Warren v. Baldwin, s. CV

Decision Date17 April 1996
Docket NumberNos. CV,s. CV
Citation140 Or.App. 318,915 P.2d 1016
PartiesDarrel S. WARREN, Appellant, v. George BALDWIN, Superintendent, Eastern Oregon Correctional Institution, Respondent. 93-0289; CA A84209.
CourtOregon Court of Appeals

Appeal from Circuit Court, Umatilla County. Robert B. Abrams, Judge.

Wayne Mackeson argued the cause and filed the brief, Portland, for appellant.

Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Petitioner was convicted after a jury trial of manslaughter in the second degree, ORS 163.125, assault in the second degree, ORS 163.175, assault in the fourth degree, ORS 163.160, and felon in possession of a firearm. ORS 166.270. He then sought post-conviction relief, alleging inadequate assistance of counsel and challenging the lawfulness of his sentence. He now appeals the denial of relief. We affirm in part and reverse in part.

Petitioner's story of drugs, guns and family feuding unfolds in the waning hours of 1990. On December 31 of that year, petitioner, known as "Pappy" Warren, had gathered with various family members and friends at the Rainier Motor Inn in Rainier, Oregon, to celebrate the new year. The celebration, however, erupted into a series of violent clashes with the Neal brothers and ended in the fatal shooting of an innocent person asleep on petitioner's motel room floor.

At about 9:00 or 9:30 p.m. on December 31, Chris Neal went to petitioner's room with $100 to purchase cocaine. Petitioner refused to sell him drugs, and instead pointed a gun at him, took the $100 and claimed that one of the Neal brothers had "screwed him over" for some money. Chris Neal left. At about 11 p.m. that same night, Chris Neal's older brother Tim arrived at the motel and got into an argument about $400 he owed petitioner from a previous drug deal that "went bad." Petitioner pulled out a gun and struck Tim Neal in the head, cutting his ear. Tim Neal left, bent on revenge.

After unsuccessfully searching for a gun, Tim returned to the motel at about 2:30 or 3 a.m., armed with an axe handle. Accompanying him was his older brother Roy, who carried a baseball bat. The Neal brothers kicked in the door of petitioner's room and rushed inside. Chris Warren, petitioner's son, began struggling with Roy for control of the baseball bat. Petitioner dashed from the bathroom and struck Roy in the head with a pistol, causing the gun to discharge. The bullet struck Shaniko Dix, a friend of petitioner's son, who was asleep on the floor. Dix died from the gunshot wound.

A grand jury indicted petitioner for manslaughter in the second degree, ORS 163.125 (Count 1); assault in the second degree on Tim Neal, ORS 163.175 (Count 2); assault in the second degree on Roy Neal, ORS 163.175 (Count 3); and felon in possession of a firearm, ORS 166.270 (Count 4). Petitioner had been convicted of delivery of a controlled substance in 1980 and in 1981. His trial attorney did not move to sever the charges for trial. Tim and Roy Neal pled guilty to second degree burglary and testified for the state. The jury found petitioner guilty as charged on the manslaughter count, the felon in possession count, and the assault charge relating to Roy Neal (Count 3). On the attack on Tim Neal (Count 2), it found him guilty of the lesser-included offense of assault in the fourth degree. ORS 163.160. On direct appeal, we affirmed without opinion. 115 Or.App. 102, 835 P.2d 964, rev. den. 314 Or. 574, 840 P.2d 1296 (1992).

Petitioner raised numerous grounds for post-conviction relief, alleging inadequate assistance of counsel, ORS 138.530(1)(a), and challenging the imposition of a "gun minimum" sentence, ORS 138.530(1)(c). 1 The post-conviction court denied relief, and petitioner raises the same grounds on appeal. On review of a denial of post-conviction relief, we are bound by the post-conviction court's findings, if supported by evidence in the record, but we examine anew its constitutional determinations. Krummacher v. Gierloff, 290 Or. 867, 869, 627 P.2d 458 (1981).

To prove inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, petitioner must show that "counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result." Stevens v. State of Oregon, 322 Or. 101, 108, 902 P.2d 1137 (1995); Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991). Prejudice occurs when counsel's deficient performance has "a tendency to affect the result of the prosecution" of petitioner's underlying criminal case. Stevens, 322 Or. at 110, 902 P.2d 1137; Aikens v. Maass, 122 Or.App. 321, 324, 858 P.2d 148 (1993), rev. den. 318 Or. 350, 870 P.2d 219 (1994).

