Jaynes v. Cain

                                      659

    Argued and submitted June 1, 2021; reversed and remanded as to claim
     regarding trial counsel’s failure to impeach Smith, otherwise affirmed
                                   May 18, 2022


                     JASON JAY JAYNES,
                      Petitioner-Appellant,
                                v.
                           Brad CAIN,
                        Superintendent,
               Snake River Correctional Institution,
                     Defendant-Respondent.
                  Malheur County Circuit Court
                      17CV30558; A169945
                                   

    Petitioner appeals from a judgment denying him post-conviction relief from
his convictions related to the sexual abuse of three minors. On appeal, petitioner assigns error to the post-conviction court’s denial of one of his inadequate
assistance of counsel claims as to three of those convictions, arguing that his
counsel’s failure to impeach a witness for the state deprived him of adequate
assistance of counsel under Article I, section 11, of the Oregon Constitution.
Held: Trial counsel’s failure to impeach the state’s witness regarding that witness’s subjective expectation of a future favor in exchange for his testimony was
not a reasonable exercise of professional skill and judgment, and there was more
than a mere possibility that counsel’s failure could have affected the relevant
verdicts. Accordingly, the post-conviction court erred in denying relief for those
convictions.
   Reversed and remanded as to claim regarding trial counsel’s failure to
impeach Smith; otherwise affirmed.



    J. Burdette Pratt, Senior Judge.
   Jason Weber argued the cause for appellant. Also on the
brief was O’Connor Weber LLC.
   Christopher Page, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Mooney, Presiding Judge, and Hellman, Judge, and
DeVore, Senior Judge.*
______________
   * Hellman, J., vice DeHoog, J. pro tempore.
660                                         Jaynes v. Cain

  HELLMAN, J.
    Reversed and remanded as to claim regarding trial counsel’s failure to impeach Smith; otherwise affirmed.
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        HELLMAN, J.
         Petitioner appeals from a judgment denying him
post-conviction relief from his convictions related to the sexual abuse of three minors. On appeal, petitioner assigns as
error the post-conviction court’s denial of one of his inadequate assistance of counsel claims as to three of those convictions, arguing that his trial counsel’s failure to impeach
a witness for the state deprived him of adequate assistance of counsel under Article I, section 11, of the Oregon
Constitution and the Sixth Amendment to the United States
Constitution. For the reasons below, we agree with petitioner
that counsel’s performance was deficient and that counsel’s
failure to impeach the witness prejudiced petitioner, that is,
the failure had a tendency to affect the outcome of the trial
for the challenged counts. Accordingly, we conclude that the
post-conviction court erred in denying relief for those convictions and reverse and remand.
                         I.   FACTS
          We state the relevant facts consistently with the
post-conviction court’s express and implicit findings. Davis
v. Kelly, 

, 

, rev den, 

 (2020).
         In 2013, petitioner was charged with 18 counts of
sexual offenses involving three minor victims. As relevant
to this appeal, five of those counts involved defendant’s
alleged assault of a 12-year-old victim, A, on March 22,
2000. Those were Count 1 (using a child in a display of sexually explicit conduct), Count 3 (second-degree rape), Count 4
(second-degree sodomy), and Counts 5 and 6 (first-degree
sexual abuse).
        While in jail awaiting trial on those charges, defendant was placed in an inmate “pod” with Craig Smith.
Smith was facing charges related to the injury of one of his
children. Smith pleaded guilty to criminal mistreatment on
December 27, 2013. After pleading guilty, but before his sentencing on December 31, 2013, Smith informed his lawyer
that petitioner had made incriminating statements to him
while they were sharing a pod; the statements concerned
662                                              Jaynes v. Cain

