*1 Arguеd and submitted December reversed and remanded with instructions March HORN, MARK THOMAS Appellant, Jean HILL, Superintendent, Eastern Correctional Institution,
Respondent. CV00-0183; A112794 *2 argued appellant. J. McCrea Robert the cause for With Robynne Whitney him the McCrea, on briefs were A. and P.C. Lloyd, Attorney argued General,
Jennifer S. Assistant respondent. Hardy cause for Myers, Attorney With her on the brief were Reynolds,
General, and Michael D. Solicitor General. Presiding Judge, Judge, Landau, Brewer,
Before and Byers, Judge. Senior
BREWER, J.
Byers, concurring. J.,S.
BREWER, J.
Petitioner
from a
him
appeals
judgment denying
relief from his convictions for sexual
post-conviction
abuse,
unlawful sexual
penetration,
Petitioner
sodomy.
argues
trial court erred in
post-сonviction
concluding
the failure of
trial counsel to introduce
of the child victim’s recantation before trial in his underlying
criminal
did not result
prosecution
prejudice sufficient
authorize
post-conviction
relief.
state responds
because the evidence of petitioner’s guilt was overwhelming,
the omission of the recantation evidence did not have a ten
to affect the
dency
result of that
trial.
areWe
bound
fac
tual
if
findings
court
are
they
sup
ported by evidence in the record. Krummacher v.
Gierloff,
867, 869, 627
P2d 458 (1981); Martinez v. Baldwin, 157 Or
(1999).
280, 282,
We summarize the following facts from the post- conviction record and the post-conviction trial court’s find- Petitioner ings. and the child’s mother in March began dating 1995, when the child was two and one-half years old. That summer mother began attending a Peti- community college. tioner often the babysat child, and at times the child spent the with night In petitioner. early December, petitioner, mother, and the child moved into an On apartment together. December the child her accompanied mother to a gyneco- logical examination, and the child remained in the room while mother was examined a nurse. As the by examinátion began, the child the approached nurse, Linda and Rodgers, asked if the nurse was to be mother” “going touching my and you “[a]re to hurt going my mother?” Rogers was concerned the child’s questions revealed a interest” and “prurient talked with mother about her concerns. also referred Rodgers mother to a counseling center. Mother testified that later child she asked the if day anyone had ever touched her like, that she did not or in a and way way her, that hurt responded “[petitioner]
the child does.” Mother contin- mid-January 1996,when, ued to cohabit with until they ways. according go separate mother, decided to their they However, continued to live in the same residence for sev- longer. eral weeks January early February 1996,
In late mother counseling by took child to center recommended Rodgers, both where mother and child were interviewed by by counselors. Based on statements made mother and the child, a counselor at the center contacted Children’s Serv- (now Services). Department ices Division of Human On February 2, Detective Zeliff received a call from a child- regarding alleged February 5, On welfare worker abuse. counseling Zeliff interviewed the child at the center. The videotaped.1 During interview, child, interview was using anatomically peti- dolls,
correct demonstrated how tioner abused her and told detective about the abuse. February 29, On mother took the child to physical Dr. Candelaria for a examination to look for evi- dence of sexual abuse. The child refused to disrobe and would cooperate, so Candelaria asked one of the female nurses well-baby genital to conduct a examination at the child’snext checkup. April, genital nurse Nina Lara conducted a examination of the child and concluded that the child’s hymen appear subsequent did not to be intact. In a exami- by Candelariа, nation both Lara and Candelaria observed hymen “septate.” that the Candelaria concluded that the “definitely definitely suspicious,” area was abnormal or by injury. During opined penetrating he that it caused person that a examination, the named “Mark”—which is child told Candelaria name —had first genital after the touched her area. Mother testified around the Lara, exam Candelaria and the child ran chanting my pee-pee.” “touches On another occasion house August testified that she observed child
1996, mother *4 1Although transcript underlying as an criminal trial was introduced trial, underlying trial, post-conviction from the exhibit in the some of the exhibits and, interview, videotape including of the were not introduced therefore, part are not record. in the bathtub while “masturbating” explaining peti- her she was in bed. tioner had done while Petitioner was indicted 1996 on two September abuse, 163.427, counts of sexual ORS one count first-degree 163.411, unlawful sexual ORS penetration, first-degree 163.405, and one count of ORS for acts first-degree sodomy, committed 1995 and 1996. The child was during approxi- two old when the abuse mately years allegedly began and years almost five old the time of trial in 1997. trial, Before the court conducted a to determine hearing whether the child was to testify. the hear- competent During ing, following occurred colloquy involving petitioner’s trial counsel and the child:
“Q. you And do being you remember touched? Do touched, honey? remember being (No
“A. audible response.) “Q. you? No? Do You don’t remember? Then how do you somebody know that he did that? Did you tell that he you? touched shaking your yes. you You’re head Who told you? that he touched
“A. Mom.
