Pinnell v. Palmateer

• Decision Date: 22 June 2005
• Citation: 200 Or. App. 303,114 P.3d 515
• Parties: Mark Allen PINNELL, Appellant, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

114 P.3d 515

200 Or. App. 303

Mark Allen PINNELL, Appellant, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Respondent.

94C-13573; A113174.

Court of Appeals of Oregon.

Argued and Submitted December 13, 2004.

Decided June 22, 2005.

Eric M. Cumfer, Salem, argued the cause and filed the opening brief for appellant. On the reply brief were Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Eric C. Cumfer, Deputy Public Defender, Office of Public Defense Services.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Robert B. Rocklin, Assistant Attorney General.

Before LANDAU, Presiding Judge, ARMSTRONG, Judge, and DEITS, Judge pro tempore.

LANDAU, P.J.

Petitioner was convicted of aggravated murder and felony murder and sentenced to death. The convictions and sentence ultimately were affirmed on direct appeal. Petitioner then filed a petition for post-conviction relief, advancing a number of claims concerning the constitutionality of the criminal trial proceedings and the adequacy of his counsel. The trial court rejected those claims and dismissed the petition. Petitioner appeals, assigning error both to the dismissal of those claims and to what he contends were erroneous rulings by the trial court in the post-conviction proceeding itself. We affirm.

I. FACTUAL BACKGROUND

We begin with a brief summary of the underlying facts and leave to our analysis of particular assignments of error any additional facts that are relevant to those assignments. The Supreme Court summarized the facts leading to the criminal trial as follows:

"In August 1985, [petitioner] contacted Randy Brown in response to an advertisement placed by Brown in `Swing N Sway' Magazine, a publication through which persons meet for sexual purposes. [Petitioner] and Brown met and engaged in homosexual relations. On September 9, 1985, [petitioner] again contacted Brown and arranged to meet with him later that evening at Brown's residence. [Petitioner] and his then constant companion, Donald Cornell, were driven by a friend to a location near Brown's house. The two men gained entry into the house and tied Brown's hands and feet together behind his back with electrical cord and other materials. Brown also was blindfolded and gagged. [Petitioner] and Cornell repeatedly threatened Brown with a knife, and one of the men kicked Brown on the side of the head when Brown attempted to loosen the bindings. Over the ensuing three-hour period, [petitioner] and Cornell ransacked the house, loaded the stolen property into Brown's pickup truck and left, leaving Brown tied and gagged on the bathroom floor. Brown eventually managed to summon help and suffered no permanent injuries.

"Several days later, [petitioner] obtained the use of a car from his ex-wife, Dixie Timmons. Shortly after midnight on September 19, 1985, [petitioner] called John Ruffner, the victim in this case. Ruffner had an advertisement in the same issue of `Swing N Sway' in which Brown's advertisement appeared. Driving Timmons' car, with Cornell and an acquaintance named Velma Varzali as passengers, [petitioner] went to the victim's apartment in Tualatin. Once there, [petitioner] parked, left Cornell and Varzali in the car, and went to see the victim. About five minutes later, Cornell left the car. Several hours later, [petitioner] and Cornell returned to the car, loaded it with property stolen from the victim's apartment, and drove back to their lodgings.

"Ruffner's body was found the next day. His apartment had been ransacked. Ruffner's body lay on the bathroom floor, with hands and feet tied behind his back in part with electrical cords ripped from appliances in the apartment. He was gagged in part with a scarf, and a ligature was wrapped around his neck. Additionally, a large wad of tissue paper was stuffed into his mouth. The autopsy revealed that Ruffner died of asphyxiation as a result of either the tissue or the ligature. Ruffner's body also had cuts on his hands and a `blunt-force injury to the right side of his head.'

"On September 22, 1985, [petitioner] and Cornell were arrested. [Petitioner] eventually was indicted for six counts of aggravated murder and two counts of felony murder involving a single victim, Ruffner. [Petitioner] was found guilty by the jury of all eight counts. At sentencing, all counts were merged into count number 1, aggravated murder by torture."

State v. Pinnell, 311 Or. 98, 100-02, 806 P.2d 110 (1991).

