In Pratt II, the court briefly recounted the circumstances of
"[Petitioner] owned and operated a trucking
company in Seattle. Love, who was one of [petitioner's] employees,
agreed to accompany [petitioner] in his truck on a trip to Los
Angeles to open a new office. Love was concerned that [petitioner]
might make sexual advances toward her during the trip, but she told
her boyfriend that, if [petitioner] did make such advances, she
would get out of the truck and call her boyfriend.
"[Petitioner] and Love left Seattle on June 16,
1986. On June 17, a passerby discovered a sleeping bag and a
pillowcase in a ditch beside Highway 97 north of Klamath Falls. The
pillowcase contained Love's purse and identification. The passerby
turned the items over to the Oregon State Police. The next day, the
police found Love's nude body at a truck turnout along Highway 97
south of the location where her purse was found. Love had been
stabbed, asphyxiated, and run over by a vehicle."
Id. at 565. After petitioner's arrest, he told
a police officer that he had had sex with the victim at a truck stop and
then arranged for her to fly to Los Angeles to meet him. Petitioner
subsequently told several people that he had killed the victim.
Petitioner was convicted of aggravated murder.
During the penalty phase of the trial, the trial
court admitted evidence concerning prior instances of petitioner's
violence toward women, including beating, threatening, and kidnapping
women and forcibly promoting prostitution. Evidence also was admitted
concerning petitioner's violence and threats toward men. Several of
petitioner's family members testified that petitioner had threatened to
harm his mother, one of his half-sisters, and his half-sister's children.
Petitioner's evidence during the penalty phase
included testimony by psychologists Faulder Colby and Ralph Underwager.
Colby is a neuropsychologist who examined petitioner to determine
whether he had brain damage. Colby explained at length to the jury how
various parts of the brain are responsible for various functions and how
injury to various parts of the brain can cause behavioral problems. He
further observed that behaviors that some might simply consider mean
actually are the result of brain dysfunction.
Colby described the tests that he administered to
petitioner and described in general petitioner's performance on those
tests. Colby tested petitioner's full-scale IQ as 77, which he described
as "borderline." He observed that petitioner did quite poorly on tests
involving the frontal lobe, which concerns executive functioning or
behavior control. The test results indicated organic brain damage, but
Colby was unable to tell when the damage had occurred.
Colby rendered the opinion that petitioner had a
severe cognitive disorder. He gave a provisional diagnosis of an
explosive type of organic personality disorder. Although Colby believed
that petitioner had organic brain damage, he speculated that
petitioner's brain damage was caused by a closed head injury that did
not involve a massive contusion to the brain.
The results of a CT scan test that was performed at
Colby's request were insufficient to confirm such a condition. Colby
opined that, although petitioner was dangerous and could not function
well in society, he historically had been able to function well within a
structured prison environment. Colby also indicated that he believed
that medication can reduce assaultive behaviors.
Underwager is a clinical psychologist
who specializes in sexual abuse cases. He testified that he had
interviewed and tested petitioner and concluded that petitioner had
suffered from extensive childhood sexual abuse. In Underwager's opinion,
that abuse had resulted in petitioner engaging in dysfunctional and
abusive sexual relationships, some of which involved a certain type of
sadomasochistic sexual behavior. Underwager further explained that
individuals who are exposed to violent, long-term sexual abuse, as
petitioner was, are more likely to have anger and aggression problems.
Underwager's tests of petitioner also showed evidence of brain damage.
Ultimately, as noted above, petitioner was sentenced
to death, and the conviction and sentence were affirmed on review.
Pratt II, 316 Or at 583.
In 1994, petitioner initiated this
action for post-conviction relief, alleging that trial counsel in his
1991 trial and appellate counsel in the ensuing direct review provided
constitutionally inadequate assistance. The post-conviction court denied
relief, making extensive findings of fact and conclusions of law,
discussed more fully below.
After the case was briefed and shortly before oral
argument, petitioner filed an emergency motion to remand this case to
the post-conviction court so that he could raise a new matter, viz.,
whether Atkins (which was decided in 2002, after the post-conviction
court had entered its judgment) precludes the imposition of a death
sentence. Because resolution of petitioner's motion could obviate the
need to consider petitioner's remaining assignments of error, we turn
first to that motion.
