Jeffrey Dale Tiner v. Jeff Premo

Petitioner was found guilty by a jury of two counts

of aggravated murder, one count of intentional murder,

and a number of other crimes. He sought post-conviction

relief on a variety of claims. The post-conviction court

denied relief on all of petitioner’s claims involving the guilt

phase of petitioner’s criminal trial but granted relief on

his penalty-phase claims and voided the imposition of the

death penalty. Petitioner appeals the post-conviction court’s

judgment, raising 29 assignments of error. Defendant, the

superintendent of the Oregon State Penitentiary, opposes

the majority of petitioner’s assignments and raises several

cross-assignments of error. The superintendent concedes,

however, that the state committed due process violations

under Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed

2d 215 (1963), when it failed to disclose material impeachment

evidence for two of its witnesses. The superintendent

argues that petitioner is entitled to relief for the Brady violations

only on his conviction for aggravated murder because

the undisclosed impeachment evidence was material only to

the aggravating circumstances that elevated the murder to

aggravated murder.1

For the reasons explained below, we reject the

majority of the Brady claims raised in petitioner’s third

and fourth assignments of error because petitioner failed to

prove that the allegedly withheld information was material

to the jury’s verdicts. As to the Brady violations conceded

by the superintendent, we accept the superintendent’s concession

and agree that petitioner is entitled to relief on his

conviction for aggravated murder. We reject the remainder

of petitioner’s assignments of error and the superintendent’s

cross-assignments of error without written discussion.

We therefore reverse and remand the judgment denying

1 Petitioner was convicted of aggravated murder based on the aggravating

circumstances that he committed murder “in an effort to conceal the commission

of the crime of assault” and “in an effort to conceal the identity of the perpetrators

of the crime of assault.” ORS 163.095(2)(e). The Supreme Court held on direct

review of petitioner’s convictions that the jury’s intentional and aggravated murder

verdicts had to be merged into a single conviction for aggravated murder. See

State v. Tiner, 340 Or 551, 566-68, 135 P3d 305 (2006), cert den, 549 US 1169

(2007).

62 Tiner v. Premo

post-conviction relief with respect to petitioner’s aggravated

murder conviction, but otherwise affirm.

I. THE FACTS AND PROCEDURAL HISTORY

We state the facts consistently with the postconviction

court’s express and implicit findings. See Montez

v. Czerniak, 355 Or 1, 8, 322 P3d 487, adh’d to as modified on

recons, 355 Or 598, 330 P3d 595 (2014).

A. The Underlying Crime

Petitioner was released from prison in California

on parole in December 1992 and became involved in a sexual

relationship with Karlyn Eklof. In early 1993, Eklof and

her children moved to Lane County, Oregon. Eklof’s friend,

Salmu, was renting a house there and had invited Eklof and

her family to stay with him. While Eklof was living with

Salmu, she invited petitioner to visit her. With permission

from his parole officer, petitioner visited Eklof at Salmu’s

house for several weeks in March 1993.

On March 21, Eklof hosted a pizza party at the

Salmu residence. About a dozen people attended the party,

including John Distabile, Keith and Linda Smith, and Alvin

Hope. The party guests began to leave when it started to

get dark. After the Smiths arrived home, Linda received a

phone call from Salmu asking her if he could spend the night

at their place. She told Salmu that she did not have enough

room for him to stay over. Eklof called Linda about 15 to 20

minutes later and seemed to be annoyed because the Smiths

would not allow Salmu to stay at their home overnight.

At around 7:00 to 7:30 p.m., after most of the

party guests had left, Distabile saw a knife “flying” out of

the kitchen and into the living room, but he could not see

who had thrown the knife. About a half hour later, he saw

petitioner palming a small-caliber handgun. Eklof asked

Distabile to take Eklof’s 13-year-old son home with him so

that she could be alone with petitioner. As Distabile was getting

ready to leave, he heard petitioner and Eklof talking

to Salmu about leaving the house for the night so that they

could be alone. Petitioner offered Salmu money so that he

could go to a movie. The conversation escalated when petitioner

asked Salmu who had been “messing around” with

Cite as 284 Or App 59 (2017) 63

Eklof. Distabile saw petitioner hit Salmu, knocking his

glasses off. He also saw petitioner push Salmu to the ground

and straddle him.

Eklof’s son, T, and his 12-year-old friend, S, were

outside on the front porch during the altercation between

petitioner and Salmu. S heard petitioner offer Salmu money

to go somewhere so that he could be alone with Eklof. He

heard fighting noises such as “thuds” and “slaps,” and saw

Salmu come outside, put his dog in a car, and then return

to the house. S heard Eklof yelling and believed that Salmu

was being beaten. S saw Salmu attempt to leave the house,

but Eklof pulled him back inside. Salmu looked as though

he had been in a fight. At some point during the assault, S

heard petitioner say, “Come on, man, I got a gun,” and warn

Salmu that he would shoot him if he did not leave the house.

T could hear arguing inside the house but was

unable to understand what was happening. At some point,

he entered the house and saw petitioner punching Salmu. T

returned to the porch and heard continued arguing. After

things “calmed down,” T went back into the house and saw

Salmu sitting on the couch. Salmu’s glasses were off, and he

had a black eye. T and S left the house with Distabile.