petitioner’s sexual offense charges and petitioner’s involvement in a murder.
         On the morning of Smith’s sentencing, police officers interviewed Smith, who told the officers that petitioner
had admitted his guilt on the sodomy charge concerning the
“younger” victim, who petitioner described as being “really
young,” and had described an instance of sodomizing that
victim but had denied having sex with her because “the bitch
wouldn’t give it up.” Smith also told officers information
that Smith could not have learned by reading police reports
related to petitioner’s alleged crimes, including that petitioner told Smith that he gave a “high five” to another man
as he left the bedroom where he had sex with A. During that
interview, Smith told officers that the way petitioner spoke
about the victims gave him “goose bumps,” which was one
of the reasons that he came forward. Smith also answered
“right” and “correct” when asked to confirm that “there’s
nothing that you expect from the DA’s office in exchange for
providing this information.”
        Smith was sentenced later that day in accordance
with the plea agreement that he had entered into before he
disclosed the conversations with petitioner.
         On January 7, 2014, a detective called Smith to ask
follow-up questions regarding his conversations with petitioner. When asked why he reached out to his attorney to
contact investigators, Smith said that he brought petitioner’s
statements up with his attorney because he was concerned
that he may be “guilty by association” if he did not disclose
his knowledge of petitioner’s confessions but reiterated that
he did not expect anything in return and came forward
because he “thought it was [his] moral obligation to let somebody know about it[.]”
        At the end of the January 7 call, Smith brought up
the custody of his children. He stated:
      “You know, you know my lawyer did say that you guys,
   you guys kind of owed me a favor for this? Like, you know,
   like a favor, but like, you know, something that, you know,
   could be being of use for me. Can, and one thing I was wondering if, is if, you know, the, my whole thing with my custody case. You know it’s looking like I’m probably not going
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   to get custody ‘cause of the spanking thing, and I, and I
   understand that.
      “…
      “But, you know, I mean, uh, it’s just, it just sucks being
   stuck in the situation that I’m in with, uh, my sex offense
   and, you know, having a felony now.
      “…
      “And, you know, like, I mean I thought I was gonna be
   a player in all this, like, being able to be with my kids and
   stuff like that. But, I can’t even see ‘em right now because
   the, the judge, the judge made a rule saying that I could,
   could see the kids as long as it was okay with my PO …
   and DHS.”
The detective told Smith that he could not help him or give
a favor, commended him for coming forward out of a “moral
obligation,” and told Smith to speak to his PO or attorney
about his custody case.
         At petitioner’s bench trial, the three victims, others
present at the house on March 22, 2000, and Smith testified.
One of the victims, L, testified that petitioner picked her, A,
and another girl, E, up from their foster home on the night
of March 22 and drove them to petitioner’s friend’s home.
E testified that at that home, A and L drank alcohol to the
point of visible intoxication and that she believed they were
also given ecstasy. E testified that she remained sober at the
home and identified petitioner as the person who had oral
sex with A and later high fived another male after leaving
the bedroom where A was undressed and intoxicated.
        A testified that she was at the house on March 22
and remembered having sex with an “older” male, but that
she was “pretty wasted” and could not identify petitioner as
the person who she had sex with.
         Smith testified on behalf of the state as to the conversations he had with petitioner in which petitioner admitted to sodomizing A. Toward the end of Smith’s testimony,
the prosecutor asked Smith if he had received “any kind of
special treatment from the District Attorney’s Office in order
to get [him] to testify about” petitioner’s confessions. Smith
responded that, other than being flown from Minnesota and
664                                             Jaynes v. Cain

