Nelson v. Cain

326                   August 14, 2024               No. 560

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

               QUANDRAY J. NELSON,
                  Petitioner-Appellant,
                            v.
                       Brad CAIN,
                    Superintendent,
           Snake River Correctional Institution,
                 Defendant-Respondent.
              Malheur County Circuit Court
                  19CV02030; A175380

   J. Burdette Pratt, Senior Judge.
   Argued and submitted May 10, 2023.
   Jason Weber 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 Lisa M. Udland, Deputy
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Powers, Presiding Judge, Hellman, Judge, and
Armstrong, Senior Judge.
   POWERS, P. J.
   Affirmed.
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 (2024)                             327

        POWERS, P. J.
         Petitioner appeals from a judgment denying post-conviction relief in which he alleged that his attorneys, in
two separate trials, provided inadequate and ineffective
assistance of counsel. As explained below, because petitioner
did not meet his burden of proving prejudice, we conclude
that the post-conviction court did not err in rejecting petitioner’s claim of inadequate assistance of counsel for failing
to move for a mistrial after jurors saw him in wrist cuffs
and ankle shackles in the hallway. We further conclude that
trial counsel in both trials did not provide inadequate assistance of counsel for failing to object to the nonunanimous
jury verdicts. Accordingly, we affirm.
         The pertinent facts are relatively few and undisputed. Petitioner was twice tried for charges arising out of a
domestic violence incident in which he punched his domestic partner in the face, had sex with her against her will,
and took her vehicle. After he was convicted in the first
trial, petitioner appealed, and we affirmed his convictions
for fourth-degree assault and unauthorized use of a vehicle
and reversed his convictions for first-degree rape and first-degree sexual abuse based on an erroneous jury instruction.
See State v. Nelson, 

, 

 (2011),
rev dismissed, 

 (2012).
         On remand, the state retried petitioner for the sexual offenses. During jury deliberations of that second trial,
a group of at least three jurors saw petitioner in the hallway wearing his jail clothes, wrist cuffs with a belly chain,
and ankle shackles as sheriff’s deputies were transporting
petitioner from the courthouse to the jail for the weekend.
Petitioner told his trial counsel about the incident, and trial
counsel “made inquiries of the deputy sheriffs involved and
brought the matter to the court’s attention.” The substance
of those inquiries does not appear in the record, and trial
counsel made no motions regarding the matter. Ultimately,
the jury found petitioner guilty of two counts of first-degree
sexual abuse, third-degree sexual abuse, and first-degree
rape. In both trials, the juries’ verdicts included nonunanimous guilty verdicts.
328                                            Nelson v. Cain

         Petitioner sought post-conviction relief, alleging
various claims of inadequate assistance of counsel, including that his attorney for the second trial failed to request
a mistrial after the jurors viewed petitioner shackled in
the hallway and that his trial counsel at both trials failed
to object to the nonunanimous guilty verdicts. The post-conviction court denied petitioner relief on both claims. In so
doing, the post-conviction court explicitly found that there
“is no evidence that the juror[s] recognized [petitioner] or
that it had any impact on them. There is no evidence from
the viewpoint of the jurors.”
         We review the post-conviction court’s decision for
errors of law. Rojo-Garfias v. State of Oregon, 

, 

 (2022). We are bound by the post-conviction
court’s findings of historical fact if there is evidence in the
record to support them. 

 A criminal defendant’s right to
adequate and effective assistance of counsel is established
by Article I, section 11, of the Oregon Constitution and
the Sixth Amendment to the United States Constitution.
Antoine v. Taylor, 

, 

 (2021). To
establish a claim of inadequate assistance of counsel, a petitioner must prove by a preponderance of the evidence that
(1) trial counsel failed to exercise reasonable professional
skill and judgment and (2) petitioner suffered prejudice as
a result. Trujillo v. Maass, 

, 

(1991); see also Montez v. Czerniak, 

, 

, adh’d to as modified on recons, 

, 

(2014) (recognizing that the 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).
         On appeal, petitioner argues that an attorney exercising reasonable professional skill and judgment would
have sought a mistrial after learning that jurors had seen
him in shackles in the hallway. Visibly shackling a defendant in the courtroom during trial violates—absent exceptions not applicable in this case—state and federal constitutional principles about the presumption of innocence. See
State v. Washington, 

, 

, cert den,

, 

 (2014) (explaining that the use of
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physical restraints during a criminal trial “can impinge on
the presumption of innocence to which a defendant is entitled”); see also Deck v. Missouri, 

