Johnson v. Premo , 361 Or. 688 ( 2017 )

688 August 3, 2017 No. 39
IN THE SUPREME COURT OF THE
STATE OF OREGON
MARTIN ALLEN JOHNSON,
Respondent on Review,
v.
Jeff PREMO,
Superintendent,
Oregon State Penitentiary,
Petitioner on Review.
(CC 06C16178; CA A154129; SC S064132)
On review from the Court of Appeals.*
Argued and submitted January 10, 2017.
Benjamin Gutman, Solicitor General, Salem, argued the
cause and filed the briefs for petitioner on review. Also on
the briefs was Ellen F. Rosenblum, Attorney General.
Daniel J. Casey, Portland, argued the cause and filed
the briefs for respondent on review. Also on the briefs was
Robert L. Huggins, Jr.
Jeffrey Erwin Ellis, Portland, filed the brief on behalf
of amicus curiae Oregon Criminal Defense Lawyers
Association.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, and Nakamoto, Justices, and Brewer, Senior
Justice pro tempore.**
BREWER, S.J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
_______________
**  Appeal from Marion County Circuit Court, Don A. Dickey, Judge. 277 Or
App 225, 370 P3d 553 (2016).
**  Baldwin, J., retired March 31, 2017, and did not participate in the decision
of this case. Flynn and Duncan, JJ., did not participate in the consideration or
decision of this case.
Cite as 361 Or 688 (2017) 689
Case Summary: Petitioner, who was convicted of aggravated murder and
sentenced to death, sought post-conviction relief, alleging that he received inad-
equate assistance of counsel in violation of Article I, section 11, of the Oregon
Constitution. More particularly, petitioner alleged that his trial counsel failed
to adequately investigate the cause of the victim’s death. At the criminal trial,
the state presented evidence that petitioner had strangled the victim, and peti-
tioner’s defense counsel offered evidence instead that petitioner had drowned the
victim but had done so in a county other than the county in which he was tried,
and therefore argued that petitioner should be acquitted based on the state’s fail-
ure to prove the proper venue. At his post-conviction trial, petitioner presented
evidence that the opinions of both the state and defense experts that testified at
the criminal trial as to the cause of death were incorrect, and the victim actually
died of a morphine overdose. The post-conviction court granted petitioner a new
trial, and the Court of Appeals affirmed. Held: Petitioner received inadequate
assistance of trial counsel. To be entitled to post-conviction relief based on inade-
quate assistance of counsel, a petitioner must show that counsel failed to exercise
reasonable professional skill and judgment, and that the petitioner suffered prej-
udice as a result of counsel’s inadequacy. Tactical decisions made by counsel must
be grounded on reasonable investigation. In this case, counsel knew there was a
discrepancy between petitioner’s factual account of what had occurred and what
the state and defense forensic experts opined had occurred. Counsel also knew
that the medical evidence as complicated, and that there was evidence that the
victim had ingested numerous drugs before her death. In that circumstance, and
in light of the undesirability of the venue defense, counsel should have sought out
additional information concerning the drugs in the victim’s system at the time of
her death, in order to try to develop a theory that petitioner’s killing of the victim
was unintentional, or alternatively, in the penalty phase that, even though inten-
tional, it was not the type of crime for which the death penalty should be imposed.
Affirmed.
690 Johnson v. Premo
BREWER, S. J.
In a two-phased jury trial, petitioner was convicted
of aggravated murder and sentenced to death for killing
a fifteen-year-old girl, HF. The state’s theory of the case
was that petitioner had killed HF intentionally in further-
ance of, or in an effort to conceal, the commission of sexual
offenses against her. This court affirmed his convictions and
sentence. State v. Johnson, 340 Or 319, 131 P3d 173, cert
den, 359 US 1079 (2006). Petitioner then brought this action
for post-conviction relief, asserting that he received inad-
equate assistance of trial counsel in violation of Article 1,
section 11, of the Oregon Constitution. The post-conviction
court granted relief on one ground and denied relief on
other grounds, and the Court of Appeals affirmed. Johnson
v. Premo, 277 Or App 225, 370 P3d 553 (2016). Respondent
sought review in this court. On review, we conclude that
the post-conviction court and the Court of Appeals correctly
determined that petitioner is entitled to post-conviction
relief.
At petitioner’s criminal trial, the state presented
evidence that petitioner drugged HF with morphine, raped
her, strangled her to death, then threw her body off a bridge.
Petitioner did not testify. The sole defense theory presented
by his trial counsel, Walker and Peters, was that HF had
not died by strangulation as theorized by the state, but,
instead, had died of drowning after petitioner threw her off
the bridge. As a consequence, counsel argued, petitioner was
entitled to an acquittal because the state had not initiated
the prosecution in the county in which he had drowned HF.1
As noted, that defense was unsuccessful, and the jury con-
victed petitioner and sentenced him to death.
