Lichau v. Baldwin

Decision Date14 February 2002
Citation333 Or. 350,39 P.3d 851
PartiesDaniel David LICHAU, Petitioner on Review, v. G.H. BALDWIN, Superintendent, Eastern Oregon Correctional Institution, Respondent on Review.
CourtOregon Supreme Court

Steven H. Gorham, Salem, argued the cause and filed the brief for petitioner on review.

Kaye Ellen McDonald, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.


The issue in this post-conviction relief proceeding is whether petitioner received inadequate assistance of counsel at his criminal trial. The post-conviction court rejected all but one of petitioner's claims. Respecting that claim, which involved trial counsel's withdrawal of petitioner's alibi defense, the trial court concluded that counsel had performed inadequately and granted petitioner a new trial. The Court of Appeals reversed, concluding that counsel's assistance had been adequate under the circumstances. Lichau v. Baldwin, 166 Or.App. 411, 999 P.2d 1207 (2000). For the reasons that follow, we now reverse the decision of the Court of Appeals and affirm the judgment of the post-conviction court.


In February 1993, a grand jury indicted petitioner for the June 1989 rape, sodomy, and sexual abuse of his 11 year old niece. The indictment alleged that, on two occasions, petitioner abused his niece while she and her seven-year-old sister were staying at the home of petitioner's parents in Lane County.

The niece first reported the abuse to authorities when she was 14, three years after it allegedly had occurred. She claimed that, on two consecutive nights, petitioner had abused her in a bedroom while her sister lay sleeping on the same bed. Because so much time had passed, however, she could not remember the precise dates of the abuse. She was able to recall, though, that on the first night of abuse, petitioner's parents had been awake watching television in the next room. She also believed that the abuse had occurred "two or three days" before she was admitted to the hospital, on June 19, 1989, for an unrelated leg infection. The niece recalled that petitioner had visited her at the hospital. The indictment accused petitioner of committing the abuse "on or between" June 1 and June 19, 1989.

Petitioner pleaded not guilty and was represented by lawyer McCrea. During June 1989, petitioner had been enlisted in the United States Marine Corps and stationed at Camp Lejeune in North Carolina. He told McCrea that, although he could not be sure, he did not believe that he had visited his parents that summer, but that his military records would confirm whether he had taken leave. Petitioner's parents similarly were unable to recall whether he had been home at the time the niece said that the abuse had occurred. Accordingly, McCrea prepared an alibi defense and, in addition, a defense of implausibility. In other words, McCrea planned to contend that petitioner was not in Oregon in June 1989 and, even if he had been, that he could not have abused his niece as described without either waking up the younger sister or alerting petitioner's parents.

On the first day of trial, however, McCrea withdrew petitioner's alibi defense and proceeded with only the implausibility defense. McCrea later testified that he made that decision after meeting with the prosecutor earlier that morning. According to McCrea, the prosecutor had threatened to present testimony and introduce documents that she claimed would prove that, in June 1989, petitioner had been in Oregon on a special kind of leave called "basket leave" that does not appear on official military leave records. McCrea decided to withdraw petitioner's alibi defense until he had the chance to view the evidence the prosecutor claimed to possess. Despite McCrea's repeated requests, however, the prosecutor never gave him any evidence relating to "basket leave." At trial, petitioner and his parents testified that they could not recall whether petitioner had been in Oregon in June 1989. With no alibi defense, however, the jury was not instructed that petitioner's presence in Oregon was a contested fact. To counter petitioner's remaining implausibility defense, the prosecution introduced the testimony of two of petitioner's sisters, who stated that he often had assaulted them sexually under similar circumstances when they were children. Petitioner's sisters further testified that their parents had been aware of the abuse but had refused to intervene. The jury convicted petitioner of all charges, the Court of Appeals affirmed, and this court denied review. State v. Lichau, 133 Or.App. 602, 891 P.2d 25, rev. den. 321 Or. 340, 898 P.2d 192 (1995).


