Dante R'Marcus Farmer v. Jeff Premo

In this post-conviction relief case, the state1 appeals

from a judgment granting petitioner relief on a number of

his claims, and remanding the case for a new trial. The state

assigns error to the post-conviction court’s rulings on those

claims, arguing that petitioner failed to establish, as a matter

of law, that he was entitled to relief on any of them. We

conclude that the post-conviction court did err in its legal

analysis of each of the claims on which it granted relief, and

we accordingly reverse the portion of the judgment granting

post-conviction relief and remanding for a new trial.

In his fourth amended petition (the petition), petitioner

alleged claims of inadequate assistance of counsel,

claims of direct due process violations, and a claim of prosecutorial

misconduct. The post-conviction court granted relief

on the basis that petitioner received inadequate assistance

of counsel on the following grounds: Trial counsel failed

to present a defense expert’s bullet-comparison opinion at

trial. Trial and appellate counsel failed to argue that certain

evidence was not hearsay. Trial counsel failed to move

for a continuance of a new-trial hearing and to present testimony

from a witness at that hearing. Trial counsel failed to

make certain objections to prosecution evidence at the newtrial

hearing. Trial counsel failed to make certain constitutional

objections to the new-trial hearing procedures. The

post-conviction court denied relief on all other claims in the

petition.

I. HISTORICAL AND PROCEDURAL FACTS

AND LEGAL FRAMEWORK

To provide a general context for the issues on appeal,

we set out here the background facts relating to the claims

on which the post-conviction court granted relief, as well as

1 When a petitioner for post-conviction relief is imprisoned, as in this case,

ORS 138.570 provides that the petition “shall name as defendant the official

charged with the confinement of petitioner”; in other circumstances, the named

defendant is the state. Because the post-conviction court referred to the party

opposing this petition as “the state” during the proceedings and in its letter opinion,

for convenience, we also refer to defendant as the state. We refer to the trial

court in this post-conviction action as the post-conviction court, and the trial

court in petitioner’s underlying criminal trial as the trial court.

734 Farmer v. Premo

an overview of the applicable legal framework. We state the

facts as the post-conviction court found them, supplemented

with undisputed facts from the record.2 In the analysis of

each assignment of error, we set out additional facts, explanation,

and legal principles as necessary and pertinent to

resolution of the issues under consideration.

A. Petitioner’s Criminal Trial and the Defense Strategy

A jury convicted petitioner of murdering the victim,

Monterroso. Monterroso was killed by a single gunshot to

the chest. State v. Farmer, 210 Or App 625, 627, 152 P3d

904, rev den, 342 Or 645 (2007). Police arrested petitioner

after his then-girlfriend, Jennifer, and her parents, Perkins

and Garvin, reported to police that petitioner told them he

had shot the victim. Id. at 635-37.

At petitioner’s criminal trial, there was evidence

that, on the night of the shooting, petitioner had arrived at

Jennifer and Perkins’s home “looking scared and ‘spooked,

like he [had] seen a ghost.’ ” Id. at 635 (brackets in original).

Initially he told them that he had seen “ ‘his home boy get

shot,’ and that he was only a few feet away when the shooter’s

car drove up.” Id. Jennifer testified that petitioner told her

later the same night “that he had just killed someone and

threatened to kill her if she ever told anyone.” She also said

that he told her the next night, perhaps, “that he had been

threatened and that he had to kill the victim before the victim

killed him.” Id.

Perkins testified that, about a week and a half after

the shooting, petitioner had asked if he could tell her and

Garvin something, and that he had confessed to the shooting,

saying that it was “over a ‘weed deal * * * that went

bad.’ ” Id. at 635-36 (omission in original). She was shocked,

did not think his story made sense, and told him as much.

Garvin was there because he was concerned about a

previous incident of violence by petitioner against Jennifer,

2 We set out the events that led to petitioner’s arrest and prosecution in

detail in our opinion on petitioner’s direct appeal. See State v. Farmer, 210 Or

App 625, 627-38, 152 P3d 904, rev den, 342 Or 645 (2007). The post-conviction

court largely drew its factual findings concerning those events from that opinion,

quoting it extensively, interlineated with its own additional findings in italics.

Cite as 283 Or App 731 (2017) 735

and intended to tell petitioner that he “ ‘had to go.’ ” He “testified

that [petitioner had] appeared very upset and said

that ‘it was either him or the other guy.’ ” Id. at 636. Garvin

testified that petitioner “described the killing, saying that

he walked up to the victim, who did not see him coming, and

shot the victim once with a .357 that [petitioner] had gotten

from a friend.” Id. Garvin also testified that petitioner

told him that he put the gun to the victim’s head, and that

it “ ‘just went off.’ ” Id. Garvin asked what petitioner “was

wearing at the time, and petitioner said that he was wearing

a reversible blue/black coat.” Id.

Neither Perkins nor Garvin initially believed petitioner.

Perkins initially believed that petitioner was “ ‘puffing’

because he feared Garvin and he was trying to avoid

being excluded” from Perkins’s home. Id. Garvin similarly

believed that the story was “just ‘talk’ ” aimed at keeping

Garvin from “kicking him out,” but “out of concern for his

daughter,” he “also wanted to investigate the story.” Id.

The next day, angry about seeing petitioner and

Jennifer together, Garvin called the police and spoke

with Detective Renna, the lead detective investigating

Monterroso’s murder. Garvin told Renna that petitioner

“ ‘walked up on the guy and blew him away.’ ” Id. At some

point after that report, petitioner “confronted Garvin about

‘ratting him out,’ ” and after that confrontation, Garvin

“ ‘look[ed] at it in a different light, yes. He was pretty nervous

and real up-tight. So at that point I saw that this was

going somewhere.’ ” Id.

Petitioner’s descriptions of the murder as recounted

by Jennifer, Perkins, and Garvin in some ways did not match

other evidence—Monterroso was not shot in the head, the

gun was no closer than 6 inches from Monterroso’s chest,

and no one else described a car being involved in the murder.

In addition to those confessions, the prosecution

presented evidence from two other witnesses who linked

petitioner to the murder. One of those witnesses, Feliu, identified

petitioner on the night of the murder as a person who

had been looking for Monterroso about an hour before the

shooting. Feliu had attended middle school with petitioner

736 Farmer v. Premo

and had seen him around the neighborhood a few times

since then, and she recognized petitioner “ ‘the second [she

saw] him.’ ” Id. at 628 (brackets in original). On the night

of the murder, she gave police a description and petitioner’s

first name, “ ‘Dontae.’ ”3 Id. Two days later, she identified

petitioner in a police photo line-up. Id. at 633.

The other witness, Muldrew, had been next to

Monterroso when he was shot. He testified that he saw

petitioner shoot Monterroso with a .357 revolver. Id. at 629.

Muldrew provided a description of the shooter to police on

the night of the shooting, but “[a]lthough Muldrew had seen

[petitioner] a couple of times previously and knew who [petitioner]

was (though only by a nickname), he did not identify

[petitioner] as the perpetrator at that time.” Id. at 633.

Four days after the murder, “[i]dentifying [petitioner] by his

nickname, Muldrew told Feliu that [petitioner] had killed

Monterroso.” Id. About two weeks later, he identified petitioner

in a police photo line-up. Id.

On the night of the murder, Muldrew described the

shooter to police as “about 5' 9" or 5' 10", 16 to 19 years old,

skinny, with a mustache and a goatee.” Id. at 632. He also

told police that the shooter “was wearing a dark, puffy coat”

that had writing on it and “black sweatpants with a white

stripe down the side.” Id. That night, Feliu also described to

police the man she recognized as “Dontae,” who had been

looking for Monterroso earlier, as “a black male, 18 years

old, medium-dark complected, 5' 9" or 5' 10", with light facial

hair, and wearing a blue coat with a hood and a horizontal

stripe.” Id. at 633.

Muldrew called 9-1-1 immediately after Monterroso

was shot. Id. at 629. At about the same time that Muldrew

called 9-1-1, a woman, later identified as Thompson, also

called 9-1-1. Id. She initially was identified by only her first

name, and was not located until after the trial was over.

In the call, Thompson said she had witnessed the shooting

and, among other things, she described the shooter and his

companion as Hispanic. Id. She also described the shooter

3 The quoted spelling of petitioner’s first name corresponds to its spelling in

the caption and record of his criminal trial and direct appeal, rather than the

spelling reflected in the caption of this case.

Cite as 283 Or App 731 (2017) 737

as wearing a black or blue jacket. A recording of the call was

played at trial.4

A police officer at the scene after the murder also

made statements to dispatch, which were recorded, that

a witness had described a suspect who ran away from the

scene as a teenaged Hispanic male. Petitioner is African

American. Id. at 634.

Renna was told during his investigation that “ ‘word

on the street’ ” was that a man named Baines was involved

in the shooting. Id. Baines and petitioner resemble each

other. During an unrelated investigation of Baines, police

seized a Rohm .38-special revolver from a home where he

sometimes stayed. Id. at 637. When shown a photograph of

Baines, both Feliu and Muldrew noted some resemblance to

petitioner, but neither recognized him or had any idea who

he was. Id. at 638.

At trial, to counter the defense theory that Baines

could have been the shooter, the prosecution presented evidence

that the Rohm revolver had been inoperable for years

at the time it was seized. There was testimony from prosecution

witnesses that the gun had to be repaired before

it could be test fired, and that test-fired bullets from it did

not match the bullet fragment recovered from Monterroso’s

body. Id. at 637-38.

A defense expert, Wong, had concluded that the

Rohm revolver “likely fired” the fatal bullet, but trial counsel

did not call him as a witness at trial. Trial counsel was

concerned about Wong’s qualifications, and, in consultation

with Wong and a second expert, she opted instead to rely on

testimony she elicited from the state’s expert.

The defense strategy generally was to suggest that

Baines or another person was the perpetrator rather than

petitioner. Trial counsel’s tactics included eliciting evidence

that the shooter had been described as Hispanic, challenging

the witness identifications of petitioner, focusing attention

on the resemblance between petitioner and Baines,

establishing that the gun that Baines arguably had access

4 The full transcript of Thompson’s 9-1-1 call is set out in our opinion in

Farmer. 210 Or App at 629-32.

738 Farmer v. Premo

to could be the murder weapon, and questioning the motives

of petitioner’s ex-girlfriend and her parents.

At the conclusion of the trial, the jury deliberated

for 15 hours before returning a guilty verdict. Petitioner was

convicted and sentenced for murder with a firearm.

B. Post-Judgment Motion for New Trial

A defense investigator, De La Melena, had attempted

before trial to locate the unidentified 9-1-1 caller. De La

Melena was eventually able to locate Thompson and interview

her, but not until after the trial had ended. Id. at 639.

