Ryan v. Palmateer
| Decision Date | 10 March 2005 |
| Parties | Danny Thomas RYAN, Petitioner on Review, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Respondent on Review. |
| Court | Oregon Supreme Court |
On review from the Court of Appeals.1
Stephen A. Houze, Portland, argued the cause and filed the brief for petitioner on review.
Kathleen Cegla, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Petitioner in this post-conviction case alleges that he received inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution and ineffective assistance of counsel under the Sixth Amendment to the federal constitution. He argues that his trial counsel's errors prejudiced him and that, even if he cannot prove actual prejudice, this court should grant post-conviction relief because of "structural error" at his trial.2 The post-conviction court held that petitioner's rights had not been violated. The Court of Appeals affirmed without opinion. Ryan v. Palmateer, 190 Or.App. 398, 79 P.3d 917 (2003). We affirm for the reasons stated below.
We begin by describing the proceedings and evidence at petitioner's underlying trial. The state indicted petitioner for sodomy, attempted rape, third-degree theft, and three counts of menacing.3 All the charges involved allegations by petitioner's former girlfriend that he had threatened her with a rifle and forced her to perform oral sex.
Initially, petitioner was represented by appointed counsel who entered a not guilty plea and filed pretrial motions challenging the application of Ballot Measure 40 (1996)4 and Ballot Measure 11 (1994)5 to petitioner's case. Petitioner dismissed his appointed counsel and retained trial counsel, who filed a motion in limine seeking, among other things, to suppress evidence of petitioner's previous convictions for DUII and solicitation, the victim's testimony that petitioner had told her that he had AIDS, the victim's testimony regarding telephone calls to her boyfriend and to her therapist, and the contents of a note that the victim discovered just before the crime.
The trial court addressed the pretrial motions immediately before the trial began. The prosecutor raised the matter of the motion in limine and informed the court that the state did not intend to introduce some of the evidence that the motion challenged, including petitioner's previous convictions for DUII and solicitation. Thereafter, the court rejected several of trial counsel's arguments in the motion in limine and ruled that the court would admit the victim's testimony that petitioner had told her that he had AIDS and her testimony regarding the contents of the note. (Trial counsel had challenged the latter testimony as not constituting the best evidence of the note.) However, pending offers of proof, the court withheld decisions regarding the admissibility of other evidence, such as the content of the victim's telephone calls to her boyfriend and to her therapist after the crime.
Trial counsel then directed the court's attention to the Measure 11 and Measure 40 motions that petitioner's previous counsel had filed, stating that he did not know whether the court had heard those motions. The trial court stated that it would adhere to the uniform rulings of the circuit court's motions panel concerning Measure 11 and advised trial counsel to reserve his rights on that issue. Trial counsel did so and also reserved his rights regarding Measure 40. The prosecutor then requested that the court not rely on any provisions of Measure 40 because petitioner's alleged crimes had occurred before the passage of Measure 40. The trial court agreed.
Jury selection began later that day. After asking the potential jurors what person they respected most, what that person would say about them, and what they would like "to see come out of this case," trial counsel began to "share [his] fears" with the jury pool. When he described a North Carolina defendant who had been "locked up pending trial" for three and a half years, the court ordered trial counsel to stop that discussion.6
Trial counsel then asked more specific questions about cases involving rape and sodomy.
Trial counsel then talked with the jurors about the need for proof to support the charges. Trial counsel did not challenge the inclusion of Juror Ten on the jury.
After voir dire, the trial judge conferred with trial counsel, the prosecutor, and petitioner about trial counsel's implication that some defendants are incarcerated pending trial. The court informed petitioner of his right to keep the jury unaware of his incarceration and of the importance of that right. Petitioner personally responded that he wanted the jury to know that he was in custody, because he believed that he had been incarcerated unjustly. Trial counsel agreed, telling the court that he had disclosed that fact purposely. The court ordered trial counsel not to allude to petitioner's incarceration again.
The state's case against petitioner consisted of the victim's testimony about the crime, the testimony of the victim's boyfriend and her therapist regarding telephone calls that the victim had made to them after the crime, and the testimony of petitioner's friends that petitioner had confessed to them that he had committed the crimes.
On direct examination, the victim testified that she ended her intimate live-in relationship with petitioner in June 1996 and started dating her current boyfriend, Klingforth, several months later. Klingforth was petitioner's best friend, and that fact made matters between petitioner and the victim increasingly acrimonious. At petitioner's invitation, the victim agreed to meet petitioner at his home on the evening of September 12, 1996, to finalize the breakup. Petitioner, a hairdresser, told the victim that he had an appointment with a client at his home at 8:00 p.m.
The victim testified that she arrived at 6:40 p.m. Soon after she arrived, petitioner asked her to have sex with him, but she refused. She testified that petitioner insisted that she go to his bedroom to get a gift that he had left there for her. On the bed, she found a "little ring-type box" containing a handwritten note reading, "Fuck you." The victim testified that petitioner then threatened her with a rifle, made her remove her clothing, and forced her to perform oral sex. He told her that he had AIDS and had slept with prostitutes and said, "I think I'm going to just go ahead and fuck you." However, instead of further assaulting the victim, petitioner showed her that the rifle was not loaded by "breaking it in half, opening it up, and [sliding] the barrel * * * down." The victim described the weapon as an old rifle with a silver barrel. Petitioner said that he would call Klingforth to tell him that they had "made love for the last time and parted as friends." The victim left the house and went to her car, but petitioner followed her and took two letters from her car that she had written to him. Then petitioner's client arrived, and the victim drove away.
The victim then described a series of telephone calls that she had placed and received after leaving petitioner's home. From the car, she called Klingforth, telling him that petitioner would be calling but that she had not consented to anything that petitioner might describe. Klingforth asked the victim whether petitioner had raped her, and she said that he had not. Upon arriving home, she called Klingforth again to say that she would call again shortly, after her son-in-law, who lived with her, had left the house. Later, she called Klingforth a third time and told him that petitioner had used a gun and had forced her to have oral sex. She then received a call from petitioner, who told her that he had placed a call to Klingforth as he had promised. Later that night, she called her therapist and left a message saying that petitioner had used a gun and had forced her to have oral sex. The following day, the victim told her employer about the incident, and he convinced her to call the police. Later, petitioner came to the victim's workplace, and her employer asked him to leave.
The victim's therapist testified that the victim had left a message on her office answering machine on the evening of September 12. She testified that the victim had been "obviously very upset." The therapist had erased the message, but her notes read that 7
Klingforth's testimony corroborated the victim's story about the times of the telephone calls. He described her demeanor in the first telephone call as "terribly shaken up * * * on the verge of crying." In the second and third calls, she had...
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