Sullivan v. Popoff
| Decision Date | 07 October 2015 |
| Docket Number | 112039,A152080. |
| Parties | James Lane SULLIVAN, Petitioner–Appellant, v. Christine POPOFF, Superintendent, South Fork Forest Camp, Defendant–Respondent. |
| Court | Oregon Court of Appeals |
Ryan O'Connor, Portland, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Assistant Attorney General, filed the brief for respondent.
The question on appeal in this post-conviction case is whether, in deciding not to raise a hearsay objection to certain testimony at petitioner's criminal trial, petitioner's trial counsel failed to exercise reasonable professional skill and judgment and, if so, whether that failure prejudiced petitioner. We conclude, as did the post-conviction court, that trial counsel's decision-making process, and his handling of the testimony that petitioner identifies as objectionable, was well within the range of reasonable approaches available to a lawyer in trial counsel's position. Accordingly, we affirm the post-conviction court's judgment denying the petition for post-conviction relief.
Evaluating petitioner's post-conviction claim requires an understanding of the events underlying petitioner's prosecution, the defense and prosecution theories at trial, and the evidence presented at trial. It also requires an understanding of the parameters of petitioner's post-conviction claim. Here are those facts.
Petitioner's conviction arose out of a fight he had with the victim—Caudillo—outside of a bar. Petitioner was at the bar with his brother and his girlfriend. Caudillo was dropped off at the tavern after spending most of the evening celebrating his twenty-fifth high school reunion at the house of some of his former classmates; he thought that some of his friends would be at the bar. When Caudillo entered the bar, he and petitioner, who knew each other from high school, recognized and acknowledged each other—primarily through gestures, because of the noise level in the bar—but did not carry on any significant conversation. Caudillo indicated to petitioner that petitioner should come outside if he wanted to talk to him. Caudillo did not see any of his friends at the bar, and he left almost immediately after he arrived. Petitioner followed Caudillo out of the bar and around the corner of the building.
Britt, who was standing outside talking with her friend Stephens and some other people, saw the two men leave the bar and walk around the corner of the building. As they passed her, Britt heard petitioner ask Caudillo if Caudillo had any weed. About two minutes after petitioner and Caudillo had gone around the corner, Britt jumped around the corner to surprise them. Britt expected to discover the two men smoking weed. Instead, she saw petitioner kicking Caudillo, who was on the ground on all fours. Petitioner kicked Caudillo three or four times in the stomach. Britt yelled at petitioner to stop with each kick, but petitioner did not stop. Caudillo managed to stand up. Upon standing, Caudillo was shaken and disoriented and did not attempt to fight petitioner. Petitioner nonetheless grabbed Caudillo by the back of the head and slammed him into the cement. Britt heard the sound of bone cracking as Caudillo hit the pavement. Britt ran back around the corner and into the bar to find a bouncer for assistance.
When Britt ran past to look for a bouncer, Stephens went around the corner. Stephens saw petitioner kick Caudillo in the face while Caudillo was on the ground trying to get to his knees. Stephens ran in to break up the fight by grabbing petitioner and pulling him back hard; Stephens yelled for someone to contact police. Petitioner did not fight Stephens, but told Stephens that Caudillo had “started it.” Stephens held onto petitioner until the bouncers came out, at which point Stephens let go of petitioner and let the bouncers hold onto him. Stephens then went to check on Caudillo, who was gurgling and “couldn't really understand much.” As a result of the fight, Caudillo was hospitalized for three days, and required significant treatment for injuries to his headand face. The fight also left Caudillo with injuries to his hands and knees. Petitioner suffered a puncture wound to his hand, and sought medical treatment for that wound, but did not seek medical treatment for any other injuries.1
Senior Officer Collingham was dispatched to the bar to respond to the fight. When he arrived, numerous people were standing outside. One of the bouncers was holding petitioner against a car. When the bouncer told Collingham that the bouncer had the “aggressor,” Collingham put petitioner “into handcuffs and told him he was being detained until I straightened things out.” Collingham tried to talk to Caudillo, but Caudillo was “incoherent.” Collingham then canvassed the crowd, seeking witnesses to the fight. He located Britt and Stephens, but found no one who had seen the start of the fight, and he was unable to determine “who the initial aggressor was or [who] started it.”
