Krummacher v. Gierloff

Decision Date21 April 1981
Citation627 P.2d 458,290 Or. 867
PartiesHazel KRUMMACHER, Petitioner/Respondent, v. L. GIERLOFF, Superintendent, Oregon Women's Correctional Center, Respondent/Petitioner. TC 103613, CA 13105; SC 27308.
CourtOregon Supreme Court

[290 Or. 868-A] Rodney K. Norton, Asst. Atty. Gen., Salem, argued the cause for petitioner/respondent. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen. and James M. Brown, Asst. Atty. Gen.

[290 Or. 868-B] Dale Drake, Salem, and William J. Tway, Boise, Idaho, argued the cause for respondent/petitioner. With them on the brief were Anton Hohler and Faber F. Tway, Boise, Idaho.

TANZER, Justice.

Petitioner seeks postconviction relief from her conviction of murder, contending that she was denied various constitutional rights, and particularly her right to counsel. The trial court denied relief, but the Court of Appeals, 47 Or.App. 119, 614 P.2d 109, reversed the order and required a new trial. We allowed review to examine the standard by which denial of the constitutional right to counsel is to be adjudged.

Petitioner was convicted of the 1968 murder of her parents-in-law, Herbert and Dorothy Krummacher. On direct appeal, a divided department of the Court of Appeals reversed the judgment for insufficiency of evidence. State v. Krummacher, 15 Or.App. 234, 515 P.2d 412 (1973). On review, this court, over the dissent of three of its members, concluded that the evidence of guilt was sufficient to support the verdict. We therefore reversed the Court of Appeals' decision and reinstated the convictions. State v. Krummacher, 269 Or. 125, 523 P.2d 1009 (1974). The proof was circumstantial and the evidence extensive. The facts are detailed in our earlier opinion and will be repeated here only as necessary. In essence, the jury necessarily believed that the victims were murdered with a gun of a rare type and bullets of a rare type to which only petitioner and her husband had access, that her husband was innocent, and that plaintiff was therefore guilty.

In this postconviction relief proceeding, petitioner primarily contends that numerous acts and omissions by her appointed attorneys constitute a denial of counsel. The trial court, upon a finding that "the representation by her trial attorneys was informed, knowledgeable, competent and effective under the circumstances," denied relief. Insofar as the findings relate to historic facts, they are binding on appeal; as they give constitutional characterization to the facts, we are bound by the implied historical findings, but we must reexamine the constitutional determinations. State v. Warner, 284 Or. 147, 585 P.2d 681 (1978); Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).

The Court of Appeals addressed one of those contentions. It held that the failure of defense counsel to develop and present certain evidence suggesting a murder/suicide theory (i. e. that Herbert Krummacher killed Dorothy Krummacher and then committed suicide) was a failure to adequately present a defense, thus denying petitioner the effective assistance of counsel. In so holding, the Court of Appeals relied upon its earlier opinion in Rook v. Cupp, 18 Or.App. 608, 526 P.2d 605 (1974).

The most recent decisions from this court enunciating a standard for the evaluation of the constitutionally requisite degree of assistance of counsel express and apply the so-called "farce and mockery of justice" test. In order to prevail under that standard, it is necessary for a convicted person to show that appointed counsel was so incompetent or inefficient as to make the trial a farce or a mockery of justice. Benson v. Gladden, 242 Or. 132, 140-141, 407 P.2d 634 (1965). See also State v. Abel, 241 Or. 465, 406 P.2d 902 (1965), and North v. Cupp, 254 Or. 451, 461 P.2d 271 (1969). That standard has been accurately criticized as vague and subjective in form and as an overly modest description of tolerable representation and it has been abandoned by several courts. See, e. g., Comment, Effective Counsel, 59 Neb.L.Rev. 1040, 1050 (1980). Nevertheless, this court has not expressly varied from the "farce and mockery" standard.

In Rook v. Cupp, supra, the Court of Appeals observed that some other "Courts have begun to question whether the 'farce or mockery of justice' standard can continue to survive," 18 Or.App. at 611. It surveyed decisions from other jurisdictions and ignored the standard which this court had historically propounded. After review of the federal circuits, the Court of Appeals adopted the standard expressed by the Supreme Court of West Virginia:

" 'Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.' State v. Thomas, 203 S.E.2d 445, 461 (W.Va.1974).

