Nichols v. Persson

Citation468 P.3d 952,304 Or.App. 548
Decision Date10 June 2020
Docket NumberA163249
Parties Kierin NICHOLS, Petitioner-Appellant, v. Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.
CourtCourt of Appeals of Oregon

Lindsey Burrows argued the cause for appellant. Also on the briefs was O'Connor Weber LLC.

Adam Holbrook, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.*


Petitioner appeals from a judgment denying her petition for post-conviction relief. In the underlying criminal case, petitioner was convicted of intentional murder, ORS 163.115(1)(a) (2017), amended by Or. Laws 2019, ch. 635, § 4,1 first-degree theft, ORS 164.055, and unlawful possession of a controlled substance, former ORS 475.840(3)(b) (2009), renumbered as ORS 475.752(3)(b). Petitioner denied killing the victim and opposed any defense strategy that implicated her in that crime. In accordance with her wishes, her trial counsel pursued a defense theory that, based on the evidence, the victim either died of natural causes or was killed by someone else. Petitioner asserts in her post-conviction case that counsel's selection of defense theories was not based on a constitutionally adequate investigation of her mental illness, intellectual capacity, or drug dependence and the effect of those conditions on her ability to form the requisite intent for intentional murder. Without that investigation, she argues that trial counsel could not adequately advise her or rely on her refusal to pursue a particular defense.

We conclude that, because petitioner presented no evidence that she would have cooperated with a defense based on her diminished capacity had she been presented with adequate information and advice and because she did not show that there was more than a "mere possibility" that competent counsel could have presented such a defense without her consent, petitioner failed to demonstrate that she was prejudiced by the alleged deficiencies in the representation afforded to her. Accordingly, we do not address whether trial counsel was constitutionally inadequate for failing to investigate, and we affirm.

We take the following facts about the underlying criminal trial from our opinion in the direct appeal, State v. Nichols , 252 Or. App. 114, 284 P.3d 1246 (2012), rev. den. , 353 Or. 428, 299 P.3d 889 (2013), as supplemented by undisputed evidence in the post-conviction record. Petitioner was convicted of intentional murder, first-degree theft, and unlawful possession of a controlled substance based on killing her elderly neighbor while stealing her neighbor's prescription medication and other items. Id . at 116, 284 P.3d 1246. Petitioner had admitted to stealing prescription medication and a ring from her neighbor when those items were found on her during the police investigation, but she argued at trial, based on the evidence and the incomplete and compromised investigation by the police, that the victim had died of natural causes or was killed by someone else.

At trial, defense counsel did not attempt to present either a complete or a partial defense to murder based on petitioner's mental illness, intellectual disability, or drug dependence. Trial counsel did argue, however, that petitioner's "bizarre" behaviors during police interviews and statements made while incarcerated were due to her mental illness or intellectual disability and were not an indication of her guilt. To support that argument, trial counsel had sought to introduce testimony from Dr. James Harper, who evaluated petitioner shortly before trial, and Gary Eby, who was petitioner's mental-health counselor before her incarceration. The trial court did not allow Dr. Harper's testimony when it was offered, because it was offered before the state admitted statements made by petitioner that trial counsel sought to explain through Dr. Harper's testimony and, thus, the court concluded that the testimony would be confusing to the jury. Petitioner's trial counsel did not make any further attempts to offer Dr. Harper's testimony at trial. The trial court also excluded Eby's testimony as not relevant to the issues for which trial counsel sought to use it, because counsel did not connect Eby's diagnoses of petitioner to her behaviors. Nichols , 252 Or. App. at 118, 284 P.3d 1246. On appeal, we affirmed petitioner's convictions. We concluded that Eby's testimony was inadmissible under OEC 702, because it did not include an explanation that linked petitioner's behavior during the investigation and her mental health conditions. Id. at 121, 284 P.3d 1246.