Following petitioner's conviction, the trial court held a penalty-phase proceeding, after which it sentenced petitioner to death. The Supreme Court affirmed petitioner's conviction but vacated the sentence of death based on the trial court's failure to instruct the jury on what has come to be known as the "fourth question" required by State v. Wagner, 309 Or. 5, 14-20, 786 P.2d 93, cert. den., 498 U.S. 879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990), an instruction that permits the jury to spare a defendant's life if it believes that, under all the circumstances, it is appropriate to do so. Pinnell, 311 Or. at 117-18, 806 P.2d 110. On remand, petitioner was again sentenced to death. On direct and automatic review, the Supreme Court affirmed that death sentence. State v. Pinnell, 319 Or. 438, 446, 877 P.2d 635 (1994).

Petitioner filed a petition for post-conviction relief in Marion County Circuit Court. The petition alleged four claims for relief: (1) In the first of the criminal proceedings, petitioner received constitutionally inadequate assistance of counsel in 38 specific ways at trial and on appeal; (2) in the operative penalty proceeding, petitioner received constitutionally inadequate assistance of counsel in 56 ways at trial and on appeal; (3) petitioner was denied constitutionally adequate assistance of counsel and denied a myriad of constitutional rights when counsel failed to argue various issues concerning the constitutionality of the death penalty; and (4) the trial court in the second penalty proceeding committed a variety of reversible errors.

The case was assigned to Judge Rhoades. Following trial, Judge Rhoades issued a decision by way of a carefully crafted, 24-page set of findings of fact and conclusions of law explaining the grounds for the court's decision to dismiss all of petitioner's claims for post-conviction relief. We will refer to portions of those findings and conclusions as they are pertinent to the disposition of the issues on appeal.

II. DISPOSITION OF THE MERITS

On appeal, petitioner advances 17 assignments of error, some pertaining to the conduct of the post-conviction trial itself, one pertaining to the constitutionality of Oregon's death penalty statute, one pertaining to the dismissal of a claim concerning trial court error in the second penalty-phase proceeding, and others pertaining to the post-conviction trial court's disposition of his post-conviction claims. We begin with the assignments that pertain to the conduct of the post-conviction trial and then address the balance of his assignments.

A. Conduct of the post-conviction trial

Petitioner contends that the post-conviction trial court committed two reversible errors in the conduct of the post-conviction trial itself. First, petitioner contends that the post-conviction judge erred in declining to recuse herself and in denying a motion for a new trial based on what petitioner characterizes as "ex parte contacts" with another judge on the same court. Second, petitioner contends that the post-conviction trial court erred in excluding certain documentary evidence that petitioner sought to introduce to impeach one of his penalty-phase attorneys. We address each assignment in turn.

1. Motion to recuse and motion for a new trial

As we have noted, one of petitioner's post-conviction claims related to the performance of counsel during the second penalty-phase proceeding. At trial on that claim, petitioner called Lundberg-Rogers, who had testified as a "mitigation specialist" for petitioner in the second penalty-phase proceeding. Her role in that proceeding apparently was to interview petitioner and other persons and assist the defense team in making a case for mitigation of a possible sentence of death. In the post-conviction trial, petitioner asked Lundberg-Rogers to testify about her own performance during that proceeding, as well as the performance of other members of the defense team.

Lundberg-Rogers testified that she had been unable to view transcripts of the underlying criminal trial, that she had not been told that certain state's witnesses would testify, and that she had had "very, very little time" to prepare for the penalty-phase proceeding. Lundberg-Rogers also testified that she was "somewhat distracted" and had lost confidence and was "shaken" after learning that another case she had been working on in a similar capacity had resulted in a death sentence. Regarding her performance at petitioner's penalty-phase proceeding, Lundberg-Rogers concluded that "I tried to do the best I could, but I have to say, it was sadly lacking. * * * It was not adequate."

After the trial, the post-conviction trial court took the matter under advisement. Approximately six weeks later, Judge Leggert, also of the Marion County Circuit Court, sent a letter to the State Court Administrator's office expressing concerns about the use of mitigation specialists in death penalty cases. Judge Leggert explained that she became concerned about the issue when she examined an affidavit of Lundberg-Rogers in a case unrelated to this appeal. Judge Leggert explained that she also had heard from Judge Rhoades that the same person had testified in this post-conviction trial and that Lundberg-Rogers had said that she had not done a good job in petitioner's case. Judge Leggert then stated:

"This raises two issues for me. First, I question

...