Williams v. Laney

• Decision Date: 20 July 2022
• Docket Number: A170928
• Citation: 321 Or.App. 1,514 P.3d 1120
• Parties: Ian Michael WILLIAMS, Petitioner-Appellant, v. Garrett LANEY, Superintendent, Oregon State Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

321 Or.App. 1

514 P.3d 1120

Ian Michael WILLIAMS, Petitioner-Appellant,

v.Garrett LANEY, Superintendent, Oregon State Correctional Institution, Defendant-Respondent.

A170928

Court of Appeals of Oregon.

Submitted December 4, 2020.

July 20, 2022

Ian Michael Williams filed the brief pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

ORTEGA, P. J.

Petitioner appeals the denial of his petition for post-conviction relief concerning his convictions in 2012 on one count each of second-degree sexual abuse, third-degree sexual abuse, and first-degree rape.He brought numerous claims asserting inadequate assistance of trial counsel, inadequate assistance of appellate counsel, and prosecutorial misconduct.The post-conviction court found that petitioner had not established inadequate assistance by either trial or appellate counsel or misconduct by the prosecutor and had failed to demonstrate prejudice as to any of his claims.Petitioner assigns error to all of the court's conclusions.We reject without discussion each of his assignments of error except one, in which he asserts that trial counsel was inadequate in failing to sufficiently object to each instance in which the prosecutor or a witness used the word "victim" during trial.We took this case under advisement to consider that issue in light of State v. Sperou,365 Or. 121, 442 P.3d 581(2019), although petitioner, appearing pro se , does not cite that case as authority for his position.As explained below, we conclude that in the circumstances of this case, petitioner's trial attorneys did not provide inadequate assistance in their handling of the issue, and, further, even if petitioner's trial attorneys were deficient in failing to object to one instance of a witness using the word "victim,"petitioner failed to carry his burden of proving prejudice.Therefore, we affirm the post-conviction court's judgment.

We begin with an overview of Sperou.In that case, the defendant, a pastor, was accused by a former parishioner, SC, of having sexually assaulted her many years earlier when she was a child.Id. at 124, 442 P.3d 581.Six other women came forward with similar allegations and, although the defendant was not charged with offenses relating to those six women, they all testified at trial concerning the uncharged misconduct pursuant to OEC 404(3) or OEC 404(4).Id. at 126, 442 P.3d 581.Before trial, the defendant moved to preclude all parties or witnesses from referring to either SC or the other six women as "victims" during the trial.Id.The court denied the motion and, at various points during the trial, the prosecutor and several police officers referred to SC and the other witnesses as "victims," and another witness also referred to SC as a "victim."Id. at 127, 442 P.3d 581.

On review, the Supreme Court addressed whether, or when, describing a person as a "victim" during a criminal trial would constitute impermissible vouching for that person's credibility.Noting that the vouching rule applied not only to witnesses but to counsel's statements, the court analyzed the various references to "victim."Id. at 129, 442 P.3d 581.With respect to the use of the term by witnesses, the court agreed in large part with the defendant.Although use of the term by a witness might not be problematic "where there is physical evidence corroborating the complaining witness's claims of victimhood,"the court considered it "a different matter * * * where the defendant asserts that no crime occurred and where the only evidence of victimhood is the complaining witness's own testimony.In that situation, another witness's description of the complaining witness as a ‘victim’ conveys an opinion that the complaining witness is telling the truth."Id. at 131-32, 442 P.3d 581.

With respect to the prosecutor's use of the term, the court rejected the state's assertion that jurors would necessarily understand that a prosecutor's reference to " ‘victim’ really means ‘alleged victim.’ "Id. at 132, 442 P.3d 581.Nonetheless, it also rejected the broad proposition that a prosecutor's use of the word is necessarily unacceptable:

"In light of a prosecutor's dual responsibilities to refrain from inflammatory remarks and personal commentary, on the one hand, but to be an advocate for the state's cause, on the other, it is difficult to state a categorical rule regarding a prosecutor's use of the term ‘victim’ to describe a complaining witness where victimhood is disputed.One can imagine situations where such use is meant to convey, improperly, a prosecutor's personal opinion that a witness is credible.But one can readily imagine other situations in which the use of that term is a fair comment on the evidence (e.g. , ‘we will prove that defendant committed this crime and that [witness] was his victim’)."

Id. at 135-36, 442 P.3d 581.

In the present proceeding, the post-conviction court rejected petitioner's argument concerning the use of the term "victim," but did so before Sperou was decided.On appeal, we review for errors of law and, to the extent that the court did not make findings of fact on all of the issues, we presume that the facts were decided consistently with the post-conviction court's conclusions of law.Green v. Franke , 357 Or. 301, 312, 350 P.3d 188(2015).With respect to post-conviction claims of inadequate assistance of counsel, petitioner bore the burden of establishing by a preponderance of the evidence that counsel failed to exercise reasonable professional skill and judgment, and that petitioner suffered prejudice as a result.Jackson v. Franke , 369 Or. 422, 445, 507 P.3d 222(2022).

With the analysis set forth in Sperou in mind, we return to the present case to address whether the post-conviction court correctly concluded that petitioner failed to establish his claim.In the underlying criminal proceeding, petitioner was tried for 10 offenses, primarily sexual offenses, involving five teenage girls, most of whom were his high school classmates.His defenses were, in effect, that some of the sexual contacts were consensual,¹ and that some did not occur at all.After a jury trial, petitioner was acquitted on all charges related to three of the alleged victims, was convicted of first-degree rape as to one of them, and was convicted of second- and third-degree sexual abuse (both lesser-included offenses of greater charges) as to the remaining victim.

Although Sperou had not been decided at the time of petitioner's criminal trial, the use of the term "victim" had been considered by courts in a number of other jurisdictions, and defense counsel were aware of the potential prejudicial effect of referring to the five teenaged girls as "victims."They raised the issue, and the court was consistently careful in referring to "alleged victims."We describe in some detail the various usages of the term "victim" about which petitioner complains in the present proceeding.

First, petitioner argues, the prosecutor noted in opening that the case involved five "separate victims, who don't know each other," and began to describe "the first person who was victimized," at which point defense counsel objected to the use of the term.The court agreed with defense counsel, and the prosecutor immediately clarified to the jury that "you are the only ones who decide if these young women were victimized," indicating that if she skipped adding the word "allegedly," it should not be understood to "impl[y] that I'm making the decision, I'm not.You are the only ones who make that decision."Thereafter, out of the jury's presence, the trial court emphasized that it would be inappropriate to refer to anyone in this trial as a "victim," adding that, "[i]f you want to use the word ‘victim,’ it has to be preceded by ‘alleged,’ otherwise you can refer to them by their name."Particularly in light of the clarification that the prosecutor offered to the jury concerning her use of the term, we do not consider the prosecutor's reference to "victim" or "victimized" in the opening statement to be problematic under Sperou .Defense counsel's objection was not inadequate; rather, it was effective in this circumstance.

Petitioner next asserts that counsel was inadequate for failing to object to or otherwise sufficiently remedy the use of the term "victim" at several points during examination of the state's witness, Walker.Contrary to petitioner's suggestion, the use of the term "victim" by...