To establish ineffective assistance of counsel under the Sixth Amendment to the United States Constitution, petitioner must prove that counsel's assistance was unreasonable and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Chew v. State of Oregon, 121 Or.App. 474, 477, 855 P.2d 1120, rev. den. 318 Or. 24, 862 P.2d 1304 (1993), quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We first address petitioner's state constitutional claims. State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983).

Petitioner contends that his trial attorney's failure to move for severance of the charges denied him adequate assistance of counsel, because he was entitled to separate trials on the assault charge in Count 2 and the "felon in possession" charge in Count 4. Under Article I, section 11, we need not decide whether counsel's omission was deficient unless petitioner was prejudiced. See Yeager v. Maass, 93 Or.App. 561, 564, 763 P.2d 184 (1988), rev. den. 307 Or. 340, 768 P.2d 400 (1989) (issue of defective performance not reached where attorney's representation, even if inadequate, did not prejudice petitioner). In other words, the failure to seek separate trials must have had a "tendency to affect the result" of petitioner's criminal trial. Aikens, 122 Or.App. at 324, 858 P.2d 148. Accordingly, we first determine whether a motion for separate trials, if made, would have succeeded. Haynes v. State of Oregon, 121 Or.App. 395, 399, 854 P.2d 949 (1993) (to determine whether petitioner was prejudiced, "we must resolve the underlying legal issue").

Joinder of charges for trial is governed by ORS 132.560, the permissive joinder statute. ORS 132.560(1)(b) allows joinder of offenses that are:

"(A) Of the same or similar character;

"(B) Based on the same act or transaction; or

"(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan."

In State v. Meyer, 109 Or.App. 598, 820 P.2d 861 (1991), rev. den. 312 Or. 677, 826 P.2d 636 (1992), we held that the defendant's two DUII and three "driving while suspended" offenses, spanning more than four years, were sufficiently "similar" to be joined under ORS 132.560(1)(b)(A) because they were "all major traffic crimes occurring in the same county and involving [the] defendant's driving." 109 Or.App. at 603, 820 P.2d 861. In State v. Rood, 118 Or.App. 480, 848 P.2d 128, rev. den. 317 Or. 272, 858 P.2d 1314 (1993), we held that charges of sodomy, sex abuse and endangering the welfare of a minor, involving different victims, were "of a similar character" under ORS 132.560(1)(b)(A) because each charge alleged sexual conduct by the defendant toward male children he had brought to his home for purposes of adoption. 118 Or.App. at 482-83, 848 P.2d 128.

Here, we conclude that the earlier assault on Tim Neal in Count 2 is "of a similar character" to the later assault on Roy Neal in Count 3. Each attack stemmed from Tim Neal's drug debt, and petitioner, in each instance, used the same type of weapon in the same manner to "pistol whip" his target. As in Rood, both incidents involved similar behavior by petitioner toward victims who had come to his residence for similar underlying reasons. Furthermore, the two incidents occurred within a roughly four-hour period, much less than the span of several years in Meyer. The court therefore allowed joinder of Count 2 with Counts 1 and 3, pursuant to ORS 132.560(1)(b)(A). 2

Petitioner concedes that the "felon in possession" charge in Count 4 arose out of "the same act" as the other three charges, and could be joined with those offenses under ORS 132.560(1)(b)(B). However, he argues that counsel should have moved to sever that offense, as well as the assault charge in Count 2, on the grounds of prejudice. ORS 132.560(3) provides:

"If it appears, upon motion, that the state or defendant is prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires."

We review the denial of a motion to sever under ORS 132.560(3) for abuse of discretion. State v. Kitzman, 129 Or.App. 520, 529, 879 P.2d 1326, rev. allowed 320 Or. 492, 887 P.2d 793 (1994); State v. Parker, 119 Or.App. 105, 107, 849 P.2d 1157, rev. den. 317 Or. 584, 859 P.2d 541 (1993). A trial court has discretion to deny severance if evidence of the joined offenses would be mutually admissible in separate trials, or if the evidence is sufficiently simple and distinct to mitigate the dangers created by joinder. Kitzman, 129 Or.App. at 530, 879 P.2d 1326; Meyer, 109 Or.App. at 604, 820 P.2d 861, citing United States v. Werner, 620 F.2d 922, 927 (2d Cir.1980). "Mutually admissible" means "evidence of each crime could have been introduced on a separate trial of the other." Werner, 620 F.2d at 929 n. 7.

In a separate trial on the "felon in...

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