“Q. your Your mom? And when mommy you did tell this? I
“A. don’t know. “Q. You don’t really you, know? And he didn’t touch shaking your head, no, did he? You’re he just didn’t? It’s your mommy you your yes. told he did? You’re shaking head you you Do remember [referring when lived with this Mark petitioner] here, over the man without the beard? You shaking your yes. you do? Yоu’re head Do remember how long you lived with him? a tough concept Time’s for a little kid, Yeah, you’re your yes. you isn’t it? shaking head Did him long live with time or a short time? time.
“A. Long “Q. A long you? spank time. Was he nice to No? Did he you?
“A. He was bad.
“Q. Pardon?
“A. He was bad. your mommy you “Q. Hewas bad?Did tell he was bad? your shaking yes? you being You’re head Do rememberhim you anything bad, bad? Do your remember he did that was you being good? own mind? doOr remember him as you try Could answer, to answer? You don’t know the honey? say Youcan I don’tknow.She shookher head no.” prosecutor On examination, redirect asked the child more questions began crying about the abuse, but the child immediately. asked for her mother almost The court then called a recess and allowed the child to leave the witness reconvening, stand and return her to mother. After the court competent testify ruled that the child was not because she easily “very spotty” memory. was led and had a jury testimony
The case
tried to a
was
without
from
Rodgers
the child.
testified for the state
about
child’s
“prurient
gynecological
interest” in her mother’s
examination
may
and that she was concerned that the child
have been
abused. The state also
mother, Zeliff,
called as witnesses
hearsay testimony
gave
Candelaria, and Lara. All
as to state-
presence, by
regard-
them,
ments made to
or in their
the child
ing
by petitioner.
addition,
sexual abuse
Zeliff testified
regarding
anatomically
during
the child’s use of
dolls
correct
her,
his interview with
and Candelaria and Lara testified
they
physical injuries
about what
believed were
child’s
genital area. Mother also testified that the child’s behavior
changed during
period
petitioner babysat
for her and
petitioner.
while she and the child lived with
theory
underlying
The defense
at the
that,
trial was
petitioner’s breaking up
her,
in retaliation for
with
mother
allegations
fabricated the abuse
and instructed the child to
pre-
lie to others about the abuse. Petitioner’s trial cоunsel
among
expert
testimony casting
sented,
evidence,
other
opinion,
expert
doubt on Candelaria’s medical
timony
as well as
tes-
unreliability
regarding
espe-
recall,
of witness
cially child
Petitioner also testified in his
witnesses.
own
touching
defense and denied ever
the child in a sexual man-
pretrial
ner. Petitioner’s trial counsel did not offer the child’s
hearing
ultimately
statements. Petitioner
was convicted
charged
opinion.
each of the
offenses. We affirmed without
Horn,
State
rev den
(1999).
In his petition for relief, other for among grounds that his trial counsel alleged, evi- constitutionally inadequate failing for offer into dеnce the pretrial “recant[ation]” child. The post- trial court although conviction concluded trial counsel to offer the inadequate failing evidence, the omission did not prejudice petitioner: [shown],
“Has petitioner however that ‘there is a probability that, unprofes- reasonable but for counsel’s errors, the result the proceeding sional different’? In this would have been
case, there appears to have a large been amount of circumstantial and testimonial evidence. It nearly impossible would seem to believe that the recanta- presented, especially by tion when attacked prosecu- the tion, would have had a probability reasonable tendency or the change to result of the proceeding in the of face what overwhelming was otherwise prejudice evidence. No shown.”