The following day, Distabile returned to Salmu’s

house to pick up some kitchen supplies and saw that the

carpet in the front room was gone. That same day, Eklof and

a man went to a floor-covering store to purchase linoleum

and carpeting.2 Hope also returned to Salmu’s house the day

after the party and saw Eklof and petitioner removing some

carpet and furniture. Hope helped them put in the new carpet

and offered to take the old materials to the dump. He

noticed a large stain on the old carpet. Hope testified that

he had previously sold Eklof a .25-caliber handgun and that

petitioner was with Eklof during the sale.

Salmu failed to show up for work the day after the

party. During his lunch break, Keith Smith went to Salmu’s

2 At the criminal trial, an employee of the floor-covering store testified that

he could not identify petitioner as the man who had accompanied Eklof, but he

said that the man looked “like the man at the end of—this end of the table, but he

didn’t have a beard at that time.” The record does not indicate if petitioner was

the man at the “end of the table.”

64 Tiner v. Premo

house and asked Eklof if Salmu was home. She said that

he was not. Keith returned to Salmu’s home the next day

and found Salmu’s possessions on the porch. Petitioner

told Keith that he had bought the personal property from

Salmu, who wanted to go to California. Keith returned to

the house again that evening, and petitioner offered to help

Keith look for Salmu that night, but Keith was unable to

do that because he had a prior engagement. Keith returned

the next day and told petitioner and Eklof that he had filed

a missing-person report with the police regarding Salmu.

Petitioner and Eklof became upset on learning that Keith

had contacted the police.

Springfield Police Officer Michael McCarthy, the

first officer involved in the investigation of Salmu’s disappearance,

went to Salmu’s house a few days after the party.

He spoke with Eklof and saw some replacement carpeting

in the front entrance of the house. Springfield detectives

then contacted Salmu’s landlord, Kathy Shults, and asked

permission to enter Salmu’s house. Shults let them into the

house and, while the detectives were in Salmu’s bedroom,

Eklof entered the house. Shults was aware that Eklof and

her children were staying at the house, but she had not met

Eklof in person. Evidently unaware that Shults was the

landlord, Eklof told the detectives that the landlord had

given Salmu and her permission to change the carpet. Eklof

also claimed that she had purchased everything inside the

house, including appliances that belonged to Shults, for

$1,500. Shults acknowledged that the house was in disrepair,

that the carpet was soiled, and that the linoleum had

been damaged by moisture. She knew that the carpet and

linoleum needed to be replaced, but she testified that she

had not discussed changing them with Salmu.

Springfield Police Detective Steve Walker searched

Salmu’s house on March 30 and found what appeared to be

blood splatter on the bathroom door and on the molding near

the bathroom. Criminalist Terry Bekkedahl examined the

house that same day and found blood on a dryer in a utility

room and on the paneling and molding next to the bathroom

door. He also examined the floor beneath the living room carpet.

He saw stains on the padding, but it was later determined

that there was no blood on the padding or on the wood subfloor.

Cite as 284 Or App 59 (2017) 65

In November 1994, Bret Martin was picking mushrooms

near the McKenzie River when he found a human

skull and a plastic bag containing bones and clothing.

Martin reported his findings to a ranger, who contacted the

sheriff. Criminalist Bradford Putnam arrived at the location

to collect the bones. The remains were partially concealed in

a sleeping bag and appeared to be from a single individual.

When Putnam picked up the skull, he heard something roll

around inside it. Putnam believed that there was a bullet

hole in the skull. No gun shell casings or bullets were found

at the scene.

Through dental records, the bones were identified

as Salmu’s. An autopsy revealed two gunshot wounds

to Salmu’s skull, and a bullet was found inside the skull.

The medical examiner was unable to determine whether

the gunshot wounds were inflicted before or shortly after

death. John Lundy, a forensic anthropologist, also examined

Salmu’s remains. He found two bullet entrance wounds—

one below the left eye and the other through the upper jaw

bone. Lundy also examined three finger bones that appeared

to have been severed by a “sharp instrument of some kind.”

DNA testing revealed that one of the blood stains found in

Salmu’s house matched “the bones [that Martin found] to a

very rare number.”

In December 1995, petitioner was indicted for four

counts of aggravated murder and various other crimes for

Salmu’s murder. Each of the counts alleged that petitioner

had “act[ed] in pursuance of a common intent with Karlyn

Eklof, in [causing] the death of [Salmu].” Three months

before petitioner’s indictment, Eklof was convicted of two

counts of aggravated murder and two counts of intentional

murder for Salmu’s death.3

B. The Criminal Trial

We briefly discuss some of the testimony from

petitioner’s criminal trial that bears on petitioner’s postconviction

case. Eklof testified that she had been convicted

of Salmu’s murder and her conviction had been affirmed on

3 We subsequently affirmed Eklof’s convictions without opinion. See State v.

Eklof, 154 Or App 448, 960 P2d 397 (1998), rev den, 328 Or 331 (1999).

66 Tiner v. Premo

appeal, but she was pursuing post-conviction relief from

her convictions. When asked if she knew who had killed

Salmu, Eklof initially responded, “I take the Fifth on this

trial.” However, on further questioning, Eklof testified that,

when she was in the kitchen in Salmu’s house, she heard

two gunshots come from the bathroom. She stated that she

did not know that petitioner had a gun. She testified that

petitioner shot Salmu twice in the bathroom. During crossexamination,

Eklof denied participating in the murder and

expressed frustration with the police and the prosecution,

stating that she had been falsely accused and “railroaded”

because the police were trying to “drum up business.” On

redirect examination, the prosecutor asked Eklof whether

it was “fair to say * * * that you’ve always been consistent

that it was [petitioner] who killed [Salmu], not you?” Eklof

responded, “It was. It was.”