put up in a hotel in order to testify, he had not received any
benefit. Smith clarified that he had signed his plea deal
before speaking to his lawyer about petitioner’s statements
and that his sentence was not affected by his cooperation.
         On cross-examination, petitioner’s trial counsel asked
Smith whether it was “fair to say that [he] came forward with this information because [he was] offended by
what [petitioner] did—or what [petitioner] said he did?”
Smith answered that he “came forward with the information because [he] felt [he] had an obligation [due] to that.”
Petitioner’s trial counsel then questioned Smith about his
own previous conviction for third-degree sexual abuse and
attempted to equate that crime to petitioner’s charges. Smith
distinguished himself from petitioner on the ground that he
did not “speak about [his] victim” in the same negative way,
which also motivated him to report his conversations with
petitioner. Trial counsel did not attempt to directly impeach
Smith by using Smith’s request for a possible favor in his
custody case to suggest that Smith had a motivation to fabricate petitioner’s confessions.
         The defense theory was that petitioner was not
present at the home. In support of that defense, trial counsel called two witnesses who were also in custody with petitioner. Both testified that they were friendly with petitioner
but never heard him talk about his own case. Trial counsel’s
closing argument focused on the unreliability of the witnesses’ memories who had placed petitioner at the home. He
did not directly address Smith’s credibility.
         As relevant to this appeal, the trial court found petitioner guilty of Counts 4, 5, and 6 concerning A—one count
of second-degree sodomy and two counts of first-degree sexual abuse. In explaining its guilty verdict on those counts,
the trial court reasoned:
   “[A]lthough the direct evidence from [A] was insufficient
   to prove anything other than her presence at the party on
   March 22, 2000, her testimony combined with that of others to prove some of the charges that concerned her.
      “Specifically, I believed the testimony of Craig Smith,
   who I find to have been very brave in his decision to come
   forward and reveal what he learned from [petitioner’s] own
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   lips while they were in jail together. I believe that [petitioner] told Mr. Smith that he is, quote, ‘definitely guilty’
   of the crime of Sodomy against the, quote ‘really young’
   victim, and it is very clear from all the testimony, and even
   from her physical appearance yesterday on the witness
   stand, that [A] has always appeared much younger than
   her years, and younger than the other named victims in all
   respects.
       “I also believe that [petitioner] admitted to Mr. Smith
   that the younger girl, quote, ‘had a really nice box,’ was,
   quote, ‘very hot,’ and that he fingered her and gave her oral
   sex and that she gave him oral sex. But that that was as far
   as it went, because in [petitioner’s] words, quote, ‘the bitch
   wouldn’t give it up.’
       “A confession in itself is insufficient under the law to
   support a conviction without corroborating evidence, but
   in this trial we do have some corroborating evidence, both
   from [A], who confirmed that she was at the party and
   having sex with someone, although she could not identify
   whom with any confidence, and from [E], who confirmed
   that [A] engaged in oral sex with [petitioner] at the party.”
         Relevant to this appeal, petitioner’s post-conviction
petition alleged that his trial counsel provided constitutionally deficient representation by failing to directly impeach
Smith with Smith’s statements regarding a possible favor in
his custody case in exchange for testifying about petitioner’s
incriminating statements.
          Petitioner’s trial counsel testified at the post-conviction trial. He testified that his strongest defense
strategy was to focus on the hazy memories of the victims
and witnesses. Counsel testified that he had possessed and
reviewed the transcripts of Smith’s interviews at the time
of trial, but that he did not recall Smith asking police for
a favor in exchange for his help as a “player in all this.”
Counsel testified that he did not raise any possible benefits
that Smith received in exchange for his testimony because
he did not see a “meaningful benefit” after the prosecutor confirmed with Smith that he had not received a more
lenient plea or sentence because of his testimony.
        Although trial counsel did not directly challenge
Smith’s credibility in his closing argument at trial, he
666                                              Jaynes v. Cain

testified that he chose to discredit Smith’s testimony by
instead calling other inmate witnesses who were closer to
petitioner in custody to show that it was unlikely petitioner
would have discussed his case with Smith, to whom he was
not as close. He testified that he did not ask Smith about
any possible favors received in exchange for his testimony
because he believed Smith’s sentence to be one that “one
would normally get for that level of felony,” because Smith
entered his plea before talking with the police, and because
Smith’s attorney also testified that Smith did not receive
any benefit for testifying.
          The post-conviction court denied petitioner’s claim
for relief. The court reasoned that, because Smith did not in
fact receive a benefit from the state for his testimony, failing
to directly impeach Smith did not amount to deficient performance. The court also concluded that petitioner was not
prejudiced by his trial counsel’s failure to impeach Smith
because the lack of credible evidence regarding any benefit
received meant that there was “no evidence that trial counsel’s failure to impeach Smith on that issue could have had
a tendency to affect the results of the trial.”
         On appeal, petitioner renews his argument that
he was deprived of constitutionally adequate counsel when
trial counsel failed to impeach Smith regarding Smith’s
possible motivations to fabricate petitioner’s confession. He
contends that the post-conviction court erred in concluding
otherwise. For the reasons below, we agree with petitioner.
                        II. ANALYSIS
          Under Article I, section 11, of the Oregon Constitution,
a criminal defendant has the right to adequate counsel.
Farmer v. Premo, 

