Defendant Mark Nooth, superintendent of the Snake River Correctional Institution
The following facts, which are undisputed on appeal, are drawn from the record. Petitioner was a guest at a party where he became intoxicated. Early in the evening, a group of partygoers—including the victim, E, and her friend, A—were downstairs watching a violent movie. Petitioner, who was visibly drunk, came downstairs for about 30 minutes. Petitioner sat next to A while watching the movie and, when A’s boyfriend left the room, petitioner made sexual comments to her, telling A that he wanted to have sex with her and mumbling something about her “boobs.” After the movie ended, petitioner played a game of pool with E. Petitioner, who was slurring his speech and having trouble keeping his balance, told E that she was pretty. After playing pool, petitioner hugged E, although E “kind of stood back and didn’t really want a hug.” Around 1:00 a.m., petitioner had an emotional breakdown while with his sister. Petitioner was crying and saying repeatedly, “It wasn’t me,” and attempting to go home. Petitioner’s sister believed petitioner may have been having a flashback related to his service in the Vietnam War. Petitioner’s sister took his car keys because she was concerned about him driving while intoxicated, and then made up a bed for petitioner and left him to sleep.
E, A, and a third woman all went to sleep around 2:00 a.m. in a basement room, with E and the third woman sharing an air mattress. E awoke to the feeling of someone touching her back, and found petitioner touching her breasts and buttocks. E immediately noticed that her pants and underwear had been pulled down to her knees and that petitioner was “completely naked.” E pushed petitioner away, but petitioner did not stop touching her until she pushed him “about two or three more times” and said, “[s]top.” E later testified at the criminal trial that, after she told him to stop, petitioner “just kind of sat there for a little bit” and looked “like somebody snapping out of a trance.” Petitioner picked up his clothes and walked into another room but returned a few minutes later and asked E if she was okay. E replied, “No. Go away.” Petitioner then left. At some point, petitioner was seen coming up the stairs from the basement, naked, while several people were still hanging out in the house. He was described as mumbling and incoherent. Petitioner’s sister took petitioner back to the bed that she had made for him, and petitioner went to sleep. In his subsequent statements to police, petitioner maintained that he had no recollection of going downstairs, taking off his clothing, or touching E.
At petitioner’s criminal trial, his defense counsel did not contest that petitioner had touched E; rather, defense counsel emphasized the witness accounts of petitioner’s intoxication
In closing, petitioner’s defense counsel argued that, as a result of his intoxication, petitioner was “on autopilot” when he went downstairs and it was “just as likely” that petitioner was trying to get out of the house and go home when he wandered into the room where E was sleeping. Defense counsel further argued to the jury that petitioner was “feeling his way through” a dark and unfamiliar room when he touched E: “He doesn’t know who she is. He doesn’t know where he is. When he’s told, ‘No,’ he stops.” Petitioner’s defense counsel then argued that petitioner’s lack of memory was evidence that he lacked the required mental state:
“I think I talked about it a little bit on jury selection when people are under anesthesia *** you don’t remember what happened, and again, I’m not bringing up lack of memory as excuse or as denial. Lack of memory is really— in this case is really a result of the extreme intoxication. That’s what happens when somebody’s either under anesthesia or extremely intoxicated.”
At the conclusion of the trial, petitioner was found guilty by the jury of two counts of first-degree sexual abuse.
After petitioner’s direct appeal was dismissed on his own motion, petitioner sought post-conviction relief, raising four claims of ineffective assistance of counsel. Petitioner’s second claim, which is the focus of this opinion, asserted that petitioner’s trial counsel “failed to develop a defense theory based on petitioner’s health problems, including his military service-connected post-traumatic stress disorder (PTSD).” Petitioner asserted that his trial counsel should have been aware of evidence that petitioner was suffering from PTSD related to his military service and that petitioner abused alcohol to self-medicate and ease symptoms associated with that disorder. Petitioner claimed that his counsel could have leveraged those facts to develop a diminished capacity defense attacking the mens rea requirements of the sexual abuse charges
In support of his claim, petitioner offered, among other things, the testimony of two experts: Dr. Robert Julien, a retired pharmacologist, and Dr. Bridget Cantrell, a mental health therapist. Prior to the post-conviction trial, the state moved to exclude the testimony of both witnesses and argued that neither expert’s testimony would have been admissible in petitioner’s criminal trial. As relevant to this appeal, the state argued that key parts of each expert’s testimony amounted to scientific evidence and that, under the admissibility requirements for scientific evidence set out in State v. Brown,
Following the post-conviction trial, the court granted petitioner post-conviction relief, ordering the judgment from his criminal trial vacated and the case returned for a new trial. In its judgment, the post-conviction court concluded that petitioner’s counsel was deficient and that petitioner had suffered prejudice. The post-conviction court framed the issue underlying petitioner’s second claim for relief as “whether [petitioner’s] trial attorney properly evaluated the PTSD and alcohol issues.” The post-conviction court noted that “[t]he bench and bar have recently become aware of the particular issues of veterans” and that petitioner’s attorney had access to trainings and referrals related to veterans’ issues but did not “call upon the resources available to evaluate the defense.” The post-conviction court then concluded:
“The best defense in this case is alcohol and PTSD. *** [Defense counsel] needed an expert with the proper experience who could follow up and definitively diagnose PTSD. [Defense counsel] could have called on the VA system or one of the experts from the [Oregon Criminal Defense Lawyer’s Association] training. He didn’t.”
The post-conviction court also found that the testimony of Cantrell and Julien would have been admissible at trial:
“Both Julien and Cantrell qualify as expert witnesses based on their training and experience. They each have specialized knowledge and experience that would assist the trier of fact. Their testimony is admissible for this hearing and for trial. It would have then been up to a trial jury to decide what to do with that testimony. This court has certainly found it informative.”
The post-conviction court then concluded that the expert witness testimony would have “affected [the] outcome”:
“There is prejudice here. The experts would have testified to enough that there is a reasonable likelihood it would have affected [the] outcome.”
The court did not specify which parts of the testimony it found helpful or that it believed would have affected the outcome of petitioner’s criminal trial, and it did not determine whether any parts of the experts’ testimony were scientific evidence or whether that evidence met any of the admissibility criteria discussed in Brown and O’Key.
On appeal, the state assigns error to the post-conviction court’s determination that the testimony of Julien and Cantrell would have been admissible at trial and its decision to grant post-conviction relief based at least in part on that testimony. The parties largely reiterate to us the arguments that they made to the post-conviction court. The state contends that parts of the testimony of Julien and Cantrell are scientific evidence subject to the requirements of Brown and O’Key and that petitioner failed to meet his burden at the post-conviction trial of showing that the evidence would have been admissible at the criminal trial. The state argues further that, applying the admissibility criteria from Brown and O’Key, the science underlying parts of Julien’s and Cantrell’s testimony is invalid and therefore would have been inadmissible at trial. Petitioner argues that the
Based on those arguments, the issue before us is whether the post-conviction court erred in concluding that the testimony of Julien and Cantrell would have been admissible at petitioner’s criminal trial and, on the basis of that testimony, erred in granting petitioner a new trial. As we proceed to explain, we conclude that key parts of Julien’s and Cantrell’s testimony are “scientific” evidence. As the proponent of scientific evidence in a post-conviction proceeding, petitioner had the burden to show that the evidence meets the admissibility requirements specific to scientific evidence. Because we conclude that petitioner failed to meet that burden, the post-conviction court erred in concluding that those parts of the testimony would have been admissible. As a result, petitioner failed to show that he was prejudiced by his counsel’s performance at his criminal trial and, therefore, the post-conviction court erred in granting petitioner post-conviction relief as to his second claim.
We begin our analysis with an overview of our law regarding inadequate assistance of counsel. Petitioner raised claims for post-conviction relief under both the Oregon Constitution and the United States Constitution. A petitioner who seeks post-conviction relief on the ground that his trial counsel was inadequate must prove, by a preponderance of the evidence, facts demonstrating that his counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result. Trujillo v. Maass,
To prove prejudice under the Oregon Constitution, a petitioner must show that his counsel’s deficient performance had “a tendency to affect the result of the prosecution.” Stevens v. State of Oregon,
To summarize, to show that he was prejudiced by his trial counsel’s failure to procure evidence, petitioner had to proffer evidence at the post-conviction trial that would have been admissible at his criminal trial and that had a tendency to affect the outcome of that trial.
“Under Brown and O’Key, scientific evidence is admissible if it is relevant under OEC 401, helpful to the trier of fact under OEC 702, and not subject to exclusion under OEC 403. Underpinning the entire admissibility analysis, however, is the requirement that the evidence be shown to be scientifically valid. To determine that issue, and depending on the nature of the evidence in question, a court may be required to consider a number of factors, including:
“‘(1) The technique’s general acceptance in the field;
“‘(2) The expert’s qualifications and stature;
“‘(3) The use which has been made of the technique;
“‘(4) The potential rate of error;
‘“(5) The existence of specialized literature;
“‘(6) The novelty of the invention; and
‘“(7) The extent to which the technique relies on the subjective interpretation of the expert.’”
State v. Perry,
In determining whether proposed expert witness testimony is scientific evidence, and therefore subject to Brown and O’Key, the key issue is “whether the expert’s assertions possess significantly increased potential to influence the trier of fact as scientific assertions.” State v. Marrington,
In this inquiry, we and the Supreme Court have considered the content of an expert’s proffered testimony, the manner in which the expert is presented to the fact-finder, and the relationship between the expert’s conclusions and the expert’s expertise. So, for example, an expert witness who has a background in science and who “claims that her knowledge is based on studies, research, and the literature in the field, announces to the factfinder that the basis of her testimony is ‘scientific,’ i.e., is grounded on conclusions that have been reached through application of a scientific method to collected data.” Marrington, 335 Or at 563-64. Additionally, when an expert witness “couches her testimony in the vocabulary of scientific research,” we have concluded that the expert “effectively announces to the jury that the basis of her testimony is ‘scientific.’” State v. Lusareta,
However, where an expert’s testimony “did not involve the vocabulary of scientific research,” was based on personal experience, and did not suggest to the court that the expert’s opinions “were grounded on conclusions that have been reached through application of a scientific method to collected data,” that testimony was not scientific evidence. State v. Clemens,
Turning to the evidence challenged in the present case, we conclude that the parts of Julien’s and Cantrell’s testimony challenged by the state—principally, the testimony of each regarding brain chemistry and its impact on petitioner’s mental state—drew their persuasive force “from the mantle of science,” Cuevas,
We analyze Cantrell’s and Julien’s testimony separately, starting with Julien’s testimony. His testimony to the post-conviction court largely breaks down into three components. First, Julien testified about the effect of alcohol on the brain and the role of memory—or, specifically, the lack of memory—as an indicator of an advanced state of intoxication that he termed “drug-induced reversible dementia,” or “organic dementia.” Second, Julien estimated petitioner’s blood-alcohol content (BAC) at the time of the incident with E was at least 0.4 percent. And third, Julien testified that it was his opinion to a degree of “medical certainty” that petitioner was in a state of “organic dementia” at the time he touched E and would have been “incapable of forming intent.” On appeal, the state does not challenge the admissibility of Julien’s estimate of petitioner’s BAC; the state challenges only the first and third component described above— Julien’s testimony related to brain chemistry, memory, and alcohol, and Julien’s opinion as to petitioner’s mental state at the time of the incident. Accordingly, the following analysis is confined to those aspects of Julien’s testimony.
As noted, Julien testified at petitioner’s post-conviction trial. Additionally, the post-conviction court admitted into evidence a separate declaration by Julien in which he stated that, having reviewed the files in petitioner’s case, it was his opinion that, at the time of the incident, petitioner “could not meet the Oregon definition of intent or intentional behavior.” Julien explained that petitioner “had no memory of the incident, demonstrating a state of alcohol-induced dementia. In this state, he lacked the ability to form intent as required to meet the Oregon definition of intent.” Julien elaborated that, “[i]n other words, alcohol intoxication will prevent the formation of memories and the blood alcohol content can enable an individual to lack the ability to form memories or intentional behavior required to meet the Oregon definition of intent.” Julien asserted that the opinions expressed in the declaration “constitute my conclusions to a degree of medical certainty based on information commonly relied upon by experts in my field.” Julien added:
“According to the standards of my profession, I have applied appropriate scientific principles as reliable [to] the facts of this case. The principles relied upon by me are supported by testing, common peer-reviewed articles, appropriate error rates, and their acceptability in the relevant scientific community.”
In his testimony to the post-conviction court, Julien expanded on his opinion that, as a result of petitioner’s intoxication and as evidenced by his lack of memory, petitioner was incapable of forming a culpable mental state at the time he touched E. In doing so, Julien first grounded his testimony in his scientific background and scholarship. Julien described his educational and professional background, which included a series of undergraduate and advanced degrees in medicine and science, more than two decades practicing anesthesiology at a Portland-area hospital, and extensive teaching and scholarship in the areas of pharmacology and anesthesiology. He stated that he had written “the very first textbook on psychopharmacology” which was in its thirteenth edition. Julien explained that his textbook “had a
“[Alcohol] basically affects most of the brain, primarily acting at GABA and glutamate cells. In the hippocampus of the brain, the drug affects the formation of memory proteins by blocking the formation of these proteins off of your DNA. This is what is responsible for what is termed a ‘blackout.’ It’s actually a state of drug-induced reversible dementia, just like the organic dementias that we see in society. My textbook has always called it ‘drug-induced reversible dementia.’ As part of that, and even before that, the drug depresses our frontal cortex, which makes up a large percentage of the human cortex, basically depressing those neurons and inducing a demented state by reducing neuronal activity.”
Julien went on to explain that alcohol intoxication impairs the frontal cortex of the brain, which is responsible for “executive functioning,” and that “the best index we have of executive functioning, the state of the frontal cortex, is by using the ability to form memory as a marker of impairment.” Therefore, he asserted, the lack of memory from intoxication “is associated with major impairment of our executive functioning.” Julien testified that, based on the amount of alcohol that petitioner reported drinking, he would have had a blood-alcohol content “to a degree of medical certainty in excess, at about or in excess of about .4 grams percent.” Julien then testified as follows:
“Q. When [petitioner] is in the blackout period that he doesn’t remember, would you, from your knowledge of how much alcohol he drank, believe that he had diminished capacity?
“A. Yes, ma’am.
“Q. Would he have been able to form any type of criminal state of mind at that point?
“A. He certainly would be incapable of forming intent. And I have authored a paper on that topic. He would have been—in my opinion, he would have been in a severely demented state, similar to somebody with an organic dementia like Alzheimer’s dementia. And in that state, it is my opinion, one should be held to the same culpability as someone with organic dementia.
“Q. So could you say to a reasonable medical certainty that he was, in fact, in that state of dementia on this day?
“A. The estimated BAC, which is self-report, certainly would put one in a state of blackout or drug-induced dementia. And of course, that is self-report also, that someone says they cannot remember, but it’s corroborated by an estimated BAC in which virtually everyone would be in that state.
“Actions in that state are often referred to as an autonomous state or somnambulism sleep activities. Others have referred to it as being mentally unconscious, although I don’t believe there’s a legal definition of conscious. But this would be someone that I could consider to be, you know, to be anesthetized.”
In light of the foregoing, we conclude that the challenged aspects of Julien’s testimony—his testimony related to brain chemistry, memory, and alcohol, and his opinion as to petitioner’s mental state at the time of the incident— are scientific evidence. Julien presented himself as a scientific researcher and asserted that his knowledge was “based on studies, research, and the literature in the field,” and “grounded on conclusions that have been reached through application of a scientific method to collected data.” Marrington,
The essence of Julien’s testimony was not all that different from what petitioner’s trial counsel asserted in his arguments to the jury: Petitioner was too intoxicated to have “knowingly” touched E and that the jury could judge petitioner’s intoxication by his
We turn now to consider Cantrell’s proffered testimony. Cantrell’s testimony can be summarized as follows: (1) she had diagnosed petitioner with PTSD, among other mental health disorders; (2) she believed that petitioner’s PTSD had been triggered by various events the day of the party and that those events drove petitioner to drink heavily so as to “self-medicate” the anxiety he was feeling; (3) PTSD can cause a surge of adrenaline that can interfere with a person’s mental functioning; and (4) it was her opinion, “at the time of the incident, that [petitioner] was operating at a diminished capacity, due to the fact that his adrenaline interfered with his higher level cognitive functioning.” The state challenges only the last two of those components of Cantrell’s testimony, and we narrow our analysis accordingly.
At the post-conviction trial, the post-conviction court admitted into evidence a report by Cantrell in which she concluded that petitioner “meets the clinical criteria for Post Traumatic Stress Disorder, Depression, Anxiety, Alcohol Abuse and Sleep Disorder.” Cantrell stated in her report that, having interviewed petitioner, it was her opinion that he was “triggered by multiple events” prior to and during the party, particularly the violent movie, which “triggered flashbacks” to traumatic events petitioner had experienced during his service in the Vietnam War. As a result of those events and petitioner’s ingrained military training and experience, Cantrell explained, petitioner “automatically reverted to his intrinsic skills of survival. This is initiated and primed through the activation of neuro-chemicals and adrenaline with the objective only to survive.” Cantrell ultimately concluded that, at the time petitioner touched E, he “was operating at a diminished capacity, due to the fact that his adrenaline interfered with his higher level cognitive functioning.”
In her testimony at the post-conviction trial, Cantrell described herself as a mental health counselor and a “certified trauma specialist” with expertise in PTSD. She noted that she had a doctorate in clinical psychology, that her research during graduate school focused on PTSD, and that she had written books on the subject as well. She testified that she had diagnosed petitioner with PTSD and that sufferers of PTSD frequently use alcohol to “numb out their feelings, their emotional pain. We call that ‘self-medication.’” She stated that petitioner was “already in a state of arousal” when he arrived at the party, that “there were indicators” during the evening that petitioner “was having some issues with some post-traumatic stress behaviors,” and that the violent movie “activated” him.
On cross-examination, Cantrell was pressed to explain her conclusion that petitioner was operating at diminished capacity as a result of the adrenaline in his system. Cantrell stated, “My understanding, when I look at post-traumatic stress, when I look at how the effects of adrenaline on someone’s cognitive ability, their executive functioning diminishes under the influence of a substance and under the influence of adrenaline.” When pressed further, Cantrell explained that “I would say that it affects judgment and it affects the higher functioning of executive
As with Julien, we conclude that Cantrell’s testimony related to brain chemistry and functioning, and its relationship to petitioner’s mental state, would be perceived by a factfinder as scientific. In considering Cantrell’s testimony, the Oregon Supreme Court’s opinion in Marrington is instructive. In Marrington, the court considered whether the testimony of a “program manager and clinical supervisor” at a private nonprofit organization that specialized in treatment of sexually abused children was “scientific” evidence.
“this court has made it clear that expert testimony concerning matters within the sphere of the behavioral sciences possesses the increased potential to influence the trier of fact as scientific assertions, just as expert testimony dealing with the ‘hard’ sciences does.”
Id. at 561; see also Jennings v. Baxter Healthcare Corp.,
“An expert like [this witness], who has a background in behavioral sciences and who claims that her knowledge is based on studies, research, and the literature in the field, announces to the factfinder that the basis of her testimony is ‘scientific,’ i.e., is grounded on conclusions that have been reached through application of a scientific method to collected data. Because that is how the factfinder would understand it, a court has a duty to ensure that such information possesses the necessary indices of scientific validity.”
Id. at 563-64.
Similarly, Cantrell is an expert “who has a background in behavioral sciences and who claims that her knowledge is based on studies, research, and the literature in the field.” Id. Her testimony describing how PTSD affects brain functioning involved the vocabulary of scientific research and scientific jargon. Of particular significance, Cantrell, at various points in her testimony, implied that her opinions or assertions came not from her personal experience, but could be attributed generally to her field—for example, stating that “we call [PTSD sufferers’ use of alcohol] ‘self-medication’” or, in describing changes to the brain when PTSD is triggered, stating that “we call it the ‘reptilian brain’ in my world.” (Emphases added.) A jury would have perceived her testimony related to PTSD’s effect on brain chemistry, and its relationship to petitioner’s mental state, as scientific and, accordingly, we conclude it is scientific evidence subject to the requirements of Brown and O’Key.
As the proponent of scientific evidence, petitioner had the burden of showing at the post-conviction trial that such evidence would have been admissible at the criminal trial. Tracy,
Despite the state’s objection that the proposed testimony was scientific evidence, petitioner did not seriously undertake to demonstrate to the post-conviction court that the science underpinning the challenged assertions by Cantrell and Julien was valid under the factors outlined in Brown and O’Key
First, petitioner argues that Julien’s and Cantrell’s testimony would have been admissible under the Oregon evidence rule regulating the use of expert witnesses, OEC 702, which states:
“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”
Petitioner contends that both Julien’s and Cantrell’s testimony would have been admissible under OEC 702 solely as “technical or other specialized knowledge” and therefore was not “scientific” evidence. As such, petitioner argues, it was subject only to the general requirements of OEC 702: that the testimony “assist the trier of fact to understand the evidence or to determine a fact in issue,” and that the witness be “qualified as an expert by knowledge, skill, experience, training or education.” The post-conviction court appeared to adopt this reasoning when it stated in its general judgment that “[b]oth Julien and Cantrell qualify as expert witnesses based on their training and experience. They each have specialized knowledge and experience that would assist the trier of fact” See
However, as we have just discussed, we conclude that the challenged evidence is scientific and, as scientific evidence, it is subject to the additional requirements of Brown and O’Key. As noted in Brown, the legislature, in adopting OEC 702, explicitly left it to the courts “to adopt a new approach to the admissibility of scientific evidence.”
Second, petitioner argues that, because the legislature has enacted a statute authorizing a voluntary intoxication defense to rebut the mental state element of a crime, the scientific validity of Julien’s testimony has already been accepted by the legislature and his testimony is therefore admissible. Petitioner cites ORS 161.125(1), which states:
“The use of drugs or controlled substances, dependence on drugs or controlled substances or voluntary intoxication shall not, as such, constitute a defense to a criminal charge, but in any prosecution for an offense, evidence that the defendant used drugs or controlled substances, or was dependent on drugs or controlled substances, or was intoxicated may be offered by the defendant whenever it is relevant to negative an element of the crime charged.”
Accordingly, petitioner argues, any concerns about the validity of Julien’s theory went to the weight afforded that evidence by the factfinder, not its admissibility. However, petitioner is mistaken that ORS 161.125(1) creates blanket admissibility for any and all evidence related to a criminal defendant’s intoxication. Rather, that statute speaks to the relevance of such evidence; evidence offered for that purpose still must meet any applicable requirements for admissibility.
In sum, petitioner offered testimony by Julien and Cantrell in support of his claim for post-conviction relief. Parts of the testimony of each expert witness would have been perceived by a factfinder as scientific, and therefore constitute “scientific” evidence subject to the requirements of Brown and O’Key. As explained, petitioner had the burden of proving before the post-conviction court that such testimony would have been admissible at trial. Petitioner did not meet that burden with regard to Julien’s testimony that (1) a person’s lack of memory is an indicator that the person is in a state of “organic dementia” and, therefore, is unable to possess a culpable mental state, and (2) in his opinion, petitioner was in such a state at the time he groped E and, therefore, was incapable of forming intent, or was in an “autonomous state” and “mentally unconscious.” Petitioner also did not meet that burden with regard to Cantrell’s testimony that (1) PTSD can cause a surge of adrenaline that affects brain functioning, and (2) it was her opinion that petitioner was operating at diminished capacity at the time he touched E as a result of PTSD-triggered adrenaline interfering with his cognitive functioning. Because petitioner failed to establish that those parts of Julien’s and Cantrell’s testimony were admissible, the post-conviction court erred in concluding that the testimony would have been admissible at petitioner’s criminal trial.
We pause to note that, in this opinion, we do not rule on the actual validity of the science underlying each expert’s testimony. The issue in this case is whether petitioner proved at his post-conviction proceeding that his trial counsel’s allegedly deficient representation prejudiced petitioner. As we have noted, prejudice in this case required a showing that the relevant evidence would have been admissible at his trial which, in turn, required petitioner to prove that the proffered testimony of Cantrell and Julien, as scientific evidence, met the requirements of Brown and O’Key. We conclude only that petitioner did not meet that burden and, as a result, that the post-conviction court erred in determining that Julien’s and Cantrell’s testimony would have been admissible at his trial.
