Sager v. Maass

• Decision Date: 22 February 1995
• Docket Number: No. CV 92-1110-PA.,CV 92-1110-PA.
• Citation: 907 F. Supp. 1412
• Parties: Donald G. SAGER, Petitioner, v. Manfred MAASS, Respondent.
• Court: U.S. District Court — District of Oregon

907 F. Supp. 1412

Donald G. SAGER, Petitioner, v. Manfred MAASS, Respondent.

No. CV 92-1110-PA.

United States District Court, D. Oregon.

February 22, 1995.

Anthony Bornstein, Assistant Federal Public Defender, Portland, OR, for Petitioner.

Theodore R. Kulongoski, Attorney General, Lynn David Larsen, Assistant Attorney General, Department of Justice, Salem, OR, for Respondent.

OPINION

PANNER, District Judge.

Petitioner Donald Gordon Sager petitions for habeas corpus relief under 28 U.S.C. § 2254 and moves for an evidentiary hearing. Respondent Manfred Maass opposes the petition.

I deny petitioner's motion for an evidentiary hearing and grant his petition for habeas relief. Respondent must either retry petitioner within ninety days or release him.

BACKGROUND

Petitioner was convicted of robbing Robert Lee Wieberdink at gunpoint in Salem, Oregon. The conviction cannot stand because petitioner's trial attorney was ineffective and petitioner was not warned about the dangers of representing himself at sentencing.

I. The Robbery

At trial, Wieberdink testified that on May 20, 1986, he visited Vicki Stocker to ask for a ride to Portland. Stocker's roommate, Tina Flores, was present, and petitioner was outside nearby changing the oil on his bus.

Wieberdink testified that he did not want petitioner going with him to Portland because he had heard recently that petitioner was associated with the Gypsy Jokers, a motorcycle club. Wieberdink, who had relatives in the Outsiders, apparently a rival motorcycle club, said that most Gypsy Jokers "ain't to be trusted." 1 Tr. at 132. Other than Wieberdink's testimony, no evidence at trial linked petitioner to the Gypsy Jokers.

Flores testified that Wieberdink accused petitioner of being a "rat" and stealing marijuana plants from him. (Wieberdink testified that he and a partner had been growing marijuana for sale in the house he was renting.) Flores testified that after Wieberdink left, she told petitioner what Wieberdink had said about him. Petitioner was not pleased.

Wieberdink went to a bank near his house to exchange hundreds of dollars in ten- and twenty-dollar bills for larger bills. The transaction was apparently unusual enough that the teller asked Wieberdink where he had obtained the money. Wieberdink said he had sold motorcycle parts. Wieberdink testified that this exchange occurred hours, perhaps half a day before he was robbed. However, the teller testified that she saw Wieberdink talking to police officers across the street about thirty minutes after he had left the bank.

After Wieberdink had returned to his house from the bank, Stocker knocked on his door. Wieberdink testified that when he answered the door, petitioner barged in carrying a small automatic handgun and said, "I hear you don't want to be seen with me." At trial, Wieberdink testified that he "didn't have much time to say anything. Petitioner just started swinging." 1 Tr. at 65. However, when Wieberdink was interviewed by police shortly after the incident, he said that petitioner had argued with him before striking any blows. Wieberdink later required four stitches for facial cuts.

Wieberdink testified that he was on the floor when petitioner said something like, "You punk. You ought to be blowed away," and fired the gun towards the floor "right next" to Wieberdink's head. However, during interviews with police officers after the incident, Wieberdink never claimed that petitioner had fired a shot at him. Not until trial did Wieberdink add this dramatic touch to his story.

Wieberdink testified that he surrendered his wallet after petitioner demanded it at gunpoint. After petitioner left, Wieberdink went to a restaurant nearby and telephoned the police:

RW: A guy just robbed me.

CO: Okay, what do you mean by "robbery"?

RW: He beat me up and took my money. Held a gun to me.

CO: Where did this happen?

RW: At my house, 1147 S.E. Oak.

....

RW: He's driving a big, kind a sic bluish gray bus. His name's Nazi Red and he's got over $1,000 of mine.

CO: Nazi Red?

RW: Yeah. And he's driving a big gray bus. He's still parked in front of my house when I left.

....

RW: Yeah. A bus. The police know him in this town real well.

CO: Okay. Is he white male?

RW: Yeah. White man, big red beard.

CO: Okay. And does—what kind of gun did he have?

RW: Uh, some kind of small automatic, 9 mm I think.

....

RW: He's got about $1,400 of mine.

....

RW: And he's, uh, he's with the Gypsy Joker Club, uh, motorcycle club.

CO: Alright but—

RW: And he's affiliated, affiliated with 'em or something.

