Lichau v. Baldwin

• Decision Date: 05 April 2000
• Parties: Daniel David LICHAU, Respondent—Cross-Appellant, v. G.H. BALDWIN, Superintendent, Eastern Oregon Correctional Institution, Appellant—Cross-Respondent.
• Court: Oregon Court of Appeals

999 P.2d 1207

166 Or. App. 411

Daniel David LICHAU, Respondent—Cross-Appellant, v. G.H. BALDWIN, Superintendent, Eastern Oregon Correctional Institution, Appellant—Cross-Respondent.

(CV960127; CA A97504)

Court of Appeals of Oregon.

Argued and Submitted October 25, 1999.

Decided April 5, 2000.

Kaye E. McDonald, Assistant Attorney General, argued the cause for appellant—cross-respondent. With her on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Steven H. Gorham, Salem, argued the cause and filed the brief for respondent—cross-appellant.

Before LANDAU, Presiding Judge, and HASELTON and BREWER, Judges.

BREWER, J.

Defendant seeks reversal of a judgment granting post-conviction relief to petitioner based on inadequate assistance of trial counsel. Petitioner "cross-appeals," arguing that the trial court erred on all issues decided adversely to him.¹ We review for errors of law, reverse on appeal, and affirm on cross-appeal.

Petitioner was indicted on six counts for the rape, sodomy, and sexual abuse of his 11-year-old niece in June 1989. The victim testified that the attacks took place on two separate nights at petitioner's parents' house, in a bedroom 12 feet away from the living room where the parents were watching television. According to the victim, her younger sister was sleeping in the same bed with her at the time of both attacks. The victim also testified that on the day after the second attack, she was admitted to the hospital for an unrelated leg infection and that petitioner visited her during the hospital stay. Hospital records established that the victim was first hospitalized for treatment of her leg infection on June 19.

Petitioner pled not guilty to the indictment and filed a notice of intent to rely on alibi evidence; namely, that he was enlisted in the United States Marine Corps and stationed at Camp Lejeune, North Carolina, during the period when the victim alleged the crimes took place. Trial counsel obtained, through discovery from the state, petitioner's battalion movement and military pay records, which showed that he took no recorded leave during June 1989. Counsel also contacted the military attorney appointed to represent petitioner at the time of his arrest to seek assistance in unearthing additional evidence to support the alibi defense. That attorney was sympathetic to petitioner, had specialized knowledge of military record keeping procedures, and was willing to help. However, the attorney was unable to locate any additional evidence of petitioner's whereabouts at the relevant time.

On the morning trial commenced, petitioner and trial counsel met with the prosecutor and a military investigator, Sergeant Moreno, who was available as a witness for the state. Before trial, Moreno had obtained a copy of the 1989 chronology for petitioner's battalion. The prosecutor told petitioner and counsel that, based on Moreno's investigation, petitioner's unit was awaiting overseas deployment at the time of the alleged crimes and that, prior to deployment, petitioner would have been eligible to return home for leave. The prosecutor stated that she would fly in witnesses from Camp Lejeune who could further refute petitioner's alibi defense. Trial counsel testified that the prosecutor told him that she had records or other evidence showing that petitioner had taken leave during June 1989. Trial counsel believed that if the prosecutor established that petitioner could have been away from Camp Lejeune, it would have been the "kiss of death" for the defense, because in his experience juries convict defendants whose alibis are not airtight. He therefore withdrew petitioner's alibi defense. The state never produced records establishing that petitioner took any leave or liberty during June 1989.

Petitioner testified that, after trial commenced, he told counsel that another marine, Sergeant Glenz, had volunteered to search for additional military records concerning petitioner's whereabouts in June 1989. According to petitioner and Glenz, who also called counsel to repeat the same offer of assistance, counsel declined the offer.

The thrust of petitioner's position at trial was that the victim's allegations were implausible in light of the facts that her sister was sleeping in the same bed and that there were several other people in the house at the time of the alleged attacks. The prosecutor presented testimony by two of petitioner's sisters, who stated that he had attacked them, under similar circumstances, when they were children. Petitioner was convicted of one count of rape in the first degree, two counts of sodomy in the first degree, and three counts of sexual abuse in the first degree. ORS 163.375; ORS 163.405; ORS 163.427. Those convictions were affirmed on appeal. State v. Lichau, 133 Or.App. 602, 891 P.2d 25, rev. den. 321 Or. 340, 898 P.2d 192 (1995).

