Johnson v. Premo, 361 Or. 688

Background

Petitioner Martin Johnson was convicted of aggravated murder and sentenced to death for the 1998 death of 15-year-old HF; State theory: Johnson strangled HF after drugging and sexually assaulting her.\
At trial the State medical examiner (Dr. Hartshorne) opined death by strangulation; defense pathologist (Dr. Ferris) testified at trial that HF drowned after being thrown from a bridge. Both experts had said morphine levels were insufficient to cause death.\
Trial counsel pursued a venue defense (arguing death occurred in Clatsop County, not Washington County) based on the drowning opinion; counsel did not pursue a drug-overdose theory or retain a toxicologist.\
Post-conviction, Johnson presented new expert testimony (Drs. Julien and Ophoven) opining HF likely died of a morphine overdose; Ferris later testified he had changed his view. State post-conviction expert did not rule out a lethal morphine level.\
The post-conviction court found defense counsel unreasonably limited investigation (failed to retain a toxicologist) and that this inadequacy had a tendency to affect the trial result; the court granted a new trial. The Court of Appeals affirmed. The Oregon Supreme Court affirmed the lower courts.

Issues

Issue	Johnson's Argument	Premo's Argument	Held
Whether counsel provided constitutionally adequate assistance by failing to retain a toxicologist or further investigate a morphine-overdose theory	Counsel should have pursued a toxicology-based overdose theory that matched Johnson's account and could have undercut intentionality or aided mitigation	Once an experienced defense pathologist opined drowning and both pathologists discounted overdose, counsel reasonably relied on those expert opinions and need not seek more experts	Held for Johnson: counsel's tactical choice was unreasonable because counsel knew facts suggesting overdose (multiple drugs, vomiting, client account) and the experts' views conflicted; counsel should have sought toxicology input
Whether tactical choices are protected when counsel limits investigation after an expert rules out a theory	Even when an expert rules out a theory, adequate counsel must investigate plausible client-consistent theories before foreclosing them	A single qualified expert's opinion that rules out a theory can justify not consulting further experts	Held for Johnson: tactical choices must be grounded in reasonable investigation; where evidence made overdose plausible and the venue defense was weak, further inquiry was required
Whether Johnson was prejudiced by counsel's failure to investigate overdose theory	Failure to investigate had a tendency to affect the outcome by foreclosing guilt-phase alternatives (lesser offenses) and weakening penalty-phase mitigation against death	Johnson wasn't entitled to relief because the overdose theory relied on Johnson testifying and was speculative	Held for Johnson: prejudice shown — overdose evidence could have reduced culpability framing and materially affected penalty-phase sentencing decisions (reduced likelihood of death sentence)

Key Cases Cited

Lichau v. Baldwin, 333 Or 350 (trial counsel must undertake reasonable investigation before abandoning a defense)\
Strickland v. Washington, 466 U.S. 668 (federal standard for ineffective assistance: reasonable performance and prejudice)\
Trujillo v. Mass, 312 Or 431 (Oregon standard for post-conviction ineffective-assistance claims)\
Montez v. Czerniak, 355 Or 1 (state constitution standard functionally equivalent to federal ineffective-assistance doctrine)\
Krummacher v. Gierloff, 290 Or 867 (adequacy standard depends on nature and complexity of case)\
Stevens v. State, 322 Or 101 (counsel’s investigatory choices must be based on reasonable evaluation of costs and benefits)\
Pereida-Alba v. Coursey, 356 Or 654 (whether counsel made a tactical choice vs. failed to consider an issue is a factual inquiry)\
Gorham v. Thompson, 332 Or 560 (tactical decisions must be grounded on reasonable investigation)