For his role in the altercation, the state charged petitioner with one count of first-degree assault and one count of second-degree assault. Petitioner raised the defense of self-defense, and, because petitioner did not deny that he had engaged in the conduct on which the assault charges were predicated, the issue at trial was whether the state had disproved petitioner's claim of self-defense beyond a reasonable doubt. The witnesses at the trial were Caudillo, petitioner, Britt, Stephens, Collingham, Norris (the bar manager), and petitioner's brother. Caudillo testified that he had been fairly intoxicated and did not remember much of the incident, but that petitioner had started the altercation by attacking him from behind. Although Caudillo remembered his interaction with petitioner in the bar, and remembered telling petitioner that petitioner should come outside if he wanted to talk, Caudillo testified that he had been unaware that petitioner had followed him out of the bar.
Petitioner testified that Caudillo had started the altercation by coming at petitioner after they rounded the corner. According to petitioner, he had followed Caudillo out of the building thinking that they were going to smoke weed. Petitioner explained that he responded to Caudillo the way that he did because he did not know why Caudillo attacked him and also did not know if Caudillo had a weapon. However, petitioner also admitted that he could have walked away from the fight at several different points in time, including the point in time that Britt observed petitioner kicking Caudillo while petitioner was standing and Caudillo was down on his hands and knees, and the time Stephens observed petitioner kick Caudillo in the face while Caudillo was on the ground. Although petitioner testified on direct examination that he had “never had a situation like this before,” on cross-examination, petitioner admitted that he had been convicted in Iowa as a result of another bar fight.2
Britt and Stephens recounted what they had seen petitioner do to Caudillo after Britt had jumped around the corner. Norris testified that she had seen petitioner and Caudillo communicating with each other across the bar. Although she could not understand what they were saying because of the noise, nothing she saw at the time caused her to think that the two would start fighting. Petitioner's brother testified that petitioner had been in a good mood that night and that there was no reason that petitioner would have started a fight with Caudillo.
Pertinent to the issues in this appeal, Collingham recounted the course of his investigation on the night of the fight. In particular, Collingham testified that, soon after arriving on the scene, he handcuffed petitioner upon being told that petitioner was the “aggressor”: “When the bouncer told me he had the aggressor, his words, because all of the people and the commotion, I placed [petitioner] into handcuffs and told him he was being detained until I straightened things out.” Petitioner's trial lawyer did not object to Collingham's testimony that the bouncer had described petitioner as “the aggressor.” On cross-examination, however, petitioner's trial counsel elicited testimony from Collingham confirming that Britt and Stephens were the only witnesses to the altercation that Collingham had found, that there were no witnesses to the start of the fight, and that Collingham was unable to determine who the initial aggressor had been.
In closing argument, the state argued that the jury should find that petitioner was not acting in self-defense for two, alternative reasons. The state first argued that the jury should credit Caudillo's testimony and find that petitioner was the initial aggressor. The state argued further that, even if the jury doubted that petitioner was the initial aggressor, it should have no doubt that petitioner's responsive use of force was too excessive to qualify as self-defense, which requires that defensive force be reasonable under the circumstances. In support of its argument that defendant's use of force was not reasonable under the circumstances, the state pointed to the evidence that petitioner kept attacking Caudillo even after it should have been clear to petitioner that Caudillo had been disabled and that petitioner could walk away from him.
The defense theory of the case, as articulated in closing arguments, was that the state could not—and had not—proved beyond a reasonable doubt that petitioner's actions were not in self-defense, as it was required to do. The defense emphasized the evidence that no one, save petitioner and Caudillo, had witnessed the beginning of the altercation, arguing that that created reasonable doubt as to how the fight had started. The defense contended further that, given the uncertainty as to how the fight began, as well as how quickly the fight...
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