Thompson provided an affidavit in which she stated that

she had been shown photographs of petitioner and that he

“was definitely not the shooter” or the accomplice. Id. Rather

than describing the shooter as Hispanic, as she had during

her 9-1-1 call, she gave a description of the shooter as “a

dark-complected, black male.” She stated that two of the photographs

she had been shown “most closely resemble[d]” the

shooter. Id. at 639. Those two photographs were of Baines.

Id.

Trial counsel filed a motion for new trial based on

the discovery of new evidence, along with Thompson’s affidavit.

On the morning of the new-trial hearing, the prosecutor

submitted an affidavit and police report from Detective

Renna.5 Renna’s affidavit contained information from his

own interview with Thompson, including potential bases

for impeachment. Trial counsel objected to Renna’s affidavit

on several grounds and moved to strike it. The trial court

admitted the affidavit over trial counsel’s objections, but

stated that it would focus primarily on Thompson’s affidavit.

At the conclusion of the hearing, the trial court ruled that it

would not grant a new trial because Thompson’s testimony

would not be likely to change the result of a new trial.

Petitioner appealed his conviction, assigning error

to the trial court’s denial of his motion for new trial. We

5 Renna’s affidavit essentially consisted of a sworn statement that identified

himself and his partner, stated the date and time of his interview with Thompson,

and stated that the attached police report was true and accurate. The evidence at

issue was in the attached report. References in this opinion to Renna’s affidavit

are to the combined affidavit and report.

Cite as 283 Or App 731 (2017) 739

affirmed his conviction and, as part of our analysis in concluding

that the trial court did not abuse its discretion, we

noted that petitioner had offered no evidence to dispute the

information in Renna’s affidavit. Farmer, 210 Or App at

644-45.

C. Applicable Legal Framework

Criminal defendants have a constitutional right

to counsel under both Article I, section 11, of the Oregon

Constitution and the Sixth Amendment to the United States

Constitution. Montez v. Czerniak, 355 Or 1, 6-7, 322 P3d 487,

493, adh’d to as modified on recons, 355 Or 598, 330 P3d 595

(2014).

To prevail on a claim of inadequate assistance of

counsel under Article I, section 11, a petitioner must establish

both “that [counsel] failed to exercise reasonable professional

skill and judgment,” and “that counsel’s failure

had a tendency to affect the result of [the] trial.” Lichau v.

Baldwin, 333 Or 350, 359, 39 P3d 851 (2002). When a court

evaluates trial counsel’s conduct to determine whether it

failed to meet state constitutional standards, the court must

“make every effort to” do so “from the lawyer’s perspective

at the time, without the distorting effects of hindsight” and

must “not second-guess a lawyer’s tactical decisions in the

name of the constitution unless those decisions reflect an

absence or suspension of professional skill and judgment.”

Montez, 355 Or at 7 (internal quotation marks and citations

omitted).

Similar principles apply when evaluating whether

trial counsel’s performance failed to meet federal constitutional

standards.

“To prevail on a Sixth Amendment claim regarding the

ineffectiveness of counsel, a petitioner must demonstrate

that his or her trial counsel’s performance ‘fell below

an objective standard of reasonableness.’ Strickland [v.

Washington], 466 US [668, 688, 104 S Ct 2052 (1984)].

Appellate courts reviewing Sixth Amendment claims ‘must

consider the totality of the evidence before the judge or

jury.’ Id. at 695. At the end of the day, the court must evaluate

the reasonableness of counsel’s representation ‘from

counsel’s perspective at the time of the alleged error and in

740 Farmer v. Premo

light of all the circumstances, and the standard of review

is highly deferential.’ Kimmelman v. Morrison, 477 US 365,

381, 106 S Ct 2574, 91 L Ed 2d 305 (1986). In doing so,

we do not inquire into counsel’s subjective state of mind;

instead, we inquire into the objective reasonableness of

counsel’s performance. Harrington v. Richter, 562 US 86,

110, 131 S Ct 770, * * * 178 L Ed 2d 624 (2011).”

Id. at 7-8.

The Oregon Supreme Court has “recognized that

the standards for determining the adequacy of legal counsel

under the state constitution are functionally equivalent to

those for determining the effectiveness of counsel under the

federal constitution. Id. at 6-7. “Under both constitutions,

the defendant’s right is not just to a lawyer in name only,

but to a lawyer who provides adequate assistance.” Id. at 6

(internal quotation marks omitted).

We review a post-conviction court’s application of

the legal standards for errors of law, and its express findings

of historical fact are binding if there is evidence in the

record to support them. See Green v. Franke, 357 Or 301,

312, 350 P3d 188 (2015) (stating standard of review). If the

post-conviction court did not make findings as to all of the

historical facts that are pertinent to the analysis, and the

evidence would allow the court to find those facts in more

than one way, we will presume that it found the facts consistently

with its conclusions. Ball v. Gladden, 250 Or 485,

487, 443 P2d 621 (1968). That presumption, however, “is

necessarily dependent on the trial court’s application of the

correct legal analysis. If the court is operating under a misunderstanding

as to the applicable legal principles[,] * * *

we will not infer that the court decided facts consistently

with that erroneous legal construct.” State v. Ellis, 252 Or

App 382, 390, 287 P3d 1215 (2012), rev den, 353 Or 428

(2013).

The analysis that follows focuses on fundamental

principles that govern post-conviction proceedings, as

emphasized in two opinions that issued after the postconviction

court decided this case: Montez and Pereida-

Alba v.Coursey, 356 Or 654, 342 P3d 70 (2015). Those cases

stress that, in reviewing the adequacy of petitioner’s trial

Cite as 283 Or App 731 (2017) 741

counsel, a post-conviction court must consider “the lawyer’s

perspective at the time,” instead of viewing the lawyer’s

decision with the benefit of hindsight. Montez, 355 Or

at 7. Moreover, the post-conviction court should not focus

solely on the possible benefits of strategies that trial counsel

did not pursue, but should instead determine “whether

the strategy that defense counsel did employ was reasonable.”

Pereida-Alba, 356 Or at 674 (emphasis added); see

Montez, 355 Or at 24 (“The fact that petitioner would, in

retrospect, have implemented his * * * defense in one or

more different ways is not a ground for post-conviction

relief if counsel acted reasonably in presenting the defense

that they did.”). The discussion below is based on those

core precepts.

II. CLAIMS RELATED TO EVENTS

DURING TRIAL

A. Defense Counsel’s Decision Not to Call Wong as an

Expert Witness

Petitioner made an allegation, as part of an inadequate

assistance of counsel claim in section 7 (1)(e) of his

petition that the post-conviction court summarized as follows:

“Trial [c]ounsel failed to call either Franklin Wong or

Bart Reid as an expert witness to testify that a handgun

* * * found in the possession of * * * Baines, was more likely

than not the firearm that discharged the bullet found in the

deceased.” The post-conviction court granted relief on that

claim, finding that Wong “would have testified that the firearm

found in Baines’s home was operable and * * * was ‘most

likely’ the gun that killed Monterroso.” Accordingly, the

court concluded, “a reasonable attorney would have called

Wong to testify as a defense expert.”6 The state assigns error

to that ruling, arguing that trial counsel’s decision not to

call Wong as a witness was a reasonable tactical choice and

that the post-conviction court erred by not giving proper

6 The state argued before the post-conviction court that petitioner had failed

to prove this claim as to Reid, because he produced no evidence of what Reid’s

opinion was, or that Reid would have provided favorable testimony at trial. The

post-conviction court’s letter opinion did not grant relief based on a failure to call

Reid as a witness. Petitioner does not make any argument on appeal concerning

Reid.

742 Farmer v. Premo

deference to that decision. Petitioner argues that the postconviction

court did not err.7 We agree with the state.

1. Whether the fatal bullet fragment could have been

fired from the Rohm was the subject of expert testimony

at trial.

At petitioner’s criminal trial, the prosecution called

an Oregon State Police (OSP) forensic firearm and tool-mark

examiner, Gover, as a witness to provide evidence about the

bullet fragment that had been recovered from the victim’s

body and about the Rohm revolver and bullets test fired

from it.8 Gover had extensive training from the Bureau of

Alcohol Tobacco and Firearms, including training in firearm

and tool-mark examination as used in bullet comparisons.

Gover explained that his training included comparing

bullets known to have been fired from different firearms

that were “as closely manufactured to each other as possible,”

and bullets known to have been fired from the same

firearm. That training allows examiners to establish baselines

of the most agreement possible between bullets fired

from different firearms, and the level of disagreement one

can expect to see with bullets fired from the same firearm.9

A bullet fragment was recovered from the victim’s

body. Investigators could not determine conclusively what

7 Petitioner filed an answering brief on appeal which asserts, in response to

each assignment of error, that the post-conviction court’s ruling was correct, and

that he relies on the court’s reasoning as expressed in its letter opinion, which he

quotes verbatim. He makes no further arguments.

8 In the record and briefs, this witness’s name is sometimes spelled “Grover.”

We use Gover throughout this opinion, making substitutions as necessary in quotations

for clarity and consistency.

9 Gover defined some of the terminology he used in describing bullet comparisons.

“Class characteristics” refers to characteristics that are shared by groups

of firearms—such as caliber, center or rim fire, and rifling attributes—some of

which may be discerned from examining a recovered bullet and can narrow down

the group of firearms that might have fired it. “Lands and grooves” are raised

or incised areas that are cut by a tool as part of the rifling attributes within the

barrel, and which leave reciprocally incised or raised areas on bullets that have

passed through the barrel. Different models of firearms can have different numbers,

widths, and direction of twist of lands and grooves.

In addition, the barrel of a particular firearm can impart microscopic striations

to the bullet as it passes through, caused by tiny imperfections in the tool

that created the lands and grooves in the barrel. Those striations are individual

characteristics, which can in some circumstances allow a determination that a

particular firearm did or did not fire a particular bullet.

Cite as 283 Or App 731 (2017) 743

caliber it was or what kind of gun had fired it. Gover noted

that the bullet fragment was from a type of ammunition typically

used in revolvers. When he entered data collected from

the bullet fragment into a Federal Bureau of Investigation

database to create a list of firearms that could have fired

the bullet, there were 30 to 40 different types of firearms on

the list. The list included 9mm, .380, .38, and .357 magnum

caliber firearms. Among the listed possible firearms was a

Rohm .38-special revolver.

Gover recounted that he test fired the Rohm revolver

associated with Baines in February 2002 and he compared

test-fired bullets with the fatal bullet fragment. In his opinion,

the amount of “agreement” of individual characteristics

“was insufficient to positively say that that bullet was fired

from that gun.” He explained that, in comparing the testfired

bullets from the Rohm to the fatal bullet fragment,

there was some agreement of the individual characteristics,

but there was also some disagreement. He concluded that

the results of the comparison were inconclusive—it could not

be determined whether the bullet fragment was fired from

the Rohm. Gover’s conclusions were confirmed by another

equally trained analyst in the OSP crime laboratory.

