Grant v. Coursey, 370 P.3d 892

Background

Petitioner was convicted by a jury of attempted first‑degree rape, two counts of first‑degree sexual abuse, and three counts of furnishing alcohol to minors based on an incident in a travel trailer; one count of second‑degree unlawful penetration was not decided by the jury.
Key witness JJ initially told police she saw petitioner intentionally grab the victim’s breasts but at trial recanted parts of that account, claiming she had said what police wanted to hear; her trial answers about what she told the detective were ambiguous and were the subject of juror questioning.
Petitioner testified and, unprompted, discussed being advised to get a lawyer and not having spoken to police; the prosecutor then questioned him about not reporting his account earlier.
In closing and rebuttal, the prosecutor (1) characterized JJ as ultimately conceding that her police statement was true, (2) argued petitioner had manipulated evidence and delayed giving his version, and (3) warned that acquittal would “return [petitioner] to the lake” where girls are endangered; defense counsel did not object during rebuttal.
Petitioner sought post‑conviction relief claiming trial counsel provided ineffective assistance by failing to object to the prosecutor’s misstatements, comments on petitioner’s invocation of rights, and inflammatory “return to the lake” argument; the post‑conviction court denied relief.
The Court of Appeals affirmed, holding counsel’s choices were reasonable tactical decisions and petitioner failed to show prejudice from any alleged errors.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not objecting to prosecutor’s mischaracterization of JJ’s testimony	Prosecutor misstated that JJ conceded her police statement was true; counsel should have objected to correct the record and secure a curative instruction	Counsel reasonably declined to object as a tactical choice to avoid alienating jury and because instructions already told jurors closings are not evidence	Held counsel could have objected but failure to do so did not prejudice petitioner given repeated jury instructions and trial context; no relief granted
Whether counsel erred by not objecting to prosecutor’s comments about petitioner’s invocation of silence and counsel	Prosecutor improperly suggested guilt could be inferred from petitioner’s silence; counsel should have objected and moved for mistrial	Counsel intentionally used petitioner’s testimony about getting a lawyer to highlight investigative gaps and exploited the issue defensively; not objecting was tactical	Held counsel’s strategy to use invocation to attack investigation was reasonable; no ineffective assistance shown
Whether counsel should have objected to prosecutor’s argument that acquittal would risk other victims ("return to the lake")	Statement improperly suggested propensity to reoffend and was unduly inflammatory, requiring objection and mistrial	Counsel reasonably judged the prosecutor was alienating the jury and that an objection risked reinforcing the argument; tactic to remain silent was reasonable	Held remark not so egregious in context that counsel’s tactical choice was unreasonable; no prejudice shown
Whether counsel was ineffective for eliciting or permitting testimony about petitioner obtaining counsel	Counsel’s elicitation drew attention to invocation of rights and opened door to prosecutor’s damaging questions	Counsel says petitioner volunteered the topic; once raised, counsel reasonably sought to show police had chance to contact petitioner and did not; exhibit supported that defense theory	Held petitioner volunteered topic and counsel’s follow‑up was a reasonable tactical move; no ineffective assistance

Key Cases Cited

Gable v. State of Oregon, 353 Or 750 (explains elements for post‑conviction ineffective‑assistance claim under Oregon law)
Strickland v. Washington, 466 U.S. 668 (establishes federal two‑prong ineffective‑assistance standard)
Lichau v. Baldwin, 333 Or 350 (reviews deference to counsel tactical decisions)
Pereida‑Alba v. Coursey, 356 Or 654 (trial counsel’s omissions assessed in light of declared strategy)
State v. Rosenbohm, 237 Or App 646 (prosecutor may not assert facts not in record; curative instructions often adequate)
State v. Worth, 231 Or App 69 (jury instruction can cure prejudice from misstatements in argument)