1
Argued and submitted August 2, 2019, reversed and remanded October 6, 2021
JESSE LEE JOHNSON,
Petitioner-Appellant,
v.
Jeff PREMO,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
08C11553; A159635
499 P3d 814
Petitioner was convicted of aggravated murder and sentenced to death.
He petitioned for post-conviction relief on a number of grounds, and the post-conviction court denied relief on all of them. He appeals. In petitioner’s seventh
assignment of error petitioner contends that the post-conviction court, having
determined that counsel performed deficiently by failing to interview a witness,
should also have determined that the deficient performance prejudiced him, and
should have granted petitioner relief on that basis. The superintendent responds
that the post-conviction court correctly determined that petitioner was not prejudiced by counsel’s performance and the superintendent also cross-assigns error
to the post-conviction court’s determination that counsel performed deficiently.
Held: The post-conviction court erred by not granting relief on that claim. The
post-conviction court correctly determined that counsel performed deficiently,
but the court erred in determining that the deficient performance did not prejudice petitioner. Because the deficient performance could have had a tendency to
affect the result, petitioner was entitled to post-conviction relief on that claim.
Reversed and remanded.
Garry L. Reynolds, Senior Judge.
Ryan T. O’Connor argued the cause for appellant. Also
on the briefs were Jed Peterson and O’Connor Weber LLC.
Erin K. Galli, Assistant Attorney General, argued the
cause for respondent. Also on the answering brief were
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, Shannon T. Reel, Assistant Attorney
General, and Jordan R. Silk, Assistant Attorney General.
Also on the reply brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
2 Johnson v. Premo
Before Armstrong, Presiding Judge, and Shorr, Judge,
and Aoyagi, Judge.
ARMSTRONG, P. J.
Reversed and remanded.
Cite as 315 Or App 1 (2021) 3
ARMSTRONG, P. J.
Petitioner was convicted of aggravated murder
and sentenced to death. He petitioned for post-conviction
relief on a number of grounds, all of which were ultimately rejected by the post-conviction court. He appeals.
We write to address only petitioner’s seventh assignment
of error. In that assignment, petitioner contends that the
post-conviction court, having determined that counsel performed deficiently by failing to interview a witness, should
also have determined that their deficient performance prejudiced him, and should have granted relief on that basis.
The superintendent responds that the post-conviction court
correctly determined that petitioner was not prejudiced by
counsel’s performance and also has cross-assigned error to
the post-conviction court’s determination that counsel performed deficiently. We agree with petitioner and therefore
reverse and remand for the post-conviction court to grant
relief on that claim. Because petitioner’s seventh assignment of error will result in a new trial in the criminal case,
we need not address petitioner’s remaining assignments of
error.
We briefly set out background facts here and later
add more factual detail in relation to petitioner’s claim
concerning the failure to interview a witness—Patricia
Hubbard—as pertinent to our discussion. The Supreme
Court’s opinion in his direct appeal, State v. Johnson, 342
Or 596,
157 P3d 198 (2007), cert den,
552 US 1113 (2008),
contains some additional detail.
Harriet Thompson was stabbed to death in her
home in Salem in the early morning hours of March 20,
1998. Johnson, 342 Or at 598. Thompson’s upstairs neighbor
heard screaming at around 4:30 a.m. A witness told police
that petitioner had been in the victim’s home on the night of
the murder.
Id. Another witness described someone whose
appearance was similar to petitioner’s walking away from
Thompson’s home at about 6:15 a.m.
Id.
Police arrested petitioner on a probation violation
a week after the murder. Petitioner said that he knew the
victim but denied that he had ever been inside her home.
Police found fingerprints in the victim’s home that matched
4 Johnson v. Premo
petitioner’s, and a cigarette butt found inside the home was
later matched to petitioner’s DNA. Other evidence that was
more closely associated with the murder, such as the murder
weapon and blood, was collected inside the victim’s home.
Of the evidence that was DNA tested, none was matched
to petitioner. Petitioner had boots that had similar soles to
ones that had left prints in blood at the murder scene, but
petitioner’s boots did not test positive for blood.1
An informant told police that petitioner had shown
him some of the victim’s jewelry and told him that he “offed
the bitch to rob her.” An officer said that, when he asked
petitioner whether the informant was lying, petitioner had
replied, “No, he’s not.” The informant later recanted to one
of trial counsel’s investigators, but then at trial testified
against petitioner consistently with his statements to police.