, 

 (2018). “Similarly, the Sixth Amendment to the United States Constitution
guarantees the right to the ‘effective’ assistance of counsel.”
Sparks v. Premo, 

, 168, 

 (2017),
rev den, 

, cert den, 

, 

(2018) (citing Strickland v. Washington, 

,

, 

 (1984)). Although we interpret
and apply Article I, section 11, independently of the Sixth
Amendment, the standards for determining the adequacy
of legal counsel under both constitutions are “functionally
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equivalent.” Johnson v. Premo, 

, 

 (2017). In this case, state law is sufficient to decide the
issues on appeal.
         To be entitled to post-conviction relief based on a
claim of inadequate assistance of counsel under Article I,
section 11, a petitioner must prove two elements: first, that
trial counsel failed to exercise reasonable professional skill
and judgment, and second, that the petitioner suffered prejudice as a result of counsel’s inadequacy. 

.
A.   Reasonable Skill and Judgment
         We review the post-conviction court’s determinations concerning adequate performance of counsel for errors
of law. Davis, 

. Because of the multiple
variables that go into a criminal trial and the wide variety
of ways in which counsel can effectively represent clients,
Krummacher v. Gierloff, 

, 

(1981), there is “no single, succinct, clearly defined standard
for determining adequacy of counsel.” Stevens v. State of
Oregon, 

, 

 (1995). Instead, the
law provides “guidelines for the courts to use in the determination of each case,” 

 so that a court can “assess each
claim in the totality of the circumstances.” Krummacher,

-74 & n 5 (internal quotation marks omitted).
         Petitioner raises a claim that counsel failed to use
information that was known to him, so we evaluate whether
counsel’s “tactical decision” not to impeach Smith was a failure to exercise reasonable professional skill and judgment.
A “tactical decision” is a “conscious choice by a lawyer either
to take or 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.” Stevens, 

. An appellate court will not usually second-guess the tactical decisions of defense counsel in
the course of representing a criminal defendant. 

.
The fact that counsel made a “tactical choice,” however, does
not automatically mean that the constitutional standard for
adequate counsel has been met. 

. When weighing
the costs and benefits of taking or omitting an action in the
course of a defense, counsel must make that decision with
an “ ‘appropriate consideration of the risks and benefits.’ ”
668                                            Jaynes v. Cain

Farmer, 

 (quoting Montez v. Czerniak, 

, 

 (2014) (emphasis in Farmer)). Whether counsel’s decision reflected an absence of reasonable professional
skill and judgment is a question that turns on the facts
known to counsel at the time that counsel made the decision. Davis, 

.

         Here, the post-conviction court concluded that
counsel’s performance was not deficient because there was
no evidence that Smith received any benefit in exchange
for his testimony against petitioner. Because of that, the
post-conviction court reasoned that “[t]he trial judge would
have seen through any attempt to impeach Smith in [that]
manner.” In essence, the post-conviction court found that
a witness had to receive a benefit before impeachment was
warranted.

         However, a witness’s potential bias is not limited
to instances where the witness actually receives a tangible benefit in exchange for testimony. A witness can have
bias resulting from benefits he may subjectively expect or
hope to receive, whether or not those perceived benefits are
grounded in reality. See State v. Cox, 

,

 (1987) (explaining that a witness can be biased
by even the possibility of a future benefit, which can directly
affect the witness’s credibility).

