397
Argued and submitted December 4, 2020, affirmed May 12, petition for review
denied October 14, 2021 (368 Or 637)
ALLEN TYRONE REED,
Petitioner-Appellant,
v.
Brandon KELLY,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
17CV13538; A170318
488 P3d 824
Petitioner sought post-conviction relief, alleging that he received inadequate
and ineffective assistance of counsel at trial. The post-conviction court denied
relief on all claims. On appeal, petitioner assigns error as to the denial of relief on
four claims, including a claim that counsel provided inadequate and ineffective
assistance by not objecting and moving for a mistrial when the prosecutor said
during closing argument that petitioner had “lots” of convictions for domestic-violence assault, where the evidence was that he had only one such conviction.
Held: The post-conviction court did not err in denying relief. Although the prosecutor misstated the evidence, it was reasonable for petitioner’s counsel not to
object under the circumstances, particularly because the trial court had already
instructed the jury twice that the lawyers’ statements were not evidence, including telling the jury immediately prior to closing statements, “The lawyers’ statements and arguments are not evidence. If your recollection of the evidence is
different from the lawyers’ recollection, you must rely on your own memory.”
Affirmed.
Dale Penn, Senior Judge.
Lindsey Burrows argued the cause for appellant. Also on
the brief was O’Connor Weber LLC.
Ryan Kahn, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
AOYAGI, J.
Affirmed.
398 Reed v. Kelly
AOYAGI, J.
Petitioner seeks post-conviction relief, asserting
that he received inadequate and ineffective assistance of
counsel at trial. The post-conviction court denied relief on
all of petitioner’s claims. On appeal, petitioner assigns error
to the denial of Claim 2, regarding counsel not exercising a
peremptory challenge as to a particular juror; Claim 6(e),
regarding counsel not objecting and moving for a mistrial
in response to a statement by the prosecutor during closing argument; Claim 7, regarding counsel not requesting
mental-state jury instructions on forcible compulsion; and
Claim 8, regarding cumulative error. We reject petitioner’s
arguments regarding Claims 2, 7, and 8 without discussion,
writing only to address Claim 6(e). For the following reasons, we affirm.
FACTS
Petitioner was tried on charges of second-degree
kidnapping, first-degree rape, first-degree sexual abuse,
first-degree sodomy, second-degree sexual abuse, coercion,
first-degree theft, and felon in possession of a firearm. The
kidnapping, coercion, and sexual charges involved crimes
against petitioner’s girlfriend, Y, while the theft and firearm
charges related to the theft of a rifle.
The evidence of the actual crimes is not material
to our discussion. What is material is that petitioner testified in his own defense at trial and, on cross-examination,
admitted to having numerous prior criminal convictions.
Many involved dishonesty, and one involved prior domestic violence. Specifically, petitioner testified to having two
identity-theft convictions, four theft convictions, one forgery
conviction, two failure-to-appear convictions, one giving-falseinformation-to-a-police-officer conviction, and one fourth-degree-assault-constituting-domestic-violence conviction.
In closing argument, the prosecutor walked through
each of the current charges. She then addressed petitioner’s and Y’s relative credibility, arguing that Y was more
credible than petitioner. She told the jury that every person is “presumed to tell the truth” and takes an oath to tell
the truth but that the jury could consider many things in
Cite as 311 Or App 397 (2021) 399
assessing a witness’s credibility, including the manner of
the witness’s testimony, the nature and quality of the witness’s testimony, contradictory evidence, evidence of the witness’s bias, motives, or interests, evidence of the witness’s
character for truthfulness, “and evidence that the witness
has been convicted of a prior crime.” The prosecutor then
attacked petitioner’s credibility, pointing out certain aspects
of his demeanor on the stand, and finishing by saying,
“Not only was his testimony about as incredible as you
can get, to top off, you certainly have the evidence that he’s
a convicted liar, essentially. He’s been convicted numerous
times of crimes of dishonesty. And I would submit to you
that he was entirely dishonest on the stand. He has lots of
convictions for domestic violence assault.”