In response to questions from trial counsel, Gover

acknowledged that the test-fired bullets and the bullet fragment

had agreement of all discernible class characteristics

and some agreement of individual characteristics. He conceded

that he could not exclude the Rohm as the murder

weapon. Specifically, Gover’s response to trial counsel’s

question was, “That is correct, it cannot be excluded.” He

also agreed with trial counsel’s characterization of his previous

testimony as being that he was “not one hundred percent

certain that this was a match.”

The prosecution also presented evidence that the

Rohm had been inoperable at the time of the murder. The

former owner, Baker, testified that it did not work the last

time she tried to fire it, more than a decade before the

murder. About two to three months before police seized it,

Baker gave the gun to her daughter, Waller. Waller testified

that it did not work and that she had not cleaned or

repaired it. An OSP firearms examiner, Alessio, testified

744 Farmer v. Premo

that another criminalist had reported that the Rohm was

inoperable when examined in April 2001. Alessio had also

observed that the Rohm was inoperable before he repaired

it in August 2001.

Before the defense case began, the prosecutor

requested a hearing to determine whether Wong, who had

been present at the February 2002 test firing of the Rohm,

was qualified as an expert in bullet comparison. At that

hearing, outside the presence of the jury, trial counsel and

the prosecutor questioned Wong about his qualifications. In

response to trial counsel’s questions, Wong agreed that he

had “extensive experience in the comparison study of bullets.”

He elaborated that he had worked on “over a dozen

cases involving firearms,” three or four of which involved

bullet comparisons, during his nine years of professional

experience. Wong recounted his education and experience in

metallurgy and mechanical engineering, and described how

they provided relevant expertise in the area of bullet comparison.

On cross-examination, Wong acknowledged that

he had no formal training in bullet comparison. The court

ruled that Wong could testify on the subject, and noted that

evidence of Wong’s specific experience and training would be

for the jury to weigh.

2. Trial counsel made a tactical decision not to call her

own expert.

In advance of the post-conviction trial, trial counsel

was deposed and her deposition testimony was admitted

at the post-conviction trial. In that testimony, trial counsel

explained that while preparing for petitioner’s trial she had

pursued the possibility that Baines had actually been the

shooter. She had hired Wong initially as an expert in crime

scene reconstruction to analyze the trajectory of the fatal

bullet. After she learned of Baines and the Rohm revolver,

trial counsel had Wong attend OSP’s test-firing and compare

the fatal bullet fragment with the test-fired bullets.

Wong analyzed the bullets and concluded that the fatal bullet

“was likely fired from the Rohm.” Trial counsel became

concerned, however, that Wong might not make a persuasive

witness on that issue because he did not have an extensive

background in ballistics and tool-mark identification. When

Cite as 283 Or App 731 (2017) 745

she decided that she needed someone who had more expertise

in that area, trial counsel hired another expert, Reid,

who was also present when the Rohm was test fired. Trial

counsel’s recollection was that Reid’s conclusions were similar

to Gover’s: the results of the comparison were inconclusive,

and the Rohm could not be excluded as the murder

weapon.

Explaining her decision not to call either defense

expert, trial counsel said that the prosecution could challenge

Wong, and that “Reid was not going to be as strong

as Wong.” Trial counsel recalled that, consulting with Wong

and Reid after Gover testified, she knew neither of them

would say conclusively that the fatal bullet came from the

Rohm. Although Wong would have said it was “likely,” she

thought that the prosecutor would attack his qualifications—

which were far less extensive than Gover’s—thereby damaging

credibility with the jury, which would “detract from

* * * the strength of” the defense case. Counsel also believed

that Wong ultimately would have to admit that the bulletcomparison

result was inconclusive, which would essentially

be a rehashing of Gover’s testimony. In consultation with

both of her experts, trial counsel ultimately decided not to

call either of them to testify about the bullet comparison

because she thought that Gover’s acknowledgment on crossexamination

that he could not exclude the Rohm as the

murder weapon “was the best * * * coming from the [s]tate’s

witness.”

3. Trial counsel’s decision at trial not to call Wong as a

witness was a reasonable tactical choice that did not

reflect an absence or suspension of professional skill

and judgment.

Tactical decisions made in the course of preparing

for trial must involve “a conscious choice by a lawyer either

to take or to omit some action on the basis of an evaluation

of the nature and complexity of the case, the likely costs and

potential benefits of the contemplated action, and other factors.”

Stevens v. State of Oregon, 322 Or 101, 109, 902 P2d

1137 (1995). A lawyer’s tactical decision “must be grounded

on a reasonable investigation.” Gorham v. Thompson, 332 Or

560, 567, 34 P3d 161 (2001). If it is based on an appropriate

746 Farmer v. Premo

evaluation, a tactical decision is entitled to considerable deference.

Lichau, 333 Or at 360.

The post-conviction court analyzed this claim as

follows:

“When the defense hired an expert to examine the bullet

fragment and the weapons seized, this Court is sure,

the defense was hoping that the expert would find that the

bullet fragment in question came from the gun found at

the home of the other suspect, Baines. However, when the

expert the defense hired found that the bullet fragment

was likely fired from the gun found at Baines’[s] home * * *

the defense chose not to call their expert as a witness. The

defense attorney has stated that, (1) despite the expert’s

findings that were very favorable to the defense, she did

not realize that the defense expert’s findings would be that

much different than the State’s findings when presented at

trial. Further, she decided not to call the forensic expert as

a witness because the expert did not have the training and

experience to withstand cross-examination. Counsel goes

on to state that she hired Bart Reid as a second opinion,

because Reid had better credentials. However, in her deposition

she goes on to say, ‘Bart Reid was not going to be as

strong as Wong.’ This Court misses the logic in trial counsel’s

analysis.

“Although tactical choices by a trial lawyer do not usually

provide grounds for post-conviction relief, relief may be

available if [petitioner] shows the decisions of counsel were

not based on a reasonable evaluation of costs and benefits,

or a reasonable evaluation of the evidence. In a cost versus

benefit analysis undertaken by a reasonable attorney,

a reasonable attorney would have called Wong to testify as

a defense expert. Regardless of the ability of the State to

impeach his credentials, even if he were impeached regarding

the analysis of the bullet fragment lands and grooves,

his testimony when combined with the State expert Gover’s

testimony would be: one expert who testified that the Rohm

revolver could have been the weapon that fired the bullet

that killed Monterroso and one expert who testified that

the Rohm revolver was likely [the] weapon that fired the

bullet that killed Monterroso. Therefore, what was the

down side of calling Wong to testify?

“Further, if the credentials of the forensic expert hired

by the defense, Wong, were such that the defense would not

Cite as 283 Or App 731 (2017) 747

call their expert to testify: (1) why did the defense hire this

person as an expert? and (2) given the expert’s opinion that

the bullet fragment was likely fired from the gun found at

Baines’[s] home, why did the defense not attempt to hire a

more qualified defense expert to either confirm or refute

the analysis of Wong, and potentially put that expert on the

stand?”

(Citation omitted; ellipsis in original.)

The state argues that the post-conviction court

erred in its legal analysis of trial counsel’s tactical decision.

We agree. In evaluating trial counsel’s tactical choice, the

question is not whether a reasonable attorney could have

come to a different conclusion, or whether, in hindsight, the

chosen tactic was successful or effective. Nor is the question

whether it appears that the path not chosen, considered in

isolation, would have had no “downside.” Green, 357 Or at

314. Rather, the question is whether no attorney exercising

reasonable professional skill and judgment could have made

the tactical choice that trial counsel did, such that the choice

reflects an absence or suspension of professional skill and

judgment.

Here, trial counsel’s decision was grounded in a

reasonable investigation, and she weighed the likely costs

and potential benefits of her chosen trial tactic. Trial counsel

hired Wong at the outset of the case to reconstruct the

crime scene, which is Wong’s primary area of expertise. She

later sought his opinion when the bullet comparison issue

arose. She also decided to hire another expert with better

credentials, as the case developed. Both experts were present

for the test firing of the Rohm, and provided opinions

on the bullet comparison. Once the state had presented

Gover’s testimony, including his formal training and experience

in bullet comparison, trial counsel decided, in consultation

with her experts, that calling Wong as a witness ran

the risk of undermining the defense’s credibility with the

jury and detracting from the strength of the defense case.

She did not call Reid, the better-qualified expert, because

his testimony evidently would have added nothing to what

Gover had already told the jury. In addition, there were

tactical advantages in not presenting a defense expert if

it might detract from the impression that the defense had

748 Farmer v. Premo

elicited testimony from the prosecution’s own expert that

damaged the prosecution’s case. The likely costs of calling

Wong as her own expert witness in that scenario would be

that, although Wong would provide a more favorable bulletcomparison

opinion on direct examination, he was vulnerable

on cross-examination and could leave the jury with an

impression that the defense was not credible and its case

was weak.

In sum, trial counsel performed a reasonable investigation

after which she made a conscious tactical choice

following an appropriate evaluation of the likely costs and

potential benefits of calling Wong as a witness to give an

opinion about whether the fatal bullet had been fired from

the Rohm. Her decision to rely instead on Gover’s testimony

that he could not rule out the Rohm as the murder weapon is

the kind of tactical choice by defense counsel that is entitled

to considerable deference, and does not reflect an absence

or suspension of professional skill and judgment. The postconviction

court, therefore, erred in concluding that trial

counsel provided inadequate assistance of counsel on that

basis.10

The post-conviction court also concluded that trial

counsel’s failure to call Wong constituted inadequate assistance

of counsel because Wong would have testified that the

Rohm was operable at the time of the fatal shooting. The

10 In disagreeing with this analysis, the dissent relies on cases in which the

Supreme Court held that post-conviction relief was warranted because trial lawyers

had decided not even to investigate potential witnesses or lines of defense.

Lichau, 333 Or at 356, 360-61 (holding that lawyer conducted inadequate investigation

where, despite the petitioner’s repeated assertions that military documents

and witnesses would create an alibi for him, the lawyer did not seek out

the documentary evidence and did not attempt to contact possible alibi witnesses

other than the petitioner’s parents); Stevens, 322 Or at 109 (holding that lawyer

conducted inadequate investigation in a rape case that turned on the credibility

of the petitioner and the complainant, given the lawyer’s “fail[ure] to interview

several witnesses whose testimony might well have had bearing on the [complainant’s]

credibility” and who were “the first people with whom [the complainant]

had contact after the alleged rape”). In this case, though, petitioner’s

counsel did investigate, in a way that led her to hire experts whom she hoped

would bolster the defense theory that Baines may have committed the murder.

Counsel’s decision not to call one of those experts for fear that his weak testimony

would diminish the effectiveness of the defense case, cannot be analogized to a

fundamental failure to investigate.

Cite as 283 Or App 731 (2017) 749

court drew that conclusion from a portion of the report that

Wong wrote for trial counsel, in which he stated:

“The Rohm revolver was function tested by depressing

the trigger and lowering the hammer by hand to slow the

speed of the action. When the trigger was depressed and

held, the cylinder rotated properly, the hammer was able

to strike the firing pin, and the firing pin protruded from

the frame. When the trigger was depressed to release the

hammer and then immediately released, the trigger linkage

prevented the firing pin from being contacted by the

hammer. No binding or malfunction of the mechanisms

was noted.”