Distabile testified that, the week after the party, he

saw petitioner at a friend’s house, and petitioner told him

that he and Eklof had “kicked the crap out of [Salmu], put

him in the dirt.” On cross-examination, defense counsel

asked Distabile, “And then after the State of Oregon puts

some serious pressure on you, essentially indicating they

may charge you with various crimes, you changed your story.

Isn’t that right?” Distabile responded that he had retained

an attorney in the case, but only “because they were talking

accessory,” and he insisted that he was not an accessory to

the murder. Defense counsel followed up by asking, “And

you got yourself a lawyer and your story changed after they

were putting serious pressure on you personally. Is that

right?” Distabile responded, “I got more truthful with them,

yes.”

David, petitioner’s brother, also testified for the

state. Although David had changed his last name to Johnson

by the time of the criminal trial, he was permitted to testify

under the name David Tiner due to concerns for his personal

safety and the safety of his family; at that time, petitioner

was unaware of David’s new last name or his home

address. David testified that he was living in an apartment

in Fresno, California, with his family in the spring

of 1993. He offered petitioner a place to stay to “help him

get on his feet,” and petitioner, Eklof, and Eklof’s children

Cite as 284 Or App 59 (2017) 67

came to David’s apartment in late March. They arrived in

a car that was full of clothes, bedding, and other household

items. After unloading the car, petitioner bought some beer

and spray paint, and painted the interior of the car’s trunk.

Then he and David took a car ride “up into the hills.” David

became suspicious that “something wasn’t right” and asked

petitioner what was going on. Petitioner told him that “they

had basically had killed a guy and had cut his fingers off”

with pruning shears. Petitioner told David that they killed

the guy because he was a child molester and explained that

they had cut off his fingers to prevent identification.

Petitioner told David that Eklof had stabbed the

victim 40 to 50 times and that petitioner had shot him. He

said, “ ‘Don’t ever use a .25 to kill anybody, it’ll—you know,

it’ll bounce off their chest.’ ” Petitioner admitted to wrapping

the body in a sleeping bag, loading it into a car, driving it

to the next county, and rolling it down an embankment. He

told David that he and Eklof had moved the victim’s car,

killed the victim’s dog, and had “thrown a bunch of the evidence

in the river.” He also told David that “they had to pay

money to replace the carpeting and linoleum in the house

where it had happened.”

When police contacted David a few weeks after

Salmu’s disappearance, he told them that he “didn’t know

anything about it.” David explained, “I was afraid of [petitioner,]

and I didn’t want to—basically I didn’t want to get

involved.” However, about four months later, in September

1993, David spoke with the police and told them of petitioner’s

admissions. Petitioner and Eklof joined David for

Thanksgiving in 1993. Petitioner commented that “maybe

he would get one of his friends to come out and see [David]

and go out for a drive in the woods.” David interpreted the

comment as “a veiled threat.”

Petitioner’s cousin, Ricky Tiner, testified that petitioner

had called him the night of the murder. Petitioner

called Ricky again a day or two later and told him that he

“would be leaving the area and that there may be somebody

looking for him.” Petitioner visited Ricky in Arkansas

in August 1993. Ricky testified that, when he asked petitioner

why somebody would be looking for him, petitioner

68 Tiner v. Premo

explained that “a man had molested some children and that

they’d got rid of him.”

Linda Little and Willis Morris both testified for

the state. Little had met petitioner in Reno, Nevada, late

in 1993. Little was a heroin addict, and she bought drugs

for and used them with petitioner. Petitioner told Little

that he was involved in “some trouble” in Oregon. Morris

lived with Little but was incarcerated for a portion of 1993.

About a day or two after Morris was released from jail, he

was watching television with petitioner and Little at Little’s

mother’s house. A news story came on about a man wanted

for a murder in Oregon. Little asked petitioner what kind

of trouble he was in, and petitioner told Little and Morris

that he had killed someone in Oregon. Petitioner explained

that it started with a fight between Eklof and Salmu, and

that Eklof had assaulted Salmu. He admitted that “he shot

[Salmu], and he wouldn’t die, he cut his throat and cut up

the body and hid the pieces.”

Little testified:

“They—told me that they had the guy in the bathroom,

and that he was—it was kind of a joke. He said he was

shooting him and the bullets were bouncing off his head

and that he wouldn’t die, because the bullets were bouncing

off his head. So they had to cut his throat and that’s—

then they proceeded after that to cut up the body. He tried

to shoot him in the head and I guess the bullets were

bouncing off.”

According to Morris, petitioner told him that he had used

an electric knife to cut up the body and that he had put

the parts in plastic bags and scattered them around. Morris

also recalled petitioner saying that the bullets were “bouncing

off of him.”

Petitioner told Little and Morris that he and Eklof

had killed the man to “keep him from talking.” Little

testified:

“He said he was on parole and that [Eklof] had injured

[Salmu] by assaulting him and that [Salmu] would go to

the police. And [petitioner] couldn’t have that because he

was on parole, so they were going to have to kill him to

keep it quiet.”

