Mandell v. Cain

Decision Date27 October 2021
Docket NumberA171428
Citation500 P.3d 762,315 Or.App. 471
Parties Donald Lee MANDELL, aka Donald L. Mandell, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
CourtOregon Court of Appeals

Harrison Latto filed the opening brief for appellant. Donald Lee Mandell filed the supplemental brief pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

PER CURIAM

Petitioner appeals from a judgment denying his petition for post-conviction relief. In his brief submitted through counsel, petitioner assigns error to the post-conviction court's denial of relief on his claim that trial counsel was inadequate and ineffective, in violation of Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, for failing to object to alleged vouching testimony. See, e.g. , Gable v. State of Oregon , 353 Or. 750, 758, 305 P.3d 85 (2013) (stating standard for Article I, section 11, claim); Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (stating standard for Sixth Amendment claim). In a pro se supplemental brief, petitioner identifies 10 other alleged deficiencies with counsel's performance. On review for legal error, Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015), we affirm.

Vouching . Petitioner contends that his trial counsel was inadequate and ineffective for not objecting to (1) a question, which the prosecutor asked the detective who interviewed petitioner, about discrepancies between petitioner's version of events and the victim's version of events; and (2) the detective's response to that question, about the possible meanings of that discrepancy. Petitioner maintains that this answer constituted impermissible vouching, that the prosecutor's question eliciting it was improper, and that trial counsel should have objected to both.

In response, the superintendent argues that petitioner's claim about the question—as distinct from the answer—was not alleged in his post-conviction petition, and was not argued below, making it unpreserved. As for the claim about the answer, the superintendent argues that the detective's statement did not constitute vouching. Because the testimony was not vouching, the superintendent reasons, trial counsel reasonably did not raise a vouching objection and petitioner was not prejudiced by the omission of any such objection.

We agree with the superintendent. Petitioner's contention that trial counsel was inadequate for not objecting to the prosecutor's question was neither alleged in the petition nor otherwise argued below, so we reject it as unpreserved.

As for the contention that trial counsel was inadequate for not objecting to the detective's testimony as impermissible vouching, that fails because the testimony was not vouching testimony. " ‘Vouching’ refers to the expression of one's personal opinion about the credibility of a witness." State v. Sperou , 365 Or. 121, 128, 442 P.3d 581 (2019). The detective's challenged statement here cannot reasonably be understood to express the detective's personal opinion about defendant's credibility. Accordingly, because the testimony was not vouching testimony, trial counsel did not perform deficiently when he did not raise a vouching objection, and petitioner was not prejudiced by the lack of a vouching objection because it would not have succeeded. See Warren v. Baldwin , 140 Or. App. 318, 322, 915 P.2d 1016, rev. den. , 324...

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3 cases
  • Mandell v. Miller
    • United States
    • Oregon Court of Appeals
    • July 6, 2023
    ... ... sexual abuse in the first degree, and the judgment of ... conviction became final the following year. In 2018, ... petitioner initiated a post-conviction proceeding on ... allegations unrelated to this case, which was subsequently ... denied.[1] See Mandell v. Cain, 315 Or.App ... 471, 500 P.3d 762 (2021), rev den, 369 Or. 507 ... (2022) (affirming that denial). Petitioner filed the instant ... petition in 2020, after the United States Supreme Court held ... that the Sixth Amendment to the United States Constitution ... requires that a jury reach a ... ...
  • Orians v. State
    • United States
    • Oregon Court of Appeals
    • March 29, 2023
    ... ... distinct from his claim below, rather than a subset of that ... claim, and was not argued before the post-conviction court ... See Mandell v. Cain, 315 Or.App. 471,472,500 P.3d ... 762 (2021), rev den, 369 Or. 507 (2022) (a claim ... that "was neither alleged in the petition nor ... ...
  • Green v. Cain
    • United States
    • Oregon Court of Appeals
    • March 8, 2023
    ... ... basis that consolidation would "create[] a substantial ... risk of prejudice against [petitioner]," and petitioner ... has not demonstrated that a separate motion to sever charges ... pursuant to ORS 132.560(3) after consolidation would have ... been successful. See Mandell v. Cain, 315 Or.App ... 471, 473, 500 P.3d 762 (2021), rev den, 369 Or. 507 ... (2022) ("[B]ecause the testimony was not vouching ... testimony, trial counsel did not perform deficiently when he ... did not raise a vouching objection, and petitioner was not ... prejudiced by the lack of a ... ...

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