The court noted that Wong’s assertion that the gun worked

was consistent with testimony from Officer Santos, who had

seized the gun from Waller’s home. When asked if he knew

whether the gun was operable when he seized it, Santos

replied, “Ms. Waller indicated it was.” The post-conviction

court also noted that trial counsel had made a hearsay objection

to that response, and found it “unusual” that defense

counsel would have objected to that favorable testimony.11

The state argues that trial counsel could reasonably

have made a strategic decision not to call Wong to testify

that the Rohm was operable. According to the state,

11 The state argues that we should reject as unsupported by the record the

post-conviction court’s factual finding that Santos testified that Waller told police

that the gun was functional. The state points out that Santos was interrupted by

a hearsay objection that the trial court sustained. In context, the state argues,

it is clear that, had he not been interrupted by the objection, Santos would have

testified that “Ms. Waller indicated it was” not functional. The exchange was as

follows:

“[Prosecutor]: To your knowledge was that revolver functional when you

retrieved it?

“[Santos]: Ms. Waller indicated it was.

“[Trial counsel]: Objection, hearsay.

“The Court: It is hearsay.”

The state also asserts that other evidence shows that Waller told the police that

the gun was not functional, citing Renna’s testimony that a police report states

that Waller told officers that the gun was broken and would not fire.

We need not resolve the issue, however, because we conclude, as discussed

below, that the post-conviction court erred in granting relief on the basis that

trial counsel should have called Wong as a witness even if, as the court found,

“Santos testified that Waller told him that the Rohm * * * was functional when [it]

was seized from Waller’s home.”

750 Farmer v. Premo

the evidentiary record does not support the conclusion that

Wong’s testimony would have been useful to petitioner’s

defense. The state points out that three witnesses at the

criminal trial testified that the gun did not work at the

time it was seized: Waller, who owned the gun, her mother,

who gave her the gun, and Alessio, the OSP firearms examiner

who repaired the gun so that it could be test fired. The

state also argues that Wong’s report is undermined by the

fact that he wrote the report in March 2002, more than six

months after Alessio had repaired the Rohm.

We agree with the state that trial counsel did not

perform deficiently by not calling Wong to testify that the

Rohm was operable. Trial counsel exercising reasonable

professional skill and judgment could choose not to elicit

Wong’s testimony on that subject, based on concern that

the disadvantages of doing so would have exceeded the

advantages. The evidence would have been weak and easy

to discredit if it were presented as showing that the Rohm

was operable at the time of the murder, given the evidence

that the Rohm had been inoperable from approximately

1989 until Alessio repaired it in August 2001. The record

includes no evidence that Wong examined the gun before

that repair. And Wong’s testimony would not have appreciably

advanced the defense case if merely directed at showing

operability at the time that OSP personnel test fired it,

which was not in dispute.

Santos’s testimony does not aid petitioner on this

issue. The post-conviction court found that Santos testified

that Waller had told police that the gun was functional

when they seized it, but that testimony would not have been

reinforced by Wong testifying that the gun was operable six

months after the date that Alessio said he had repaired it.

The jury could as easily weigh Santos’s testimony about what

he recalled Waller having said to police against Waller’s testimony

at trial that the Rohm was not functional when police

seized it, with or without Wong’s testimony that the gun was

operable months later, at a time when its operability was not

in dispute. Thus, the presence of Santos’s testimony would

not have prompted all reasonable trial counsel to call Wong

to testify on that latter point.

Cite as 283 Or App 731 (2017) 751

In sum, trial counsel did not perform deficiently by

not calling Wong as a witness at petitioner’s criminal trial.

The trial court erred in concluding that petitioner was entitled

to post-conviction relief on that basis.

B. Trial and Appellate Counsels’ Failure to Argue That

Statements on a Dispatch Recording Were Not Hearsay

We turn next to petitioner’s claim that both trial

and appellate counsel were inadequate because they failed

to argue that recorded statements between police and dispatch

were not hearsay. Petitioner alleged a claim in section

7 (1)(c) of his petition that trial counsel was inadequate for

failing to argue that the evidence “was not hearsay because

it impeached the description of the killer given by another

witness,” and in section 7 (1)(d), he alleged that appellate

counsel was inadequate for failing to make the same

argument on appeal. The post-conviction court granted

relief on both claims. The state assigns error to the postconviction

court’s rulings on both claims, arguing that the

post-conviction court erred in concluding that petitioner had

demonstrated prejudice resulting from trial counsel’s deficient

performance, and in concluding that appellate counsel

performed deficiently. We agree with the state.

At petitioner’s criminal trial, a recording of

exchanges between police and dispatch was the subject of

a dispute concerning admissibility. Defense counsel argued

for admission of that recording, which apparently contained

statements relaying information from 9-1-1 calls and referring

to suspects as Hispanic males. It also contained statements

by an officer, Padilla, that a witness had reported

seeing a suspect running from the scene, and had described

him as a teenaged Hispanic male, 5'10", with black hair,

wearing a turquoise sweater and a black jacket. The trial

court did not initially admit the dispatch recording, but ultimately

it ruled that the recording was admissible because

Defense Exhibit 102, which had already been admitted

without objection, was a print-out containing the same

information.12

12 Petitioner did not introduce as evidence in the post-conviction case the

dispatch recording or a transcript of it, and did not provide Defense Exhibit 102

from the criminal trial, which the trial court determined contained the same

752 Farmer v. Premo

As we discuss further below, the state did not call

the post-conviction court’s attention to the fact that trial

counsel had, in fact, argued for admission of the dispatch

recording and that the trial court had actually ruled the

evidence admissible. It seems that the dispatch recording

was not, however, played for the jury. The parties and the

post-conviction court apparently all proceeded under the

mistaken understanding that the dispatch recording had

been excluded by the trial court.

The post-conviction court analyzed the claims as

follows:

“During trial, the court excluded evidence of the dispatcher’s

out-of-court statements relaying information

to the police that the shooter was Hispanic. Based on

the statements of the eye witness and the circumstances

under which the 911 call was made, the statements of the

911 caller regarding the race of the shooter were likely not

hearsay, and the defense should have argued that point.

Failure to argue that the evidence was not hearsay was

ineffective assistance of counsel, both in failing to attempt

to change the Judge’s ruling and also in failing to protect

[petitioner’s] rights on appeal.

“Some might argue that, even if admitted, this evidence

alone would not be sufficient to show ineffective assistance

of counsel, in that it could not affect the outcome of the

trial. However, counsel’s failure to argue for the admission

of useful evidence that supported [petitioner’s] theory

of the case, shows an ongoing pattern of counsel’s failure

to exercise reasonable professional skill and judgment.

Trial counsel’s failure to argue to allow the evidence, when

information as the dispatch recording, but in written form. The state has not

argued on that basis that the record would therefore preclude petitioner from

establishing prejudice. See Horn v. Hill, 180 Or App 139, 148-49, 41 P3d 1127

(2002) (“Where evidence omitted from a criminal trial is not produced in a postconviction

proceeding * * * its omission cannot be prejudicial.”). We presume, for

purposes of analysis of this claim, that the statements at issue are those that

were the subject of discussion during trial counsel’s arguments for admission of

the recording. That discussion indicated that the recording included statements

by officers suggesting they had information that the suspects were Hispanic. The

discussion also indicated that the recording included statements from dispatch

relaying information from 9-1-1 calls. Audio recordings of the 9-1-1 calls themselves,

including Thompson’s, had already been ruled admissible, and the prosecution

played those recordings at trial.

Cite as 283 Or App 731 (2017) 753

combined with the other poor decisions of counsel, caused

[petitioner] to suffer prejudice.

“* * * * *

“The state argues that appellate counsel’s choice not

to assign error to the ruling discussed above was reasonable,

based on the proposition that the appellate courts

may affirm the judgment of a trial court notwithstanding

evidentiary error, if there is little likelihood that the error

affected the verdict. However, as stated above, although

some might argue that the failure to argue for the admission

of this evidence alone would not be sufficient to affect

the verdict in this case, a significant amount of evidence

exists that calls to question whether there is sufficient

proof to prove that this [petitioner] was the shooter. The

failure of appellate counsel to assign error to the ruling

was not reasonable given the fact that this piece of evidence

would have supported [petitioner’s] theory of the case.”

The post-conviction court granted relief on both claims.

We first address the claim relating to trial counsel.

The state, as noted, points out that trial counsel in fact did

argue that the statements on the dispatch recording were

admissible, and that the trial court agreed, but, as the state

acknowledges, it failed to preserve before the post-conviction

court any argument that trial counsel did not perform deficiently

on that basis. Rather, before the post-conviction

court, the state agreed that the trial court had excluded the

recording and agreed that the evidence was “probably not

hearsay.” The state argued only that petitioner had failed to

establish that trial counsel’s deficiency had caused prejudice,

because the jury heard other evidence that the shooter had

been described by witnesses at the scene as Hispanic. On

appeal, the state asserts that the post-conviction court erred

by concluding that trial counsel’s failure to ensure that the

jury heard the dispatch recording prejudiced petitioner.

At least in the context of a trial, to establish prejudice

in an inadequate assistance of counsel claim under

Article I, section 11, a petitioner must show that the deficient

performance by trial counsel “could have tended to

affect the outcome of the case.” Green, 357 Or at 323, 323

n 13. “That standard requires a determination that there is

‘more than mere possibility, but less than probability’ that

754 Farmer v. Premo

counsel’s inadequacy affected the outcome of the proceeding.”

Everett v. Premo, 279 Or App 470, 479, 380 P3d 1099

(2016) (quoting Green, 357 Or at 322). “Whether a criminal

defense counsel’s failure to investigate, discover, or adduce

evidence had a tendency to affect the outcome of a case must

be assessed in light of the totality of the circumstances.”

Galloway v. Nooth, 247 Or App 164, 181, 268 P3d 736 (2011).

Similarly, a claim under the Sixth Amendment requires a

showing that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 US at 694.

Here, the evidence that defense counsel failed to

present to the jury—the dispatch recording—was not evidence

that, had the jury heard it, could have tended to affect

the outcome of petitioner’s criminal trial. The jury received

the same evidence from other sources. When trial counsel

cross-examined Renna, he testified about receiving Padilla’s

written report containing a named witness’s description

of a suspect seen running from the scene on the night of

the murder. The description was of a Hispanic male, about

5'10", with a medium build, wearing a turquoise shirt and

a black jacket—the same information that was in the dispatch

recording. In addition, Defense Exhibit 102, which

was admitted at trial, contained the same information as

the dispatch recording, but in written rather than audio

form. And because the jury heard the recordings of the 9-1-1

calls themselves, they would have heard the same information

that dispatch relayed to officers from those calls.