On petitioner appeal, assigns error to that conclu- that, sion. He argues although the post-conviction trial court the “used words of the standard, ‘would have a appropriate tendency to refute the prosecution,’ context of court’s makes it clear analysis that the post-conviction court would ” more than a mere require ‘tendency.’ He also argues that thе state’s case was neither “overwhelming,” as suggested by trial court, nor was it even Peti- “strong.” tioner asserts that the was, state’s medical evidence at most, only “lightly probative,” and tes- videotape along with the timony was, best, Zeliff and inconsistent.” “equivocal to According petitioner, evidence strongest against him consisted of the hearsay accusations of the child. Petitioner contends that the child’s recantation pretrial would not impeached only mother’s testimony, but also child’s accusations introduced through of other wit- testimony nesses. Petitioner because argues the trial boiled down contest, to a сredibility the omission of potentially impeach- necessarily had a the result ing “tendency affect of the prosecution.” state that the recantation responds weak in it evidence was was elicited through leading petitioner’s supporting questions con- and that the evidence overwhelming. Therefore, insists, the state was viction tendency result, have a affect the omission did not petitioner prejudiced. post-conviction relief for inade
In order to obtain
quate
I,
under Article
section
assistance of counsel
“by preponder
petitioner
show,
Constitution,2
must
demonstrating that
counsel
evidencе,
facts
trial
ance of
professional
judgment
skill and
to exercise reasonable
failed
Trujillo
prejudice
petitioner
v.
as
result.”
and that
suffered
(1991); Bogle
431, 435,
the evidence probability” the affected a that error “reasonable according peti- prosecution. sufficient, It is to ofhis the result evi- failure offer the trial counsel’s tioner, that but for his dence, the could have been different. outcome of the case simply “any “tendency” replies than means more state Constitution, provides, part, 11, “[i]n in I, of section the Article * ** by right be him shall have the heard prosecutions, the accused all criminal counsel!.]” self and post-conviction assign trial court’s determina- error to the does Petitioner the Sixth inadequate of counsel under demonstrate assistance he failed to tion that United States Constitution. Amendments to the and Fourteenth but that the Court has possibility,” acknowledgеs Supreme held that the lower standard measure of requires proof Or Stevens, than “likelihood.” See at 110 n 5.
The Supreme Court first used the phrase “tendency to affect the result of the in prosecution” Krummacher. Or at 883. It concluded that those acts or omissions “only by counsel which have a of tendency to affect the result the pros- can ecution be as of Id. regarded constitutional magnitude.” Although the court did not elaborate on its conclusion, it held the counsel’s failure to a lead- object ing tendency did not have a to affect question the outcome of the because prosecution the omission was “inconsequential.” Id.
In Stevens,
the petitioner established that his trial
counsel in his underlying
for
prosecution
rape had failed to
investigate
adequately and discover witnesses who would
call into question the complaining witness’s
This
credibility.
court affirmed the trial court’s denial of
relief
on the ground that
the petitioner
proved
had not
“substan-
tial [ ]
Stevens v. State
prejudice.”
Oregon,
of
(1994).
537,
the credibility Id. tioner.” at 108-09. 611,
In
166 Or
It is apparent is not test application prejudice court’s formulation and decision in Stevens. In with Court’s Supreme consistent in of court twice cast the tеst terms a its written opinion, a result error, but for counsel’s different probability too much. See have That standard requires would followed. Stevens, (rejecting, light 139 Or at 395-96 App Ashley, probabil- trial court’s of “reasonable adoption instead, is whether question, standard for ity” prejudice). a affect the out- tendency have the omitted evidence would the prosecution. come of a correctly notes that criminal defense
The state discover, or adduce evidence investigate, failure attorneys of a to affect the outcome have a always does not made in light must be Instead, the assessment prosecution. Oregon, Carias State of circumstances.” totality of “the (1997).4 P2d 571 Where 4 Carias, argued counsel’s failure to contact a that his trial disagreed, more, prejudice. witness, We potentially without constituted valuable App 642, Oregon, 809 P2d 106 Or disavowing suggestion in Mellem v. State omitted from criminal trial is not produced post-convic- tion or the evidence proceeding, could changed result of the its omission be prosecution, cannot prejudicial. v. Armenakis, See New *9 (1999)
rev den Or 594 that, 328 where the substance (holding of an omitted witness’s was not testimony established in the evidence, post-conviction proceeding through admissible recital of petitioner’s the witness’s expected testimony it not, event, demonstrated that would in any corrobo- rated the in petitioner’s defense the underlying prosecution, the omission did not prejudice petitioner).
We also note
decided,
since Stevens was
this
court has concluded
petitioner’s
counsel’s failure
evidence was not
under
present
prejudicial
Constitution where there was ‘little likelihood” that the error
affected
result
of his
prosecution.
Gorham v.