         Smith’s statements to officers clearly show that he
subjectively hoped that he would receive a benefit related
to his custody issues for his testimony against petitioner.
Given the timing of the statements, it appears that Smith
did not believe that possible benefits from providing testimony against petitioner were limited by his previouslynegotiated plea and sentence. Indeed, Smith’s statements
show that he believed that he could still receive assistance
with his custody case, plea notwithstanding. That subjective hope provided a possible motivation to have fabricated
petitioner’s incriminating statements. It therefore directly
went to Smith’s credibility.

        Petitioner’s trial counsel believed that after the
prosecution established that Smith received no benefit for
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his testimony, there was nothing to be gained by otherwise
questioning Smith’s testimony. That was incorrect. The
prosecution’s line of questioning related to the lack of any
actual benefit. That issue was wholly different and apart
from Smith’s subjective hope that his testimony could be
exchanged for a future favor in his custody case. Neither
side questioned Smith about his personal interest in testifying as it related to his hope that he may be able to exchange
his cooperation for help in obtaining custody of his children.
Contrary to trial counsel’s reasoning, there was a benefit
to directly impeaching Smith using his statements during
interviews. It would have demonstrated Smith’s possible expectation of a future favor in exchange for his testimony; a well-recognized basis for impeachment. See State
v. Hubbard, 

, 

 (1984) (determining that an officer’s motive to avoid future departmental sanctions was relevant impeachment evidence); State v.
Presley, 

, 

 (1987) (explaining that
a witness’s subjective hope of a favor with a pending theft
charge was valid impeachment evidence).
          Respondent argues that directly impeaching Smith
would have introduced the risk of giving Smith an opportunity to testify that he came forward out of a “moral obligation.” But we cannot consider that potential reason for trial
counsel’s decision not to impeach Smith where nothing in the
record indicates that trial counsel himself appreciated that
risk. Delgado-Juarez v. Cain, 

, 

 (2020). Just because, upon reflection, either respondent
or this court could identify a number of considerations that
may have justified trial counsel’s decision not to impeach
Smith, we may not engage in post hoc rationalization in a
manner that does not reflect “ ‘counsel’s actual strategic reasoning.’ ” Farmer, 

 (quoting Montez, 

); Montez, 

 (“We agree, of course, that courts
may not indulge in post hoc rationalizations of trial counsel’s
decisions that contradict the evidence derived from their
actions.”). That is, we may not “simply disregard” the fact
that trial counsel’s decision was based in part on an inaccurate understanding of the potential benefits just because
there was “other accurate information that the attorney considered or may have considered.” Farmer, 

.
670                                                            Jaynes v. Cain

          Trial counsel’s testimony before the post-conviction
court does not reflect that avoiding another opportunity for
Smith to bolster his credibility was an actual risk that he
considered. There is no indication that trial counsel believed
impeaching Smith using his expectation of a favor in his
custody case would backfire on petitioner or carry any specific risk. Instead, as detailed above, trial counsel’s testimony shows that he believed there was no point to impeaching Smith on any ground where there was no evidence of
an actual benefit to Smith’s plea or sentence. To consider
that trial counsel had any risks in mind despite there being
no evidence of those risks in his testimony would constitute
impermissible post hoc rationalization.1
          Because the rationale that counsel relied on did not
reflect a reasonably accurate understanding of the benefits
of impeaching Smith by using his hope for a favorable outcome in his custody case, counsel’s decision to avoid directly
questioning Smith’s motives is not a tactical decision that
reflects the “appropriate consideration of the risks and benefits” described in Farmer. In a case where the state primarily relied on an inmate informant to prove the charges
against A, adequate counsel would have accurately assessed
that the benefits of impeaching Smith based on his subjective belief that someone would later owe him a favor in his
custody case outweighed the already-realized risks. Given
that trial counsel did not conduct an appropriate cost-benefit
analysis that accurately reflected either the potential benefits or risks of impeaching Smith, the post-conviction court
erred in concluding that he exercised the professional skill
and judgment that Article I, section 11, requires.
B. Prejudice
         To prove prejudice, a petitioner has to show that
trial counsel’s failure to impeach Smith “could have tended
to affect the outcome of the case.” Green v. Franke, 