The prosecutor then turned to Y’s testimony, comparing and
contrasting it with petitioner’s testimony, and arguing why
the jury should view Y as more credible.
The jury ultimately found petitioner guilty on all
charges.
Petitioner filed a petition for post-conviction relief,
which he later amended. In his amended petition, petitioner
asserts eight claims based on inadequate and ineffective
assistance of trial counsel. In Claim 6, petitioner identifies
11 statements made by the prosecutor in closing argument
that he views as improper in one way or another. Claim 6(e)
pertains to a statement quoted above: “He has lots of convictions for domestic violence assault.” As to that statement, the
petition alleges that the prosecutor made a “purposeful mischaracterization of the evidence to suggest [that petitioner]
had a propensity to commit acts of domestic violence.” As
with all of the statements identified in Claim 6, the petition
alleges that petitioner’s trial counsel should have objected,
moved to strike, asked the trial court to admonish the
prosecutor, sought a curative instruction, and moved for a
mistrial.
The post-conviction court denied relief on all
claims. On Claim 6, the court called out Claim 6(e) as the
one where it would agree that the prosecutor made a factual error in describing the evidence regarding petitioner’s
400 Reed v. Kelly
prior convictions. However, the court noted that it was a
brief statement in a long argument, viewed it as reasonable
for petitioner’s counsel not to object, and viewed the lack of
objection as not prejudicing petitioner. The court reasoned
that, if counsel had objected, the most that would have happened would have been the trial court reminding the jury
that the lawyers’ statements were not evidence. The trial
court had already instructed the jury twice on that point.
At the beginning of trial, it had instructed the jury that
“opening statements and closing arguments are intended to
assist you in understanding the evidence and applying the
law to that evidence” but “are not evidence.” Then, at the
close of evidence, immediately before the lawyers’ closing
arguments, it gave final instructions to the jury, including:
“The lawyers’ statements and arguments are not evidence.
If your recollection of the evidence is different from the lawyers’ recollection, you must rely on your own memory.”
ANALYSIS
“Post-conviction relief is warranted when there has
been a ‘substantial denial’ of a petitioner’s ‘rights under the
Constitution of the United States, or under the Constitution
of the State of Oregon, or both, and which denial rendered
the conviction void.’ ” Green v. Franke, 357 Or 301, 311,
350
P3d 188 (2015) (quoting ORS 138.530(1)(a)). On review, we
are bound by the post-conviction court’s factual findings if
supported by the record, and we review the post-conviction
court’s legal conclusions for errors of law. Horn v. Hill,
180
Or App 139, 141,
41 P3d 1127 (2002).
Under Article I, section 11, of the Oregon
Constitution, a criminal defendant has the right to adequate assistance of counsel. Krummacher v. Gierloff, 290 Or
867, 872,
627 P2d 458 (1981). To succeed on a post-conviction
claim based on that right, “a petitioner must establish, by a
preponderance of the evidence, that defense counsel failed
to exercise reasonable professional skill and judgment and
that the petitioner suffered prejudice as a result of counsel’s
inadequacy.” Delgado-Juarez v. Cain,
307 Or App 83, 90-91,
475 P3d 883 (2020) (internal quotation marks omitted).
On review of the denial of such a claim, we generally
conduct a two-step inquiry. First, we determine whether the
Cite as 311 Or App 397 (2021) 401
petitioner demonstrated by a preponderance of the evidence
that the lawyer failed to exercise reasonable professional
skill and judgment. Montez v. Czerniak,
355 Or 1, 7,
322 P3d
487, adh’d to on recons,
355 Or 598,
330 P3d 595 (2014). We
look to whether all reasonable lawyers would have acted
as the petitioner claims the lawyer should have. Maney v.
