MONTEZ v. CZERNIAK

• Citation: 237 Or.App. 276,239 P.3d 1023
• Decision Date: 22 September 2010
• Docket Number: 97C12376,A130258.
• Parties: Marco Antonio MONTEZ, Petitioner-Appellant, v. Stanley CZERNIAK, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
• Court: Court of Appeals of Oregon

237 Or.App. 276

239 P.3d 1023

Marco Antonio MONTEZ, Petitioner-Appellant v Stanley CZERNIAK, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

97C12376; A130258.

Court of Appeals of Oregon.

Argued and Submitted June 16, 2010.

Decided Sept. 22, 2010.

COPYRIGHT MATERIAL OMITTED.

Marc Sussman, Portland, argued the cause and filed the briefs for appellant.

Pamela J. Walsh, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

BREWER, C.J.

Petitioner, who was convicted of aggravated murder and sentenced to death, appeals a judgment denying post-conviction relief. He argues that the post-conviction court erred in rejecting his numerous claims that counsel in his 1992 penalty-phase retrial proceedings provided constitutionally ineffective assistance of counsel. ¹ For the reasons explained below, we affirm.

I. THE UNDERLYING CRIMES

We begin with the facts of the underlying crimes, as taken from the Oregon Supreme Court opinion on direct review of the initial conviction and death sentence.

“On June 20, 1987, Candice Straub, accompanied by two men, rented a room at the Continental Motel in Portland. The next day, firefighters responding to a fire at the motel discovered Straub's nude and bound body on a bed in one of the motel's rooms. Her body had been doused with flammable liquid and set afire. It was determined later that she had been strangled to death.

“A few weeks later, defendant Marco Montez told [A.E.], a woman with whom he had been living in Pocatello, Idaho, that he had helped get rid of the body of a woman in Portland after Tim Aikens, the co-defendant in this case, had strangled her. Edmo reported that statement to the Pocatello police. Defendant was arrested in Pocatello on July 12 on unrelated Idaho charges. The Pocatello police notified the Portland police of his arrest and of Edmo's report.

“Portland Detective Goodale flew to Pocatello to interview defendant. * * *

“In response to Goodale's questions, defendant at first denied any involvement in Straub's murder. He stated that he had met Aikens in Portland and that they had worked together for a day at a cannery. Aikens had met Straub atthe cannery, and she had accompanied Aikens and defendant to a drop-in center in Portland when they returned from work. After sleeping for a few hours, the three went to breakfast and to a second hand store before separating. Aikens and Straub went to the Continental Motel; and defendant went to a park, where he remained until Aikens contacted him later. At that time, Aikens told defendant that he had left Straub at the motel and that he wanted to show defendant something there. Defendant, however, declined to go to the motel. Aikens then said that he had a ‘problem,’ after which defendant and Aikens then made plans to leave town.

“ * * * * *

“In response to further questions by Goodale, defendant admitted that he had gone to the motel, where Aikens had showed him Straub's dead body in the bathtub. Aikens told defendant that Straub had refused to have sex with him, that he had hit her, and that she had fallen and hit her head. Defendant stated that he had then left the motel. Defendant stated that Aikens had later admitted setting the motel room afire. Defendant at first denied involvement in the fire, but he later admitted that he had helped Aikens move Straub's body from the bathtub to a bed and had participated in setting the motel room afire. Defendant admitted that it had been his plan to burn the room, but he still denied killing Straub or having sexual relations with her.

“ * * * * *

“Goodale resumed his questioning of defendant. Defendant related more incriminating details about Straub's death, although he still insisted that Aikens alone had killed her. Defendant then returned to his cell, but shortly thereafter he asked a jailer to tell Goodale to return and ‘to bring his tape recorder.’

“When Goodale arrived, he again advised defendant of his Miranda rights. Defendant then admitted that he had participated in Straub's murder. He stated that he and Aikens had beaten, raped, and sodomized Straub and that when she had resisted, Aikens pushed his fist into her anus causing her to bleed profusely. They then tied Straub's arms and legs behind her back and gagged her and put her in the bathtub. Defendant stated that he and Aikens became concerned that Straub might report them to the police, and they decided to kill her. After looping a towelaround Straub's neck, each man pulled one end until she was dead. They then placed her body on the bed, doused it with lighter fluid, set it afire, and left. Defendant admitted that they burned the motel room to destroy any evidence that could link them to the crime.