Because the audio of the dispatch recording would

have been cumulative of other evidence in the record, petitioner

did not establish that he was prejudiced by counsel’s

purported failure to make an argument supporting the

admission of that recording. The post-conviction court erred

in concluding that petitioner had established prejudice from

that alleged failure.13

We next turn to the claim that appellate counsel

performed deficiently by failing to assign error to exclusion

13 Moreover, to the extent that the court applied a theory of cumulative

error in finding prejudice on that claim, it also erred. The court concluded that

petitioner had established prejudice as to trial counsel by showing “an ongoing

Cite as 283 Or App 731 (2017) 755

of the same evidence in petitioner’s direct appeal. In analyzing

petitioner’s appellate counsel claim, we focus on the

deficient-performance element of the claim rather than the

prejudice element discussed above. Although the particular

legal question it presents results in a similar analysis, it

also differs in some respects.

Under the Oregon Constitution, petitioners who

seek “post-conviction relief stemming from a claim of inadequate

assistance of appellate counsel for failing to assert a

claimed error must establish * * * that a competent appellate

counsel would have asserted the claim,” in order to establish

deficient performance. Guinn v. Cupp, 304 Or 488, 496, 747

P2d 984 (1987); see also Field v. Coursey, 264 Or App 724,

728, 333 P3d 340, rev den, 356 Or 400 (2014) (quoting Guinn,

304 Or at 496). Similarly, under the Sixth Amendment,

appellate counsel need not raise every nonfrivolous claim,

but may use professional judgment to choose among them.

Jones v. Barnes, 463 US 745, 754, 103 S Ct 3308, 77 L Ed 2d

987 (1983). To overcome the presumption of effective assistance

of counsel, a petitioner whose appellate attorney filed

a merits brief must show that the omitted issue was “clearly

stronger than issues that counsel did present.” Smith v.

Robbins, 528 US 259, 288, 120 S Ct 746, 145 L Ed 2d 756

(2000).

pattern of counsel’s failure to exercise reasonable professional skill and judgment,”

and thus, trial counsel’s failure to present the recording to the jury, “when

combined with the other poor decisions of counsel, caused [petitioner] to suffer

the prejudice.”

No Oregon appellate court has endorsed application of a cumulative-error

analysis in post-conviction claims, and the United States Supreme Court has not

adopted the approach. See Ryan v. Palmateer, 338 Or 278, 290, 108 P3d 1127, cert

den, 546 US 874 (2005) (rejecting as incompatible with Oregon law the petitioner’s

contention that “trial counsel’s errors, taken together, were so egregious that he

should be granted a new trial without” being required to show actual prejudice,

“because the entire underlying trial was infected with ‘structural error.’ ”); id. at

298-99 (explaining that, although “structural error”—error in which prejudice

is presumed—is a viable theory under federal law in some circumstances, the

United States Supreme Court has limited its application in the ineffective assistance

of counsel context to cases in which the attorney’s failure is so complete as

to amount to a constructive denial of the right to counsel altogether).

We need not determine, in this case, whether such a “cumulative error”

analysis could apply, because we have concluded, as explained both earlier and

later in this opinion, that petitioner failed to establish any other deficiencies by

trial counsel. Thus, there are no additional deficiencies to cumulate with this one.

756 Farmer v. Premo

The state argued below and reiterates on appeal

that petitioner’s appellate counsel did not perform deficiently

because competent appellate counsel could have concluded

that the alleged error was harmless. In its explanation of

its ruling on this claim, the post-conviction court applied an

analysis similar to its prejudice analysis discussed above.

“[A]lthough some might argue that the failure to argue for

the admission of this evidence alone would not be sufficient

to affect the verdict in this case, a significant amount of

evidence exists that calls to question whether there is sufficient

proof to prove that this [petitioner] was the shooter.

The failure of appellate counsel to assign error to the ruling

was not reasonable given the fact that this piece of evidence

would have supported [petitioner’s] theory of the case.”

That explanation does not reflect the correct analysis for

determining whether appellate counsel performed inadequately.

Any assessment of a lawyer’s decision not to raise

a claim of evidentiary error on direct appeal from a criminal

conviction must take into account whether the lawyer

could reasonably conclude that we would affirm the conviction,

notwithstanding any such error, because the error was

harmless, that is, because “there [was] little likelihood that

the error affected the verdict.” State v. Gibson, 338 Or 560,

576, 113 P3d 423, cert den, 546 US 1044 (2005). In determining

whether erroneously excluded evidence had little

likelihood of affecting the verdict, we assess the excluded

evidence “in light of other evidence in the record pertaining

to that issue.” State v. Johnson, 225 Or App 545, 550, 202

P3d 225 (2009). We do not reverse a conviction merely on

the basis that excluded evidence would have supported the

defendant’s theory of the case if the excluded evidence was

cumulative of other admitted evidence, and there is, therefore,

little likelihood that its exclusion affected the verdict.

Here, even under the assumption that the evidence

was excluded, competent appellate counsel could have concluded

that the omission would have been harmless because

the recording was cumulative of other evidence presented

to the jury at trial, as discussed above. The post-conviction

court erred in concluding that appellate counsel performed

Cite as 283 Or App 731 (2017) 757

deficiently by failing to assign error to exclusion of the dispatch

recording.

III. CLAIMS RELATED TO POST-JUDGMENT

NEW-TRIAL HEARING

A. Trial Counsel’s Failure to Move for a Continuance and to

Call Thompson as a Witness at the New-Trial Hearing

Petitioner made multiple claims in his petition

alleging that trial counsel’s failure to move for a continuance

on the morning of the new-trial hearing constituted

ineffective assistance of counsel.14 The post-conviction court

granted relief on those claims, concluding that, after receiving

Renna’s affidavit on the morning of the hearing, trial

counsel should have moved for a continuance for the purpose

of presenting additional live or affidavit testimony from

Thompson to challenge the contents of Renna’s affidavit. The

state assigns error to the post-conviction court’s rulings,

arguing that the court erred in concluding that trial counsel

had performed deficiently, and in concluding that petitioner

had established prejudice. We agree that the court erred in

concluding that trial counsel was deficient on those bases.

As explained below, the strategy and course of action that

trial counsel adopted were reasonable and did not reflect a

suspension of professional skill and judgment.

14 The parts of the petition that the post-conviction court referred to as

containing those claims are 7 (1)(a) (failure to call Thompson as a witness);

7 (1)(b) (failure to move for continuance of new-trial hearing); 8 (1) (failure to “crossexamine

Thompson” at new-trial hearing); and 8 (2) (failure to move for continuance

or to call Thompson as a witness at new-trial hearing). The post-conviction

court did not grant relief on the claims alleging inadequacy of counsel based on the

failure to call Thompson as a witness at the new-trial hearing independently of the

claims asserting the failure to seek a continuance. The court consistently linked,

in its analysis of the claims on which it granted relief, the failure of trial counsel

to call Thompson as a witness to the failure to move for a continuance for that purpose.

That is, the court did not grant relief on the basis that trial counsel should

have subpoenaed Thompson to the new-trial hearing before she had any reason to

know of Renna’s affidavit. We refer to all of the above claims collectively as the continuance

claim. The post-conviction court granted relief on the continuance claim,

as contained in parts 7 (1)(a), 7 (1)(b), and 8 (2) of the petition.

We note that, although the post-conviction court’s opinion also found fault

with trial counsel’s failure to “investigate” the contents of Renna’s affidavit, and

the failure to file a counteraffidavit, it did so in the context of specifying reasons,

in its view, for trial counsel to seek a continuance; petitioner did not allege in his

petition corresponding claims based on those failures.

758 Farmer v. Premo

1. Defense counsel filed a post-judgment motion for new

trial based on newly discovered evidence after locating

Thompson.

At the criminal trial, the jury heard Thompson’s

9-1-1 call, but she had given only her first name during the

call, and had not been located or identified. Once the defense

investigator, De La Melena, identified Thompson as the

caller and located her, he interviewed her, and trial counsel

obtained an affidavit setting out what her testimony would

be. By that time the trial had already ended. Trial counsel

filed a motion for new trial pursuant to ORS 136.535 (2001)

and ORCP 64, based on the discovery of new evidence.15 The

trial court scheduled a hearing on the motion.

On the morning of that hearing, the prosecutor

filed written opposition to the new-trial motion and submitted

Renna’s affidavit. That affidavit contained information

about Renna’s own interview with Thompson, and included

some information and statements that could potentially be

used to impeach her, or to weaken the impact of her testimony.

16 Trial counsel objected to Renna’s affidavit on multiple

grounds and moved to strike it. The trial court admitted

Renna’s affidavit over trial counsel’s objections, but stated

that it would focus primarily on Thompson’s affidavit in

making its ruling on the new-trial motion:

“All right. I’m not going to strike it. I will consider it

in light of the difficulty in reaching the witness. However,

frankly, I think that of far more importance is the affidavit

of Miss Thompson herself. And I am focusing on that

primarily.”

15 ORS 136.535 (2001) has since been amended twice. Or Laws 2003, ch 288,

§ 1; Or Laws 2009, ch 112, § 1. All references to ORS 136.535 are to the 2001 version.

That statute provided that “ORCP 64 A, B and D through G shall apply to

and regulate new trials in criminal actions,” except as otherwise provided. ORCP

64 (2001) is the version of that rule that applied to petitioner’s motion for new

trial. The rule has since been amended. See Or Laws 2003, ch 194, § 12 (adding

declarations as alternative to affidavits); Oregon Council on Court Procedures,

Dec 9, 2006 (adding provision concerning effect of notice of appeal to ORCP 64 F).

All references to ORCP 64 are to the 2001 version.

16 For example, Renna stated that Thompson had told him that as the shooter

and his companion had run past her, she had seen a “ ‘glimpse of one face, but not

anything [she] could pinpoint,’ ” that she did not know whether that was the face

of the shooter or of his companion, and that she would not recognize either of the

two men who ran by her that night if she saw them again.

Cite as 283 Or App 731 (2017) 759

The trial court ultimately concluded that Thompson’s

testimony would not probably change the result of the trial,

and it denied petitioner’s motion for new trial for that reason.

In explaining its decision, the court focused primarily

on the fact that the jury had heard the 9-1-1 recording of

Thompson’s call in which she described the shooter as a

Hispanic man, and that Thompson’s testimony as presented

in her affidavit (e.g., that she was certain that petitioner was

not the shooter) would be undercut or contradicted by several

discrepancies between the call—“made moments after

the homicide occurred when the events were fresh in her

mind”—and her affidavit. Further, the court reasoned, her

testimony would not probably change the result in light of

petitioner’s admissions to Jennifer, Perkins, and Garvin,

Muldrew’s identification of petitioner as the person he saw

shoot Monterroso, and Feliu’s identification of petitioner as

the person she saw looking for Monterroso shortly before the

shooting.