Petitioner possessed jewelry that was identified by a witness
as matching Thompson’s.
Petitioner was charged with aggravated murder.
Before his criminal trial, he rejected an offer to plead guilty
to manslaughter and robbery and receive a 15-year sentence.
Petitioner was represented by two lawyers, to whom
we refer collectively as trial counsel, or counsel. Lead trial
counsel had previously worked on one or two capital cases.
Co-counsel had previously been involved in capital cases but
had never represented a defendant in the penalty phase of
a capital case. He had also worked on some capital cases in
the post-conviction context. Counsel had also attended continuing legal education seminars on the death penalty.
Petitioner was convicted of aggravated murder and
sentenced to death.
After his unsuccessful direct appeal, Johnson, 342
Or 596, petitioner filed a petition for post-conviction relief.
In his Fourth Amended Petition for post-conviction relief,
petitioner alleged in his first claim that he was denied the
1
Petitioner has raised a claim of error concerning his claim that trial counsel
performed inadequately and ineffectively in their handling of the boot evidence.
We need not resolve that claim, but suffice to say that, at trial, there was conflicting evidence available about petitioner’s boots and whether they connected petitioner to the crime scene, and petitioner’s trial counsel took conflicting positions
during the criminal trial concerning the boot evidence.
Cite as 315 Or App 1 (2021) 5
right to adequate and effective assistance of counsel under
Article I, section 11, of the Oregon Constitution and under
the Sixth Amendment of the United States Constitution due
to trial counsel’s failure to investigate. Within that claim,
petitioner alleged more specifically that, among other failures, trial counsel failed to interview Patricia Hubbard,
Thompson’s neighbor. The parties each addressed that claim
in their trial memoranda.
The post-conviction court concluded that trial counsel’s failure to interview Hubbard had amounted to deficient
performance. The court concluded, however, that petitioner
had not been prejudiced by that failure:
“The court finds that trial counsel failed to use reasonable skill in not interviewing Ms. Hubbard who live[d] right
across the street from the murder scene. However, taking
into consideration that the trial produced other evidence
that coincided with what she would have testified to and
the long period of time between the killing and when she
was asked to try [to] identify Petitioner[,] the court is not
persuaded that the absence of her testimony would have
prejudiced Petitioner.”
As noted, petitioner’s seventh assignment of error
concerns his claim that trial counsel’s failure to interview
Hubbard constituted inadequate and ineffective assistance
of counsel. The post-conviction court determined that counsel performed deficiently by not interviewing Hubbard, “who
live[d] right across the street from the murder scene.” But
it did not grant relief on that claim, because it concluded
that the deficient performance did not prejudice petitioner.
Petitioner assigns error to that ruling. The superintendent
cross-assigns error, arguing that the post-conviction court
erred in concluding that counsel’s performance was deficient. We reverse on petitioner’s assignment of error and
affirm on the cross-assignment.
We begin by expanding on the facts pertinent to
this claim. In her deposition, taken in 2013 in the context
of this post-conviction case, Hubbard explained that she
lived across the street and two houses down from the victim. She had a view of part of the victim’s property. She
worked long hours, and regularly was up late at night or in
6 Johnson v. Premo
the early morning. On the night that the victim was murdered, Hubbard was awake and was sitting on her porch
at about 3:45 a.m. She saw a white man drive up and park
his van in the victim’s driveway. She recognized the white
man as someone she had noticed at the victim’s home before,
“[m]any, many times.”
After the man went inside, within seconds, Hubbard
heard shouting and screaming coming from the house. There
was a male and a female voice. Hubbard recognized the male
voice as belonging to the white man she had noticed numerous times before at the property. She heard sounds like
pots and pans crashing and loud voices and screaming. The
screaming “got higher pitched and louder and more intense
on the volume the longer it went on.” She heard screaming,
then a thud, and then total silence.
The white man was in the victim’s house “[u]ntil
after the screaming stopped, and he [came] out the back
door and—didn’t even hit the steps. Just flew off the steps
and took off running at a northwest—flying northwest ….”
He had been in the house for about 30 minutes.
About 10 to 15 minutes after that, Hubbard testified, she saw a Black man walking down the driveway. She
could not say whether he had come from inside the house.