Petitioner's current appellate counsel, who assumed
sole responsibility for the case in September 2004, asserts in support
of petitioner's motion that, as she was preparing for oral argument, she
first came to believe that there is a legitimate issue as to whether
petitioner is mentally retarded and, thus, under Atkins,
ineligible for execution.
Counsel acknowledges that most medical definitions
indicate that mild mental retardation may be diagnosed in individuals
with IQ scores of 70 or below. Counsel points out that, at various
points in petitioner's life, IQ tests have indicated that he has an IQ
of anywhere from 70.5 to the low 80s. Counsel argues that, because the
standard error of measurement for IQ tests may be as much as five points,
it is possible that, under Aktins's analysis, petitioner's
cognitive deficiency at the time of the crime was sufficiently severe to
preclude imposition of a death sentence.
In response to petitioner's motion, defendant points
out that this case was pending in the post-conviction court for
approximately five years and has, to date, been pending on appeal for an
additional five years, and that a remand to allow petitioner to allege
and attempt to prove an entirely new claim would cause an even more
extraordinary delay. Defendant further contends that ORS 138.550(3)
provides the only means by which petitioner may bring his claim
concerning Atkins. ORS 138.550(3) provides:
"All grounds for relief claimed by petitioner in
a petition pursuant to ORS 138.510 to 138.680 must be asserted in
the original or amended petition, and any grounds not so asserted
are deemed waived unless the court on hearing a subsequent
petition finds grounds for relief asserted therein which could not
reasonably have been raised in the original or amended petition.
However, any prior petition or amended petition which was withdrawn
prior to the entry of judgment by leave of the court, as provided in
ORS 138.610, shall have no effect on petitioner's right to bring a
(Emphasis added.) Defendant suggests that ORS
138.550(3) establishes that where, as here, a post-conviction court has
rendered a decision that is on appeal, a petitioner has no further
ability to amend the original petition--and may raise a new claim only
by filing a subsequent petition for post-conviction relief.
Petitioner acknowledges, at least implicitly, that
the relief that he is requesting in his emergency motion is
unprecedented. He asserts, however, that this court should undertake to
grant an extraordinary remedy of remand to add a new claim to his
petition because there is some doubt as to whether he could successfully
pursue a successive petition under the standards set forth in ORS
We agree with defendant. Under controlling statutes,
we lack the authority to grant the relief that petitioner seeks. ORS
138.650, which provides for appeals in post-conviction cases, provides
that the scope of review in the appellate courts "shall be the same as
that provided by law for appeals in criminal actions[.]" ORS 138.010
provides that the "only mode of reviewing a judgment or order in a
criminal action is that prescribed by ORS 138.010 to 138.310." ORS
138.220, in turn, provides for our scope of review: "Upon an appeal, the
judgment or order appealed from can be reviewed only as to questions
of law appearing upon the record." (Emphasis added.) ORS 138.240
provides that we "may reverse, affirm or modify the judgment or order
appealed from and shall, if necessary or proper, order a new trial."
Read together, those statutes indicate
that, in a post-conviction appeal, this court may reverse, affirm, or
modify the judgment of the post-conviction court only if we find error
as to an issue "appearing upon the record." ORS 138.220. Here,
petitioner's emergency motion to remand is not based upon anything that
"appear[s] upon the record." Rather, petitioner seeks to raise an
entirely new claim (and presumably develop a new record) concerning an
issue that was not raised in his pleadings or at the post-conviction
trial. Thus, we have no authority to vacate a post-conviction judgment
and remand a case to a post-conviction court for the sole purpose of
allowing the petitioner to amend the petition to raise a new claim for
We turn to the merits of petitioner's appeal.
