Green v. Franke
350 P.3d 188
| Or. | 2015Background
- Green was convicted at a single jury trial of 18 sexual-offense counts involving nine victims (ages 12–17); some charges were based on lack of capacity (age), others on forcible compulsion or lack of consent.
- Trial counsel conceded guilt as to counts based on victims’ ages and focused his defense on arguing consent (or denying contact) for other victims; counsel did not move to sever the counts or request a limiting instruction directing the jury to consider each victim’s evidence separately.
- Prosecutor’s closing emphasized patterns and the defendant’s "predatory nature;" defense argued some victims knew each other and highlighted inconsistencies among accounts.
- Post-conviction petition alleged ineffective assistance of counsel for failing to request the limiting instruction; the post-conviction court denied relief, finding no prejudice and not resolving whether counsel made a tactical choice.
- The Court of Appeals reversed on the instructional claim, applying a cost–benefit rationale (no evident downside to requesting the instruction and substantial upside in avoiding propensity inferences).
- The Oregon Supreme Court granted review, reversed the Court of Appeals, and remanded the instructional claim for further proceedings under the standards articulated in Pereida‑Alba and this opinion.
Issues
| Issue | Green's Argument | Franke's Argument | Held |
|---|---|---|---|
| Whether trial counsel’s failure to request a limiting instruction was constitutionally inadequate | Counsel either failed to consider or unreasonably declined to request instruction; lack of instruction permitted propensity inferences | Counsel’s overall strategy—conceding some counts and arguing consent on others—could reasonably explain not seeking a limiting instruction | Remanded: Court must apply Pereida‑Alba framework to determine whether counsel considered the instruction and, if not, whether omission was inadequate in light of counsel’s chosen strategy |
| Proper prejudice standard for post‑conviction ineffective‑assistance claims in jury trials | Prejudice established because omission "permitted" or "invited" propensity use and could have affected verdicts | Post‑conviction court used a probability standard (would have changed outcome); state defends that standard | Held that the correct standard in jury‑trial outcome cases is whether counsel’s acts or omissions could have tended to affect the outcome (more than possibility, less than probability) |
| Whether Court of Appeals’ cost–benefit test (no evident downside + significant upside) is sufficient to find deficiency | That framing is adequate to find counsel deficient when no downside exists | That framing is incomplete because it ignores counsel’s actual trial strategy and tactical choices | Held the Court of Appeals applied an incomplete test; Pereida‑Alba requires assessing omission in light of counsel’s strategy and whether counsel consciously chose not to seek the instruction |
| Whether remand is required | Green urged remand so post‑conviction court can apply proper standards and make factual findings about counsel’s choice and prejudice | State argued no remand needed because post‑conviction court correctly found no prejudice | Held remand required for the instructional claim; otherwise judgment affirmed |
Key Cases Cited
- Pereida‑Alba v. Coursey, 356 Or 654 (2015) (failure to consider a tactical option requires remand to assess whether omission was unreasonable in light of counsel’s strategy)
- Leistiko v. State, 352 Or 172 (2012) (evidence of other sexual crimes cannot be used to prove propensity under OEC 404(3))
- Krummacher v. Gierloff, 290 Or 867 (1981) (introduced the "tendency to affect the result" formulation for prejudice)
- Lichau v. Baldwin, 333 Or 350 (2002) (prejudice assessed by whether omitted evidence could have tended to affect outcome in credibility‑dependent trials)
- Montez v. Czerniak, 355 Or 1 (2014) (two‑step Oregon ineffective‑assistance analysis: performance and tendency to affect outcome)
- Stevens v. State of Oregon, 322 Or 101 (1995) (presentation of impeaching witnesses could have tended to affect outcome; prejudice standard applied in jury context)