Johnson v. Premo, 370 P.3d 553

Background

Victim found dead on a beach; cause of death contested (prosecution: strangulation in Washington County; defense at trial: drowning in Clatsop County after petitioner threw her from a bridge).
Forensic evidence: high morphine level in victim, semen matching petitioner, and victim’s blood on petitioner’s car; petitioner had history of drugging/sexually abusing young women.
At criminal trial defense presented Dr. Ferris (drowning) and pursued a venue-based defense; petitioner was convicted of aggravated murder and sentenced to death; Oregon Supreme Court affirmed.
Petitioner filed a post-conviction relief (PCR) petition claiming trial counsel inadequately investigated an alternative morphine-overdose defense and failed to obtain a toxicologist’s opinion.
At PCR trial two experts (Drs. Julien and Ophoven) testified that morphine overdose could have caused death; state’s expert did not opine that overdose was the cause.
PCR court found counsel’s investigation unreasonable for failing to consult a toxicologist, concluded prejudice (the evidence could have affected guilt/penalty), vacated convictions and ordered a new trial; state appealed.

Issues

Issue	Plaintiff's Argument (Johnson)	Defendant's Argument (State)	Held
Whether trial counsel’s failure to seek a toxicologist to investigate morphine-overdose defense was constitutionally inadequate	Counsel ignored a plausible, available overdose theory and failed to perform due diligence by not obtaining a toxicologist’s opinion	Two experts had already discounted overdose; no categorical duty to seek a third expert and practical problems (e.g., client may not testify) limit prejudice	Counsel’s failure was inadequate under Article I, §11 — they limited options and did not make an informed choice after due diligence
Whether petitioner suffered prejudice from that inadequate investigation	Expert testimony available at trial (Julien/Ophoven) could have led to reasonable doubt, lesser offenses, or different sentencing outcomes	Presentation of overdose defense likely required petitioner’s testimony; without it, jury would not accept overdose theory and result would be the same	Prejudice established: believable expert evidence existed and would have had a tendency to affect the result (guilt or penalty)
Whether tactical reliance on venue/drowning defense precludes PCR relief	Tactical choice must be grounded on reasonable investigation; counsel unreasonably ignored an alternative that could have materially altered outcome	Trial counsel made a tactical decision based on available expert support and the risks of the overdose theory	Court held the tactical decision was not reasonably grounded because counsel failed to investigate the overdose theory (not an informed tactical choice)
Whether failure to consult a third expert can, as a matter of law, be inadequate	In context (minimal cost/time; plausible theory), failing to obtain toxicologist was unreasonable	No categorical rule requires a third expert; two experts suffice in many cases	No categorical rule; here circumstances made a toxicologist consultation constitutionally required

Key Cases Cited

Montez v. Czerniak, 355 Or 1 (standards for adequacy of counsel under state constitution)
Krummacher v. Gierloff, 290 Or 867 (framework for Article I, §11 ineffective-assistance claims)
Strickland v. Washington, 466 U.S. 668 (effective-assistance standard under Sixth Amendment)
Trujillo v. Maass, 312 Or 431 (burden to show counsel failed to exercise reasonable skill and prejudice)
Lichau v. Baldwin, 333 Or 350 (counsel must conduct reasonable investigation; prejudice standard)
Stevens v. State of Oregon, 322 Or 101 (tactical decisions must be based on reasonable evaluation)
Gorham v. Thompson, 332 Or 560 (investigation must be legally and factually appropriate)
Pereida-Alba v. Coursey, 356 Or 654 (absence of investigation can be inadequate where counsel lacked strategic thought)
State v. Johnson, 340 Or 319 (direct appeal affirming conviction; factual background relied upon by PCR court)