Stomps v. Persson, 469 P.3d 218

On Feb. 6–7, 2009 petitioner (Stomps) was hospitalized after injuries; officers twice requested consent to search her ~60-acre property. She gave written consent at 11:00 a.m. on Feb. 7. A later search produced burned human remains and a revolver; petitioner was charged with her husband’s murder.
Petitioner moved to suppress evidence from the Feb. 7 search, arguing that hospital medications impaired her capacity to give voluntary, knowing consent.
Trial counsel called Dr. Izenberg, the treating trauma surgeon, hoping he would describe the medications and give expert opinion about their effects; he testified as a fact witness that the medications had mild, short-acting sedative effects and that petitioner was lucid by 11:00 a.m.
The trial court denied suppression, finding the totality of circumstances (including Izenberg’s testimony and nurse/observer reports of lucidity) showed voluntary consent. Petitioner was later convicted.
In post-conviction proceedings petitioner claimed ineffective assistance for failing to obtain a pharmacology expert (she offered a retired psychopharmacologist’s declaration). The post-conviction court found counsel’s choice to call Izenberg reasonable and that the offered expert declaration would not have changed the suppression ruling.
The Oregon Court of Appeals affirmed: counsel’s decision to call the treating physician was a reasonable tactical choice, and petitioner failed to show prejudice from any alleged deficiency.

Issue	Stomps' Argument	Persson's Argument	Held
Whether trial counsel was ineffective for failing to obtain/call an expert to testify that medications impaired Stomps’ ability to consent to the Feb. 7 search	Counsel should have secured a pharmacology expert (or otherwise pursued favorable testimony) to support the suppression theory that medication rendered consent involuntary	Counsel reasonably called the treating physician (Izenberg), who could describe meds and their effects; tactical choice evaluated at time made	Counsel’s decision to call Izenberg was a reasonable exercise of professional judgment; not ineffective
Whether any alleged deficiency was prejudicial (would additional expert testimony have changed the suppression ruling)	A competent expert opinion would have shown Stomps was impaired and would have tended to change the court’s denial of suppression	Izenberg’s testimony and contemporaneous records showed mild/short-acting effects and lucidity at 11:00 a.m.; the proffered expert’s declaration lacked dosage/timing accuracy and a usable standard	No prejudice: the offered expert declaration would not likely have changed the suppression ruling, so the ineffective-assistance claim fails

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance: deficient performance and prejudice)
Kimmelman v. Morrison, 477 U.S. 365 (U.S. 1986) (evaluate counsel performance from perspective at the time)
Green v. Franke, 357 Or. 301 (Or. 2015) (post-conviction review standards and burden)
Montez v. Czerniak, 355 Or. 1 (Or. 2014) (appellate deference to trial/post-conviction factual findings)
State v. Larson, 141 Or. App. 186 (Or. Ct. App. 1996) (consider drug/alcohol impairment when evaluating voluntariness of consent)
State v. Unger, 356 Or. 59 (Or. 2014) (voluntariness of consent is a legal determination by the court, based on totality of circumstances)
Krummacher v. Gierloff, 290 Or. 867 (Or. 1981) (right to counsel requires adequate professional performance)
Alne v. Nooth, 288 Or. App. 307 (Or. Ct. App. 2017) (prejudice analysis for suppression-related ineffective-assistance claims)