Petitioner filed a petition for post-conviction relief alleging multiple grounds of trial court error, prosecutorial misconduct, and inadequate assistance of counsel. In support of the ineffective assistance of counsel claim, petitioner alleged that trial counsel failed to conduct an adequate investigation of his alibi defense. Petitioner presented testimony to the effect that there were records and witnesses establishing that he had been in North Carolina at various times during June. According to petitioner, that evidence would have cast doubt on the possibility that he took unrecorded leave in Oregon during that month. Petitioner also produced evidence that trial counsel: (1) waited until one year after trial before requesting further records from the military; (2) declined the offer of assistance to obtain further documents made by Glenz; (3) did not call petitioner's brother and neighbor to testify that petitioner was not at his parents' home at the relevant time; and (4) did not reinstate the withdrawn alibi defense at trial.

The trial court found that "[w]ith the withdrawal of the alibi defense [p]etitioner and his parents were left to testify that they didn't think he was present and that they didn't remember him being present but that they couldn't be sure." The court found and concluded that:

"With the alibi defense and the testimony available to [p]etitioner the jury could have received the following testimony:

"1) Petitioner was not at his parents' home in June of 1989.

"2) Petitioner had no recorded leave from the Marine Corps at the time of the alleged crimes.

"3) There was no basket (unrecorded) leave available to him.

"4) The longest unrecorded period away from base during the time of the alleged crimes was for a 96 hour liberty.

"5) Petitioner could not have traveled further than 350-500 miles during said liberty without the express written permission of his commanding officer. Such an extension required special arrangements and would have been difficult to arrange with the short advance warning given for 96 hour liberties.

"6) According to the unit records [p]etitioner would have been involved in a `snap in' to qualify for rifle training in North Carolina on June 19, 1989, the day the victim testified he visited her in the hospital in Oregon following the alleged crimes.

"This evidence clearly has a tendency to affect the result of the prosecution of the case."

The court concluded that counsel was ineffective in failing to investigate the alibi defense adequately and in withdrawing and then later failing to seek reinstatement of the defense. The court rejected petitioner's remaining claims. The state appeals, and petitioner makes cross-assignments of error to the post-conviction court's decision on those claims on which it did not grant him relief.

The state asserts that the adequacy of petitioner's legal representation must be evaluated from the standpoint of counsel's perspective at the time the challenged conduct occurred and that, under the totality of circumstances, the attorney made reasonable decisions. The post-conviction court erred, according to the state, by viewing the attorney's actions in light of later-developed evidence. Petitioner counters that the state's quarrel is with the post-conviction court's factual findings that, he asserts, are supported by evidence in the record and that the facts on which the court based its decision would have been apparent to counsel, at the relevant time, had he been better prepared.

We limit our review to "errors of law and whether the facts found by the post-conviction court are supported by the record." Smart v. Maass, 148 Or.App. 431, 434, 939 P.2d 1184, rev. den. 326 Or. 62, 944 P.2d 949 (1997). "Petitioner is entitled to post-conviction relief if [he] proves, by a preponderance of the evidence, that [he] suffered a substantial denial of a state or federal constitutional right in the proceeding below, which renders the conviction void." Ashley v. Hoyt, 139 Or.App. 385, 391, 912 P.2d 393 (1996); ORS 138.620(2)²; ORS 138.530(1)(a).³

Before we address the legal issues that the state's assignment of error presents, we must confront petitioner's argument that the state's appeal reduces to a quibble with the trial court's findings of fact. That argument is incorrect. The state does not attack the court's findings of fact; rather, it challenges the court's application of those facts to the governing legal standards. We review that reasoning process for errors of law. State v. Lynch, 135 Or.App. 528, 532, 900 P.2d 1042, rev. den. 322 Or. 362, 907 P.2d 249 (1995) (on appeal, "[w]e are bound by the trial court's findings of historical fact and review to determine whether the trial court applied the correct law to those facts").

We first evaluate petitioner's claim under Article I, section 11, of the Oregon Constitution. State v. Kennedy, 295 Or. 260, 262-68, 666 P.2d 1316 (1983). Article I, section 11, provides that "In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel * *...