637 P.2d 1311 | Or. Ct. App. | 1981
The state appeals from an order granting defendant’s petition for post-conviction relief on the basis of a finding that “[defendant was deprived of due process of law in connection with [his] trial in that he was not effectively represented by counsel.”
Defendant was charged with 14 counts of cruelty to animals. ORS 167.850. He was acquitted on five counts that alleged he had starved five horses to death, but was convicted on nine counts that alleged he had caused nine other horses to suffer from malnutrition. Defendant’s convictions were affirmed by this court without opinion. State v. DeHart, 42 Or App 837, 601 P2d 917 (1979), rev den 288 Or 519 (1980).
Thereafter, defendant filed a petition for post-conviction relief, which alleged in part:
“(a) [Defendant] has been denied equal protection and due process of law as guaranteed by the United States and Oregon Constitutions in that he has been denied effective counsel at trial in that [defendant’s] attorney failed to adequately prepare for and handle [defendant’s] trial by failing or neglecting to contact or subpoena witnesses vital to [defendant’s] defense, by failing or neglecting to assess, assemble and produce evidence vital to [defendant’s] defense, by failing or neglecting to properly understand the nature and severity of the charges and evidence brought against [defendant] by the State of Oregon, and by failing or neglecting to request lesser included offenses or to except from the trial judge’s failure to give such lesser included offense instructions.”
In August, 1977, defendant took possession of 32 wild j horses under an agreement with the Bureau of Land Management (BLM). The horses were emaciated and were
At trial the factual issues were cause of death, defendant’s efforts to cure the horses of their parasites and the quality and quantity of defendant’s pasture and supplementary feed. A veterinarian who performed an autopsy on one of the horses testified that the animals had died of malnutrition, that the parasitic infection he found was only secondary and that a parasitic infection by itself would not have caused death. He also testified that he had examined defendant’s pasture and feed and that both were of poor quality and nutritionally inadequate. A BLM representative testified that defendant’s pasture was overgrazed and his feed of poor quality. Other witnesses testified to defendant’s unsuccessful efforts at deworming the horses. The only witnesses called by the defense were the defendant and his wife. Defendant testified that the cause of death was the parasitic infection and that his pasture and feed were of good quality.
Prior to trial, defendant suggested to his attorney the names of several witnesses he thought could provide testimony favorable to the defense. Specifically, he suggested his own veterinarian, who testified at the post-conviction hearing that, contrary to the opinion of the state’s expert, a severe parasitic infection by itself can cause death, that there is no difference in appearance between a horse suffering from malnutrition and one suffering from a severe parasitic infection, that defendant’s efforts at deworming the horses were reasonable under the circumstances, and that he would have so testified at defendant’s trial if he had been subpoenaed.
The failure of defendant’s trial counsel to interview the suggested witnesses or to have the feed analyzed to determine whether such testimony or evidence would be helpful to the defense reflects, not a mere error in professional judgment, but a complete failure to exercise professional judgment- Counsel effectively defaulted. Under these circumstances, defendant was denied effective assistance of counsel. Rook v. Cupp, 18 Or App 608, 526 P2d 605 (1974); see Krummacher v. Gierloff, 290 Or 867, 627 P2d 458 (1981); Turner v. Cupp, 1 Or App 596, 465 P2d 249 (1970). Defendant was prejudiced by that denial. His and his wife’s testimony were likely to be viewed as self-serving. The suggested corroborating testimony would not have been merely cumulative, and, as the post-conviction court found, it might well have produced a reasonable doubt in the minds of the jurors, which could have resulted in a different verdict.
Affirmed.
The.post-conviction court found:
“Defendant was deprived of due process of law in connection with the saidl trial in that he was not effectively represented by counsel. Specifically, defen-1 dant’s counsel was provided with the names of several potential witnesses who! would have been helpful to the defense and who were available to testify at trial yeti he failed to contact those witnesses and failed to subpoena them for trial. If thel said witnesses had testified there is a substantial possibility that defendant would| have been acquitted.”