Petitioner first asserts that the post-conviction court erred in
concluding that he was not denied the right to adequate assistance of
trial counsel as guaranteed by the Oregon Constitution or the United
States Constitution. Article I, section 11, of the Oregon Constitution
guarantees a criminal defendant the right to adequate assistance of
To establish a violation of that provision, a post-conviction
petitioner must show, by a preponderance of the evidence, facts
demonstrating that (1) trial counsel failed to exercise reasonable
professional skill and judgment, and (2) counsel's failure had a
tendency to affect the result of the criminal trial. Stevens v. State,
322 Or 101, 110, 902 P2d 1137 (1995); Trujillo v. Maass, 312 Or
431, 435, 822 P2d 703 (1991). Under the Sixth and Fourteenth amendments
to the United States Constitution, denial of adequate assistance of
counsel is demonstrated when a petitioner shows that counsel's
performance was deficient and that the deficient performance prejudiced
the defense. Strickland v. Washington, 466 US 668, 104 S Ct 2052,
80 L Ed 2d 674 (1984).
On appeal, petitioner asserts that the
post-conviction court erred because he established four different ways
in which trial counsel in his 1991 trial were constitutionally
inadequate: (1) Trial counsel provided inadequate assistance during the
penalty phase of the trial because they failed to adequately investigate
petitioner's mental condition by having an event-related potential brain
function test performed. (2) In a somewhat related manner, trial
counsel were inadequate in the penalty phase for failing to present
additional evidence concerning petitioner's brain damage. (3) Trial
counsel were inadequate for failing to request a hearing to determine
whether petitioner was unfit to proceed to trial due to incapacity,
pursuant to ORS 161.630. In particular, petitioner asserts that his
refusal to accept a plea bargain for life imprisonment should have
alerted his trial counsel that he was mentally unfit to proceed to trial.
And (4), trial counsel were inadequate because they did not assert an
insanity defense during the guilt phase of the trial.
We turn to petitioner's first and second arguments,
concerning whether counsel failed to adequately develop evidence that
petitioner suffered from brain damage. Petitioner was represented at
trial by Kenneth Hadley and Enver Bozgoz. At the post-conviction trial,
petitioner presented evidence from a psychological researcher, Joel
Alexander, who conducts research on cognitive and brain functions.
Alexander testified about a test called "event-related potential." He
noted that very few psychologists provide forensic testimony concerning
event-related potential but that the technique did exist in 1991 when
petitioner went to trial.
Alexander testified that he performed both
electroencephalogram and "event-related potential" tests on petitioner
in 1997 and determined that, during the "event-related potential" tests,
there was an unusual length of time between the onset of a stimulus and
the brain's reaction to the stimulus. In light of the test results and
answers provided by petitioner on a survey, Alexander concluded that
there was a significant possibility that petitioner had brain damage,
but Alexander was unable to determine when that brain damage had
occurred. Ultimately, Alexander agreed that his findings were consistent
with Colby's and Underwager's findings--that petitioner had brain damage
of undetermined origin.
Petitioner argues that, if his criminal trial counsel
had obtained "event-related potential" testing to confirm Colby's and
Underwager's conclusions that petitioner had brain damage, the jury
might have been less likely to believe testimony by several of his
relatives that petitioner had claimed to be able to fake mental problems--and,
conversely, the jury might have been more likely to accept that
petitioner had brain damage. In that regard, petitioner points to the
prosecutor's remarks to the jury in closing argument that emphasized the
evidence that petitioner claimed to be able to fake mental health
In rejecting petitioner's argument regarding "event-related
potential" testing, the post-conviction court found that additional
testing "would have shown nothing more than what was already observed by
Dr. Colby during his two-day examination of petitioner." The post-conviction
court further found:
"13. Following his evaluation, Dr. Colby
recommended that counsel obtain an imaging study of petitioner's
brain. Counsel followed the recommendation and obtained a CT scan.
"14. Dr. Colby did not tell counsel that a CT was
not a sufficient imaging study. In [the] absence of any indication
from the expert they had retained to evaluate petitioner's mental
health that the imaging study they had obtained was not an adequate
follow-up on his recommendation to obtain an imaging study, counsel
reasonably concluded a CT scan was adequate to follow up on Dr.
We agree with the post-conviction court that
counsel's reliance on Colby's testimony, Underwager's testimony, and the
CT scan did not amount to constitutionally deficient performance. The
factual findings underlying the post-conviction court's determination in
that regard are supported by evidence in the record and, thus, are
controlling. See Ball v. Gladden, 250 Or 485, 487-88, 443 P2d 621
(1968). We note, particularly, that the additional evidence that
petitioner asserts that counsel should have presented would merely have
supplemented the existing expert testimony with additional expert
testimony as to the same conclusion--viz., that petitioner had
Petitioner also argues that his trial counsel should
have presented expert testimony that the particular sadomasochistic
sexual behavior in which petitioner had engaged is often the product of
psychosis and can be a symptom of brain injury. As noted above,
Underwager testified in the penalty phase of the trial that he believed
that petitioner's sadomasochistic behavior was the result of childhood
sexual abuse. See ___ Or App at ___ (slip op at 3).
