Farmer v. Premo

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 *771to 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 *772for 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

*773Here, 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 *774challenging 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 *775gun 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 post-conviction 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.

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, *773I 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).

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.