2. Trial counsel’s considerations and actions at the

time of the new-trial hearing

As we have emphasized throughout this opinion, a

post-conviction court considering an inadequate-representation

claim must “evaluate the reasonableness of trial counsel’s

‘skill and judgment’ under the circumstances existing

at the time of the challenged act or omission” and must not

“ ‘second guess’ an attorney’s handling of a case ‘with the

benefit of hindsight.’ ” Sullivan v. Popoff, 274 Or App 222,

231, 360 P3d 625 (2015), rev den, 358 Or 833 (2016) (quoting

Pereida-Alba, 356 Or at 662). We therefore consider the

circumstances that existed when trial counsel moved for a

new trial based on her investigator’s belated identification of

Thompson as the 9-1-1 caller.

Trial counsel’s written memorandum in support

of her motion for new trial, her statements at the new-trial

hearing, and her deposition for this post-conviction proceeding

reveal some of the considerations she had in mind at

the new-trial hearing. Trial counsel stated at her deposition

that she did not subpoena Thompson to the new-trial hearing

because she was following the procedure described in

ORCP 64. That rule provided that, when a motion for new

760 Farmer v. Premo

trial is based on newly discovered evidence, “it shall be upon

affidavit setting forth the facts upon which the motion is

based,” and that “the affidavits or declarations of any witness

or witnesses showing what their testimony will be,

shall be produced.” She filed the motion within the time

allowed and with Thompson’s affidavit. As she put it at her

deposition, she “got bombarded” the morning of the hearing

with Renna’s affidavit and the prosecutor’s response to

the motion. She objected to the affidavit as untimely and

moved to strike it, and she objected that it was not “an affidavit

of the affiant.” The trial court seemed to understand

the latter objection as akin to a hearsay objection, telling

the prosecutor, “Talk to me about your view on the argument

that [trial counsel] makes that this is an out of court

statement made by the witness, * * * Thompson, rather than

a statement made by her in affidavit form.” The prosecutor

argued that Renna’s account of Thompson’s statements

to him would be admissible as impeachment evidence. The

trial court overruled trial counsel’s objection and denied her

motion to strike.

At her 2010 deposition, trial counsel questioned

whether she should have requested time to attempt to call

Thompson to the hearing to challenge Renna’s statements:

“[I]n retrospect, you know, should I have said ‘Hey, wait a

minute, I want her here because I haven’t had an opportunity

to * * * challenge the statements of Detective Renna.’ ”

But counsel’s concerns at the time were ensuring that she

was complying with ORCP 64, ensuring that the new-trial

issues were preserved, and taking the opportunity to argue

the motion to the court at a hearing. Trial counsel noted

that the trial court “doesn’t even have to have a hearing” on

a motion for new trial. She also knew that there are strict

time constraints, and that delay can be fatal to the motion:

“They can just take the—the motion and as the time lapses,

you know, then the motion is deemed denied[.]”

The laws governing motions for new trial, and the

legal requirements for granting a new trial, provide additional

context for trial counsel’s decisions. Trial counsel

cited ORS 136.535 and ORCP 64 in her motion, and had set

out ORS 136.535 in full in her memorandum supporting the

motion. ORS 136.535 provided:

Cite as 283 Or App 731 (2017) 761

“(1) A motion in arrest of a judgment or a motion for

a new trial, with the affidavits, if any, in support thereof

shall be filed within five days after the filing of the judgment

sought to be set aside, or such further time as the

court may allow.

“(2) Any counteraffidavits shall be filed by the state

within five days after the filing of the motion, or such further

time as the court may allow.

“(3) The motion shall be heard and determined by the

court within 20 days after the time of the entry of the judgment,

and if not heard and determined within that time,

the motion shall conclusively be considered denied.

“(4) Except as otherwise provided in this section, ORS

19.430 and ORCP 64 A, B and D through G shall apply to

and regulate new trials in criminal actions, except that a

new trial shall not be granted on application of the state.”

Trial counsel also referred to the time limit in ORS

136.535(3) at the hearing on the motion for new trial.

“[Trial Counsel]: I want to thank the Court for having

the oral argument.

“THE COURT: Sure. It’s important.

“[Trial counsel]: It’s not always granted though, so I

appreciate that.

“THE COURT: I’m surprised.

“[Trial counsel]: Sometimes 20 days goes by and you

don’t hear from the court.

“THE COURT: I thought it was important.”17

3. Post-conviction court’s ruling

The post-conviction court began its written analysis

of the continuance claim by stating, “To evaluate the

17 The date of the hearing on the motion for new trial appears to have been

more than 20 calendar days after entry of the judgment. The statute that governs

how the 20-day time period in ORS 136.535(3) is calculated, however, provides

for several ways in which a day might be excluded from the end of the calculation,

resulting in a longer time period. See ORS 174.120 (2003), amended by Or Laws

2003, ch 228, § 1; Or Laws 2013, ch 1, § 14 (setting out method for calculating day

by which specified act must be done). The trial court and trial counsel appear to

have considered the hearing to be within the time limitation, of which they were

aware.

762 Farmer v. Premo

ineffective assistance of trial counsel claim[s,] * * * counsel’s

performance must first be viewed in light of the Court

of Appeals decision on [petitioner’s] Motion for New Trial.”

The post-conviction court set out the legal requirements for

obtaining a new trial based on newly discovered evidence,

and reviewed our decision in petitioner’s direct appeal,

Farmer. It emphasized a statement in the opinion that

“ ‘Defendant offered no evidence to dispute Renna’s

account of that interview, in which Thompson acknowleged

that she had seen only a glimpse of one face and would

not be able to recognize the person whom she had seen.’ ”

(Quoting Farmer, 210 Or App at 644 (boldface added by postconviction

court)). The post-conviction court explained its

view:

“And with that final paragraph, the Court of Appeals found

that the trial court had not abused its discretion in denying

the Motion for New Trial. The appellate court found that

since [petitioner] offered no evidence to dispute Renna’s

account of the interview, it was not an abuse of discretion to

deny the Motion for New Trial. However, reading between

the lines, it seemed to be a close call.”

The court further opined that trial counsel should have

investigated the statements in Renna’s affidavit in a number

of ways, including whether the affidavit accurately reflected

Thompson’s statements to Renna, and whether Thompson

“had said what she meant to say.”

“This affidavit changed the Motion for New Trial from a

motion the defense should have won, to a motion the defense

lost. Defense counsel had a duty to investigate whether or

not the affidavit was accurate.

“Trial counsel did move to strike the affidavit, and the

Court denied the request. But, there were other options

available that trial counsel should have attempted.5 At

least trial counsel could have asked for a continuance for

long enough to analyze her options. The detective called

Thompson and she called him back. There is no evidence

that counsel even asked for a 30 minute recess to try to call

Thompson. If counsel had spoken with Thompson, counsel

could have filed a counter affidavit. Given the opportunity

to speak through a counter affidavit, Thompson would

have provided testimony to rebut Renna’s affidavit, which

Cite as 283 Or App 731 (2017) 763

would have potentially changed the opinion of the Court of

Appeals.

“As stated in State v. Ben, 310 Or 309[, 317, 798 P2d

650 (1990),] there were other options. ‘On the other hand,

a remedy short of preclusion, such as a recess or postponement,

conceivably could have avoided any prejudice caused

by the late disclosure by allowing the state time to talk

to the witnesses.’ Trial counsel should have made use of

the other options available. Failure to ask for a recess or

postponement allowed the prejudice of the late disclosure

to turn [petitioner’s] Motion for New Trial from a winning

motion to a losing motion. Trial counsel failed to exercise

reasonable professional skill and judgment, resulting in

prejudice to [petitioner].

“And if trial counsel had been thoroughly advocating for

her client, she should have petitioned the Court to hear the

testimony of the eyewitness. The State’s brief says it well,

‘If the trial court had granted a continuance of the hearing,

both parties would have had the opportunity to prepare

and present two witnesses, * * * Thompson and * * *

Renna.’ * * * Exactly!

______________

“5 One of the reasons the [trial court] cited in the [its]

decision not to strike the affidavit was the difficulty in

reaching the witness, Thompson. However, at the Motion

for New Trial, the prosecutor stated that Detective Renna

first tried to contact Thompson on Monday, April 15,

2002. Later that week Thompson called him back, but

the Detective was not able to interview her until Friday,

April 19, 2002. Thompson was then interviewed on Friday

as arranged. The Detective first tried to make contact with

the witness on a Monday, and had interviewed the witness

by Friday. Although originally difficult to find due to the

glitches in the 911 system, Thompson was easy to find at

the time of the Motion for New Trial.”

(Boldface and underlining in original.) The post-conviction

court went on to find, based on Thompson’s testimony before

that court during the post-conviction trial, that “Thompson

could convincingly testify to a trier of fact that the shooter

was not [petitioner],” and “she comes across as credible.” The

court also found that Thompson’s reluctance to testify was

related to her “fear for her family, including her small child,

given the potential gang nature of the shooting.”

764 Farmer v. Premo

The court concluded that trial counsel’s deficiency

prejudiced petitioner because, had trial counsel called

Thompson as a witness, or filed a counteraffidavit, the trial

court “may well have” decided the new-trial motion differently,

and, even if it did not, the Court of Appeals “would

not have based” the decision in Farmer “on the fact that,

‘Defendant offered no evidence to dispute Renna’s account of

that interview.’ ” (Quoting Farmer, 210 Or App at 644 (boldface

by post-conviction court omitted).) Ultimately, the postconviction

court concluded that trial counsel failed to exercise

reasonable professional skill and judgment by failing to

request a continuance, and by failing to call Thompson as a

witness, and that petitioner had been prejudiced as a result

of those deficiencies.

4. Analysis under correct legal standards

The state argues that the post-conviction court

erred because it did not apply the correct legal standards

for determining whether counsel performed deficiently and

for determining whether any deficiency caused prejudice. As

part of that argument, the state asserts that, underlying the

post-conviction court’s analysis is an incorrect assumption,

in light of our later decision in petitioner’s direct appeal,

that trial counsel should have recognized that Renna’s affidavit

would be critical to the ultimate outcome of the motion

for new trial.

We agree with the state that the post-conviction

court erred in its legal analysis of the deficient performance

element, and because we reverse on that basis we need not

reach the state’s prejudice argument. The post-conviction

court failed to confine its analysis to whether trial counsel

exercised reasonable professional skill and judgment under

the circumstances from her perspective at the time of the

new-trial hearing, and without the “ ‘distorting effects of

hindsight.’ ” Montez, 355 Or at 7 (quoting Lichau, 333 Or at

359). Instead, the post-conviction court incorrectly focused

on our later decision in Farmer, and in particular the single

statement in that opinion that petitioner had “offered no

evidence to dispute Renna’s account of [his] interview” with

Thompson, 210 Or App at 644, providing a crucial backdrop

for its analysis of trial counsel’s actions. The post-conviction

Cite as 283 Or App 731 (2017) 765

court accordingly viewed trial counsel’s failure to take

additional steps to oppose or challenge Renna’s affidavit as

reflecting a deficiency, or a complete lack, of professional skill

and judgment. It correspondingly discounted the soundness

of the choices that trial counsel did make, which in hindsight

were unsuccessful.