“Defendant then asked if Goodale knew what would happen to defendant in Oregon. Goodale explained the Oregon homicidelaws. Defendant then said that he was willing to plead guilty to murder but hoped that he would not be sentenced to death.

“ * * * Goodale again spoke with defendant, who stated that Straub had been conscious when he and Aikens carried her into the motel bathroom and placed her in the bathtub. He also admitted that he rather than Aikens had placed his fist in Straub's anus.”

State v. Montez, 309 Or. 564, 567-69, 789 P.2d 1352 (1990).

Petitioner was charged with three counts of aggravated murder, and one count each of first-degree arson and abuse of a corpse. Id. at 569 n. 1, 789 P.2d 1352. In 1988, a jury convicted him of the charged crimes and, following a penalty-phase proceeding, sentenced him to death. In that first trial, petitioner was represented by attorneys Brad Grove and Lynne Dickison. On automatic and direct review, the Oregon Supreme Court affirmed the convictions and other sentences, but reversed the death sentence on the basis of its holding in State v. Wagner, 309 Or. 5, 786 P.2d 93 (1990). In Wagner, the court, relying on the United States Supreme Court's opinion in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), held that Oregon's death penalty sentencing scheme was constitutionally infirm because it did not include a fourth, general mitigation, question.

II. THE PENALTY-PHASE RETRIAL

The case was remanded for a penalty-phase retrial, and it is counsels' representation of petitioner at that proceeding that is at issue in this appeal. Grove, the attorney who represented petitioner at his first trial, again was appointed to represent him; Dickison initially was replaced by another attorney. On the day set for the penalty-phase retrial, both counsel withdrew due to a conflict resulting fromtheir representation of one of the witnesses whom the state intended to call. Two days later, Dickison agreed to represent petitioner; she selected Corinne Lai as her second chair. The trial date was postponed. The two lawyers continued to work with Judith Bieberle, an investigator who had been hired by and was working with Grove. In addition, counsel moved for appointment of a mitigation specialist. As will be discussed in more detail below, the trial court denied the motion.

Dickison, Lai, and Bieberle continued preparing for the penalty-phase retrial. Bieberle was sent to Minnesota, where petitioner grew up, to investigate his background. Dr. Lenore Walker, a psychologist, was retained as a defense expert. Walker referred counsel to Dr. Toni Appel, a neuropsychologist, who reviewed Walker's testing and suggested that no neuropsychological assessment was necessary. Nonetheless, counsel had Dr. Les Goldmann, a clinical psychologist, perform a number of neuropsychological tests on petitioner. Goldmann found no neuropsychological deficits, nor did he find evidence of brain injury. Counsel also retained Dr. Gary Jacobsen, M.D., an expert in addiction medicine, to examine petitioner's records to determine whether he suffered from fetal alcohol syndrome and would be treatable in prison. Counsel moved for several continuances to allow them more time to prepare for trial; each request was denied.

Ultimately, a jury was selected and the penalty-phase retrial began. Petitioner's counsel presented a number of expert and lay witnesses in an attempt to convince the jury not to sentence petitioner to death. Petitioner did not testify, nor did he allocute-that is, make an unsworn statement to the jury. The jury voted to sentence petitioner to death, and the trial court entered judgment accordingly.

On automatic and direct review, the Oregon Supreme Court affirmed petitioner's death sentence, and the United States Supreme Court denied certiorari. State v. Montez, 324 Or. 343, 927 P.2d 64 (1996), cert. den., 520 U.S. 1233, 117 S.Ct. 1830, 137 L.Ed.2d 1036 (1997). Petitioner filed a petition for post-conviction relief; following a hearing, the post-conviction court entered a judgment denying relief. This appeal follows.

III. THE POST-CONVICTION CASE AND APPLICABLE LAW

In his petition for post-conviction relief, petitioner alleged dozens of ways in whichcounsel at his initial trial and his penalty-phase retrial were ineffective. In 26 pages of findings and conclusions, the post-conviction court rejected each claim. On appeal, petitioner raises four assignments of error that all relate to the alleged ineffectiveness of counsel at his 1992 penalty-phase retrial. Within those four assignments of error, however, are many specific claims of how counsel allegedly were deficient in the performance of their duties and how those alleged deficiencies affected the outcome of the penalty-phase retrial. The overarching theme of petitioner's opening brief is that counsel failed to present an adequate case on mitigation. We discuss-and reject-several of those arguments below. We also have considered petitioner's remaining arguments, and we reject them without discussion.

We...