Moreover, he stated that the existence of that
particular behavior validated his conclusion that petitioner had been
sexually abused, noting that the behavior in question is a preadolescent
sexual behavior that persists into adulthood primarily in those who have
been sexually abused by adult males. In light of Underwager's testimony
that the sadomasochistic behavior was related to childhood sexual abuse,
it was a reasonable tactical choice in the penalty phase for counsel not
to present contradictory evidence to the jury about a different cause
for that behavior.
To summarize, during the penalty phase of
petitioner's trial, the state presented a great amount of evidence that
petitioner had been extremely violent toward many people in the past,
and that that violence--including sexual violence--had been directed
primarily against women. Petitioner presented evidence that he suffered
from headaches, had experienced childhood sexual abuse, would often
erupt quickly into anger for no apparent reason, and would often make up
As noted above, petitioner also presented evidence
from Colby and Underwager concerning his mental condition. That evidence
indicated that petitioner had borderline intelligence, a type of brain
damage that results in impaired ability to control behavior, and a
history of violence toward women that may have been related to the
childhood sexual abuse.
Although petitioner contends that counsel was
inadequate for failing to present additional evidence, that evidence
would not have materially enhanced--and, in some particulars, may have
detracted from--the substantial evidence that counsel did adduce. The
post-conviction court correctly concluded that trial counsel did not
provide inadequate assistance in failing to adduce the additional
evidence that petitioner now contends should have been presented.
Petitioner next argues that the post-conviction court
erred in rejecting his claims that his trial counsel were
constitutionally inadequate because they failed to ask the trial court
to conduct a hearing to determine whether petitioner was competent to
aid and assist in his defense. Under ORS 161.360 to ORS 161.370, if a
court has "reason to doubt" a criminal defendant's fitness to assist and
cooperate with trial counsel, it is required to obtain a psychiatric or
psychological examination of the defendant and make a determination as
to the defendant's fitness to proceed. If a defendant is determined not
fit to proceed, then the criminal proceedings are suspended and the
person is remanded to the custody of a state mental hospital or released
on supervision. ORS 161.370.
Evidence presented at the post-conviction trial
showed that, before the 1991 criminal trial, the court, at trial
counsel's request, entered an order authorizing petitioner's examination
by a psychologist at state expense. Petitioner was referred to Dr. Art
Norman, who ultimately referred petitioner's case to Colby. Colby
evaluated petitioner for two days and issued a 35-page psychological
evaluation. Colby based his conclusions on a diagnostic interview, a
review of medical, legal, and academic records, and the results of 17
different tests that he administered to petitioner. Colby's evaluation
included the following statement:
"Mr. Pratt appeared to understand how the
court procedure worked as well as to have a solid understanding of
how his relationship should be with his attorneys. He trusts his
attorneys, although perhaps Mr. [Bozgoz] more than Mr. Hadley. He
likes Mr. [Bozgoz's] coarse and tough style. He said he thought his
best defense would be an insanity case. He knows he is not crazy,
but he also knows that something is wrong. He does not know what is
wrong, but he gets angry quickly and then becomes calm. He said
these things did not happen before the truck hit him. If found
guilty, Mr. Pratt said he would prefer death to a long prison
sentence, since he would be 67 years old when he got out after 20
years and the world would have changed too much for him to make
anything of himself. He did not understand why no one would take
into account the things about him which were good such as his
running a trucking business."
Seven years later, in the post-conviction proceeding--and
contrary to his 1991 evaluation and conclusions--Colby testified that "it
is quite possible that had a more thorough investigation of his fitness
to proceed been requested and done that Mr. Pratt would have been found
unfit to proceed and incapable of effectively aiding and assisting his
counsel in preparation of his defense." Underwager, on the other hand,
testified in the post-conviction proceeding that he believed that
petitioner did have the ability to assist and cooperate with his counsel:
"I had no question that he was able to assist and cooperate with the
counsel. He was doing it."
Hadley, one of petitioner's criminal trial attorneys,
testified at the post-conviction proceeding that it was his
understanding that Colby had determined that petitioner was competent to
proceed and had ruled out the likelihood that any mental disease or
defect defense would have a realistic chance with the jury. The other
criminal trial attorney, Bozgoz, testified at the post-conviction trial
that, as far has he could remember, petitioner "understood what was
going on" and insisted that "we go to trial." Bozgoz also testified that
he felt that petitioner had actively participated in creating and
presenting his defense.