But rather than measuring trial counsel’s choices

by the ultimate outcome in our decision in Farmer, a correct

analysis of whether trial counsel performed deficiently must

begin—and end—by viewing trial counsel’s performance

only in light of the information, circumstances, and options

that she had before her at the time of the new-trial hearing.

When analyzed in that correct context, trial counsel’s strategic

and tactical choices reflect an exercise of reasonable

professional skill and judgment.

Petitioner had the burden of demonstrating that

no reasonable counsel could have chosen to forgo asking

for a continuance under the circumstances and from trial

counsel’s perspective at the time of the hearing. Pereida-

Alba, 356 Or at 663-64. After receiving Renna’s affidavit

on the morning of the hearing, trial counsel objected to it

as untimely, objected to statements attributed to Thompson

being included in it, and moved to strike it. The trial court

overruled those objections and denied the motion to strike,

but stated that it would focus primarily on Thompson’s affidavit

rather than Renna’s.

Under those circumstances, there could be both

advantages and disadvantages to seeking a continuance.

Advantages might include presenting Thompson’s testimony

in person, potentially challenging or rebutting Renna’s affidavit,

to blunt its effect on Thompson’s affidavit. However,

there were also sound strategic reasons to move ahead rather

than delay. Reasonable counsel could choose to rely on the

trial court’s assurance that it would focus on Thompson’s

affidavit rather than on Renna’s. In addition, relying on the

affidavit would avoid causing inconvenience or anxiety for

Thompson, who was a reluctant, fearful witness. Further,

relying on the affidavit—which already contained statements

that were inconsistent with Thompson’s 9-1-1 call—

had the advantage of presenting known, fixed testimony

766 Farmer v. Premo

from Thompson. By contrast, calling her as a live witness

at the new-trial hearing would give the prosecution an

opportunity before any retrial to cross-examine Thompson

on the record, possibly risking creation of additional inconsistencies

that could be exploited in cross-examination at a

new trial if the motion were granted. The prosecution also

would have had an opportunity to bring Renna, an experienced

detective who had testified in court many times, as

its own live witness.18 Thus, moving forward in light of the

trial court’s stated intention to focus on Thompson’s affidavit

rather than Renna’s avoided the possibility, if both sides

presented live witnesses, that Renna’s in-person testimony

would capture more of the trial court’s attention than it

intended to devote to his affidavit. Finally, forgoing a continuance

would take into account the time constraints in

ORS 136.535, and would recognize that delay could be fatal

to the motion. In light of those considerations, trial counsel

could reasonably decide not to seek a continuance in order to

obtain Thompson’s live testimony.

We observe, however, although petitioner does not

emphasize it, that the post-conviction court found that

trial counsel “failed to take time to reasonably evaluate the

options” available at the new-trial hearing. To the extent

that the statement may be construed as a finding that trial

counsel did not consciously consider the option of moving for

a continuance, but simply overlooked that possibility, the

finding nonetheless does not present a basis for affirmance.

In Pereida-Alba, the Supreme Court set out the analysis that

must be conducted when a claim rests upon an allegation

that counsel unreasonably failed to consider an option, and

the petitioner contends that that failure amounted to constitutionally

deficient performance. Resolving such a claim

depends upon,

“among other things, whether the strategy that defense

counsel did employ was reasonable, the relationship

between the evidence or theory that defense counsel failed

to consider and the strategy that counsel did pursue, and

18 Renna testified at the post-conviction trial that he would have been available

to testify at the hearing, he was “right across the street” from the courthouse,

and that he would have testified consistently with his affidavit.

Cite as 283 Or App 731 (2017) 767

the extent to which counsel should have been aware of the

strategy that petitioner now identifies.”

Pereida-Alba, 356 Or at 674.

Here, the strategy that trial counsel did pursue

was, as discussed, reasonable. Counsel should also have

been aware, however, of the strategy of seeking a continuance

when she was presented with an affidavit on the morning

of the new-trial hearing.

As set out above, there would have been both advantages

and disadvantages to seeking a continuance from trial

counsel’s perspective at the time. We also consider the relationship

between the strategy petitioner asserts counsel

should have pursued and the one she actually did pursue.

Significantly, the two strategies were mutually exclusive. If

counsel sought, and was granted, a continuance in order to

call Thompson as a witness, she could not simultaneously

press forward with the hearing. Consequently, seeking a

continuance would mean giving up the many advantages

associated with the latter strategy, which we have previously

discussed, such as avoiding Renna testifying as a live

witness, and taking advantage of the court’s stated intention

to focus on Thompson’s affidavit. Although the strategy

that trial counsel did pursue did have some disadvantages

in addition to its advantages, it would not have been unreasonable

to select that strategy over seeking a continuance.

In those circumstances, failure to consider what reasonably

could have been viewed as a risky course of action—

delaying resolution of the new-trial motion to present testimony

of a fearful, reluctant witness and giving the prosecution

an additional opportunity for cross-examination of that

witness—does not represent a suspension of professional

skill and judgment.

To be sure, in her deposition trial counsel expressed

doubts about whether she perhaps should have taken any of

several actions that, “in retrospect” might have been more

successful. She wondered whether she should have “anticipated

that [Thompson’s] affidavit” would be challenged on

the day of the hearing, and should have, “in retrospect, * * *

said ‘Hey, wait a minute, I want [Thompson] here because I

haven’t had an opportunity to * * * challenge the statements

768 Farmer v. Premo

of Detective Renna.’ ” She considered whether, in light of the

Court of Appeals opinion in Farmer, she should have “called

her at the motion for new trial” hearing, or otherwise should

have done more to challenge Renna’s affidavit. Although

trial counsel’s concerns about her tactical choices, viewed

in hindsight, are understandable, a court evaluating a postconviction

claim is to evaluate the lawyer’s conduct using

the legal analysis we have applied here. That analysis may

sometimes be informed by the lawyer’s recollections and

opinions, but it is not determined by the lawyer’s retrospective

regret about strategic and tactical choices. See Burdge v.

Palmateer, 338 Or 490, 492, 112 P3d 320 (2005) (court evaluating

a post-conviction claim must view the circumstances

from the lawyer’s perspective at the time, without the benefit

of hindsight, and is not to second guess tactical decisions

unless they reflect an absence of professional skill and judgment).

As the Supreme Court observed, “[t]he constitution

gives no defendant the right to a perfect defense—seldom

does a lawyer walk away from a trial without thinking of

something that might have been done differently or that [the

lawyer] would have preferred to have avoided.” Krummacher

v. Gierloff, 290 Or 867, 875, 627 P2d 458 (1981).

Trial counsel did not render inadequate assistance

of counsel as alleged in the continuance claim. The postconviction

court erred in granting relief on that basis.

B. Failure to Raise Constitutional Challenges to New-Trial

Evidence and Procedures

Citing Crawford v. Washington, 541 US 36, 124

S Ct 1354, 158 L Ed 2d 177 (2004), the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution,

and Article I, section 11, of the Oregon Constitution, petitioner

asserted claims that trial counsel was inadequate for

failing to object to the procedures that apply to new-trial

hearings, and to object to the contents of Renna’s affidavit.

The gravamen of both claims was that trial counsel should

have taken additional steps to prevent Renna’s affidavit

from being admitted, or the contents of it from being considered,

at the new-trial hearing. The post-conviction court

granted relief on those claims. In concluding that trial counsel

performed deficiently, the court again failed to confine

Cite as 283 Or App 731 (2017) 769

its analysis to whether trial counsel exercised reasonable

professional skill and judgment under the circumstances

from her perspective at the time of the new-trial hearing,

without the “distorting effects of hindsight,” and failed to

give appropriate consideration to sound strategic and tactical

considerations for not raising the objections petitioner

asserts. See Cullen v. Pinholster, 563 US 170, 196, 131 S Ct

1388, 179 L Ed 2d 557 (2011) (courts analyzing claims of

ineffective assistance of counsel are “required not simply to

give the attorneys the benefit of the doubt, but to affirmatively

entertain the range of possible reasons [a petitioner’s]

counsel may have proceeded as they did” (internal quotation

marks, brackets, and citations omitted); see also Hayward

v. Belleque, 248 Or App 141, 155-56, 273 P3d 926 (2012),

rev den, 353 Or 208, cert den sub nom Hayward v. Premo,

___ US ___, 134 S Ct 101 (2013) (analyzing counsel’s performance

using similar approach).

For the same and similar strategic reasons as those

we identified as applicable to the continuance claim, reasonable

trial counsel could have pursued the course of action

that petitioner’s counsel did rather than raise the objections

petitioner asserts. After receiving Renna’s affidavit,

trial counsel objected to it as untimely, made an objection to

statements by Thompson being included in it, and moved to

strike it. The trial court overruled trial counsel’s objections,

stating, as we have discussed, that it would focus primarily

on Thompson’s affidavit and not on Renna’s.

Although the post-conviction court acknowledged

that trial counsel did object to the statements in Renna’s

affidavit, it concluded that she should have objected to and

moved to strike each statement, line by line. But, under the

circumstances, reasonable trial counsel could have chosen

not to require the trial court to focus its attention on Renna’s

affidavit by asking it to rule on line-by-line objections. In

addition, trial counsel could have considered that a successful

objection to Renna’s affidavit or its contents would

not likely result in the evidence ultimately being excluded.

Rather, it would likely result in Renna being called as a live

witness. Because trial counsel had sound tactical reasons

not to further object to admission of Renna’s affidavit or its

770 Farmer v. Premo

contents, petitioner failed, as a matter of law, to establish

that trial counsel provided inadequate or ineffective assistance

of counsel on these claims.

In addition, as noted above, a successful objection

to Renna’s affidavit or its contents would not have resulted

in the exclusion of the evidence altogether. Rather, the evidence

at the post-conviction trial was that Renna was readily

available and close by. The likely result of a successful

objection to the use of his affidavit, or to its contents,

would have been that Renna would have been called as a

live witness. Accordingly, even if trial counsel’s failure to

make the specified objections could have led to the exclusion

of Renna’s affidavit or certain statements in it, petitioner

failed to establish that such a failure caused prejudice.

The post-conviction court erred in granting relief on

the basis that trial counsel should have objected to the contents

of Renna’s affidavit, and to the new-trial procedures

permitting submission of affidavits.

IV. CONCLUSION

In sum, the post-conviction court erred in concluding

that petitioner was entitled to post-conviction relief on

any of the claims on which it granted relief. Accordingly,

we reverse the portion of the judgment granting relief and

remanding for a new trial.

Portion of judgment granting post-conviction relief

and remanding for new trial reversed; otherwise affirmed.