Cite as 284 Or App 59 (2017) 69

Little acknowledged at trial that she had been convicted

of forgery and prostitution and was in state custody,

having been transported to the Lane County Jail from a

prison in Iowa. Morris admitted at trial that he had been

convicted of robbery in 1983 and felony “drunk driving.”

A jury convicted petitioner of two counts of aggravated

murder, one count of intentional murder, and various

other crimes. The aggravated murder convictions were

based on petitioner having killed Salmu “in an effort to

conceal the commission of the crime of assault” and “in an

effort to conceal the identity of the perpetrators of the crime

of assault.” Petitioner appealed his judgment of conviction,

and the Supreme Court affirmed his convictions and sentences

but reversed in part and remanded the case to the

trial court to merge the aggravated and intentional murder

counts into a single conviction for aggravated murder. See

State v. Tiner, 340 Or 551, 566-68, 135 P3d 305 (2006), cert

den, 549 US 1169 (2007).

C. The Post-Conviction Proceedings

Petitioner timely filed a petition for post-conviction

relief, alleging 15 claims for relief. The post-conviction court

issued a 12-page written decision denying all of petitioner’s

claims regarding the guilt phase of petitioner’s criminal

trial. The court ruled that none of petitioner’s claims was

procedurally barred, but they were meritless.

Among the many claims that petitioner raised with

regard to the guilt phase of the trial, he argued that his

right to due process, under Brady, was violated when the

state failed to turn over evidence that was either exculpatory

or that had impeachment value against several of its

witnesses. He also argued that his right to due process,

under Napue v. Illinois, 360 US 264, 269-70, 79 S Ct 1173,

3 L Ed 2d 1217 (1959), was violated when the state knowingly

permitted the presentation of false testimony and

then made misleading arguments to the jury. The postconviction

court rejected all of petitioner’s Brady and Napue

claims.

Petitioner appeals, arguing that the post-conviction

court erred because the collective materiality of the Brady

70 Tiner v. Premo

and Napue violations “ ‘undermines confidence in the outcome

of the trial.’ ” (Quoting Kyles v. Whitley, 514 US 419,

434, 115 S Ct 1555, 131 L Ed 2d 490 (1995).) The superintendent

opposes the majority of petitioner’s arguments, but

concedes that the state committed Brady violations with

regard to two of its witnesses. The superintendent contends

that petitioner is entitled only to limited relief as a result of

those violations. For the reasons discussed below, we agree

with the superintendent.

II. LEGAL ANALYSIS

Post-conviction relief is warranted when there has

been a “substantial denial” of “rights under the Constitution

of the United States, or under the Constitution of the State

of Oregon, or both, and which denial rendered the conviction

void.” ORS 138.530(1)(a). “We review the post-conviction

court’s judgment for legal error, accepting as true the court’s

supported factual findings.” Boyles v. Myrick, 282 Or App

517, 520, 385 P3d 1227 (2016). “Additionally, ‘[i]f findings

are not made on all such facts, and there is evidence from

which such facts could be decided more than one way, we

will presume that the facts were decided in a manner consistent

with the [post-conviction court’s] ultimate conclusion.’ ”

Lichau v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002) (quoting

Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968)).

A. Brady and Napue Legal Standards

“Under [Brady], a prosecutor’s withholding of favorable

evidence from a criminal defendant ‘violates due process

where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the

prosecution.’ ” Eklof v. Steward, 360 Or 717, 719, 385 P3d

1074 (2016) (quoting Brady, 373 US at 87). A prosecutor has

an affirmative duty to disclose favorable evidence, even if

there has been no request for disclosure by the defendant.

United States v. Agurs, 427 US 97, 107, 96 S Ct 2392, 49

L Ed 2d 342 (1976). That duty to disclose applies to impeachment

evidence as well as exculpatory evidence. United States

v. Bagley, 473 US 667, 676, 105 S Ct 3375, 87 L Ed 2d 481

(1985). Evidence is material “if there is a reasonable probability

that, had the evidence been disclosed to the defense,

Cite as 284 Or App 59 (2017) 71

the result of the proceeding would have been different.”

Id. at 682. Thus, “[t]here are three components of a true

Brady violation: The evidence at issue must be favorable to

the accused, either because it is exculpatory, or because it

is impeaching; that evidence must have been suppressed by

the State, either willfully or inadvertently; and prejudice

must have ensued.” Strickler v. Greene, 527 US 263, 281-82,

119 S Ct 1936, 144 L Ed 2d 286 (1999).

In Napue, the Supreme Court held that “a conviction

obtained through use of false evidence, known to be such by

representatives of the State, must fall under the Fourteenth

Amendment.” 360 US at 269. “The same result obtains when

the State, although not soliciting false evidence, allows it to

go uncorrected when it appears.” Id. “A claim under Napue

will succeed when (1) the testimony (or evidence) was actually

false, (2) the prosecution knew or should have known

that the testimony was actually false, and (3) the false testimony

was material.” Henry v. Ryan, 720 F3d 1073, 1084 (9th

Cir 2013) (internal quotation marks omitted). False testimony

is material when there is “any reasonable likelihood

that the false testimony could have affected the judgment of

the jury.” Agurs, 427 US at 103.

Although the standards for determining materiality

under Brady and Napue are different, we analyze those

claims collectively to determine whether petitioner was

denied due process of law. See Jackson v. Brown, 513 F3d

1057 (9th Cir 2008); see also Kyles, 514 US at 436 (stating

that materiality should be considered “collectively, not item

by item”).