, 

, 

 (2005) (observing that the right to
remain free of physical restraints that are visible to the jury
has a constitutional dimension). Petitioner, however, has not
cited to any Oregon authority—and we have found none—
that addresses the issue of jurors briefly observing a criminal defendant in restraints outside of the courtroom and
whether that constitutes grounds for a mistrial.
          As the post-conviction court observed, courts in
other jurisdictions have concluded that jurors’ brief sightings of a shackled defendant, without more, does not constitute grounds for relief under the Sixth Amendment. See,
e.g., United State v. Taylor, 562 F2d 1345, 1359 (2d Cir 1977)
(observing that “[n]umerous cases support the proposition
that an inadvertent view by jurors of defendants in handcuffs, without more, is not so inherently prejudicial as to
require a mistrial” and citing cases); United States v. Olano,

 (9th Cir 1995) (observing that, even if some
jurors had seen the defendant in handcuffs as he entered the
courtroom, “a jury’s brief or inadvertent glimpse of a defendant in physical restraints is not inherently or presumptively
prejudicial to a defendant”); Ghent v. Woodford, 

 (9th Cir 2002) (explaining that where “a few jurors at
most glimpsed [the defendant] in shackles in the hallway
and as he was entering the courtroom,” that sort of “brief or
inadvertent glimpse of a shackled defendant is not inherently
or presumptively prejudicial, nor has [the defendant] made a
sufficient showing of actual prejudice” necessary to sustain
a constitutional claim (internal quotation marks omitted)).
Given that case law, it is not clear that every trial counsel
exercising reasonable skill and judgment would have necessarily sought a mistrial under the circumstances of this
case. See Miller v. Lampert, 

, 

 (2006)
(explaining that, “[m]easured against the law in effect at the
time of petitioner’s sentencing hearing, the performance of
petitioner’s trial counsel was constitutionally adequate”).
        Moreover, even if we were to assume that trial
counsel provided deficient performance by failing to seek a
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mistrial, petitioner has failed to prove the requisite prejudice necessary for post-conviction relief. To show prejudice,
petitioner must prove that his trial counsel’s acts or omissions could have tended to affect the outcome of the case.
Green v. Franke, 

, 

 (2015). Here,
as noted above, the post-conviction court found that there
was no evidence that the jurors recognized petitioner in the
hallway.
         Petitioner contends that prejudice must be presumed whenever a juror views a defendant in shackles
under Sproule v. Coursey, 

, 

 (2016) (recognizing that, “where the record shows that a
criminal defendant was restrained in a manner that could
not be effectively shielded from the jury’s view, there is a presumption that the shackles are seen by the jury and prejudice results” (internal quotation marks omitted)). That case,
however, involved the petitioner in the courtroom wearing a
leg brace, and we affirmed the denial of post-conviction relief
based on the petitioner’s failure to prove prejudice, viz., the
post-conviction court “was entitled to find that the jury was
unaware that [the] petitioner was restrained in the courtroom.” 

. Thus, because Sproule does not address
the issue presented in this case, we do not understand it to
absolve petitioner of his burden to show prejudice. Indeed,
as discussed above, the case law at the time of petitioner’s
trial was, at best, silent on the issue of jurors observing a
shackled defendant outside of the courtroom and contrary
to petitioner’s position on the issue of jurors briefly viewing a criminal defendant in restraints. See also Williams v.
Woodford, 

 (9th Cir 2004), cert den, 

 (2005) (explaining that “a jury’s brief or inadvertent glimpse of a defendant in physical restraints outside
of the courtroom does not warrant habeas relief unless the
petitioner makes an affirmative showing of prejudice” and
collecting cases). Accordingly, petitioner has not shown that,
had his counsel moved for a mistrial, it would have had a
tendency to affect the outcome of the case. See Green, 

 (explaining that the “tendency to affect” standard
requires that a petitioner show “more than mere possibility,
but less than probability” of an effect).
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         Finally, petitioner contends that trial counsel in
both his trials were inadequate and ineffective for failing
to object to the nonunanimous guilty verdicts. See Ramos v.
Louisiana, 

, 

, 

(2020) (holding that state convictions based on a nonunanimous jury verdict violate the Sixth and Fourteenth
Amendments to the United States Constitution). However,
Ramos was decided after both of petitioner’s trials. As we
explained in Smith v. Kelly, 

, 

 (2022), rev den, 

 (2023), which was decided
after petitioner sought post-conviction relief, the obligation for trial counsel to exercise reasonable professional
skill and judgment “does not encompass an obligation to
augur an about-face by the United States Supreme Court.”
Accordingly, the post-conviction court did not err in denying
petitioner relief on his claims for inadequate and ineffective
assistance of counsel.1
           Affirmed.




     1
       Our decision in this case does not foreclose the possibility of retroactive
relief for any nonunanimous jury verdicts under Watkins v. Ackley, 

,

 (2022).