Because our ruling pertains only to the challenged parts of that testimony, other parts of Julien’s and Cantrell’s testimony—such as Julien’s estimate of petitioner’s BAC and Cantrell’s diagnosis of petitioner’s military service-related PTSD—are untouched by this opinion. We turn now to consider whether, in the absence of the challenged testimony, the record before us nevertheless supports the post-conviction court’s finding of prejudice on petitioner’s second claim. Whether petitioner has demonstrated prejudice is a question of law. Ashley v. Hoyt,
Petitioner’s claim of inadequate assistance of counsel to the post-conviction court was that his attorney was constitutionally deficient
However, as explained in this opinion, the same evidence petitioner advanced to undercut the mens rea or actus reus elements of petitioner’s offense is the same evidence we conclude should have been excluded by the post-conviction court because petitioner failed to establish a scientific foundation for its admissibility. So, although the state does not challenge Cantrell’s testimony regarding petitioner’s military history, her diagnosis of PTSD, and her opinion that petitioner’s PTSD was triggered the night of the party, without some evidence explaining how those issues could have affected petitioner’s mental state, there is little likelihood that her unchallenged testimony could have affected the outcome of the case. See Green,
As to Julien’s testimony, although the state does not challenge the pharmacologist’s estimate of petitioner’s BAC, that evidence is not so different from the various eyewitness accounts of petitioner’s heavy intoxication that were admitted at petitioner’s criminal trial such that we could conclude that the inclusion of Julien’s BAC analysis would have had a tendency to affect the outcome. Rather, the parts of Julien’s testimony that could have affected the outcome of petitioner’s criminal trial are those parts that cast doubt on whether petitioner could have acted consciously, “knowingly,” or with the required intent—viz., Julien’s testimony discussing the link between alcohol, memory, and intentional behavior, and Julien’s assertion that petitioner’s lack of memory indicated that he was in a state of dementia in which he “could not meet the Oregon definition of intent or intentional behavior.” As with Cantrell, those parts of Julien’s testimony required a scientific foundation and, without such a foundation, cannot prove prejudice in his case. Accordingly, we conclude that, for the reasons above, petitioner failed to show that he was prejudiced by his trial counsel’s failure to procure expert testimony related to his military history, PTSD, and alcohol issues. The post-conviction court erred in so concluding.
That would ordinarily conclude our review—that is, having concluded that the post-conviction court erred in granting petitioner post-conviction relief as to his second claim, we would simply reverse that part of the judgment but otherwise affirm. However, the circumstances here are not ordinary.
As previously noted,
“Petitioner’s petition for [post-conviction relief] is granted. Judgment from trial court vacated and the matter returned for new trial.”
Having now concluded that the post-conviction court erred in granting petitioner post-conviction relief as to his second claim, the post-conviction court must reassess the relief, if any, to which petitioner is entitled. Accordingly, we reverse the judgment and remand for the post-conviction court to enter a judgment consistent with this opinion.
On appeal, reversed as to petitioner’s second claim for post-conviction relief and remanded for entry of judgment consistent with this opinion. On cross-appeal, affirmed.
Notes
Petitioner raised four claims for relief to the post-conviction court. This opinion primarily addresses the state’s appeal of the grant of relief based on petitioner’s second claim for relief. Petitioner cross-appeals the post-conviction court’s denial of his first claim for relief, which we affirm without written discussion. He also raises additional cross-assignments of error. We also reject those arguments without written discussion. Petitioner’s third and fourth claims for relief were not the subject of any assignment of error on appeal or cross-appeal.
The indictment in petitioner’s case charged him with “unlawfully and knowingly” subjecting E to sexual contact.
As noted previously, see
ORS 161.095(1) states that “[t]he minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which the person is capable of performing.” ORS 161.085(2) defines a “voluntary act,” in relevant part, as “a bodily movement performed consciously.”
We note that we have previously considered the exclusion of similar testimony by this same expert, Julien, albeit in a different context. In State v. Hazlett,
In opposing the state’s motion to exclude Julien’s testimony, petitioner, in a footnote, cited to three articles apparently dealing with scientific studies relating to alcohol and the brain. However, those articles were not admitted into evidence at the post-conviction trial and do not otherwise appear in the record.
In addition to the arguments summarized above, petitioner made other, less-developed arguments throughout the post-conviction proceedings, as well as on appeal before us, as to why the testimony of Julien and Cantrell is admissible. We reject those arguments without discussion.