       Further, even if we were to consider the superintendent’s alternative consideration, the risk that Smith may bolster his own credibility while testifying
had already been realized. During defense counsel’s own cross-examination of
Smith, Smith testified that he “came forward with the information because [he]
felt [he] had an obligation to do that.” Respondent’s rationalization of trial counsel’s reasoning as avoiding that risk is therefore not rooted in the record.
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301, 323, 

 (2015) (internal quotation marks and
emphasis omitted). The “tendency” to affect the outcome
standard “demands more than mere possibility, but less than
[a] probability” that trial counsel’s error could have affected
the ultimate outcome. Id.; see also Davis, 

(explaining that the prejudice question involves whether the
deficient performance affected the ultimate outcome of the
proceedings). Whether the error had a tendency to affect
the factfinder’s verdict is determined through an assessment of other evidence pertaining to the issue, considered in
light of the issues at trial in their entirety. Cunningham v.
Thompson, 

, 

 (2003), rev den,

 (2004).
         We review the post-conviction court’s prejudice
determination for errors of law, and our role is to make “a
legal conclusion about the likely effect of the error on the
verdict, not a finding about how the court views the weight
of the evidence of the defendant’s guilt.” Mitchell v. State of
Oregon, 

, 

 (2019) (internal
quotation marks omitted). “[I]n conducting our analysis, we
must be aware of the distorting effect of hindsight, which
includes a risk of confirmation bias, that is, a risk that, in
hindsight, there may be a tendency to view counsel’s errors
as having had no effect on what may seem to have been an
inevitable or foreordained outcome.” 

 (internal quotation
marks omitted).
         Upon review of the record, Smith’s credibility was
central to the prosecution in proving the counts related to
the sexual abuse of A. At trial, A could not remember much
about the night of March 22, 2000, other than that she was
at the home where the alleged events took place and that
she was assaulted by an older male. Although another witness present at the home, E, identified petitioner as the male
who sodomized A, the trial court explicitly recognized that
Smith’s statements were critical to the state’s case against
petitioner. The trial court acknowledged that A’s testimony
alone “was insufficient to prove anything other than her
presence at the party on March 22, 2000,” but that “her
testimony combined with that of others to prove some of the
charges that concerned her.” (Emphasis added.) The trial
court then “[s]pecifically” relied on “the testimony of Craig
672                                             Jaynes v. Cain

Smith,” who the trial court found “to have been very brave
in his decision to come forward and reveal what he learned
from [petitioner’s] own lips while they were in jail together.”
         As discussed above, Smith was never impeached by
trial counsel with his subjective belief or hope that his testimony might result in favorable treatment in his custody
case. Instead, the only evidence presented to the trial court
was that Smith’s plea and sentence were not affected by his
testimony. Trial counsel’s introduction of additional inmate
witnesses also focused on the unlikelihood that petitioner
would have trusted Smith with details of his crimes, rather
than any possible self-interest on the part of Smith. There
was therefore no evidence presented to the trial court about
Smith’s possible self-interest in testifying against petitioner.
         Where Smith’s testimony and credibility were central to the trial court’s guilty verdicts on the counts involving A, evidence suggesting that Smith came forward out of
self-interest rather than a “moral obligation” may well have
affected the weight given to Smith’s testimony by the trial
court. Ultimately, it is more than a mere possibility that it
would have made a difference to the trial court’s guilty verdict on those counts. Accordingly, we reverse and remand
the post-conviction court’s denial of petitioner’s first claim
for relief as related to trial counsel’s failure to impeach
Smith.
         Reversed and remanded as to claim regarding trial
counsel’s failure to impeach Smith; otherwise affirmed.