In this post-conviction proceeding, petitioner
asserted, among other things, that the venue defense that his
criminal trial counsel advanced had virtually no chance of
persuading a jury to acquit him. More specifically, petitioner
1
Venue generally lies in the county in which the offense occurred. ORS
131.305. At the time of petitioner’s criminal trial, venue was considered an ele-
ment of a criminal offense. In State v. Mills, 354 Or 350, 312 P3d 515 (2013), this
court concluded that venue was not an element of an offense that needed to be
found as fact by a jury beyond a reasonable doubt.
Cite as 361 Or 688 (2017) 691
argued that, because, based on the evidence in the record,
the jury could have found that the place of HF’s death could
not be readily determined, a venue defense was not viable
in light of the alternative venue provisions of ORS 131.325.2
Moreover, counsel’s sole reliance on such a weak technical
defense made the penalty phase of his trial (during which
the jury considered aggravating and mitigating factors
and determined whether a sentence of death is appropri-
ate) much more challenging. Petitioner asserted, instead,
that his counsel should have pursued a morphine-overdose
theory of the case, in light of petitioner’s statement to his
defense team that he woke up after having sex with HF and
discovered that she was dead. Petitioner further asserted
that, if counsel had consulted a toxicologist, they would have
developed credible evidence that HF died of a drug overdose,
thus rebutting the state’s evidence that she died by stran-
gulation. With respect to the issue of prejudice, petitioner
argued that counsel’s failure to pursue a more viable theory
of defense that actually conformed to petitioner’s story had
a tendency to affect the outcome of his criminal trial. The
post-conviction court agreed with petitioner with respect
to that claim and, accordingly, granted relief. The Court of
Appeals affirmed.
The state’s primary argument on review is that
defense counsel, having retained an expert who opined
that the cause of the victim’s death was drowning, was not
required to seek out additional experts to try to establish
a cause of death—morphine-overdose—that had been ruled
out by both prosecution and defense experts. As explained
below, we do not view the relevant inquiry as how many
experts should have been consulted; the evaluation of coun-
sel’s adequacy is more nuanced than that. The dispositive
2
ORS 131.325 provides:
“If an offense is committed within the state and it cannot readily be
determined within which county the commission took place, * * * trial may be
held in the county in which the defendant resides, or if the defendant has no
fixed residence in this state, in the county in which the defendant is appre-
hended or to which the defendant is extradited.”
The state initially alleged that the crimes had occurred in Washington County,
but amended the indictment to allege venue under ORS 131.325. The state pre-
sented evidence at the criminal trial that petitioner resided in, and later was
extradited to, the county in which he was tried.
692 Johnson v. Premo
issue, rather, is whether adequate trial counsel would have
attempted to develop a theory of defense that HF already
was dead from a drug overdose when petitioner threw her
body off the bridge.
I. FACTS
A.  Evidence Adduced at Petitioner’s Criminal Trial
We recount the pertinent facts adduced at peti-
tioner’s criminal trial. On February 23, 1998, HF went to
petitioner’s house in Washington County to play computer
games. Petitioner previously had provided HF with drugs
and alcohol, and had expressed sexual interest in her.
The following day, HF’s body was discovered on a beach in
Clatsop County near the Astoria Bridge at the mouth of the
Columbia River. Petitioner fled the state shortly after being
interviewed by police concerning his possible involvement in
HF’s death, and he was not apprehended for almost a year.
At trial, the state presented evidence that peti-
tioner had driven to the Astoria area and that HF’s
blood was found on his car. The state’s medical examiner,
Dr. Hartshorne, opined that HF had died by strangulation,
noting fingerprint-shaped bruises on her neck and petechiae
on her face. In addition, the state’s evidence showed that HF
had a significant amount of morphine in her system, and
semen in her vagina matched petitioner’s DNA. The state
introduced evidence that petitioner “habitually preyed on
underage girls, taking them to nightclubs, providing them
with alcohol and drugs, engaging them in consensual sex-
ual relations when possible and, most significantly, sexu-
ally abusing them while they were rendered unconscious by
drugs that he had provided to them.” Johnson, 340 Or at
321.3
Petitioner’s counsel adduced expert testimony from
Dr. Ferris, a forensic pathologist who had extensive experi-
ence in examining bodies recovered from water. Noting in
particular that water and silt had been found in her lungs,
3
Much of the initial focus of petitioner’s defense team had been on trying to
exclude evidence of petitioner’s history of drugging and sexually assaulting other
teenagers, but that strategy ultimately proved unsuccessful. See 340 Or at 337-
42 (concluding that such evidence was admissible under OEC 404(3)).