Petitioner sought post-conviction relief, alleging, inter alia, that McCrea had provided constitutionally inadequate assistance of counsel by withdrawing petitioner's alibi defense. Petitioner claimed that McCrea did not exercise reasonable skill and judgment because McCrea's decision to withdraw the alibi defense was not supported by a reasonable pretrial investigation of potential alibi witnesses or petitioner's military records. Petitioner contended that a reasonable investigation would have uncovered evidence demonstrating that, contrary to the prosecutor's assertions on the morning of trial, he had not visited Oregon in 1989 while on "basket leave." Alternatively, petitioner argued that, once the prosecution failed to divulge any evidence of his alleged "basket leave," McCrea's failure to reinstate the alibi defense had been unreasonable, resulting in constitutionally inadequate assistance of counsel. Finally, to show prejudice, petitioner asserted that, if McCrea had presented his alibi defense, that defense would have tended to affect the outcome of his trial because the jury would have heard additional evidence that he was not in Oregon when, according to his niece, the abuse allegedly had occurred.

At the post-conviction hearing, McCrea testified that he had not been familiar with military records or leave procedures and that, to investigate petitioner's alibi defense, he had sought assistance from petitioner's previous counsel, a military officer in New Mexico who had been assigned to represent petitioner when the allegations of abuse first arose. According to McCrea, that officer was "sympathetic to [petitioner's] situation and indicated that he was willing to try to help." During all the months that McCrea represented petitioner before trial, however, that officer produced no information. As a consequence, McCrea admitted that "all of the military records that I had received, I received as part of discovery from the prosecution." And, although the record is not entirely clear, it appears that those documents consisted solely of petitioner's 1989 Marine battalion movement record, which revealed only that his unit was not deployed overseas in June 1989; it did not disclose when or if petitioner had been on leave. Ultimately, McCrea subpoenaed petitioner's military records, but not until over a year after his trial. Thus, McCrea testified that, if he had not withdrawn the alibi defense, "[i]t would have been both the parents testifying and the defendant testifying, and I don't recall what was done, if anything, regarding records."

As noted, McCrea withdrew petitioner's alibi defense on the morning of trial when the prosecutor threatened to present evidence of unrecorded "basket leave." At the post-conviction hearing, McCrea explained that, in his opinion, if the prosecutor could have cast doubt on petitioner's alibi, it would have been the "kiss of death" for his client:

"In my experience with juries, it's not only [that] credibility is shot but that the jury resolves the case into just a `was-he-or-wasn't-he-there' issue. * * * They forget all about the `did-he-do-it.' They assume he did it if he was there."

McCrea offered no explanation why he had not reinstated the alibi defense once the prosecutor failed to turn over any evidence of "basket leave":

"Q. Did you ever seek with the Court leave to reinstate the alibi?
"A. No, I did not.
"Q. And do you remember why not?
"A. Well, I've tried to—I've tried to determine that myself, why not.
"Q. Did it make any difference to the defense case not to have the alibi[?]
"A. Well, it definitely did. * * *"

For his part, petitioner testified at the post-conviction hearing that, during preparations for trial, he had urged McCrea repeatedly to obtain his 1989 leave records, but that McCrea never did so. Those records, petitioner argued, demonstrated conclusively that he had not taken regular leave from Camp Lejeune in June 1989. Petitioner further testified that he had provided McCrea with names of supervisors who might have confirmed his presence at Camp Lejeune, but that McCrea never had contacted them. For example, petitioner introduced the affidavit of his platoon commander, Captain Tull, who confirmed that "basket leave" had not been available to members of his unit in 1989 as a general rule and that, at most, 96 hours of unrecorded special liberty could have been authorized. Tull further stated that, to the best of his knowledge, "[t]he vast majority of the unit, including [petitioner], remained in Camp Lejeune until July, 1989, at which time they joined the advance party in Okinawa." Even if petitioner had secured a 96-hour liberty pass, Tull asserted that petitioner would not have been allowed to travel more than 350 to 500 miles away because traveling farther would have required special arrangements and a signed authorization from the commanding officer. Petitioner submitted affidavits of other persons from Camp Lejeune corroborating Tull's testimony.

Petitioner presented further evidence that, with minimal effort,...

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