"This brings into consideration counsel's skills as a lawyer and applies a test of reasonableness under the circumstances. We adopt that test. It does not change the rule that a petitioner has the burden of producing evidence supporting the claim of incompetence Benson v. Gladden, 242 Or. 132, 407 P.2d 634 (1965), cert. denied 384 U.S. 908, 86 S.Ct. 1345, 16 L.Ed.2d 360 (1966); Storms v. Cupp, supra; Cole v. Cupp, 3 Or.App. 616, 475 P.2d 428, Sup.Ct. review denied (1970) and it includes the thought that if any shown incompetence had no effect on the outcome of the case it will be treated as harmless. Storms v. Cupp, (13 Or.App. 273, 508 P.2d 450) supra; State v. Goddard, 5 Or.App. 454, 485 P.2d 650 (1971)."

18 Or.App. at 612-613, 526 P.2d 605 (footnote omitted). We agree with the Court of Appeals that the phrase "farce and mockery of justice" can no longer be deemed adequate to describe the quality of representation to which a defendant is constitutionally entitled and we no longer restrict the constitutional assurance of counsel to that standard.

The shift of scrutiny in recent cases from the rudiments of the trial to the quality of representation by counsel reflects a shift from the general requirements of the due process clause of the Fourteenth Amendment to the United States Constitution to the more specific constitutional right to counsel. There is recognition that counsel's performance may be inadequate without the trial, if any, having been reduced to a sham. People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (1979).

Petitioner claims under the right to counsel provisions of both the state and federal constitutions. The relevant provisions of those documents are worded differently, but embody similar objectives. It is sufficient for purposes of this case to examine the right to counsel as if the rights assured under each constitution are identical. 1

Article I, section 11, of the Oregon Constitution provides:

"In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel * * *."

The sixth amendment to the constitution of the United States provides:

"In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence."

The mere act of appointment of counsel to represent an indigent accused is obviously not sufficient to provide the protection afforded by these constitutional provisions. 2 Rather, the provisions call for an adequate performance by counsel of those functions of professional assistance which an accused person relies upon counsel to perform on his behalf. 3 Any standard formulated to effectuate these constitutional guaranties should focus on the adequacy of the attorney's performance rather than upon the general competency of the lawyer. Lawyers, like other professionals, are not all equally skillful, but the least of us can sometimes rise to a challenge and the best of us can blunder. Thus it is the performance, not the identity, of the defense lawyer which is subject to constitutional scrutiny.

The formulations of constitutional standards for performance of counsel which we have found tend to be as subject as the "farce and mockery" standard to the criticism that they are imprecise and capable only of subjective application. This is true of those statements surveyed in Rook v. Cupp and of those expressed in cases decided subsequent to that: See, e. g., counsel "reasonably likely to render and does in fact render reasonably effective assistance under the facts and circumstances," Wilson v. Cowan, 578 F.2d 166, 168 (6th Cir. 1977); "not errorless counsel and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance," Gaines v. Hopper, 575 F.2d 1147, 1149 (5th Cir. 1978); in the negative, "counsel failed to render reasonably effective assistance and the result was a denial of fundamental fairness," U. S. v. Elksnis, 528 F.2d 236, 238 (9th Cir. 1975); professional performance reflecting "the customary skill and knowledge which normally prevails at the time and place," U. S. ex rel. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir. 1976) cert. den. 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823; "competent assistance of counsel acting as a diligent, conscientious advocate," Dunker v. Vinzant, 505 F.2d 503 (1st Cir. 1974) cert. den. 421 U.S. 1003, 95 S.Ct. 2404, 44 L.Ed.2d 671; "reasonably competent assistance of counsel acting as a diligent, conscientious advocate," U. S. v. Moore, 554 F.2d 1086 (D.C.Cir.1976), see also U. S. v. DeCoster, supra, at 1203-1204; counsel's action cannot be "so 'horribly inept' as to amount to a 'breach of his legal duty faithfully to represent his client's interests,' " U. S. v. Reincke, 383 F.2d 129, 132 (2d Cir. 1967); "good-faith representation with all the skill which counsel possesses," Hickock v. Crouse, 334 F.2d 95, 100-101 (10th Cir. 1964), ...

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