Logan v. State

• Citation: 313 P.3d 1128,259 Or.App. 319
• Decision Date: 14 November 2013
• Docket Number: 070809874,A144503.
• Parties: John Duncan LOGAN, Petitioner–Respondent Cross–Appellant, v. STATE of Oregon, Defendant–Appellant Cross–Respondent.
• Court: Court of Appeals of Oregon

259 Or.App. 319

313 P.3d 1128

John Duncan LOGAN, Petitioner–Respondent Cross–Appellant,

v.STATE of Oregon, Defendant–Appellant Cross–Respondent.

070809874; A144503.

Court of Appeals of Oregon.

Argued and Submitted on June 21, 2012.

Decided Nov. 14, 2013.

Ryan Kahn, Assistant Attorney General, argued the cause for appellant-cross-respondent. With him on the briefs were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Bronson D. James argued the cause and filed the opening brief for respondent-cross-appellant. With him on the brief was JDL Attorneys, LLP. John Logan filed the supplemental brief pro se.

Before ARMSTRONG, Presiding Judge, and DUNCAN, Judge, and BREWER, Judge pro tempore.

ARMSTRONG, P.J.

The state appeals a judgment granting petitioner post-conviction relief and setting aside his convictions for four counts of first-degree sexual abuse, ORS 163.427, and two counts of endangering the welfare of a minor, ORS 163.575. The state argues that the post-conviction court erroneously concluded that trial counsel's failure to object to testimonyregarding “treatment recommendations” rendered his performance constitutionally inadequate. Further, the state argues that, in any event, petitioner failed to establish that counsel's failure to object to the testimony prejudiced petitioner. We agree with the state that the post-conviction court erred and, accordingly, reverse and remand.¹

We state the facts consistently with the findings of the post-conviction court, which are binding on us if there is evidence to support them. Derschon v. Belleque, 252 Or.App. 465, 466, 287 P.3d 1189 (2012), rev. den.,353 Or. 208, 297 P.3d 480 (2013). At the time that the abuse underlying petitioner's convictions came to light, petitioner shared physical custody of his two children, seven-year-old C and her older sibling, N, with their mother, petitioner's ex-wife. The dissolution of petitioner and his ex-wife's marriage had been contentious, and petitioner's relationship with his ex-wife, who had primary custody of both children, was strained. While driving the children to his ex-wife's house at the conclusion of a visit, petitioner became upset when one of the children expressed a desire not to live with petitioner. During the outburst that followed, petitioner threatened to kill his ex-wife and punched the rearview mirror of his car, breaking it and cutting his hand. Petitioner's conduct upset the children, and, when they arrived at their mother's house, the children told her and their stepfather what petitioner had said and done.

Thereafter, petitioner's ex-wife contacted Haines, an officer in the Portland Police Bureau's Domestic Violence Reduction Unit. Haynes conducted a series of individual interviews with petitioner's ex-wife and the children, and, although initially focused on petitioner's threatening behavior, the interviews revealed that petitioner had engaged in unconventional conduct around the children. Specifically, petitioner's ex-wife said that petitioner chose to be nude in his home in front of the children and that he sometimes “cuddled” with C while nude. C confirmed petitioner's behavior and also indicated that petitioner had touched her vaginal area. That prompted Haynes to stop the interview, consult with a detective from the bureau's Child Abuse Team, and schedule a sexual-abuse evaluation for C with CARES Northwest, a child-abuse-assessment center.

At CARES, C underwent a medical examination, performed by a staff physician, Dr. Bays, and an interview with Findley, a staff social worker and interviewer. During the interview with Findley, C again disclosed that petitioner had cuddled with her while he was nude and that, while cuddling, petitioner had touched her chest and vaginal area. She also said that she had felt petitioner's erect penis on her leg. After the evaluation, Bays and Findley prepared a report containing multiple treatment recommendations.

During an interview with a detective regarding his conduct with C, petitioner fully admitted that he was often nude in his home in front of the children. He also acknowledged that he sometimes “cuddled” with and “caressed” C while he was nude. Notwithstanding those admissions, petitioner adamantly denied touching C in any sexual way, although he conceded that he may have inadvertently touched C's vaginal area.