B. Petitioner’s Brady and Napue Claims

Petitioner alleged that the state withheld the following

materials that it was required to disclose under Brady:

“1. Notes apparently written by an investigator working

for Eklof (and provided to prosecutors) that revealed

she had implicated James Davis in connection with Salmu’s

murder and that a roll of new carpet had been observed in

Salmu’s house shortly before he was killed

“2. Information that the prosecution knew that Eklof

thought that, by speaking to law enforcement officers and

72 Tiner v. Premo

implicating Petitioner in Salmu’s murder, she thought she

was going to receive favorable treatment, including immunity

from prosecution and travel arrangements to anyplace

she wanted to go

“3. A letter from Washoe County (Nevada) Deputy

District Attorney Roger Whomes to Deputy District

Attorney Frederick Hugi indicating that Linda Little and

Willis Morris were strongly biased against Petitioner

“4. A report by an investigator working for the Lane

County District Attorney indicating that Eklof had confessed

to a cellmate, and that confession was inconsistent

in virtually every detail with other statements Eklof had

made about the Salmu murder

“5. Evidence that Eklof had made a false complaint of

sexual misconduct against a law enforcement officer investigating

Salmu’s homicide

“6. Journals kept by Eklof detailing her recollections

about Salmu’s murder

“7. Reports by Detectives Walker and Warthen indicating

that they had interviewed John Distabile regarding

Salmu’s murder, that Distabile initially indicated that he

learned about Salmu’s disappearance by reading about it

in the newspaper, that the detectives threatened Distabile

with arrest and prosecution in connection with the case,

that the detectives suggested to Distabile that Petitioner

and Eklof were responsible for Salmu’s murder, and that

the detectives required Distabile to be photographed for a

‘mugshot profile’ in connection with Salmu’s murder

“8. Statements by Distabile in a report by Detective

Kennedy that Petitioner told him ‘Karlyn kicked the Shit

out of James’ and ‘I buried him.’

“* * * * *

“9. David Tiner’s criminal history

“10. The fact that, before Petitioner’s trial, Deputy

District Attorney Lane made a promise to Linda Little that

he would write a letter on her behalf to her Iowa parole

board and judge if she testified against Petitioner[.]”

Petitioner alleged several Napue violations related

to his Brady claims: (1) the prosecutor, knowing that Eklof

had once implicated Davis in the murder, asked Eklof the

Cite as 284 Or App 59 (2017) 73

following leading question: “[I]s it fair to say * * * that you’ve

always been consistent that it was [petitioner] who killed

[Salmu], not you?”; (2) the prosecutor allowed petitioner’s

brother to testify under the name David Tiner, even though

David had changed his name to David Johnson by the time

of petitioner’s trial; (3) the prosecutor allowed Distabile to

testify that he did not have “any reason to particularly want

to get [Eklof and petitioner] into trouble,” despite the existence

of undisclosed police reports indicating that Distabile

had said that he wanted “just to get rid of the woman”

and wanted Eklof “to be out of his life,” and the prosecutor

argued to the jury that there was no evidence that Distabile

had received any favors or that he needed “to lie to save his

own skin”; and (4) the prosecutor had promised to write a

letter to the parole board on Little’s behalf and knew that

Morris held a grudge against petitioner, but the prosecutor

nonetheless argued to the jury that Little and Morris had no

motive to lie and were not receiving any favors in exchange

for their testimony.

The post-conviction court rejected all of petitioner’s

Napue claims without written explanation. The court also

rejected all of petitioner’s Brady claims, making express

findings as to some of the allegedly withheld information.

On appeal, the parties dispute whether the post-conviction

court made explicit or implicit findings on whether some of

the alleged Brady material—namely, everything other than

the Washoe County prosecutor’s letter, prosecutor Lane’s

promise to write Little a letter, and David Tiner’s criminal

convictions—had actually been withheld from the defense.

However, we need not decide whether the court made such

findings because we agree with the post-conviction court’s

ultimate conclusion that any nondisclosure of the disputed

evidence did not cause petitioner to suffer prejudice and,

thus, that that evidence was not material under Brady.

1. Eklof and Distabile

We begin with the alleged Brady and Napue violations

involving Eklof and Distabile. The post-conviction

court determined that the information pertaining to Eklof

was not material impeachment evidence because Eklof had

been “convicted of felony assault and she had a violent past

74 Tiner v. Premo

and questionable mental stability. There is only speculation

that her testimony could have been discredited any further[,]

causing the jury to reach a completely different result.” The

court came to a similar conclusion regarding Distabile:

“As to Distabile, he was cross[-]examined at trial and

admitted that he had told more than one story to the police.

At trial he stated he knew there was conflict between

Salmu and the Petitioner and Eklof and that they would

physically abuse Salmu at times. If there was a discovery

violation regarding Distabile, it was pretty much cured by

cross[-]examination.”

We agree with the post-conviction court’s conclusion that

petitioner failed to prove prejudice as a result of any nondisclosure

of evidence impeaching Eklof and Distabile. That

is, there is no “reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding

would have been different.” Bagley, 473 US at 682.