Angelozzi,
285 Or App 596, 608,
397 P3d 567 (2017); Pachl
v. Zenon,
145 Or App 350, 360,
929 P2d 1088 (1996), rev den,
325 Or 621 (1997). We make that evaluation from the
lawyer’s perspective at the time, “without the distorting
effects of hindsight,” and will not second-guess a lawyer’s
tactical decisions unless they reflect an absence or suspension of skill or judgment. Montez, 355 Or at 7. If we ultimately
conclude that the lawyer provided inadequate assistance,
then, second, we determine whether the petitioner proved
that it tended to affect the result of the trial. Id. There must
be more than a mere possibility that it affected the outcome,
but it need not be a probability. Green,
357 Or at 322. We do
not weigh the evidence but, rather, make a legal conclusion
about the likely effect of the inadequate assistance on the
verdict. State v. Mitchell,
300 Or App 504, 515, 515 n 6,
454
P3d 805 (2019).
A defendant also has the right to reasonably effective assistance of counsel under the Sixth Amendment to the
United States Constitution. Strickland v. Washington, 466
US 668, 687,
104 S Ct 2052,
80 L Ed 2d 674 (1984). To succeed on a post-conviction claim under the Sixth Amendment,
the petitioner must show that the lawyer’s performance was
deficient and that the deficiency was so serious as to deprive
the petitioner of a fair trial.
Id. We do not rely on hindsight
in assessing deficiency but, rather, must endeavor to reconstruct the circumstances at the time of trial and evaluate
the lawyer’s conduct from that perspective.
Id. at 689.
The state and federal standards are “functionally
equivalent,” Montez, 355 Or at 6-7. We limit our written discussion to Article I, section 11, but we reach the same result
on the federal constitutional claim, applying the Sixth
Amendment standard. See id. at 6 (noting that we interpret
and apply the state and federal standards independently of
one another).
402 Reed v. Kelly
With the applicable standards in mind, we turn to
Claim 6(e), regarding the prosecutor’s statement in closing
that petitioner “has lots of convictions for domestic violence
assault.” The post-conviction court acknowledged that, when
the prosecutor said that, she misstated the evidence regarding petitioner’s prior convictions. The court concluded, however, that it was reasonable for petitioner’s trial counsel
not to object under the circumstances. Addressing Claim 6
generally, the court recognized that there are strategic reasons to minimize objections during closing argument. As to
the statement in Claim 6(e) in particular, the court further
reasoned that, had petitioner successfully objected, all that
the trial court would have done was instruct the jurors to
rely on the actual evidence, rather than statements by the
attorneys, which are not evidence—an instruction that the
trial court had already given twice. For the same reason,
the post-conviction court viewed the lack of an objection as
not prejudicing petitioner.
Petitioner argues that the post-conviction court
“correctly determined that portions of the prosecutor’s closing argument were objectionable, but it erred by denying
relief based on its determination that any objection would
have been sustained.” Petitioner argues that the post-conviction court’s reasoning is flawed, because, “[i]f the trial
court had sustained the objection to the improper argument,
petitioner would have had a meritorious issue for direct
appeal.” By failing to object, petitioner argues, trial counsel
constrained appellate counsel’s ability to pursue the issue
on direct appeal.
We are confused by that argument. If petitioner’s
trial counsel had objected to the misstatement of the evidence, and the trial court sustained the objection (as petitioner posits), there would not have been an issue for direct
appeal. Rather, as the post-conviction court noted, the trial
court would have reminded the jurors to rely on the actual
evidence, not the lawyer’s statements—which it had already
instructed the jury twice—and that would have been the
end of it. We agree with the post-conviction court that
petitioner would not have been entitled to a mistrial (and,
relatedly, that it was not inadequate assistance for petitioner’s trial counsel not to move for a mistrial). Conversely, if
Cite as 311 Or App 397 (2021) 403
the trial court had entirely denied the objection, which seems
unlikely,1 petitioner could have challenged that ruling on
direct appeal, but the error would almost certainly have
been deemed harmless, due to the jury instructions already
given. See, e.g., State v. Rosenbohm,
237 Or App 646, 651,
241 P3d 344 (2010) (stating that “the jury instructions were
adequate to cure any prejudice caused by the prosecutor’s
misstatement” and that, “to the extent that the prosecutor’s
statements were different from the evidence presented at
trial, we presume that the jurors relied on their own memory of the evidence”).