A grand jury subsequently indicted petitioner on eight counts of first-degree sexual abuse and two counts of endangering the welfare of a minor. Petitioner pleaded not guilty and proceeded to a jury trial. At trial, as pertinent to this appeal, the state called Findley, who offered the following testimony about the CARES treatment recommendations:

“We recommended [C] not to have any direct contact with [petitioner] at that time.

“ * * * *

“We also recommended that [petitioner] have a full psychological evaluation with attention paid to anger management and a sex offender evaluation.

“ * * * *

“We recommended further investigation by * * * law enforcement into the allegations of abuse. We also recommended [for the] need to evaluate [the] safety of [N] who has had ongoing contact with [petitioner].”

Petitioner's trial counsel did not object to that portion of Findley's testimony.

The jury found petitioner guilty of four counts of first-degree sexual abuse and both counts of endangering the welfare of a minor. Petitioner appealed, and we affirmed his convictions. State v. Logan, 203 Or.App. 639, 129 P.3d 281,rev. den.,340 Or. 359, 132 P.3d 1056 (2006). He then sought post-conviction relief, alleging 58 claims of inadequate assistance of trial counsel.

At issue on appeal is petitioner's claim that trial counsel performed inadequately by failing to object to Findley's testimony about the CARES treatment recommendations. Specifically, identifying the excerpts of Findley's testimony set out above, petitioner alleged that those recommendations “left [the jury] with the impression that [C's] allegations must be true,” because “a professional was making recommendations which supported that finding.” Apparently due to the number of claims raised by petitioner, Findley's testimony about the CARES treatment recommendations received little attention from petitioner or the state at the post-conviction hearing, and neither party addressed it in the party's trial memorandum.

The state did present an affidavit in which petitioner's trial counsel responded to petitioner's allegations. Although the affidavit did not directly address the CARES treatment recommendations, it explained trial counsel's general approach to evidentiary objections at trial:

“As a criminal defense lawyer, although there was always a balance to be maintained so that jurors would not perceive that I was disinterested or uninvested in my clients' innocence, my general approach and belief about objections at jury trials was conservative. I believed, and continue to believe, that jurors often particularly suspect that a criminal defense lawyer making constant objections, whether upheld or not, is trying to keep information from them, and that promoting this sort of feeling can lead them to link their own distaste for such methods to defendant.

“Based on this general belief, I did not object whenever possible, but only when I was confident that there was an evidentiary violation and that it would be harmful and important in the context of my overall trial strategy.”

(Emphasis in original.) Trial counsel explained, both in his affidavit and through testimony at the post-conviction hearing, that his trial strategy had been to portray petitioner as an individual who exercised poor judgment and to suggest that, in light of the contentious nature of petitioner's relationship with his ex-wife, C may have misperceived or been motivated to distort petitioner's unconventional, but innocent, behavior toward her.

The only discussion of trial counsel's conduct regarding the CARES treatment recommendations at the post-conviction hearing occurred during the examination of Cohen, a defense attorney whom petitioner had called as an expert witness. When asked whether he found fault in trial counsel's failure to object to the admission of the treatment recommendations, Cohen answered, “yes,” but explained that he had “mixed feelings” as to the nature of the fault. After acknowledging that “the rules are different for CARES” and that “the case law in Oregon[is] pretty broad [in] allowing [CARES testimony] to come in,” the expert explained that he thought that “you still have to make your record.” ² Cohenthen opined that the testimony could have been impeached through a defense witness; that counsel should have objected to it on the basis that Findley “lack[ed] the specific expertise” to make recommendations regarding petitioner and petitioner's other child, neither of whom Findley had met; and that the treatment recommendations were ultimately “another way * * * of backing up [C's] allegation[ ].”

At the close of the post-conviction hearing, petitioner and the state each submitted written closing arguments. Petitioner addressed the CARES treatment recommendations in his written closing arguments, but only to restate the basic allegation in his post-conviction petition.³ The state did not address the treatment recommendations directly. The post-conviction court subsequently issued a written order that, after rejecting each of petitioner's other claims, granted petitioner a new trial on the ground that trial counsel's failure to object to the CARES treatment recommendations amounted to constitutionally deficient assistance of counsel under both the state and federal constitutions.

In doing so, the post-conviction court reasoned, among other things, that the testimony about the CARES treatment recommendations went “beyond relaying [C's] statements or even discussing [C's] consistency in making the statements and into recommendations for treatment as if [C's] statements were true.”...