As the post-conviction court concluded, both Eklof

and Distabile had been significantly impeached during petitioner’s

trial. Eklof, who at times refused to testify and at

times implicated petitioner in the murder, acknowledged

that she had been convicted of Salmu’s murder and felt

that she had been falsely accused of that crime. Her brief

testimony signaled a potential bias in testifying against

petitioner—that is, if petitioner were solely responsible

for Salmu’s murder, her conviction might be overturned.

Distabile, in turn, acknowledged that, at one point, he had

been considered a possible suspect in the murder, signaling

that he might have an interest in testifying favorably for

the prosecution. Distabile also acknowledged that he had

changed his story after his initial interview with the police.

Thus, the allegedly withheld impeachment evidence pertaining

to Eklof and Distabile was qualitatively similar to

other impeachment evidence that was adduced at trial. The

allegedly withheld evidence would have been cumulative of

other evidence of bias and would not have enabled counsel

to further discredit either witness. See Morris v. Yist, 447

F3d 735, 741 (9th Cir 2006) (where undisclosed impeachment

evidence would not have enabled counsel to further

discredit a witness, nondisclosure does not give rise to a

Brady violation).

Cite as 284 Or App 59 (2017) 75

Moreover, although Eklof’s and Distabile’s testimony

was relevant to proving that petitioner had participated

in the intentional murder of Salmu, it was not crucial

to proving petitioner guilty of that offense. Indeed, there

was ample other evidence of petitioner’s guilt, including eyewitness

testimony from S and T about the assault on Salmu;

testimony from the Smiths and Hope about observations

made in the days after the crime, including that the carpet

had been replaced and that petitioner and Eklof had taken

all of Salmu’s belongings out of the house; petitioner’s admissions

to multiple witnesses of his role in the murder, including

to Ricky Tiner, whose testimony was unimpeached; and

physical evidence corroborating much of petitioner’s admissions

about the murder. See id. (potential Brady evidence not

material in light of other compelling evidence of guilt).

Viewing the Eklof/Distabile impeachment evidence

in the context of the trial as a whole, we are not persuaded

that there is a reasonable probability that the undisclosed

information would have affected the jury’s assessment of

Eklof’s and Distabile’s credibility, or its assessment of petitioner’s

guilt. That is, the alleged withholding of the information

regarding those witnesses does not undermine our

confidence in the outcome of petitioner’s trial. See Bagley,

473 US at 678; see also Strickler, 527 US at 290 (materiality

involves questioning whether “the favorable evidence could

reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict” (quoting

Kyles, 514 US at 435)). Accordingly, petitioner has not

demonstrated that the impeachment evidence pertaining to

Eklof and Distabile was material under Brady, and he has

not demonstrated a basis for post-conviction relief based on

the state’s alleged failure to disclose it.

Petitioner’s Napue claims involving Eklof and

Distabile fail as well. Once again, petitioner’s claims fall

short in terms of materiality. Petitioner claims that the

prosecutor elicited false testimony from Eklof that she had

“always been consistent” that it was petitioner who had

killed Salmu, despite the existence of a police report indicating

that Eklof had once implicated a man named Davis

in the murder. He claims that the prosecutor knowingly

allowed Distabile to testify that he did not have a reason

76 Tiner v. Premo

to want to get petitioner in trouble, despite the existence of

police reports indicating that Distabile wanted “to get rid of”

Eklof and wanted Eklof “to be out of his life.” Assuming that

petitioner’s proof at the post-conviction proceeding was sufficient

to show that the prosecution knowingly elicited false

testimony from Eklof and Distabile, petitioner’s proof was

insufficient to demonstrate that there was “any reasonable

likelihood that the false testimony could have affected the

judgment of the jury.” In light of the overwhelming evidence

of petitioner’s involvement in the murder, any evidence that

his codefendant had implicated someone else while she was

being investigated for her own participation in the murder,

or that Distabile had a motivation to testify falsely against

petitioner, would not likely have had any effect on the jury’s

verdict.4 See, e.g., Agurs, 427 US at 103.

2. David Tiner

With regard to David Tiner’s criminal history, petitioner

argues that the nondisclosure of David Tiner’s two

prior criminal convictions was material because they were

relevant to explain why David, who had changed his last

name to Johnson before petitioner’s trial, testified under

the last name Tiner. Petitioner argues that David testified

under the Tiner name to “escape from his admittedly ‘checkered

past’ ” and not, as the trial court had found, for reasons

of personal and family safety. The superintendent acknowledges

that David’s criminal history was not disclosed to the

defense but argues that David’s two criminal convictions did

not constitute material Brady information because the convictions

would have been inadmissible as impeachment evidence

under OEC 609. We agree with the superintendent.

“Under Brady, no due process violation occurs if the

evidence withheld by the prosecution would have been inadmissible.”

State v. Deloretto, 221 Or App 309, 322 n 3, 189

P3d 1243 (2008), rev den, 346 Or 66 (2009) (citing Wood v.

Bartholomew, 516 US 1, 8, 116 S Ct 7, 133 L Ed 2d 1 (1995)).

“Whether evidence is admissible is, in the first instance,

4 Moreover, as to the purportedly false statement by Eklof, the prosecutor

can be understood to have asked Eklof whether, between Eklof and petitioner,

Eklof had consistently identified petitioner as the person who had murdered

Salmu. Nothing in the record suggests that that is other than a true statement.