Hubbard thought it might be a man to whom she previously
had been introduced. Petitioner is Black, and the victim
had introduced Hubbard to him. When petitioner’s post-conviction team showed her petitioner’s photograph approximately 12 years after the murder, Hubbard said that he did
not look like the person whom she had seen that night.
The Black man was not running. “He was just …
kind of strolling out.” He rubbed his forehead “like he had a
headache or, you know, disbelief of something or, you know,
just kind of like—something wasn’t quite right.”
Hubbard received a call that she needed to go back
in to work, so she went inside. Later, at 11:00 a.m., she
received a call at work telling her that she had “better come
home.” There was a “commotion” in the neighborhood—
“[p]olice and the caution tape and the gawkers walking
around the neighborhood.”
Cite as 315 Or App 1 (2021) 7
Hubbard approached a uniformed police officer that
day. Hubbard told him that she had “some information that
might help with the problem you’ve got.” The officer told her
that he didn’t need her help and told her to go back home.
On another occasion, Hubbard testified, Shalonda
Washington, a neighbor who lived in a house only yards
away from the victim’s home, brought a Salem police detective to Hubbard’s house. According to Hubbard, “I started
telling him what I saw, and he stopped me, and he said,
‘that won’t be necessary.’ ” Moreover, Hubbard recounted,
the detective said, “A nigger got murdered, and a nigger’s
going to pay for it.”
Hubbard was never interviewed by trial counsel’s
investigators. Trial counsel’s investigators spent a total of
roughly six hours canvassing the neighborhood and speaking to witnesses. They did not speak to Hubbard. She was
later contacted and interviewed by investigators in this
post-conviction case.
The trial court found the following facts: Had she
been located, Hubbard would have testified that she had
heard screaming and arguing at the victim’s house and
saw two people leave—a Black man and a white man. She
could identify the white man because she had seen him at
the victim’s house before. “She did not recognize the Black
man, but when she was shown Petitioner’s photograph by
Petitioner’s post-conviction team approximately 12 years
after the incident she said he did not look like the [man] she
saw that night.”
The post-conviction court determined that trial
counsel failed to use reasonable skill by not interviewing
Hubbard, considering that she lived “right across the street”
from the murder scene. The court also concluded, however,
that petitioner was not prejudiced by that deficient performance: “[T]aking into account that the trial produced other
evidence that coincided with what she would have testified
to and the long period of time between the killing and when
she was asked to try [to] identify Petitioner the court is not
persuaded that the absence of her testimony would have
prejudiced Petitioner.”
8 Johnson v. Premo
As pertinent here, we review the denial of a claim
for post-conviction relief for legal error.2
For petitioner to prevail on a claim of inadequate
assistance of counsel based on Article I, section 11, he “must
demonstrate two things: that … counsel failed to exercise
reasonable professional skill and judgment and that he suffered prejudice as a result.” Gable v. State of Oregon, 353
Or 750, 758,
305 P3d 85, cert den,
571 US 1030 (2013). To
prevail on a claim based on the federal constitutional right
to counsel, petitioner likewise must establish that “counsel’s
performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland v. Washington,
466 US 668, 687,
104 S Ct 2052,
80 L Ed 2d 674 (1984).
“[T]he 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.” Montez v. Czerniak,
355 Or 1,
6-7,
322 P3d 487, adh’d to as modified on recons,
355 Or
598,
330 P3d 595 (2014). When a court considers whether a
lawyer’s conduct failed to meet constitutional standards, it
must “make every effort to evaluate [the] lawyer’s conduct
from the lawyer’s perspective at the time, without the distorting effects of hindsight.” Lichau v. Baldwin,
333 Or 350,
360,
39 P3d 851 (2002).
We first address the superintendent’s cross-assignment of error challenging the post-conviction court’s
determination that trial counsel performed deficiently by
not interviewing Hubbard. The superintendent argues that
the approximately six hours that defense investigators spent
canvassing the victim’s neighborhood was sufficient, that
police reports did not indicate that anyone at Hubbard’s
address had useful information, and that Hubbard was not
mentioned in any police report. In the superintendent’s view,
trial counsel’s investigation was reasonable, because police
officers had canvassed the neighborhood. According to their
reports, police had attempted to interview residents but
2
Petitioner also raises assignments of error in relation to claims on which
the post-conviction court granted summary judgment in favor of the superintendent. As noted above, in light of our disposition on petitioner’s seventh assignment of error, we do not reach petitioner’s other assignments of error.