A few days after the incident, Wieberdink gave police a spent .38 caliber automatic cartridge, which he claimed to have found in the entryway of his house. Wieberdink still did not allege that petitioner had fired a shot at him, saying instead that petitioner's gun had gone off during the fight. See Petitioner's Memorandum in Support of Petition at 21.

It was not extraordinary to find a spent cartridge in Wieberdink's house. Wieberdink owned rifles and handguns that he fired inside the house, which was to be demolished.

No handgun, bullet hole, or slug from the alleged shot were ever found. Police did recover a box of .38 caliber ammunition from petitioner's bus.

II. The Trial

Petitioner was charged with

unlawfully, feloniously and knowingly using physical force upon Robert Wieberdink, and being armed with and threatening to use a deadly weapon, to-wit: a firearm pistol, while in the course of committing theft of property, to-wit: a wallet, with the intent of preventing resistance to said defendant's taking of the said property.

Resp. Exh. 102. Petitioner's first attorney was forced to withdraw before trial because of a client conflict. Petitioner then retained attorney Jane Aiken.

Petitioner defended on the theory that he fought Wieberdink after an argument, but did not have a gun or rob Wieberdink. Because petitioner and Vicki Stocker, the only other witness to the incident, did not testify, the prosecution's case depended entirely on whether the jury believed Wieberdink.

Just before trial, Aiken learned that Wieberdink had been arrested in California for drug and explosives charges, and that there was an outstanding October 1986 fugitive warrant for his arrest. However, the trial judge excluded this potential impeachment evidence after Aiken failed to cite authority for its admission. See State v. Sheeler, 15 Or.App. 96, 100, 514 P.2d 1370 (1973) (error to exclude evidence that complaining witness was not prosecuted for potentially criminal conduct; admissible to show witness may have been "motivated in part by some expectation that he would personally gain"); State v. Rodriguez, 115 Or.App. 281, 286, 840 P.2d 711 (1992) (any evidence that crucial prosecution witness had an arrest record would be relevant to bias); State v. Presley, 84 Or. App. 1, 5, 733 P.2d 452 (1987) (fact that state dropped pending theft charges against witness was relevant to bias; fear of being indicted, whether or not justified, may influence witness's testimony).

During his direct testimony, Wieberdink referred to petitioner as "Nazi Red" and "Nazi." Aiken did not object, although Wieberdink and other witnesses also referred to petitioner simply as "Red."

When the prosecutor moved to play the tape-recording of Wieberdink's 911 call, Aiken objected, but only on authenticity grounds. The trial judge overruled her objection. Although Aiken was apparently ignorant of the tape's contents, she did not request a continuance to listen to it.

Aiken presented two witnesses, Flores and Starla Richmond, who testified that Wieberdink had gloated about setting up petitioner by falsely claiming a robbery. Richmond testified that she had seen Wieberdink with a large amount of cash shortly after the alleged robbery.

To impeach Wieberdink's testimony that he had not purchased 9 mm ammunition, Aiken introduced records of handgun ammunition purchases kept by a sporting goods store. The store records indicated that a Robert Wieberdink had purchased 9 mm ammunition on April 28, 1986. Aiken introduced Wieberdink's entire victim impact statement as a sample of his signature to compare with the Wieberdink signature on the store records.

At a deposition after the trial, petitioner testified that he argued against introducing the victim impact statement but Aiken insisted that she knew what she was doing. The trial judge recently stated that in the several hundred criminal trials he had presided over, he had "never seen another instance in which a defense attorney has offered a Victim Impact Statement into evidence." Exh. Z, at 2.

There are no copies of the victim impact statement in the record, so I must reconstruct its contents from circumstantial evidence. Victim impact statements were prepared by the District Attorney's Office with the victim for the trial judge to consider at sentencing. Aiken told an investigator for petitioner that victim impact statements sought "information concerning the effect of the incident on the victim's life. Another section allows the victim to express his opinion about the appropriate sentence, and another section covers the restitution sought by the victim." Exh. D, at 2.

At his post-trial deposition, petitioner testified that the victim impact statement included "something to the effect that it injected my past record, `He should never have been let out.'" Sager Depo. at 27. In an affidavit, Aiken stated that "no evidence of petitioner's record was, to my recollection, introduced via the Victim Impact Statement." Exh. 115, at 5. However, Aiken told an investigator for petitioner that the victim impact statement "might have said" that petitioner should not have been let out. Exh. T, at 2.

Aiken asked Michael Scanlon, a Salem police officer, why he had investigated whether the incident involved drugs. Scanlon used his answer to explain the prosecution's theory of the case, replying that "it is not uncommon for people to rob drug...