We are therefore unpersuaded by petitioner’s argument and conclude that the post-conviction court did not
err in rejecting Claim 6(e). Had petitioner’s counsel objected
when the prosecutor misstated that petitioner had “lots”
of prior convictions for domestic violence assault—when
the evidence was that he had one such conviction—the
trial court presumably would have sustained the objection. However, the objection and the state’s response likely
would have had the effect of highlighting petitioner’s criminal history. Meanwhile, upon sustaining the objection, the
trial court would have reiterated the same instruction that
it had already given twice, including immediately before
closing arguments. Under the circumstances, it was reasonable for petitioner’s counsel not to object, and, in any event,
petitioner suffered no prejudice from the lack of objection
given the existing jury instructions. See Grant v. Coursey,
277 Or App 165, 178-79, 181,
370 P3d 892, rev den,
360 Or
235 (2016) (recognizing that it is improper for a lawyer to
make a factual assertion during closing argument that is
unsupported by the evidence, but a jury instruction normally “is adequate to cure any prejudice caused by a prosecutor’s misstatement,” and holding that the petitioner was
1
See State v. Morehead, 307 Or App 442, 449,
477 P3d 462 (2020) (recognizing the “absolute prohibition against referring to facts not in evidence” and
stating that “a trial court’s decision to allow a party to make a closing argument
that is based on facts not in evidence (by overruling a proper objection) can at
least generally be said to flow from a mistaken legal premise—i.e., that such
an argument can sometimes be permissible”—such that “a trial court generally
abuses its discretion when it overrules a founded objection to a closing argument
that refers to facts not in evidence”); Grant v. Coursey,
277 Or App 165, 178,
370
P3d 892, rev den,
360 Or 235 (2016) (“It is improper for counsel to make factual
assertions during closing argument that find no support in the record.”).
404 Reed v. Kelly
not prejudiced where “an objection to the prosecutor’s mischaracterization would have yielded the same instruction
that the jury had already heard multiple times” (internal
quotation marks omitted)).
Although that resolves the issue before us, we pause
to address a related matter to which petitioner alludes.
In Claim 6(e) of the petition, petitioner challenged two
aspects of the prosecutor’s statement about petitioner’s prior
convictions—that it was factually inaccurate, and that it
was meant “to suggest [that petitioner] had a propensity
to commit acts of domestic violence.” As we understand the
petition, petitioner claims that his trial counsel should have
both objected to the factual inaccuracy in the prosecutor’s
statement and requested an instruction that the jury not
use petitioner’s single domestic-violence assault conviction
“as evidence of his propensity to commit acts of domestic violence.” The post-conviction court focused on the former aspect
of the claim, as do the parties in their briefs on appeal, and
we have already explained why the post-conviction court did
not err in denying Claim 6(e) as it pertains to petitioner’s
trial counsel not objecting to the factual inaccuracy in the
prosecutor’s statement.
As for counsel not requesting a jury instruction not
to consider petitioner’s single assault conviction as propensity evidence, petitioner alludes to that issue in his opening
brief, summarily asserting that the prosecutor had a propensity purpose. The state responds in a footnote that it is
unlikely that reasonable defense counsel would have understood it that way, given the admissibility of the assault conviction for credibility purposes under OEC 609. See OEC
609(2)(a) (providing that, when a defendant is charged with
certain crimes and the defendant is a witness, evidence
that the defendant has been convicted previously of certain crimes against a family or household member, including fourth-degree assault, is admissible “for the purpose of
attacking the credibility of the defendant”). Consistent with
the state’s argument, we note that, in closing, before making
the challenged statement, the prosecutor had introduced the
issue of petitioner’s prior convictions as going to his credibility. Based on the arguments made, we are unpersuaded
Cite as 311 Or App 397 (2021) 405
that the post-conviction court erred with respect to the propensity aspect of Claim 6(e) or that all constitutionally adequate counsel would have requested a propensity instruction under these circumstances.
Accordingly, we hold that the post-conviction court
did not err by denying petitioner’s claims for post-conviction
relief.
Affirmed.