Cite as 315 Or App 1 (2021) 9
“no one was home” at four nearby residences. In addition,
according to the reports, “[t]he residents”—none of whom
were identified—of four other homes “said they did not know
anything about the deceased or her residence.”
Petitioner argues to the contrary that the post-conviction court correctly determined that any reasonable
defense attorney would have recognized the importance of
interviewing the residents of the homes immediately surrounding the victim’s home, and that it was not reasonable
to stop attempting to contact those residents after only six
hours of canvassing the area and speaking to residents.
We agree with petitioner and the post-conviction
court. Adequate trial counsel would have recognized the
importance in a capital murder case of contacting the people nearby who were likely to have information about the
victim, people associated with the residence, and the events
of the night in question, when a violent murder occurred in
a nearby home in the early morning hours when many residents would likely have been at home. The post-conviction
court found that trial counsel’s investigators spent approximately six total hours of combined time canvassing and
interviewing witnesses in the neighborhood. According to
Hubbard, in addition to trial counsel’s investigators failing
to contact her directly, had they contacted another neighbor,
Shalonda Washington, Washington would have brought the
investigators to Hubbard or otherwise helped to put them in
touch with each other. That is a reasonable inference, considering that Washington brought a police detective to talk
to Hubbard just after the murder, and over a decade later
Washington also helped to put petitioner’s post-conviction
investigator in touch with Hubbard, telling the investigator
that Hubbard had information about what happened.
Further, the post-conviction investigator explained
that Washington’s house was the first one he visited in his
investigation, because it is so close to the victim’s house.
Although he spent many hours attempting to contact nearby
people in nearly 70 residences, the investigator explained
that Hubbard’s home was the second one he contacted.
Washington was a witness named in police reports, and she
pointed the investigator to Hubbard, whom the investigator
10 Johnson v. Premo
was able to contact and interview “with minimal persistence
and effort,” despite the fact that she had moved by the time
he contacted her. It was not a reasonable exercise of professional judgment to stop investigating after only six hours of
canvassing and interviews under these circumstances.
Having concluded that the post-conviction court did
not err in determining that trial counsel performed deficiently, we turn to petitioner’s argument that the court erred
when it concluded that petitioner suffered no prejudice as a
result of that deficient performance. Petitioner first argues
that the post-conviction court erred by applying the wrong
legal standard for determining whether trial counsel’s deficient performance prejudiced him. He next argues that, if
the court did apply the correct standard, it misapplied that
standard to the facts and should have come to the opposite
conclusion. Specifically, he argues that, had counsel had the
information Hubbard could have provided, that could have
tended to affect the result, because it could have affected
counsel’s strategy and could have raised doubts that would
have had a tendency to affect the jury’s verdict.
We begin with petitioner’s first argument, that the
post-conviction court applied the wrong standard for determining prejudice. Petitioner points to the post-conviction
court’s statement that it was “not persuaded that the absence
of [Hubbard’s] testimony would have prejudiced Petitioner.”
He argues that the court’s use of “would have” rather than
“could have tended to” implies that the court applied the
incorrect standard for determining prejudice. Putting its
statement in context, however, we are not persuaded that
the post-conviction court applied an incorrect standard. The
post-conviction court wrote a thorough memorandum of its
opinion. It correctly laid out the applicable legal standards
for claims under the Oregon and federal constitutions. That
it later used shorthand for the applicable standard does not
establish that the court used an incorrect standard, after
having correctly stated the standard. Specifically, the post-conviction court’s statement was not that it was not persuaded that Hubbard’s testimony would have affected the
outcome. Rather, it stated that it was not persuaded that the
testimony would have prejudiced petitioner. The reference to
prejudice implies that the court was applying the standard
Cite as 315 Or App 1 (2021) 11
for prejudice—which it had earlier correctly set out—and
not that it was stating the standard itself. Accordingly, we
reject petitioner’s argument that the post-conviction court
applied the wrong standard.
We agree, however, that, applying the correct standard, the post-conviction court reached an erroneous conclusion. As we will explain, we conclude that the deficient
performance by petitioner’s trial counsel did result in prejudice. We therefore reverse the post-conviction court’s denial
of that claim and remand for the court to grant relief.
