Pachl v. Zenon

• Decision Date: 24 December 1996
• Docket Number: C-12454
• Citation: 929 P.2d 1088,145 Or.App. 350
• Parties: Randol Lawrence PACHL, Appellant, v. Carl ZENON, Superintendent, Oregon State Correctional Institution, Respondent. 91; CA A88128.
• Court: Oregon Court of Appeals

Page 1088

929 P.2d 1088

145 Or.App. 350

Randol Lawrence PACHL, Appellant, v. Carl ZENON, Superintendent, Oregon State Correctional Institution, Respondent.

91C-12454; CA A88128.

Court of Appeals of Oregon In Banc.

Argued and Submitted April 3, 1996.

Resubmitted In Banc June 12, 1996.

Decided Dec. 24, 1996.

Samuel C. Kauffman, Portland, argued the cause, for appellant. With him on the brief were Janet Lee Hoffman and Hoffman & Matasar, Portland.

Kaye E. Sunderland, Assistant Attorney General, argued the cause, for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

EDMONDS, Judge.

Petitioner appeals from a post-conviction judgment denying his request to set aside his conviction for murder. ORS 138.510 et seq. We affirm.

Petitioner was convicted by a jury of aiding and abetting a murder. According to the state's theory of the case, petitioner was driving a motor vehicle when Hobson, one of his passengers, decided he needed to "break a knife in." Petitioner drove past the victim, Stanley Reed, as Reed was riding his bicycle, and Hobson stuck the knife out the window and tried to strike Reed with it. Hobson missed, remarking as he looked at the knife, "Oops, no blood," and petitioner turned at the next corner, drove around the block, and waited for Reed to approach his vehicle at the intersection. When Reed proceeded past the vehicle, petitioner edged the car toward Reed. Reed threw down his bike and approached petitioner's vehicle. Hobson got out of the car and chased Reed with the knife, eventually stabbing him twice. Reed later died from the stab wounds.

Petitioner now seeks post-conviction relief, making multiple assignments of error. The subjects of several assignments of error present issues that petitioner could reasonably have been expected to raise at the trial level in the prosecution or on appeal from that conviction. Therefore, we decline to consider those assignments. Palmer v. State of Oregon, 318 Or. 352, 354, 867 P.2d 1368 (1994). The remaining assignments of error assert that petitioner received ineffective assistance of counsel. ORS 138.530(1)(a) requires the court to grant post-conviction relief if there has been

"[a] substantial denial in the proceedings resulting in petitioner's conviction * * * of petitioner's rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void."

A substantial denial of constitutional rights occurs if the counsel for a criminal defendant provides ineffective assistance of a constitutional magnitude at trial.

On review of a denial of post-conviction relief, we are bound by the post-conviction court's factual findings, if supported by evidence in the record, but we examine anew its constitutional determinations. Krummacher v. Gierloff, 290 Or. 867, 869, 627 P.2d 458 (1981). To be entitled to post-conviction relief on the basis of inadequate assistance of counsel, petitioner must demonstrate by a preponderance of the evidence that his trial counsel failed to exercise reasonable professional skill and judgment and that he suffered prejudice as a result. Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991). Petitioner first argues that he was denied adequate assistance of counsel because his counsel should have moved to exclude from the courtroom certain spectators who were wearing buttons while his criminal trial was being held.

In that regard, the trial court found and concluded:

"4. Throughout petitioner's criminal trial, persons were present in the courtroom wearing a 'Crime Victims United' button * * *. Such persons numbered between six and twelve at various times during the trial and were generally seated in a 'block' on the side of the courtroom nearest to the jury box and next to the aisle were [sic ] the jury exited and entered the courtroom. Consequently, all of the jurors saw the button wearers and at least some of the jurors were able to read the button.

"5. A substantial number of spectators who did not display any indicia of identification or affiliation also were present throughout petitioner's trial, and the button wearers did not constitute a majority of the persons in attendance at any time during the trial.

"6. The presence and the conduct of the button wearers during the time the jury was present were under the direct observation of the Court, except on several occasions when the Court met in chambers with petitioner and counsel without declaring a recess. While the button wearers were in the presence of the Court, no disruption or other activity occurred to cause the Court to take any preventive or remedial action with respect to the button wearers or to address any issue related to their presence or conduct.