570, 575-76,
159 Or
Thompson,
(1999),
Gorham, unnecessary grounds, finding it to reach on different wrong petitioner’s argument applied that we had reaching prejudiсe Gorham, our conclusion. standard Or at 569.5 patterns do
The circumstances here not fit within omitted evidence New, in either Carias or because the found post-conviction proceeding, and it in fact admitted petitioner’s theory. as Nor, defense we to the heart went say explain, can we that omission of the evidence was now inconsequential or that it would not have had a prosecution. criminal affect the result of correctly notes, As the recantation evi- question virtually would have called into all dence testimony except Candelaria. the medical state’s He also testimony сorrectly that Candelaria’s observes testimony by opposing that the condition medical countered of not uncommon in hymen normal variants” that is the child’s was “one of the
young females. Petitioner further asserts attempted the to discredit the recantation that, if state had leading through questions, he could it was elicited because by showing impact parried that the child’s state- have through leading questions. to Zeliff also were elicited ments argument regard responds petitioner’s that in that The state videotape unprovable, s with of Zeliff interview is because not contained in the record. the child is guilt petitioner’s was over- Because the other evidence petitioner videotape, whelming failed introduce the to disagree. prejudice. urges, establish We he did not the state stronger respects, presented evi- In the state some guilt petitioner’s trial than was adduced at criminal dence of example, physical there was Here, Loveless. for in testimony alleged addition, In of the nurse abuse. gynecological exam tended— mother’s who conducted any suspicions, rather than actions of her because was 5 66, 72-73, 948 (1997), Armenakis, P2d 327 rev Or den 327 In Davis v. prejudice post-conviction purposes applied for for the fed we as test beyond harmless, must be harmless to be error constitutional standard eral Walton, appeal this Or at 231. Because we resolve doubt. See also reasonable arguments Constitution, parties’ do under we not consider under the the federal standard. that to the mother’s, leading prompted investigation child’s disclosure —to discredit petitioner’s theory abuse was fabricated. hand,
On other the state’s medical evidence was countered a qualified Furthermore, in opposing opinion. with the child first keeping petitioner’s “coaching” theory, disclosed the abuse mother —not to the nurse —and mother cоntinued to cohabit with after that petitioner disclo- alleged short, sure. In the corroborating evidence on which the state relied so was not as to foreclose inter- compelling competing See in pretations. Ashley, 397 (declining, light of facts susceptible to differing interpretations, “imply any view as to the ultimate or credibility of omit- persuasiveness” evidence). ted we Although trial coun- agree petitioner’s led sel the child in her pretrial and that much of testimony their consisted of counsel’s colloquy description of the child’s nonverbal the child responses, nevertheless stated that her “mom” told had her that hаd Thus, touched her. regardless of whether showed that Zeliff videotape led the child in her eliciting inculpatory statements, the child’s in testimony response defense counsel’s questions would tended weaken the credibility of her accusations. short, crucially defense on depended his doubt credibility on the of mother casting child. The child’s testimony recantation therefore no less important than the evidence that the petitioners’ attorneys failed to locate and We produce Stevens and Loveless. thus conclude that the not evidence was and that inconsequential its omission had a to affect the prose- result of that cution. the trial Accordingly, court erred concluding petitioner was prejudiced.
We to which the appreciate lengths concurrence *11 has to define a minimum threshold for the gone “tendency affect the result” test. We make two brief points response. First, were we whether considering exclusion harmless, was recantation evidence we would be unable to that “little that say there was likelihood” its exclusion Thus, affected the result in petitioner’s prosecution. applica- tion of the confirms our harmless error standard conclusion However, that was we do not hold that prejudiced. 152 test “tendency equivalent to affect the result” is a merely
hаrmless error standard. We that acknowledged constitutional test for harmless error implicitly the federal harmless error in Gorham and that applied in Davis. The error analogy standard between applied “harmless” and error that results in “prejudice” that is not useful, it is for Court to decide Supreme to be but appears the Krummacher whether further elaboration of / Stevens test is or desirable. necessary to the second The concur- brings point:
Which us does not resolve —the analysis rence’s demonstrates —but in the affect the phrase “tendency inherent imprecision end, In the the concurrence’s formula does three-part result.” because it does not tell us on that improve imprecision, (Byers, J., means. 180 at 155 S. what “could have” Or it than probability know that less concurring). requires We it us much but, like leaves uncertain about how is “tendency,” “little likelihood” test for We do not enough. pretend however, is has necessarily precise; harmless error more in a familiar application body of extensive advantage including case No clarification suggested law. date — defined, for the benefit of clearly proposal concurrence’s —has to establish bar, required bench and the minimum threshold refinement Any may to affect the result.” further “tendency a development. require case-by-case instructions to enter Reversed and remanded with relief. judgment allowing post-conviction J., BYERS, S. concurring. am concerned that we
I concur in the decision but terms astray by using lead courts may view, conclusion legal such “little likelihood.”1 my as a ten- did or did not “have of trial counsel inadequacy not be upon proba- the result” should based to affect dency 385, 391-97, v. 139 Or Hoyt, See bility analysis. Ashley (1996) (“a probability” reasonable 912 P2d standard). too is rigorous “result would have been different” always accompanied must be “substantial The test “little likelihood” (1991) 223, Walton, guilt.’’ compelling evidence of State (1985)). 203, 220-21, 709 Miller, P2d (quoting State v.