Cite as 284 Or App 59 (2017) 77

a matter of state law.” Id. Thus, we look to Oregon law to

determine whether David’s convictions would have been

admissible as evidence at petitioner’s criminal trial. Under

OEC 609(1)(a), evidence of a witness’s prior conviction for

a crime is admissible to attack the witness’s credibility if

the crime was “punishable by death or imprisonment in

excess of one year under the law under which the witness

was convicted” or if the crime involved a false statement

or dishonesty. Under OEC 609(3), a prior conviction is not

admissible as impeachment evidence if “more than 15 years

has elapsed since the date of the conviction or of the release

of the witness from the confinement imposed for that conviction,

whichever is the later date.”

Here, both of David’s convictions were misdemeanor

offenses that were punishable by less than one year of imprisonment,

and neither was a crime involving a false statement

or dishonesty. Petitioner contends, however, that one

of the convictions, a 1980 California conviction for assault

with a deadly weapon, should be treated as a felony under

OEC 609(1)(a). In California, assault with a deadly weapon,

Cal Penal Code section 245(a)(1), is considered a “wobbler”

offense that can be charged as either a misdemeanor or a

felony. See In re Grayden N., 55 Cal App 4th 598, 600 n 1, 64

Cal Rptr 2d 277 (1997) (explaining that “Penal Code section

245, subdivision (a)(1) is a ‘wobbler’ punishable either as a

felony or a misdemeanor”); see also People v. Park, 56 Cal 4th

782, 789, 299 P3d 1263 (2013) (“There is * * * a special class

of crimes involving conduct that varies widely in its level

of seriousness. Such crimes, commonly referred to as ‘wobbler[

s],’ are chargeable or, in the discretion of the court, punishable

as either a felony or a misdemeanor[.]” (Emphasis

in original; internal citations omitted.)). Petitioner acknowledges

that David was punished as a misdemeanant for that

offense but argues that the conviction should nevertheless

be considered a felony for purposes of OEC 609(1)(a) because

the offense was, in theory, subject to punishment as a felony.

We are not persuaded that David’s 1980 misdemeanor conviction

was admissible under OEC 609(1) merely because the

offense could have been prosecuted as a felony. In any event,

as the post-conviction court noted, the 1980 conviction was

over 15 years old at the time of petitioner’s criminal trial

78 Tiner v. Premo

and was thus inadmissible under OEC 609(3). Accordingly,

David’s criminal history is not material under Brady, and

the state’s withholding of that information does not entitle

petitioner to post-conviction relief.

Petitioner’s Napue claim regarding David is likewise

unavailing. Petitioner claims that the prosecutor knowingly

allowed David to testify under the last name Tiner,

which was false because David had changed his last name

to Johnson before petitioner’s criminal trial. However, the

prosecution cannot be faulted for permitting false testimony

when the issue of David’s name was litigated at the criminal

trial, and the court ruled that David would be permitted to

testify under the name Tiner to protect his new identity from

his brother. Thus, petitioner failed to demonstrate that the

prosecutor committed a Napue violation by simply adhering

to the court’s order.

3. Little and Morris

We turn to petitioner’s Brady and Napue claims

involving Little and Morris. The impeachment evidence

about them that was withheld from the defense included a

letter from a Nevada prosecutor to the state indicating that

Little and Morris were strongly biased against petitioner,

and that the state had promised to write a letter to Little’s

parole board in exchange for her testimony against petitioner.

Petitioner claims that the withholding of that material

constituted Brady violations. He claims further that,

despite the prosecutor’s awareness of that impeachment

evidence, the prosecutor improperly argued to the jury that

Little and Morris had no motive to lie and were not receiving

any favors in exchange for their testimony, thus violating

Napue.

The post-conviction court rejected petitioner’s Brady

and Napue claims, and petitioner assigns error to those rulings.

We affirm the court’s denial of petitioner’s Napue claims

regarding Little and Morris. Petitioner complains that the

prosecutor committed Napue violations by making improper

closing argument about Little and Morris, despite the fact

that information existed that suggested that the witnesses

were biased against petitioner. However, the statements an

attorney makes during closing argument are not evidence.

Cite as 284 Or App 59 (2017) 79

See, e.g., State v. Dugan, 177 Or App 545, 550, 34 P3d 726

(2001). In fact, at the start of petitioner’s trial, the jury was

specifically instructed that “[t]he opening statements and

closing arguments of the attorneys are intended to be helpful

to you to understand the evidence, although their statements

are not part of the evidence.” Thus, petitioner’s claim

does not establish that the prosecutor knowingly elicited

or permitted false testimony or evidence, as required under

Napue. Petitioner is not therefore entitled to relief based on

his claim that the prosecutor improperly argued that Little

and Morris had no motive to lie and had not received any

favors for their testimony.

As to petitioner’s Brady claims related to Little

and Morris, the post-conviction court denied relief on those

claims on the ground that the undisclosed evidence would not

have been useful as further impeachment evidence because

those witnesses had already been significantly impeached

through cross-examination. Petitioner assigns error to that

ruling, and the superintendent concedes that the court erred

in part, contending that the impeachment evidence related

to Little and Morris was material as it pertained to the

aggravating circumstances giving rise to petitioner’s aggravated

murder convictions and, thus, that the state had violated

petitioner’s due process rights under Brady. However,

the superintendent contends that the impeachment evidence

was not material to the jury’s intentional-murder verdict,

and argues that petitioner is entitled to relief only on

the aggravated-murder verdicts. Again, we agree with the

superintendent.