Concerning prejudice, the post-conviction court concluded that “the trial produced other evidence that coincided
with what [Hubbard] would have testified to,” and it determined that, considering the long period of time between
the murder and her viewing of petitioner’s photograph, her
response to the question of whether petitioner was the Black
man that she saw that morning did not persuade the court
that there was prejudice. That is, the court determined that
it could not say that Hubbard’s testimony could have tended
to affect the outcome of the trial.
Petitioner argues that Hubbard’s testimony would
not have merely “coincided” with other testimony. He argues
that, instead, Hubbard’s testimony would have tended to
influence the jury, and also could have influenced counsel’s trial strategy in relation to other evidence and trial
decisions.
The superintendent responds that the trial court
correctly concluded that the evidence would not have
been helpful to petitioner at trial, because “nothing about
Hubbard’s testimony would have rebutted the state’s theory of the case.” The superintendent summarized the state’s
theory of the case at the criminal trial: At “around 4:30 a.m.
on March 20, 1998,” petitioner stabbed the victim to death,
“and left the area at around 6:15 a.m., when John Shaw saw
him walking in the area.” The superintendent argues that
Hubbard’s testimony would have corroborated the state’s
evidence.
Petitioner had a cellmate after his arrest, Schellong,
who testified in the guilt phase of petitioner’s trial that
12 Johnson v. Premo
petitioner had told him that petitioner had been at the victim’s home when a white man and a Black man, Sampson,
had also been there. Schellong testified that petitioner had
said that the victim was supposed to introduce him to her
drug dealer. When petitioner came out of a room, acting
like he was drunk, the white man left, but Sampson stayed.
Schellong said that petitioner told him that he and Sampson
talked, and, before leaving, Sampson told petitioner to go
through the victim to get his drugs. In the superintendent’s
view, “Schellong’s testimony is consistent with Hubbard’s
testimony that she saw a ‘white guy’ run from the victim’s
house, and then, five to fifteen minutes later, saw an African
American man walking down the alley.”
The superintendent also argues that Hubbard’s testimony would have corroborated the testimony of another
witness, Swafford. Swafford said that he saw petitioner at
the victim’s home the night of the murder. The superintendent asserts that Hubbard’s observation of a Black man
walking down the alley was consistent with Swafford’s observations. Finally, the superintendent argues that Hubbard’s
statement would not have been inconsistent with another
witness’s testimony. John Shaw testified that, sometime
between 6:10 and 6:30 a.m., he saw a man walking near the
victim’s home. Shaw did not identify petitioner as the man
he saw, but Schellong testified that petitioner had acknowledged that he was the person Shaw had seen.
We agree with petitioner that, had trial counsel
interviewed Hubbard, her testimony at trial could have
had a tendency to affect the outcome. Although there was
other evidence that “coincided with” Hubbard’s evidence,
that could have made her testimony more persuasive, not
less important. That is, corroboration works both ways.
Hubbard’s narrative—a white man arrived, after which
there was loud shouting, sounds like pots and pans crashing, and screaming, then the screaming stopped, and the
white man fled the house at great speed—was not duplicative of the state’s narrative, even if parts of it matched or did
not conflict with testimony by some of the state’s witnesses.
The state’s evidence was that a petitioner’s former cellmate
had testified that petitioner told him that a white man and
a Black man named Sampson had been at the house before
Cite as 315 Or App 1 (2021) 13
the murder, and that the white man had left first. That narrative is different in important respects from Hubbard’s.
Hubbard described sounds that could be inferred to have
been the murder, after which she saw the white man, whom
she recognized as a frequent visitor, “flying” from the victim’s home. In addition, Hubbard’s testimony included evidence of racial bias in the police investigation of the murder,
and a failure to properly investigate. Finally, trial counsel
had strategic choices to make about the defense theory of
the case. Counsel ultimately made choices that allowed
evidence that had previously been suppressed to be introduced at trial in support of a defense theory that petitioner
was present for the murder, but less culpable than the person who had left a distinct set of shoeprints. See Johnson,
342 Or at 617-23. Hubbard’s information could have helped
counsel to settle on a defense theory that was not partially
inculpatory.
The post-conviction court erred in concluding that
the failure to reasonably investigate did not prejudice petitioner’s case. A reasonable investigation would likely have
led to finding and interviewing Hubbard, which in turn
would have led to evidence and testimony that could have
tended to affect the outcome of the trial. Accordingly, we
reverse and remand for the trial court to grant relief on petitioner’s first claim for relief.
Reversed and remanded.