Nevertheless, petitioner argued to the post-conviction
court, as he does on appeal, that his rejection of the state's plea
offer of a life sentence with the possibility of parole after 30 years
so evinced his incompetence to stand trial that counsel were compelled
to request and pursue a further investigation of his competence.
The evidence adduced at the post-conviction trial
regarding petitioner's rejection of the plea offer showed that Hadley
thought the offer was a good one and advised petitioner to accept the
offer. Conversely, Bozgoz stated that Hadley was probably right--but
told petitioner that he (Bozgoz) would rather die than spend 30 years in
prison. Petitioner, who felt more comfortable with Bozgoz than with
Hadley, declined the plea offer, although Bozgoz did recommend later
that petitioner accept the offer. Petitioner also presented testimony by
several individuals who worked with trial counsel preparing for the 1991
trial that they believed that petitioner was mentally impaired at that
The post-conviction court rendered the following
"23. Petitioner did assist with his defense by,
among other things, directing the investigator to individuals or
places that might yield testimony or evidence beneficial to his
defense in the guilt phase.
"24. Petitioner did assist with his defense by,
among other things, directing the investigators to people from his
past who might have been able to offer mitigating evidence.
"25. The investigators' investigation of matters
or people suggested by petitioner sometimes yielded favorable
"26. Petitioner's ability to assist his attorneys
with his defense is demonstrated by his cooperation with Dr.
Underwager's evaluation, in which petitioner revealed private and
embarrassing information about himself.
"27. Petitioner's ability to assist in his own
defense is demonstrated by petitioner's participation in decisions
regarding which witnesses to call and his continued consultations
with counsel, effected by petitioner's frequent telephone calls to
Mr. Bozgoz's home during the trial.
"28. Petitioner's deposition testimony reveals he
has a sharp memory concerning the details of his trial and pre-trial
investigation, which contradicts his assertion in this proceeding
that he did not understand what was going on at the time.
"* * * * *
"37. Mr. Hadley discussed with petitioner at
length the possibility of a plea agreement.
"38. Mr. Hadley reasonably believed that
petitioner understood the plea offer and the consequence of not
"39. Petitioner had been previously convicted of
aggravated murder and sentenced to death. Petitioner understood the
consequence of rejecting the state's plea offer."
Each of those findings of fact is supported by
evidence in the record.
Petitioner's fundamental argument on appeal, as at
the post-conviction trial, is that, regardless of the evidence
supporting the post-conviction court's findings, the fact that
petitioner chose to proceed to trial with the possibility of a death
sentence rather than accepting the plea bargain of a life sentence with
a 30-year minimum was such compelling evidence of petitioner's inability
to "assist and cooperate with counsel" that trial counsel's failure to
obtain an additional evaluation necessarily breached the standard of
constitutionally adequate representation. Petitioner offers no legal
authority for that proposition and we are aware of none.
The premise of petitioner's argument is that no
competent person in petitioner's position could have made the choice
that he made to proceed to trial in 1991. We respectfully disagree. At
the time that petitioner rejected the plea offer, he was continuing to
adamantly maintain his innocence.
At that time, because of the holding in Pratt I,
substantial evidence of prior criminal conduct that had been admitted in
the guilt phase of the first trial would be inadmissible in the guilt
phase on retrial. Moreover, under the plea offer, petitioner, who was
then middle-aged, would have received a sentence that would have
guaranteed his incarceration until very old age. Petitioner was uniquely
qualified to evaluate his options: He had previously been sentenced to
death and already had spent considerable time in prison. His choice was
not innately irrational.
Finally, with respect to the alleged
deficiencies of trial counsel, petitioner asserts that the post-conviction
court erred in rejecting his claim based on trial counsel's failure to
present a defense of "mental disease or defect." ORS 161.295(1). As
noted, before the 1991 trial, Colby examined petitioner and rendered
several diagnoses, including a provisional diagnosis of "organic
personality disorder, explosive type." See ___ Or App at ___
(slip op at 3).
At the post-conviction trial, Hadley testified that
he understood Colby to have advised that a mental disease or defect
defense would not have a realistic chance in petitioner's case. Hadley
also testified that one of the reasons he did not pursue a mental
disease or defect defense was that he did not believe petitioner's
diagnoses would support such a defense. Bozgoz similarly testified that
he understood Colby to have concluded that petitioner would not likely
have a viable mental disease or defect defense. He further testified
that he did not think such a defense would be successful in Klamath
County, given the nature of the charged crime.
