Smith v. Franke
| Decision Date | 22 October 2014 |
| Docket Number | A149418,CV101060. |
| Citation | 337 P.3d 986,266 Or.App. 473 |
| Court | Oregon Court of Appeals |
| Parties | Terry Darrell SMITH, Petitioner–Appellant, v. Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant–Respondent. |
266 Or.App. 473
337 P.3d 986
Terry Darrell SMITH, Petitioner–Appellant
v.
Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant–Respondent.
A149418
CV101060.
Court of Appeals of Oregon.
Submitted March 11, 2014.
Decided Oct. 22, 2014.
James N. Varner filed the opening brief for appellant. Terry Darrell Smith filed the supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.
Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.
Opinion
SERCOMBE, P.J.
Following a jury trial, petitioner was convicted of first-degree sodomy, ORS 163.405, first-degree sexual abuse, ORS 163.427, and using a child in a display of sexual conduct, ORS 163.670.1 He subsequently filed a petition for post-conviction relief, alleging, among other things, that his trial attorney was constitutionally inadequate in failing to object when a police officer testified that the alleged victim knew the difference between the truth and a lie. The post-conviction court denied the petition, and petitioner appeals the resulting judgment, asserting that counsel was constitutionally inadequate in failing to object to what petitioner asserts was “improper vouching testimony of a state's officer witness.” In his pro se supplemental brief petitioner also raises three additional assignments of error which we reject without discussion. We affirm on petitioner's remaining assignment of error because we conclude that petitioner's trial counsel did not render constitutionally inadequate assistance in failing to object to the testimony at issue.
We state the facts consistently with the findings of the post-conviction court, which are binding on us to the extent that there is evidence in the record to support them. Logan v. State, 259 Or.App. 319, 321, 313 P.3d 1128 (2013). To the extent that the post-conviction court did not make explicit findings, we state the facts in a manner consistent with its ultimate conclusion. See Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).
The charges against petitioner in the underlying criminal trial related to petitioner's sexual abuse of his eight-year-old daughter, S, while she visited him during the summer. In particular, petitioner and his wife, who both lived overseas, came to Oregon for the summer in 1999 and spent time camping and visiting with S and petitioner's older daughter, C. On a number of occasions during their visit, petitioner sexually abused S and, on one of those occasions, petitioner took sexually explicit photographs of S.
A couple of weeks after the conclusion of the visit, S disclosed the sexual abuse to her mother, Brooks. Both S and C were interviewed at the Child Advocacy Center by
Bedell, a detective with the Oregon State Police.
Petitioner was later indicted for, among other things, two counts of first-degree sodomy, one count of first-degree sexual abuse, and one count of using a child in a display of sexually explicit conduct. However, at that time, defendant was outside of the United States and he was not arrested until several years later. By the time the case was brought to trial, S was 16 years old.
S, C, Brooks, and Officer Bedell testified at the trial. There was no physical evidence of abuse presented. S described the time she spent with petitioner during the summer of 1999 and detailed the incidents of sexual abuse. Bedell testified about the interviews of S in the fall of 1999. In particular, Bedell's testimony described S's disclosures of sexual abuse during the interviews. She also testified as follows:
“Q. * * * [W]hen you talk with a child that's eight years old the first time at the advocacy center do you go through truth and a lie and how important that is?
“A. Yeah, that's a very important part of interviewing a child and I talk to the children about what it means to tell the truth and what it means to tell a lie, and I try to—I ask the child to articulate in their own words what that means, to tell the truth and then tell a lie and then sometimes we'll have them demonstrate, and I remember demonstrating with [C] that she knew what it meant to tell the truth. And like I would say something to her like, ‘Your pants are yellow, would I be telling the truth if I said—would I be telling the truth or a lie if I said your pants were yellow?’ knowing that her pants are blue. And she would respond that that would be a lie. So having her demonstrate to me that it knew what it meant to tell the truth and what it meant to tell a lie.
“Q. Now was that with [C] and with [S]? Did you do the same type of thing?
“A. Yes.
“Q. And so [S] was able to explain to you the difference between truth and lie?
“A. She demonstrated to my satisfaction that she knew what it was to tell the truth and what it was to tell a lie.
“Q. So when you met with them [during an additional interview]—that's back at the advocacy center again?
“ * * * * *
“Q. And you go through the same kind of protocol with them about truth and lie?
“A. I did with [S]. And we talked again [about] what it meant to tell the truth and what it meant to tell a lie. Just because it is an important part of the process.”
Ultimately, the jury found petitioner guilty of all the charges at issue. Petitioner appealed, and we affirmed his convictions. State v. Smith, 227 Or.App. 289, 205 P.3d 890 (2009), rev. den., 347 Or. 533, 225 P.3d 43, cert. den., 560 U.S. 954, 130 S.Ct. 3393, 177 L.Ed.2d 306 (2010).
Petitioner then sought post-conviction relief asserting, among other things, that his trial counsel was “ineffective by failing to object when Detective Bedell vouched for the testimony of the alleged victim[ ] when [s]he testified that the alleged victim[ ] knew the difference between the truth and a lie.” After a hearing, the post-conviction court denied the petition.
As relevant here, the post-conviction court concluded that the testimony at issue was “merely explaining the way [the officer] questions a minor to establish preliminary competency.” According to the court, the officer's testimony did not “have to do with” whether the child was telling the officer the truth but, instead, had to do with whether a child has “the capability of telling the truth or knowing the difference,” which is “relevant * * * when a child witness is being questioned, because...
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