Loveless v. Maass
| Decision Date | 19 April 2000 |
| Citation | 166 Or. App. 611,999 P.2d 537 |
| Parties | John Lawrence LOVELESS, Appellant, v. Manfred MAASS, Superintendent, Oregon State Penitentiary, Respondent. |
| Court | Oregon Court of Appeals |
Eric M. Cumfer, Salem, argued the cause and filed the brief for appellant.
Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before LANDAU, Presiding Judge, and DEITS, Chief Judge,1 and ARMSTRONG, Judge.
Petitioner appeals from a judgment dismissing his petition for post-conviction relief from convictions for three counts of sexual abuse in the first degree and one count of sodomy in the first degree, each involving alleged misconduct with his stepson (the child). In the petition he asserted, among other things, that his counsel at the criminal trial conducted a constitutionally inadequate pre-trial investigation, with the result that he failed to discover evidence that had a tendency to affect the result of the trial. We agree with petitioner that his trial counsel was constitutionally inadequate in at least one respect and that that inadequacy prejudiced petitioner. We therefore reverse the denial of post-conviction relief.
Petitioner and Kristen Sullivan (Sullivan) were married in 1981 and divorced in October 1985. The child was born on June 20, 1985. Although petitioner is not the child's biological father, he considers the child to be his son. He had custody of the child for much of the time between the child's birth and the events at issue in the original trial. After a short reconciliation in either summer 1987 or summer 1988, petitioner and Sullivan were engaged in a continuing legal dispute over custody of the child and of an older son. The first allegation that the child had been sexually abused came in March 1989 and resulted in a thorough police investigation. The police considered both Sullivan's mother and petitioner as possible perpetrators. Because there was no physical evidence of abuse and because of the child's age, the eventual decision was against prosecution. Petitioner's attorney in the custody dispute obtained a copy of the report of Detective King, the investigating detective, presumably for use in the custody case.
There was another complaint in October 1989 that also led to no action. In May 1990, Sullivan initiated a third complaint because of statements that the child had made to a babysitter and to her. That complaint ultimately led to an indictment that charged petitioner with having committed sexual abuse between June 20, 1988, and May 6, 1990, and with having committed sodomy between May 1, 1988, and May 6, 1990. At the trial, the only significant evidence against petitioner came from the child or from witnesses who described what the child had said to them. In his testimony, petitioner denied that any of the alleged events had occurred. Petitioner's criminal counsel, who was not the same person as petitioner's counsel in the custody dispute, did not learn of Detective King's report before the trial and did not use it in preparing the defense. After the verdict, criminal counsel became aware of that report and of some other evidence and used it as the basis for a motion for a new trial. The trial court denied the motion, in part on the ground that the evidence was not newly discovered under the appropriate legal standard. See State v. Williams, 2 Or.App. 367, 371, 468 P.2d 909 (1970)
.
At the post-conviction hearing, petitioner presented evidence that in his view showed that his criminal counsel's investigation of the case was inadequate and that an adequate investigation would have produced evidence that would have had a tendency to affect the result of the case. We discuss only evidence that showed that petitioner's counsel in the criminal case did not attempt to determine who represented petitioner in the custody dispute with Sullivan or to get in touch with that lawyer, with the result that the criminal lawyer did not know about King's report before trial. Petitioner testified that he told his criminal lawyer the name of his custody lawyer, that he told his custody lawyer that his criminal lawyer might call him, and that the custody lawyer had indicated that he would cooperate with the criminal lawyer. Petitioner's criminal lawyer denied that petitioner gave him the name of the custody lawyer but otherwise does not dispute petitioner's evidence.
Petitioner's criminal lawyer did talk with the lawyer who had briefly represented petitioner during the March 1989 investigation, but that lawyer had nothing of significance in his file. He made no other attempt to determine who represented petitioner in the custody dispute. If petitioner's criminal lawyer had talked with petitioner's custody lawyer, he would have had an opportunity to review the custody lawyer's file, in which he would have found a copy of King's report. Among other things, that report contained a summary of a statement from Seanna Kansier, who at the time was both petitioner's sister-in-law and a close friend of Sullivan. King reported that Kansier had stated that she believed that Sullivan had planted the idea with the child that petitioner was abusing him.
In an affidavit that petitioner submitted as an exhibit in the post-conviction proceeding, Kansier expanded on the statements in King's report. She explained that she knew Sullivan as a close friend and companion during Sullivan's custody battle with petitioner in 1989 and 1990. On a daily basis, she saw Sullivan prepare the child on how to act on the witness stand; Sullivan's efforts involved daily coaching:
(Capitalization deleted.) We conclude that, in light of the evidence that Kansier would have given at trial, petitioner's criminal lawyer's failure to find her and offer her as a witness is in itself sufficient to entitle petitioner to post-conviction relief. We therefore do not consider the other issues that petitioner raises.
In reviewing a claim of inadequate assistance of counsel, we are bound by the post-conviction court's factual findings that are supported by evidence in the record, but we make our own determination of the constitutional issues. See Carias v. State of Oregon, 148 Or.App. 540, 542, 941 P.2d 571 (1997)
. Those constitutional issues include whether counsel was ineffective or inadequate and whether the petitioner was prejudiced as a result. See Ashley v. Hoyt, 139 Or.App. 385, 391, 395-96, 912 P.2d 393 (1996). Although there is no "single, succinct, clearly defined standard for determining adequacy of counsel," the exercise of reasonable professional skill and judgment generally requires "an investigation that is legally and factually appropriate to the nature and complexity of the case so that the lawyer is equipped to advise and represent the client in an informed manner." Stevens v. State of Oregon, 322 Or. 101, 108, 902 P.2d 1137 (1995).
In Stevens, a sexual abuse case that turned on the credibility of the complaining witness and the defendant, the attorney's failure to interview several witnesses whose testimony might have a bearing on the complaining witness' credibility was constitutionally inadequate. The decision not to interview those witnesses was not based on a...
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