" * * * * *

"8. The message printed on the buttons indicated that the button wearers were united in support of the rights of victims of crimes. The message did not accuse the petitioner of having committed the subject crime, nor did it imply that the button wearers had any extra-judicial knowledge or information concerning the petitioner's guilt.

"9. The CVU buttons were not donned at the end of the trial after the evidence had been presented, so as to imply that the button wearers had concluded from the evidence that the petitioner was guilty. Rather, the button wearers displayed their buttons at the outset of the trial before any evidence was presented and they continued to display the buttons throughout the trial.

"10. The prosecution did not procure the attendance of the button wearers and was not affiliated with them in any way. Furthermore, during the course of the trial, the button wearers did not have contact with the prosecutor or the State's other representatives in such a manner or to such an extent that the jury reasonably would have inferred the existence of an affiliation between the button wearers and the prosecutor or the State.

"11. The State's theory of prosecution, and all of the evidence adduced at petitioner's criminal trial, was to the effect that petitioner himself was not the perpetrator of the homicide in question, but rather that petitioner was vicariously liable for the crime because he counseled or aided and abetted another person to commit the homicide. In deciding that issue, the jury was less likely to be influenced by impermissible factors than would have been the case in deciding the guilt or innocence of the actual perpetrator of the subject crime.

"12. Under the totality of the circumstances of petition's [sic ] criminal trial, the presence and the conduct of the button wearers did not create an unacceptable risk that the jury would consider factors other than the law and the evidence in determining the issue of petitioner's guilt or innocence, so as to pose an unacceptable threat to petitioner's right to a fair trial and therefore to be inherently prejudicial to the petitioner. Further, petitioner, in fact, was not prejudiced by the presence and conduct of the button wearers at his criminal trial."

During the trial, the victim's wife was seated in the spectator section of the courtroom. Also present in the spectator section during the trial were a number of persons who wore buttons. Throughout the trial, defense counsel made numerous motions for mistrial. After the jury had been instructed and the case had been submitted to them, counsel called petitioner's stepmother to the witness stand and elicited the following testimony:

"Q And you're Randy's stepmother?

"A Yes.

"Q You have been sitting in the courtroom since you were permitted to come back in, is that right?

"A Yes.

"Q And have you observed some people wearing big round buttons?

"A Yes.

"Q Do you recall what they say on them?

"A 'CCVU,' Citizen Crime Victims United.

"Q And how many people have been sitting back in the court with buttons?

"A Oh, gosh, probably a dozen at least, or more.

"Q In and out?

"A Yes.

"Q How big are the buttons?

"A They're about the size--this thick.

"Q You're indicating a couple inches across?

"A Yes.

"Q Are they sitting close enough to the jurors so the jurors can see them?

"A Yes.

"Q Now, what occurred today regarding some of those people who were the people you're talking about and what did you see them do?

"A While you were out, while you went into chambers for a discussion, the older woman with blondish colored hair, I believe wearing a tan dress, and a tall gentleman in a gray suit with silver gray hair wearing the buttons, went to leave the courtroom and as they left, they passed the victim's wife and she put her arms around her and consoled her with members of the jury staring right at them, and when they left, more members of the group left, a woman probably in her mid-40's and another gentleman sitting on the end of the bench that the victim's wife was sitting on, patted her head and consoled her and left in plain view of the jury.

"Q So the four of them went through this bit in front of the jury?

"A Also one of them came up when you were in chambers from the back of the room, a black woman who's been in here, she's probably in her 30's, came up and talked with the victim's wife with her arm around her shoulder while the jury was watching.

"Q Was she wearing a button?

"A No.

" * * * * *

"[Petitioner's trial counsel:] Of course, this is the victim's wife, Mrs. Reed, who's sitting here all the time, so if the Court permits her to come back in, I would ask that you deny anybody else that activity.

" * * * * *

"[Petitioner's trial counsel:] I'd appreciate, Your Honor, having the opportunity to have this evidence in the record at this time and in all probability pursue it, but I don't precisely know how yet, so I'd appreciate the opportunity to make a record."

After the jury returned a verdict of guilty, defense counsel moved for a new trial including the ground that there was misconduct by victim's advocates in the...