Krummacher v. Gierloff
| Decision Date | 21 July 1980 |
| Docket Number | No. 103613,103613 |
| Citation | 614 P.2d 109,47 Or.App. 119 |
| Parties | Hazel KRUMMACHER, Appellant, v. L. GIERLOFF, Superintendent, Oregon Women's Correctional Center, Respondent. ; CA 13105. |
| Court | Oregon Court of Appeals |
William J. Tway, Boise, Idaho, and Dale Drake, Salem, argued the cause for appellant. With them on the brief were Anton Hohler and Faber F. Tway, Boise.
James M. Brown, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before SCHWAB, C. J., and WARDEN and WARREN, JJ.
Petitioner appeals from the trial court's denial of relief in this post-conviction proceeding.
In 1973, petitioner was convicted of first degree murder (former ORS 163.010) for the 1968 killings of her father-in-law, Herbert Krummacher, and her mother-in-law, Dorothy Krummacher. By a bare majority, the convictions were reversed by this court on the ground that there was insufficient evidence of guilt to submit to a jury. State v. Krummacher, 15 Or.App. 234, 515 P.2d 412 (1973). The Supreme Court allowed the state's petition for review and, with three of its members dissenting, reversed the decision of this court and affirmed the trial court's judgment of conviction. State v. Krummacher, 269 Or. 125, 523 P.2d 1009 (1974). The known facts are set forth in detail in the cited opinions. For present purposes, it is sufficient to say that the evidence of guilt was far from overwhelming.
In the present proceeding, petitioner makes a multitude of contentions, only one of which we need reach that she was denied the effective assistance of counsel at her murder trial by reason of her attorney's failure to offer available documentary evidence or to adequately examine medical witnesses in connection with petitioner's theory that Herbert Krummacher killed his wife and then took his own life. We agree with that contention, and we therefore order a new trial. 1
The autopsies on the victims were performed by Dr. Russell Henry. Copies of the autopsy reports were given to petitioner's attorney prior to trial. The report on the autopsy of Herbert Krummacher states that "(t)here is a contact ring * * * and an impression of powder staining" in the area of the fatal wound, indicating that the victim was shot at very close range.
Dr. Henry was called as a prosecution witness at petitioner's murder trial. Petitioner's defense attorney did not question him regarding the contact ring or powder staining in the area of Herbert Krummacher's wound, nor did the attorney offer the autopsy report as evidence. Between the time Henry performed the autopsies in 1968 and the time of the 1973 trial, he had moved from Oregon to Virginia. At the conclusion of Henry's testimony, the defense attorney agreed that Henry could be excused to return to Virginia.
Later, the attorney called Dr. William Lehman, a pathologist, as a defense witness. On direct examination, Lehman testified:
Q "What can a forensic pathologist determine, if anything, by a test for powder burns?
A "Well, if there are blackish marks on the body, it would mean that the gun, generally speaking, of course, we are speaking in generalities, it would mean that the gun was close enough, the muzzle of the weapon was close enough to the body so that the discharge of powder with the bullet would be carried up to and against and penetrate the skin of the body. That would give the investigating pathologist some idea, or the investigating authorities, the Police Department, give them at least some idea of how far the muzzle was from the body. These laboratory people then would, if they have the weapon, would fire the weapon at a certain distance and see if they could repeat the pattern of the powder burns on an object at definite distances from the muzzle of the weapon.
Q "And what could might this give them proof of, or evidence of?
A "It would indicate that if there were powder burns on the body, it would mean that the gun was close by, but if there were no powder burns, it would be an indication, a strong indication, at least, all other things being equal, that the muzzle was too far away for that person to have used the gun on himself or herself, for example.
Q "Now, are you also familiar with the investigative technique used by forensic pathologists in connection with primer residues, which deposit themselves on the hands of a person who has fired a weapon?
A "Yes. I must tell you that I don't do these things myself. There is a laboratory, crime institute that takes care of this, but paraffin is used. It is not always considered a reliable procedure, to be frank. But, here again, this is resorted to to either prove or disprove that a suspect may have fired a weapon, because if there is no evidence of any powder residue on his hand as indicated by the test, then at least this is some evidence that he wasn't involved in the situation.
Q "Does this type of test have any applicability where you find some one or two individuals dead, and there's a question of whether there's a suicide involved?
A "Yes, particularly in the autopsy report on Herbert Krummacher, the forensic pathologist "
The prosecuting attorney intervened at that point, stating:
The court agreed that the witness could not testify about the contents of the autopsy report. The defense attorney then resumed his questioning:
Q "Doctor, we will not go into the autopsy report. Just tell us, what do you what assistance can this test be in determining whether or not there is a suicide, if it can be of any assistance at all?
A "Well, presuming that presuming that, in general, supposing that a situation has arisen in which the autopsy pathologist, whoever he may be, has found a certain kind of evidence on the body, a ring type of situation, there is always the suspicion that this ring may have been produced by the circular design of the muzzle of the weapon. Now, if such a ring is present on a body, any body, any body examined in an autopsy, then any suspect should have that his hand examined to see if there are residue powder particles on the hand, because if they are not there, then that individual had nothing to...
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Krummacher v. Gierloff
...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 ......
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Myers v. Cupp
...counsel's skills as a lawyer and applies a test of reasonableness under the circumstances." See also Krummacher v. Gierloff, 47 Or.App. 119, 126, 614 P.2d 109 (1980). The petitioner has the burden of showing, not only counsel's incompetence, but also prejudice as a result of that incompeten......