Lambert v. Palmateer

• Court: Oregon Court of Appeals
• Writing for the Court: ARMSTRONG, J.
• Citation: Lambert v. Palmateer, 47 P.3d 907, 182 Or App 130 (Or. App. 2002)
• Decision Date: 05 June 2002
• Parties: Allen Lee LAMBERT, Respondent, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Appellant.

47 P.3d 907

182 Or. App. 130

Allen Lee LAMBERT, Respondent, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Appellant.

98C-15881; A108801.

Court of Appeals of Oregon.

Argued and Submitted January 30, 2001.

Decided June 5, 2002.

Kathleen Cegla, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Steven H. Gorham, Salem, argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge, and ARMSTRONG, Judge.

ARMSTRONG, J.

The state appeals from a judgment granting post-conviction relief to petitioner on the grounds that his trial and appellate counsel were inadequate. We reverse.

Petitioner was charged with assault in the first degree and criminal mischief in the second degree arising out of his hitting the victim on the head with a metal pipe. The case was tried to the court. At the conclusion of the state's case-in-chief, petitioner moved for a judgment of acquittal on the assault charge, asserting that the state had failed to establish that petitioner's conduct had caused serious physical injury to the victim. The court denied the motion and ultimately convicted petitioner of both charges. He filed an appeal from the convictions, challenging only the constitutionality of his sentence. We affirmed the convictions without opinion. State v. Lambert, 150 Or. App. 367, 944 P.2d 1004, rev. den. 326 Or. 82, 950 P.2d 893 (1997).

Petitioner subsequently filed a petition for post-conviction relief, asserting that trial and appellate counsel in his criminal case were inadequate in several respects, including (1) trial counsel's failure adequately to develop the record concerning the first-degree assault element of "serious physical injury"¹ and the failure to assert that petitioner had acted in self-defense and (2) appellate counsel's failure to assign error to the trial court's denial of petitioner's motion for a judgment of acquittal on the ground that the state had failed to establish the element of "serious physical injury." The post-conviction court granted relief, concluding that both trial and appellate counsel were inadequate for having failed to develop and raise on appeal the issue of the state's failure to establish that the victim had suffered serious injury. The post-conviction court further concluded that trial counsel should have asserted that petitioner had acted in self-defense. The state appeals.

We first state the facts necessary to resolve the questions raised on review of the judgment granting post-conviction relief. Petitioner and the victim were involved in an altercation that ended when petitioner hit the victim on the head with a metal pipe. The victim was admitted to the emergency room, and testing showed a "small hemorrhage in the medulla, a left basilar skull fracture which extended into the temporal bone, and a small air fluid level noted in the sphenoid sinus." The victim also had a two-centimeter cut on his left forehead that required four stitches. The victim was admitted overnight for observation, and he recovered without complication.

At the trial in the criminal case, petitioner testified that he and the victim had struggled over the pipe, which had been in petitioner's possession before the altercation began, that the victim's hands had come off the pipe, and that the pipe had flown into the air and accidently come down on the victim's head. He testified that he had not intentionally hit the victim on the head. Although he testified at trial that he thought that he was in danger and was "really scared," he did not assert that he had acted in self-defense in striking the victim. The victim testified about his injury and gave his opinion that the one-inch scar on his forehead would not go away. Petitioner's trial counsel offered into evidence the medical records of the victim's hospital stay and injury.

In her motion for judgment of acquittal, petitioner's trial counsel asserted that the state had failed to establish that the victim had suffered a serious physical injury because the evidence did not establish beyond a reasonable doubt that the victim's injury had created a substantial risk of death or had caused serious and protracted disfigurement. The state conceded in closing argument that it was not attempting to establish that the victim's injury was life threatening; rather, it asserted that the scar on the victim's forehead was a serious and protracted disfigurement.

The state convinced the trial court. In convicting petitioner, the trial court said:

"[T]he Court finds that [the injury] both created a substantial risk of death and serious and protracted disfigurement. And here are my findings on substantial risk of death. Exhibit 101 are the medicals from Portland Adventist. The [victim] was taken by ambulance to their critical care unit in an altered mental state. He had seizure activity, depression of his central nervous system. He was semi-conscious. The patient could only mumble in response to pain and questions. He was obtundant, which is nature's way, of course, of shutting the body down prior to death or prior to pain that cannot be taken.

"The [victim] was X-rayed and [had] a CAT scan [of] his head * * *. [The victim's] head was fractured at the—it was a basilar skull fracture, and there was a clear fracture in the X-ray of the left temporal bone. This caused bleeding into the brain in several areas. There was subarachnoid hemorrhage, which bled into the right temporal lobe of the brain. It bled into the right perietal lobe of the brain. There was blood in his left sphenoid sinus, and they thought, in addition, there might have been a medullar hemorrhage, as well. This victim * * * was within one inch of his life, and that is serious physical injury.

"Now, on serious and protracted disfigurement, he has about a two-inch-long, half-inch-wide divot in his left forehead in the temporal region, which I can see easily at 40 feet, as he sits here and I look at him at this moment. This is something that is not hidden by any clothing. It's in his head. This is a serious and protracted disfigurement."

Thus, the trial court found that the injury was both life threatening and caused serious and protracted disfigurement.

In his petition for post-conviction relief, petitioner asserted, among other issues, that his trial counsel was constitutionally inadequate for failing to develop and assert the defense of self-defense. Petitioner offered evidence in the post-conviction hearing that the victim had been violent to his ex-wife and that she had obtained a restraining order against him. At the post-conviction hearing, petitioner testified that he acted in self-defense in keeping hold of the pipe so as to prevent the victim from taking it. "[M]y state of mind believed that he would have done bodily harm if I would have let him take the pipe out of my hand." He did not testify, however, that he struck the victim in self-defense.

To prevail on a post-conviction claim of inadequate assistance of counsel, the burden is on the petitioner to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result. Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991). The post-conviction court believed that the pursuit of a theory of self-defense would have made a difference in the case. It found that the evidence of the restraining order against the victim was readily available to trial counsel and that it would have supported an...