ORTEGA, J., dissenting.

I agree with most of the majority’s decision in this

post-conviction case. However, I disagree with the majority’s

conclusion that the post-conviction court erred when it

concluded that petitioner received inadequate assistance of

counsel because his trial counsel “failed to call * * * Franklin

Wong * * * as an expert witness to testify that a handgun

* * * found in the possession of * * * Baines, was more likely

than not the firearm that discharged the bullet found in the

deceased.” The post-conviction court granted relief after concluding

that “a reasonable attorney would have called Wong

Cite as 283 Or App 731 (2017) 771

to testify as a defense expert.” Because I would affirm that

portion of the post-conviction court’s judgment, I dissent.

Petitioner, then a teenager, was convicted of killing

the victim by shooting him in the chest. No physical evidence

tied defendant to the murder. At trial, the evidence

against him included testimony from a witness who identified

defendant as someone who had been looking for the victim

before the shooting, testimony from a witness who identified

him as the person who shot the victim, and testimony

from defendant’s ex-girlfriend and her parents who testified

that defendant confessed to the killing, although they did

not initially believe the confession. Petitioner’s defense in

his criminal trial was that he was not the killer; in addition

to undermining the certainty of the identification testimony

and questioning the motives of his ex-girlfriend and

her parents, petitioner introduced evidence that the police

had information that Baines, who closely resembled defendant,

was seen near the crime scene and was reputed in

the neighborhood to have been involved in the killing. Other

than interviewing Baines, the police did little to investigate

him for the murder and did not include pictures of him in

any photo throw-downs, but during trial, a police investigator

mistakenly identified a photo of Baines as a photo of

defendant.

Thus, in order to create reasonable doubt that he

was the shooter, petitioner set out not only to undermine

the eyewitness identifications of him (as the shooter and as

someone looking for the victim) and the testimony about his

confession, but also to bolster the possibility that Baines was

the shooter, despite the fact that police had not extensively

investigated Baines for the murder.

As it happened, the police had recovered a Rohm

revolver associated with Baines and had compared test-fired

bullets from that revolver with the bullet fragments recovered

from the victim. Petitioner’s trial counsel had access to

an expert witness, Wong, who would have testified affirmatively

regarding the likelihood that the Rohm was the murder

weapon, but counsel chose not to call that witness in favor of

much more equivocal testimony elicited on cross-examination

from a state witness, Gover. Although counsel offered a reason

772 Farmer v. Premo

for that choice, her decision did not meet the constitutional

standard for adequate assistance of counsel, because it was

not based on a reasonable evaluation of the likely costs and

potential benefits of presenting affirmative testimony in support

of that important aspect of the defense theory.

The majority correctly notes that tactical decisions

of defense counsel are entitled to deference if they are based

on an appropriate evaluation. 283 Or App at 745-46 (citing

Gorham v. Thompson, 332 Or 560, 567, 34 P3d 161 (2001),

and Lichau v. Baldwin, 333 Or 350, 360, 39 P3d 851 (2002)).

It concludes that trial counsel’s evaluation was appropriate

in this case because she consciously weighed the likely costs

and potential benefits of her chosen trial tactic and concluded

that, although Wong would provide a more favorable

bullet-comparison opinion on direct examination, he was

vulnerable on cross-examination and could undermine the

credibility of the defense case. 283 Or App at 747-48.

However, the majority defers too much to counsel’s

weighing of the costs and benefits. As the Supreme Court

has explained:

“A ‘tactical decision in the course of an investigation is a

conscious choice by a lawyer either to take or to omit some

action on the basis of an evaluation of the nature and complexity

of the case, the likely costs and potential benefits of

the contemplated action, and other factors. But the fact that

a lawyer has made a ‘tactical decision’ does not mean that

the lawyer’s choice meets the constitutional standard for

adequate assistance of counsel.”

Stevens v. State of Oregon, 322 Or 101, 109, 902 P2d 1137

(1995) (emphasis added). Consequently, some tactical decisions,

such as counsel’s decision not to interview certain

potential witnesses in Stevens, will turn out not to be “a reasonable

evaluation of the likely costs and potential benefits

of pursuing the investigation.” Id. Likewise, in Lichau, 333

Or at 361-63, the court concluded that counsel’s decision not

to pursue certain avenues of investigation and to withdraw

an alibi defense, though made consciously, did not constitute

reasonable exercises of professional skill and judgment.1

1 I cite Stevens and Lichau only to indicate the fundamental standard under

which we must review any tactical decision made by defense counsel. In this case,

Cite as 283 Or App 731 (2017) 773

Here, petitioner’s trial counsel considered and

rejected the idea of presenting Wong as a witness, but that

tactical decision was not a reasonable exercise of professional

skill and judgment. Even assuming that Gover’s credentials

were better than Wong’s, the concession that petitioner’s

counsel was able to elicit from Gover was not an adequate

substitute for Wong’s affirmative testimony. Although Gover

allowed on cross-examination that he could not exclude the

Rohm as the murder weapon, he did so only after lengthy

direct testimony about the 30 or 40 different types of firearms

that could have fired the bullet, conveying the distinct

impression that he did not believe that the Rohm was the

murder weapon. The jury would have had to go out onto a

limb to conclude, with only Gover’s sliver of conceded doubt

to guide them, that the possibility that the Rohm was the

murder weapon, which Gover could not eliminate, created

reasonable doubt as to defendant’s guilt.

Wong’s testimony, by contrast, would have offered

the jury an affirmative basis—otherwise lacking—for concluding

that Baines was the shooter, not petitioner. Although

Wong had no formal training in bullet comparison, he had

“extensive experience in the comparison study of bullets”

and had worked on “over a dozen cases involving firearms.”

Indeed, the court in petitioner’s criminal trial concluded

that Wong was qualified to testify on the subject. The misgivings

of trial counsel about how Wong would fare under

cross-examination had only to do with the difference in his

credentials compared with Gover’s, and do not establish an

adequate reason for depriving the jury of the opportunity to

hear and weigh testimony that offered an otherwise-missing

affirmative expert opinion supporting the defense theory:

“Well, I really thought that if I called Wong that [the prosecutor]

would be effective in cross-examination and in

I recognize that counsel’s decision to investigate potential expert witnesses was

a tactical decision subject to review; however, so too was the choice not to use the

fruits of her investigation. That latter decision is what is truly at issue in this

case—a decision that is also subject to review for its adequacy. See Martinez v.

Baldwin, 157 Or App 280, 972 P2d 367 (1998), rev den, 329 Or 10 (1999) (engaging

in a searching inquiry of counsel’s decision not to call the defendant’s mother

as a witness); Pinnell v. Palmateer, 200 Or App 303, 319-20, 114 P3d 515 (2005),

rev den, 340 Or 483 (2006) (engaging in a similar examination of counsel’s decision

not to call a witness).

774 Farmer v. Premo

challenging his lack of ballistics training and tool mark

identification. * * * So I just thought that the jury would

perceive my expert as, you know, less credible, and * * * I

thought it would detract from * * * the strength of our case.”

As understandable as those doubts may have been,

they did not provide an adequate justification for depriving

the jury of the opportunity to hear an expert who actually

believed that the Rohm likely was the murder weapon.

Indeed, such testimony, even if challenged, likely would have

enhanced the value of Gover’s acknowledgement that he

likewise could not exclude the Rohm as the murder weapon.2

Although the majority justly cautions against evaluating,

with the unfair benefit of hindsight, whether trial

counsel’s tactic was successful or effective, 283 Or App at

747, we must also be wary of according deference to counsel’s

decisions simply because they appear to be understandable

and might even be decisions that one of us might have made

in her shoes. We are not called upon to decide whether counsel’s

assessment was understandable; rather, we are called

upon to assess whether it was based on “a reasonable evaluation

of the likely costs and potential benefits” at issue.

Stevens, 322 Or at 109. As we have previously indicated,

the “question in each case is whether trial counsel’s investigation

was legally and factually appropriate to the case.”

Thompson v. Belleque, 268 Or App 1, 17, 341 P3d 911 (2014),

rev den, 357 Or 300 (2015) (emphasis added). That is, in

assessing whether counsel engaged in a reasonable evaluation,

we must not consider any explanation in the abstract;

rather, we must consider it within the overall context of the

case. Here, given that there was no physical evidence connecting

defendant to the crime and that part of defendant’s

trial strategy was to connect Baines to the crime, it was not

reasonable to deprive the jury of the opportunity to weigh

affirmative expert testimony that the Rohm likely was the

2 There is a separate issue of whether Wong’s testimony would have been

helpful in establishing that the Rohm was operable at the time of the shooting.

The state’s evidence does tend to suggest that the Rohm was inoperable, whereas

it is unclear what Wong’s testimony would have been regarding operability.

However, given that Gover still did not rule out the Rohm even in the face of the

state’s evidence regarding operability, any problems with Wong’s testimony do

not make it reasonable to deprive the jury of an opportunity to weigh the value of

that testimony.

Cite as 283 Or App 731 (2017) 775

gun used in the shooting, especially when the only apparent

factor weighed by counsel in reaching her decision was that

the expert at issue had less impressive credentials than the

state’s expert. There is no indication that counsel considered

the effect of failing to present a defense expert altogether.

With Wong’s affirmative testimony, Gover’s concession

likely would have become more, not less, useful in providing

the jury with a basis for finding reasonable doubt that

petitioner was the shooter. Without it, Gover’s concession,

standing alone, was not a reasonable substitute; it required

the jury to invent its own opinion without the validation of

an expert.

Indeed, the United States Supreme Court has

recognized the importance of retaining defense experts to

address the testimony offered by prosecution experts, given

that prosecution experts can and do make mistakes regarding

forensic science. Hinton v. Alabama, 571 US ___, 134

S Ct 1081, 1090, 188 L Ed 2d 1 (2014). The Court has noted

that there is a threat posed to the fairness of criminal trials

by faulty forensic science and that such threat is “minimized

when the defense retains a competent expert to counter the

testimony of the prosecution’s expert witnesses.” Id. Here,

although we acknowledge that there is little indication that

Gover’s testimony was faulty, it was woefully inconclusive,

at least with regard to the point that defendant set out to

prove—that the Rohm was the murder weapon. Without the

testimony of a defense expert, I cannot conceive how defendant

received a fair opportunity to establish that Baines

was the shooter.

For those reasons, I would conclude that the postconviction

court applied the correct legal standard and that

there was a sufficient basis for it to conclude that no reasonable

attorney would have chosen to exclude Wong’s testimony.

Because I would affirm that portion of the trial court’s

decision, I dissent.

Egan, and Flynn, JJ., join in this dissent.

In sum, the post-conviction court erred in concluding

that petitioner was entitled to post-conviction relief on

any of the claims on which it granted relief. Accordingly,

we reverse the portion of the judgment granting relief and

remanding for a new trial.

Portion of judgment granting post-conviction relief

and remanding for new trial reversed; otherwise affirmed.