We affirmed petitioner's convictions without opinion in State v. Kincek, 197 Or.App. 494, 108 P.3d 118 (2005). Petitioner filed a petition for post-conviction relief, asserting that his trial counsel was constitutionally inadequate in failing to call as a witness a psychologist who would have testified about petitioner's mental state at the time of the offenses. The court granted the petition for post-conviction relief. The state now appeals, asserting that the post-conviction court erred in ordering post-conviction relief. The state contends that, although petitioner's trial counsel may have been inadequate, petitioner did not demonstrate that the inadequacy prejudiced his defense. We affirm.

In the underlying criminal trial, the evidence showed that petitioner and the victim, his wife, had recently separated after 25 years of marriage. Petitioner had suspected her of infidelity with a man named Gordon and had even placed a recording device in the bedroom in an effort to capture conversations between the victim and her suspected lover. He threatened to kill the victim and himself before he would be divorced from her.

One evening, petitioner entered the bedroom of the house where the victim was living and found her lying on the bed, engaging in sexual activity while talking on the telephone to Gordon. The recording device that petitioner had previously placed in the bedroom recorded the incident. At the time, petitioner either had a gun with him or picked up a gun that was kept in the bedroom, held the gun to the victim's head, and threatened several times to kill her. He said that, "if he couldn't have her, no one could." Petitioner also told the victim that he had to kill her and that, "if I kill you and then kill myself, we can hold hands and go to heaven together." After a struggle in the bedroom, matters calmed down, and the two moved into the hallway. There, the victim told petitioner that she did not love him, that she was in love with Gordon, and that she wanted a divorce; petitioner then shot the victim in the ankle. Petitioner was arrested. A detective on the scene later recalled that petitioner told him that, at least "for a period of time" during the event, petitioner had intended to kill the victim and himself.

Petitioner admitted that, when he first encountered the victim in the bedroom, he jumped on top of her with the gun in his hand, grabbed her, pushed her, and held her down with his left hand. He admitted that he told the victim that he was going to kill both her and himself and told her, "Let's go to heaven together." Petitioner testified, however, that he held the gun to his own head and threatened to shoot himself, but did not point the gun at the victim's head, and he denied ever intending to hurt her. He testified that he shot the victim accidentally when he was attempting to put the gun in his pocket while the two of them were in the hallway.

Before trial, defense counsel had sought to introduce the expert testimony of Davis, a clinical psychologist. Davis had prepared a written psychological evaluation and report in which he concluded that petitioner had never intended to shoot his wife. According to Davis, at the time of the incident, petitioner was acutely depressed. In Davis's opinion, petitioner had not gone to the house for the purpose of harming the victim, and the incident was precipitated by the shock of discovering his wife having phone sex with another man and by her announcement, after earlier denials, that she was in love with another, utterly rejecting defendant.

The trial court said that Davis would not be allowed to testify as to the ultimate issue of petitioner's intent but that he could testify generally concerning petitioner's state of mind:

"[Davis] gets to, in a general way, talk about the tests he gave without going into a great deal of detail. He gets to talk about passivity and dependence. He gets to talk about depression and stress. He does not get to talk about whether defendant acted with a conscious objective to cause the death or physical injury to his wife. He does not get to talk about what defendant had in mind when he came to the house, and he doesn't get to talk about what defendant had in mind when he picked up the gun."

Trial counsel, however, did not call Davis to testify at all. The jury convicted petitioner of attempted murder with a firearm and unlawful use of a weapon based on the incident in the bedroom, and assault in the fourth degree and assault in the second degree with a firearm based on events in the hallway.

In his petition for post-conviction relief, petitioner asserted that, among other things, counsel was inadequate in failing to present Davis's testimony concerning his psychological evaluation, which petitioner asserted was relevant to the issue of whether he had the requisite mental state to commit attempted murder in the bedroom. In support of his claim, petitioner submitted to the post-conviction court Davis's psychological evaluation of petitioner. He also submitted an affidavit from an attorney expert, Ledesma, who described Davis's report as highly favorable to the defense. According to Ledesma's affidavit,

"In my years of practice including the use of psychological experts at the trial level, use of psychological reports in pre-sentence evaluation reports, and my review of countless psychological evaluations in parole appeals and criminal appeals I have handled, I do not believe I have ever seen an evaluation that was more favorable to the defendant than the one performed by Dr. Davis on [petitioner].

"* * * * *

"27) If Dr. Davis had been called to testify, he would have informed the jury * * * that when petitioner walked in on his wife having phone sex with her lover, the emotional intensity of the moment disrupted his logical frame of mind. Defendant was not under the influence of alcohol or other intoxicants during the crime. The loaded gun was usually kept by the side of the bed. Petitioner maintained that he emptied the gun of bullets and thought it was cleared altogether.

"28) Dr. Davis would have explained that petitioner's sister thought that the violent episode was out of character for petitioner and [the victim]. Petitioner's son informed Dr. Davis that petitioner never intentionally tried to hurt or harm his mother. Petitioner's son did not believe that petitioner went to the house that night intending to harm his mother. Regarding the gun, petitioner's son explained that petitioner was not familiar with the operation of the gun "29) Though Dr. Davis's observations about [petitioner] were highly favorable, the conclusions he reached from his tests would have been even more favorable to the defense. Dr. Davis concluded that [petitioner] executed the tests and generally did well. In a self-report, petitioner noted that he was `moderately depressed' at the time of the crisis, but was better adjusted at the time of the evaluation. The MCMM-II portrayed petitioner as having some psychological problems of only mild severity. Dr. Davis noted that the test result indicated that petitioner is essentially a `normal' person with undergoing some unusual life stress at present. Dr. Davis opined that petitioner would conduct himself lawfully almost `one hundred percent of the time.' There was no indication of violent intentions directed at himself or others. The inkblot test resulted in factors that are thought to be indicative of `good ties to reality and socialization.'

"30) Petitioner's score was `very low' on a research scale designed to measure whether someone would commit a violent act after having committed one before. Petitioner's MMPI-2 results were `entirely within normal limits.'

"31) If Dr. Davis had testified, he would have informed the jury that at the time of the shooting, petitioner was acutely depressed. Dr. Davis's testimony would have informed the jury that he was no longer depressed, that he felt the need to make a theatrical demonstration on the night of the shooting, and he was `yearning and working for reconciliation.'

"32) Dr. Davis's report indicates, `It is my conclusion that he never intended to shoot his wife' and `I do not believe [petitioner] deliberately shot [the victim].' Although the court's pre-trial ruling might have precluded Dr. Davis from testifying to those conclusions directly, it is clear from the transcript that the court expressly approved Dr. Davis to testify about hypotheticals that the jury could have used to understand [petitioner's] case and to reach those exact conclusions with respect to him;

"33) There was absolutely no conceivable down side to presenting Dr. Davis's testimony, and it would have enabled the jury to understand how it was that [petitioner] could have engaged in the behavior that he did without intending to kill his wife. In the absence of the sort of expert testimony that Dr. Davis could have given, the likelihood of a jury understanding that would be virtually non-existent. Consequently, Dr. Davis's testimony was essential to the case, and there is a significant likelihood that the jury could have acquitted him if it had had the benefit of that testimony. Under the circumstances of this case, it could not...