Mandell v. Cain

                                    471

Submitted September 29, affirmed October 27, 2021, petition for review denied
                        April 7, 2022 (

)


                 DONALD LEE MANDELL,
                   aka Donald L. Mandell,
                    Petitioner-Appellant,
                              v.
                         Brad CAIN,
                      Superintendent,
             Snake River Correctional Institution,
                   Defendant-Respondent.
                Malheur County Circuit Court
                    18CV01911; A171428
                                

   J. Burdette Pratt, Senior Judge.
  Harrison Latto filed the opening brief for appellant.
Donald Lee Mandell filed the supplemental brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Affirmed.
472                                           Mandell v. Cain

        PER CURIAM
          Petitioner appeals from a judgment denying his petition for post-conviction relief. In his brief submitted through
counsel, petitioner assigns error to the post-conviction court’s
denial of relief on his claim that trial counsel was inadequate and ineffective, in violation of Article I, section 11,
of the Oregon Constitution and the Sixth Amendment to the
United States Constitution, for failing to object to alleged
vouching testimony. See, e.g., Gable v. State of Oregon, 

, 

 (2013) (stating standard for Article I,
section 11, claim); Strickland v. Washington, 

, 

, 

 (1984) (stating standard
for Sixth Amendment claim). In a pro se supplemental brief,
petitioner identifies 10 other alleged deficiencies with counsel’s performance. On review for legal error, Green v. Franke,

, 

 (2015), we affirm.
         Vouching. Petitioner contends that his trial counsel was inadequate and ineffective for not objecting to (1) a
question, which the prosecutor asked the detective who
interviewed petitioner, about discrepancies between petitioner’s version of events and the victim’s version of events;
and (2) the detective’s response to that question, about the
possible meanings of that discrepancy. Petitioner maintains
that this answer constituted impermissible vouching, that
the prosecutor’s question eliciting it was improper, and that
trial counsel should have objected to both.
         In response, the superintendent argues that petitioner’s claim about the question—as distinct from the
answer—was not alleged in his post-conviction petition, and
was not argued below, making it unpreserved. As for the
claim about the answer, the superintendent argues that the
detective’s statement did not constitute vouching. Because
the testimony was not vouching, the superintendent reasons, trial counsel reasonably did not raise a vouching objection and petitioner was not prejudiced by the omission of any
such objection.
         We agree with the superintendent. Petitioner’s contention that trial counsel was inadequate for not objecting to
the prosecutor’s question was neither alleged in the petition
nor otherwise argued below, so we reject it as unpreserved.
Cite as 

 (2021)                               473

As for the contention that trial counsel was inadequate for
not objecting to the detective’s testimony as impermissible
vouching, that fails because the testimony was not vouching testimony. “ ‘Vouching’ refers to the expression of one’s
personal opinion about the credibility of a witness.” State v.
Sperou, 

, 

 (2019). The detective’s
challenged statement here cannot reasonably be understood
to express the detective’s personal opinion about defendant’s credibility. Accordingly, because the testimony was
not vouching testimony, trial counsel did not perform deficiently when he did not raise a vouching objection, and petitioner was not prejudiced by the lack of a vouching objection
because it would not have succeeded. See Warren v. Baldwin,

, 

, rev den, 

(1996) (no prejudice results from trial counsel’s failure to file
a motion if the motion would not succeed).
         Pro se supplemental brief. In his pro se supplemental brief, defendant identifies 10 additional ways in which,
he contends, trial counsel rendered constitutionally deficient assistance. Those specifications are not supported by
adequately developed argument for us to consider them and
we reject them for that reason. See, e.g., State v. Dawson,

, 

, rev den, 

(2016) (Court of Appeals will decline to consider assignments of error that are not supported by adequately developed argument; court will not develop argument for a party).
In addition, we note that at least some of the specifications
were not included in the post-conviction petition. Although
petitioner filed a motion under Church v. Gladden, 

, 

 (1966), seeking to include them, the court
denied that motion and petitioner has not assigned error to
the court’s Church ruling. For that additional reason, the
contentions in the pro se supplemental brief do not supply a
basis for reversal. Blaylock v. Laney, 

, 523-
24, 

 (2021) (rejecting assignment of error that
failed to engage with the basis for the trial court’s ruling).
         Affirmed.