Petitioner asserts on appeal that counsel were
inadequate because they must have misconstrued ORS 161.295 to preclude
the possibility of a mental disease or defect defense for petitioner,
because that statute provides that "the terms 'mental disease or defect'
do not include an abnormality manifested only by repeated criminal or
otherwise antisocial conduct, nor do they include any abnormality
constituting solely a personality disorder." ORS 161.295(2).
Petitioner contends that his counsel ruled out the
possibility of an insanity defense on the erroneous assumption that his
provisional diagnosis of an "organic personality disorder, explosive
type" precluded such a defense. In support of that contention,
petitioner relies on Mueller v. PSRB, 325 Or 332, 937 P2d 1028
(1997), in which the court concluded that "organic personality disorder"
and "organic brain syndrome" are not diagnoses that fall within the "solely
a personality disorder" exclusion of ORS 161.295. Mueller, 325 Or
Whatever the merit of petitioner's argument in the
abstract, it fails for at least one concrete reason: The post-conviction
court specifically found that petitioner told his trial counsel that "he
did not want to assert an 'insanity' defense." Evidence in the record
supports that finding. Given petitioner's instructions, counsel could
not have provided inadequate assistance in failing to present such a
defense. A criminal defendant cannot be found guilty but insane if he
has not asserted that affirmative defense. In State v. Peterson,
70 Or App 333, 339, 689 P2d 985 (1984), we held that there was no
authority "for the court, over a defendant's objection, to impose the
defense" of "not responsible due to mental disease or defect." Although
Peterson was decided under a prior statute, we adhered to its
holding in State v. Bozman, 145 Or App 66, 929 P2d 1019 (1996),
which, like this case, concerned ORS 161.295. It follows that, if a
court cannot find a criminal defendant guilty but insane pursuant to ORS
161.295 over the defendant's objection, trial counsel cannot reasonably
be expected to assert such a defense over the defendant's objection.
We have considered, and reject without discussion,
petitioner's remaining arguments concerning trial counsel's performance.
Petitioner next argues that his appellate counsel in
Pratt II provided inadequate assistance in various respects. As
an initial matter, the parties dispute the substantive standard for
evaluating the adequacy of appellate counsel. As noted above, when we
determine that trial counsel has not exercised reasonable professional
skill and judgment, we then look to whether counsel's deficiency had "a
tendency to affect the result of the criminal trial." Stevens,
322 Or at 110 (quoting Trujillo, 312 Or at 435). However, the
test for actionable prejudice from inadequate assistance of appellate
counsel has been formulated slightly differently: To prevail on such a
claim, a petitioner "must establish (1) that competent appellate counsel
would have asserted the claim, and (2) that had the claim of error been
raised, it is more probable than not that the result would have been
different." Guinn v. Cupp, 304 Or 488, 496, 747 P2d 984 (1987).
Here, petitioner asserts that the "more probable than
not" standard is more stringent than the "tendency to affect" standard
and that later decisions such as Stevens implicitly overruled
that aspect of Guinn. Petitioner further asserts that Guinn's
"more probable than not" standard is more stringent than the federal
Sixth Amendment test, and urges this court to adopt the federal
Defendant offers a comprehensive response. Although
we appreciate the parties' thoughtful arguments, we need not resolve
that question in this case. As explained below, regardless of the
standard for assessing the potential consequences of alleged defaults by
appellate counsel, we agree with the post-conviction court that the
performance of appellate counsel in Pratt II did not breach the
standard of constitutionally adequate representation.
Petitioner asserts that appellate counsel provided
inadequate assistance because he failed to present federal
constitutional arguments in support of several of his assignments of
error in Pratt II. In particular, petitioner alleges that
appellate counsel was deficient for having failed to raise federal
constitutional arguments in support of assignments of error in Pratt
II that challenged (1) the trial court's denial of a motion for
mistrial based on the content of a note from the jury during guilt phase
deliberations; (2) its denial of a motion for mistrial after a witness
in the penalty phase referred to petitioner having been on death row;
(3) its denial of a motion for mistrial based on an alternate juror's
remarks; and (4) a jury instruction on the meaning of "beyond a
reasonable doubt." We address each specification in turn.