Little and Morris both testified about admissions

that petitioner had made to them months after the murder.

Those admissions included details about the murder

itself, which were largely corroborated and cumulative of

other evidence of petitioner’s involvement in Salmu’s death.

However, Little and Morris also testified about admissions

that petitioner had made about his motivation for killing

Salmu. They testified that petitioner had admitted to them

that he had murdered Salmu because petitioner was on

parole and was afraid that Salmu was going to report to the

police the assault perpetrated against him by petitioner and

Eklof, which led petitioner to conclude that it was necessary

80 Tiner v. Premo

to kill Salmu to “keep it quiet” and forestall revocation of

petitioner’s parole. That testimony was uncorroborated

by other evidence in the record. Indeed, several other witnesses

testified that petitioner had said that he had killed

Salmu because Salmu was a child molester. Thus, Little’s

and Morris’s testimony about the reasons that petitioner

had killed Salmu was qualitatively different from any of the

other evidence admitted at trial.

The superintendent concedes that Little’s and

Morris’s testimony about petitioner’s motivation for killing

Salmu was crucial to the prosecution’s aggravated-murder

charges, which alleged that petitioner had committed the

murder “in an effort to conceal the commission of the crime

of assault” and “in an effort to conceal the identity of the

perpetrators of the crime of assault.” Hence, the undisclosed

impeachment evidence—namely, information of witness

bias—was material Brady evidence as to the aggravating

circumstances that elevated the murder to aggravated murder,

and the withholding of that evidence was a violation

of due process. But, the superintendent argues, because

Little’s and Morris’s testimony about petitioner’s admissions

regarding the details of the murder itself was qualitatively

similar to and cumulative of other evidence in the record,

the withheld impeachment evidence was not material to

the jury’s verdict on the underlying murder. As a result,

the superintendent argues that petitioner is entitled only

to a limited remedy: “[R]etrial on the aggravating circumstances

that made petitioner’s murder of [Salmu] an aggravated

murder,” with no relief on the underlying verdict for

intentional murder. (Emphasis in original.)

In his reply brief, petitioner characterizes the

superintendent’s argument to be that, although the state

committed Brady violations, those violations should have no

effect on the verdict for intentional murder because they are

harmless. He argues that the superintendent is foreclosed

from making that argument because, once a Brady violation

is established, the violation cannot be found to be harmless.

See Kyles, 514 US at 435 (“[O]nce a reviewing court applying

Bagley has found constitutional error, there is no need

for further harmless-error review[.]” (Emphasis added.)).

However, as the Supreme Court explained in Kyles, there

Cite as 284 Or App 59 (2017) 81

is no need for further harmless-error analysis once a Brady

violation is established because the materiality test under

Brady “necessarily entails” the harmless-error test set out

in Brecht v. Abrahamson, 507 US 619, 113 S Ct 1710, 123

L Ed 2d 353 (1993). Kyles, 514 US at 435. That is, the test

for materiality under Brady is more rigorous than the test

for harmless error under Brecht, which asks whether a constitutionally

significant trial error had a “substantial and

injurious effect or influence in determining the jury’s verdict.”

5 Brecht, 507 US at 623. Thus, the “materiality standard

in traditional Brady claims supplants harmless-error

review.” Rosencrantz v. Lafler, 568 F3d 577, 584 n 1 (6th Cir

2009). We therefore analyze the superintendent’s argument

in light of Brady’s materiality test, not in terms of the Brecht

harmless-error test.

We conclude that Little and Morris provided critical

testimony regarding the circumstances that elevated

petitioner’s murder of Salmu to aggravated murder. Indeed,

they were the only witnesses to testify that petitioner killed

Salmu to conceal petitioner’s assault of Salmu, thereby avoiding

disclosure of petitioner’s parole violation for assaulting

Salmu. Had the jury heard evidence that Little and Morris

were strongly biased against petitioner, and that the prosecutor

had offered Little a favor in exchange for her testimony,

there is a reasonable probability that the jury would

have acquitted petitioner of aggravated murder. Thus, the

state’s withholding of that impeachment evidence was material

to the jury’s aggravated-murder verdicts.

We do not reach the same conclusion with respect

to the verdict for intentional murder. Little’s and Morris’s

testimony added minimal value to the state’s case for intentional

murder. Their testimony was qualitatively similar to

and cumulative of other—more reliable—evidence of petitioner’s

involvement in the murder. Viewing the Little/

Morris impeachment evidence in the context of the trial as a

whole, we are not persuaded that the impeachment evidence

5 The Brecht harmless-error standard applies to federal habeas corpus proceedings

dealing with constitutional violations and is less rigorous than the

harmless-error standard applied on direct review under Chapman v. California,

386 US 18, 24, 87 S Ct 824, 17 L Ed 2d 705 (1967), which requires the state to

prove that an error was harmless beyond a reasonable doubt.

82 Tiner v. Premo

could have put the intentional murder case “ ‘in such a different

light as to undermine confidence in the verdict.’ ”

Strickler, 527 US at 29 (quoting Kyles, 514 US at 435).

The post-conviction court erred in denying petitioner

relief on his Brady claims involving Little and Morris.

However, because the withheld impeachment evidence

regarding them was material only to the aggravated-murder

verdicts, petitioner is entitled to relief only on those verdicts.

Reversed and remanded with respect to petitioner’s

conviction for aggravated murder; otherwise affirmed.