Petitioner then petitioned for post-conviction relief, alleging that her trial counsel was constitutionally inadequate under Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. As relevant on appeal, she alleged that trial counsel was inadequate in the following ways:

"G. Trial counsel did not provide a foundation for the testimony of Dr. James Harper. Trial counsel did not provide a rudimentary explanation that linked the Petitioner's behavior to Dr. Harper's testimony. One example of Petitioner's behavior that Dr. Harper could explain was how Petitioner behaved when talking about her dogs when she was anxious. This is an alternative explanation of her mental faculties that is inconsistent with the state's theory and proof of the case. Without this explanation of her psychological state, the jury relied on this diversion technique or her behavior to convict her of the offense. Counsel failed to demonstrate professional skill and judgment commensurate with the seriousness of the case in failing to help the jury better assess Petitioner's statements in recorded telephone calls from the jail by explaining her bizarre behavior by identifying its emotional antecedents. If the jury had received this information, the jury would have acquitted petitioner or found her guilty of a lesser included offense. * * *
"H. Dr. James Harper evaluated Petitioner and had diagnosed her with bipolar disorder

, borderline personality disorder, a history of substance abuse dependency and kleptomania. Trial counsel did not offer any explanation how those diagnoses might generally affect someone's behavior, or in the alternative, how the diagnoses affect Petitioner's behavior. There is no proffered explanation how the diagnoses affect Petitioner's behavior. Dr. Harper's explanations would assist the jury in assessing petitioner's behavior, but trial counsel did not elicit explanations from the witness. If the jury had this information, the jury would have acquitted Petitioner or found her guilty of a lesser included offense.

"I. Trial counsel did not ask Dr. James Harper to explain Petitioner's opiate addiction and mental status, which provide a defense or negate an element of the charged crime. This would have resulted in an acquittal or conviction of a lesser included offense.

"J. Trial counsel did not investigate and obtain documentation of Petitioner's mental health and medical treatment. Trial counsel did not present mental health information or testimony to the jury. This evidence provides a complete defense or can negative the intent element of the

crime of murder. When intent is uncertain the jury verdict must result in an acquittal or conviction of a lesser offense. Most if not all mental health documentation has been destroyed by the service provider. Petitioner was unable to present this evidence during her trial and was prejudiced by trial counsel's failure to obtain the records and information while the case was pending in 2008 and 2009.
"K. Trial counsel did not consult or call an expert witness on the effects of painkiller addiction. Trial counsel did not present an explanation about the behavior of addicted or habitual users. Trial counsel did not investigate and present information to the jury explaining the contraindications of the medications Petitioner was taking at the time of the incident. This would have explained the prior theft of [the victim's] belongings and medications and presented a defense based on Petitioner's mental health at the time of the event, resulting in an acquittal.
"L. Trial counsel did not investigate Petitioner's evaluations and treatment at ‘Options for Southern Oregon’ from 2003 until the date when Petitioner was arrested for this charge. All of the records prior to Petitioner's arrest have been destroyed due to age, pursuant to agency policy. Petitioner was unable to present any defense because trial counsel did not obtain this information while the case was pending in 2008-2009. If the jury had been provided with information about Petitioner's mental health and how her mental health affected her actions at the time of this offense, the jury would have acquitted her or found her guilty of a lesser included offense.
"* * * * *
"N. Trial counsel failed to investigate petitioner's treatment at the ‘Pain Specialists of Southern Oregon.’ Dr. Joseph Savino was the Petitioner's care provider and trial counsel did not investigate or consult with the doctor about Petitioner's health, examination results of imaging performed on her, and no injury is in the record regarding investigation of the prescriptions that Dr. Savino wrote for Petitioner. Petitioner was prescribed the same medication that was in her possession after the death in this case. This contradicts any inference Petitioner was desperate to steal medication from the victim or had a motive to steal because Petitioner had prescribed access to medication. If the jury had this information, the jury would have acquitted Petitioner or found her guilty of a lesser included offense."

In support of those allegations, petitioner presented two declarations from Dr. Harper, a psychological...

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