Petitioner first asserts that, in an
assignment of error pertaining to a note sent to the judge by the jury,
appellate counsel in Pratt II should have made numerous arguments
under the Sixth, Eighth, and Fourteenth amendments to the United States
Constitution. We briefly recount the relevant circumstances. During jury
deliberations in the guilt phase of the trial, the jury sent the court a
note, stating, "Why is this the second trial? Would you give us an exact
reason." Trial counsel moved for mistrial, citing a case identified only
as "Williams" for the proposition that "nothing could be more
damning to an accused" than the jury's knowledge of a prior trial and
conviction. The court responded that it was denying the motion based on
Patton v. Yount, 467 US 1025, 104 S Ct 2885, 81 L Ed 2d 847
(1984), and "State v. Cole."
Trial counsel replied that he believed Patton
and "Cole" supported his position. The court subsequently gave a
cautionary instruction telling the jury that its inquiry was "not
material to your decision in this case[.]" On appeal, counsel assigned
error to the court's denial of the motion for mistrial, citing only
Oregon authority for the proposition that the court committed reversible
error, and making no reference to any of the cases cited to the trial
court. The Oregon Supreme Court rejected that assignment of error:
"[T]he jury's question did not necessarily mean
that the jury was considering extraneous information. The jury could
have deduced from various factors, including references to prior
testimony, that this was defendant's second trial. Furthermore, the
trial court acted swiftly to rectify any possible prejudice to
defendant by instructing the jury to consider only the evidence
produced during this trial and the court's instructions."
Pratt II, 316 Or at 578.
In seeking post-conviction relief, petitioner
asserted that appellate counsel in Pratt II provided inadequate
assistance by failing to raise federal constitutional arguments in
support of the assignment of error pertaining to the denial of the "mistrial
requested by the defense for juror misconduct after the jury during
deliberations sent a note to the court[.]" The post-conviction court
made the following findings pertinent to petitioner's argument:
"88. Petitioner did not establish the jury
impermissibly considered extraneous information during their
"89. Counsel made thorough arguments in favor of
the assignments of error raised on appeal. Appellate counsel covered
the issues necessary for an adequate appeal.
"* * * * *
"92. Appellate counsel reasonably did not advance
arguments on appeal that were not advanced at petitioner's trial.
"93. Petitioner's allegations that appellate
counsel made inadequate arguments concerning issues raised * * *
when the jury sent out a note during the guilt-phase deliberations *
* * are based on an unsupported assertion that the jury considered
extraneous information in reaching their verdicts. Because no
evidence establishes the jury considered extraneous information in
reaching their verdict, appellate counsel reasonably did not include
multiple citations to federal cases discussing the [e]ffect of the
jury's consideration of extraneous information."
On appeal, petitioner argues that "[o]btaining
information outside the courtroom mid-trial and not reporting the matter,
contrary to the court's instructions, violates several constitutional
guarantees." He cites cases standing for the proposition that such a
situation could violate a criminal defendant's right to confront
witnesses, the right to be present at trial, and the right to counsel.
He further asserts that he had a due process right to have the trial
court conduct an inquiry to determine whether the jurors had been
exposed to extrinsic material.
Petitioner's arguments lose sight of the narrow issue
that was before the post-conviction court: What authority would
constitutionally adequate appellate counsel have raised in support of an
assignment of error pertaining to whether a mistrial should have been
granted after the jury sent the note? To the extent that petitioner is
now arguing that appellate counsel should have assigned error to the
trial court's failure to question the jurors, that argument necessarily
Petitioner's allegation in his petition for post-conviction
relief, and the post-conviction court's ruling, concerned whether
certain arguments should have been made by appellate counsel
concerning the denial of a mistrial motion, not whether appellate
counsel should have assigned error to the trial court's failure
to question jurors. Thus, some of petitioner's arguments to us pertain
to a matter that is beyond the scope of his post-conviction pleadings
and his assignment of error in this appeal. We reject those arguments
without further discussion.
Petitioner's remaining arguments pertaining to the
briefing of the "jury note" matter in Pratt II are, for the most
part, based on his assumption that the jury obtained and considered "outside
information" that prompted it to send the note. However, as indicated
above, the Oregon Supreme Court, in evaluating the record on direct
review, concluded that "the jury's question did not necessarily
mean that the jury was considering extraneous information." Pratt,
316 Or at 578 (emphasis added).
To the contrary--and not surprisingly, given that
petitioner did not adduce any evidence in the post-conviction proceeding
that the jury's note was, in fact, prompted by its consideration of
outside information--the post-conviction court found that petitioner "did
not establish [that] the jury impermissibly considered extraneous
information during [its] deliberation." Accordingly, petitioner's
arguments rest on an unsubstantiated premise.