153 When Court formulated the test of a Oregon Supreme to affect the result” in “tendency Krummacher v. 290 Gierloff, 458 867, Or 627 P2d it established a standard some- less than I thing Consequently, believe a defen- “probably.”2 I, dant can be under 11, Article section of the prejudiced Oregon Constitution, when the error or inadequate errors of reasonably counsel could have affected the result. Whether an error could affected reasonably have the result would depend in on its and how part importance the criminal pro- would have been different if the had ceedings error not been made.
I believe thаt
analysis
an
is as
appropriate
follows:
(1) determine the relative
importance of
error or errors to
(2)
case;
determine how
petitioner’s
adequate assistance of
in the
counsel
involved would
particulars
changed
presented
fact;
to the trier of
arguments
(3) based on those two determinations,
determine whether
the trier of
could,
fact
“in the
totality
circumstances,”
reasonably have come
ato different result or conclusion. See
Carias v. State
(1997)
540, 543,
148 Or
Applying step “recantation” evidence to the heart of went case. Petitioner testified that he had not touched the inappro- child Mother testified that child said It priately. petitioner had. was mother who the accusation to others. Yet when reported pretrial child testified she said hearing, had not her. touched More when the child was importantly, asked ‘Who told he you you?” replied touched the child is “Mom.” It hard to conceive of evidence more important the petitionеr’s case. As out in the petitioner’s expert pointed trial, such evidence importance 2 Supreme “inquiry” Court has indicated that the under the federal and 560, 3, Thompson, state constitutions is the 564 n 34 P3d same. Gorham (2001). However, probability 161 is clear is federal standard “reasonable Washington, sufficient to undermine confidence in the outcome.” Strickland v. 466 (1984). 674, 2052, US S Ct 80 L Ed 2d Stevens v. State of Cf. (1995). Oregon, 101, 110 n did not in the criminal testify pro-
increases where the child thereby opportunity ceedings, depriving petitioner her. cross-examine process, peti- in the step the second considering the evidence could ways
tioner himself which suggests out that the evidence could points have been used. Petitioner his defense. the “central theme” of His wit- expert have been the evi- testified that post-conviction proceeding ness in the used to cross-examine mother and dence could have been *13 the child make the state- other state witnesses who heard to make Also, could have used the evidence ments. petitioner Although parties pose argu- his more credible. testimony ques- with regard leading ments and counterarguments child amena- tions, young perhaps the fact that the her mind ideas in emphasizes ble to having planted been Had the evidence role the evidence could play. crucial a basis significant it could have indicated, provided used as doubt. for reasonable argue very the evidence was Having determined have been case and that could important juror considers how ways, step used in several the third This of the circumstances.” “totality would view it in the in the case with all of the evidence requires considering the scales are tipped whether determining view toward the scales are steeply or and how favor innocence guilt * * of* even guilt,” there is evidence “overwhelming If tipped. the result. Davis reasonably change not serious errors could rev den Armenakis, (1998) (trial to the object peti- failure Or 83 counsel’s did not of the jury in shackles in being presence tioner held relief). the scales are steeply If tipped require post-conviction the defen- an error crucial to guilt, only perhaps in favor made, signifi- been would have had it not dant’s case and the arguments pro- the evidence cantly changed the result. reasonably affect ceedings could case, the evidence was steeply tipped In this was not conclusive. The The medical evidence favor guilt. condition of testified that the physical medical expert stаte’s abnormal,” while “definitely “suspicious” the child was petitioner’s expert testified that it was normal. The video- taped interview the detective took after the place detective had talked to mother and consisted of leading questions. Much of the state’s remaining was based on mother’s While there reports. was sufficient evidence to con- vict petitioner, evidence was not or overwhelming conclu- sive. In these circumstances, and considering arguments that could have been made, the recantation evidence could have raised the essential reasonable doubt that petitioner Thus, sought. my leads to the analysis legal conclusion that trial counsel’s failure to use the recantation evidence “had a to affect the result.”