402 P.3d 755
Or. Ct. App.2017Background
- Petitioner stabbed two cab passengers; liability was undisputed; defense at trial was voluntary intoxication/blackout.
- Defense experts (Drs. Swiercinsky and Julien) opined petitioner likely had an alcohol-induced blackout and recommended follow-up (including MRI).
- State obtained a court-ordered pretrial evaluation by its psychologist, Dr. Cochran; defense counsel did not attend that interview. Cochran’s report/testimony conflicted with prior defense accounts.
- Post-conviction petition alleged multiple failures of trial counsel (13 claims), including failing to investigate/present additional experts and failing to attend Cochran’s evaluation.
- At the post-conviction hearing the prosecutor submitted an affidavit recounting a juror’s post-trial remarks dismissing the blackout defense; the court admitted that hearsay and relied on it in denying several claims.
- The Court of Appeals accepted the State’s concession that admission of the juror-hearsay was erroneous and also held the post-conviction court applied the wrong prejudice standard regarding counsel’s failure to attend Cochran’s evaluation; it reversed and remanded several claims.
Issues
| Issue | Petitioner’s Argument | State’s Argument | Held |
|---|---|---|---|
| Admission of prosecutor’s affidavit recounting juror’s post-trial statements (hearsay) | Admission was hearsay and prejudicial to petitioner’s post-conviction claims | State conceded error on appeal | Court accepted concession; hearsay admission was error and reversal/remand required for claims that the court relied on that evidence |
| Whether trial counsel’s failure to attend the state-ordered pretrial mental evaluation (Dr. Cochran) constituted inadequate assistance under Article I, §11 | Failure to attend was lack of reasonable professional skill and judgment because counsel needed to protect against self-incriminating statements and prepare cross-examination | State argued counsel’s prior consistent communications with petitioner made advising him sufficient (and Russell dicta permits absence in some contexts) | Court held counsel’s absence showed failure to exercise reasonable professional skill and judgment and thus met the first Montez element |
| Standard and proof of prejudice for ineffective assistance under Oregon law | Petitioner argued the post-conviction court applied too demanding a standard; the correct test is whether counsel’s omission "could have tended to affect" the outcome (more than possibility, less than probability) | State argued error was unpreserved or invited; alternatively no prejudice | Court rejected preservation/invited-error arguments, found the post-conviction court used an incorrect "significant effect" standard, and remanded to apply the correct "tendency to affect" prejudice test |
Key Cases Cited
- Montez v. Czerniak, 355 Or 1 (defining Oregon two-step test for inadequate assistance)
- Strickland v. Washington, 466 U.S. 668 (federal ineffective-assistance standard)
- Green v. Franke, 357 Or 301 (prejudice requires more than possibility, less than probability)
- Petersen, 347 Or 199 (scope of state expert pretrial examination and Fifth Amendment considerations)
- Lichau v. Baldwin, 333 Or 350 (tendency-to-affect formulation)
- Stevens v. State of Oregon, 322 Or 101 (when tactical decisions reflect lack of professional skill)
- Russell v. Jones, 293 Or 312 (counsel presence at certain interviews not always required; discussed as distinguishable dicta)
- Krummacher v. Gierloff, 290 Or 867 (right to adequate assistance of counsel under Article I, §11)