Finally, except in extraordinary
circumstances, appellate counsel's failure to raise unpreserved matters
does not, and cannot, constitute inadequate assistance.Cf.
Blackledge v. Morrow, 174 Or App 566, 571, 26 P3d 851, rev den,
332 Or 558 (2001) (counsel did not provide inadequate assistance for
failing to raise an issue on appeal that would not have been reviewable).
Rather, petitioner's appellate counsel could reasonably raise only those
contentions that had been preserved in the trial court.
Here, as noted, trial counsel
referred to three cases during the 1991 colloquy on the mistrial motion.
However, in seeking post-conviction relief, petitioner offers no cogent
explanation as to how or why criminal trial counsel's reference to any
of those cases should plausibly have preserved the contentions, based on
federal constitutional law, that petitioner now asserts that appellate
counsel in Pratt II was deficient in failing to have raised.
Indeed, as noted, see ___ Or
App at ___, nn 8 & 9 (slip op at 20, nn 8 & 9), petitioner's brief in
this appeal does not even identify "Williams" or "State v.
Cole" in such a way that we can tell what cases were being cited,
much less their relevance to the issue presented here. With respect to
Patton, the third case referred to in the 1991 colloquy,
petitioner does not even cite Patton in the present appeal. Nor
does he make any arguments that relate in any discernible way to the
arguments considered in Patton.
In sum, petitioner's appellate
counsel in Pratt II reasonably did not raise the federal
constitutional contentions that petitioner now asserts should have been
advanced in support of the "jury note"/denial of mistrial assignment of
error. Those arguments were either unpreserved, or are based on factual
assumptions not borne out by the record, or both.
Petitioner makes a closely related claim that
appellate counsel in Pratt II was deficient because he did not
make a federal constitutional argument in his assignment of error
concerning the trial court's failure to grant a mistrial when a witness
during the penalty phase referred to the fact that petitioner previously
had been on death row. Again, as with the "jury note" matter, the Oregon
Supreme Court held on direct review that the trial court did not abuse
its discretion in denying the motion for a mistrial based on the
reference. Pratt II, 316 Or at 583.
Petitioner's claim fails for the same reasons cited
above concerning the denial of the other mistrial motion: To the extent
that petitioner preserved any federal constitutional argument, it was by
way of cross-referencing the arguments made earlier in relation to the
denial of the mistrial motion described above, including a reference to
Patton. Appellate counsel reasonably did not advance an argument
based on Patton because that case was, factually and legally,
Petitioner next argues that appellate counsel was
inadequate for failing to make federal constitutional arguments in
support of his assignment of error challenging the denial of yet another
motion for a mistrial based on comments made by an alternate juror
during trial. Again, on direct review, the Oregon Supreme Court rejected
that assignment of error, concluding that the trial court had not abused
its discretion in denying the mistrial motion. Pratt II, 316 Or
Again, appellate counsel reasonably did not contend
that the failure to grant a mistrial based on misconduct by the
alternate juror violated petitioner's federal constitutional rights
because trial counsel did not raise and preserve such a contention.
See State v. Baker, 154 Or App 358, 363 n 2, 961 P2d 913, rev den,
327 Or 553 (1998) (where argument in trial court was framed exclusively
in terms of the Oregon Constitution, court would not consider for the
first time on appeal an argument under the United States Constitution).
Finally, petitioner contends that appellate counsel
in Pratt II provided inadequate assistance by failing to assert
federal constitutional arguments in relation to his assignment of error
concerning a jury instruction on the meaning of "beyond a reasonable
doubt." Appellate counsel did, in fact, advance certain federal
constitutional arguments in support of that assignment of error, and the
Oregon Supreme Court rejected them. Pratt, 316 Or at 576-77, 577
Petitioner asserts that counsel should have raised
additional and qualitatively different federal constitutional
contentions. However, once again, petitioner's trial counsel did not
raise and preserve the contentions that petitioner now asserts that
appellate counsel should have advanced on review. The post-conviction
court correctly determined that appellate counsel's failure to raise
unpreserved federal constitutional contentions did not constitute
inadequate assistance of counsel.
The post-conviction trial court properly denied post-conviction