Cite as 361 Or 688 (2017) 693
Ferris opined that the victim had not died from strangula-
tion but, rather, had drowned. Both Ferris and Hartshorne
opined that the amount of morphine in the victim’s system
was insufficient to have caused her death. Ferris character-
ized the amount of morphine in the victim’s body as rela-
tively low, although Hartshorne believed that the amount
was significant enough that it could have affected the vic-
tim’s ability to fight off a strangulation attack. Both Ferris
and Hartshorne acknowledged that the victim showed signs
of pneumonia from having aspirated vomit, which they con-
cluded had occurred when she was unconscious due to the
morphine.
In sum, there was unrefuted evidence that petitioner
had had sexual intercourse with the victim, that the victim
had been rendered unconscious due to morphine ingestion,
that there were injuries on the victim’s body, including her
neck, and that petitioner had thrown her off a bridge.
The disputed facts centered on how—and by exten-
sion where—petitioner had killed the victim, not on whether
he had killed her. In light of Ferris’s testimony, petitioner’s
trial counsel argued to the jury that petitioner should be
acquitted of aggravated murder because the crime had not
occurred in Washington County as alleged by the state but,
instead, was committed in Clatsop County when petitioner
threw HF off the bridge. It followed, defense counsel argued,
that the state had failed to prove the venue element of the
offense. Defense counsel acknowledged the terms of ORS
131.325, but argued that that statute did not authorize venue
in Washington County because the place of the victim’s death
readily could be determined to be Clatsop County.
As noted, counsel did not present any ground for the
jury to acquit petitioner other than the venue defense, nor
did counsel argue that there was any basis to convict peti-
tioner of a lesser crime, although the jury was instructed
on lesser-included offenses. The jury convicted petitioner of
aggravated murder and sentenced him to death.
B.  Evidence Adduced at the Post-Conviction Trial
In this proceeding, petitioner asserted, in pertinent
part, that both Hartshorne and Ferris were wrong about
694 Johnson v. Premo
the cause of HF’s death, and that she actually died of a drug
overdose. Petitioner alleged that his trial counsel was inad-
equate in failing to develop and present that theory of death
to the jury. More specifically, petitioner asserted that his
counsel should have developed a theory that HF had con-
sensually taken drugs and had sex with him,4 and that she
had died of an accidental overdose.
In support of that claim, petitioner adduced evi-
dence that, early in the investigative process, he had told his
defense team that, shortly before her death, HF had will-
ingly consumed alcohol, marijuana, morphine and other opi-
oids with him. He also indicated that they had engaged in
sexual intercourse. According to petitioner’s account, he fell
asleep, awakened at one point to find HF choking and vom-
iting, and helped her to the bathroom. He fell asleep again,
and when he awoke later, he discovered that she was dead.
He then wrapped her in a blanket, put her in his car, drove
her to the coast, then threw her off the Astoria Bridge.
Conflicting evidence was presented as to whether
petitioner also told the defense team that he was not sure
whether HF was dead when he threw her off the bridge. The
trial court did not explicitly resolve that factual issue. It did,
however, make several findings of fact and conclusions of law
that implicitly resolved that conflict in the evidence in favor
of petitioner’s story that he had told counsel that the victim
had died in Washington County.5 Accordingly, we accept the
post-conviction court’s implicit factual determination that
4
Petitioner has referred at various points to the sexual contact as “consen-
sual.” We understand petitioner’s use of the term “consensual” to be colloquial
rather than legal. Under Oregon law, a 15-year-old cannot “consent” to sexual
intercourse. See generally State v. Ofodrinwa, 353 Or 507, 300 P3d 154 (2013).
5
In particular, the post-conviction court stated:
“Walker admits that Petitioner told him that Petitioner found HF dead in bed
* * *. So trial counsel knew that unless Petitioner was quite mistaken over
a period of some time and after close contact with the body handling it in
different occurrences, it was likely as a fact that HF was dead when she left
Washington County. * * *
“* * * * *
“[Walker and Peters] reasonably knew that even with difficulties of
presenting morphine overdose (for example, it might reasonably ‘require’
Petitioner to take the stand), factually it was an option. * * *
“* * * * *
Cite as 361 Or 688 (2017) 695
defense counsel knew that the venue defense was inconsis-
tent with their client’s version of the facts.
The majority of petitioner’s evidence in support of
the pertinent claim consisted of expert testimony that the
victim did not die either from strangulation or from drown-
ing, but, rather, that she died from a drug overdose. Among
other evidence, petitioner presented testimony from Ferris,
who, as noted, had testified at the criminal trial that the
victim died from drowning. Ferris testified in the post-
conviction proceeding that, despite his former opinion, he
had come to believe that HF actually died of a morphine
overdose. Ferris further testified that petitioner’s trial coun-
sel had withheld information from him about petitioner’s
account that he had found the victim dead in bed before
throwing her off the bridge.
The post-conviction court explicitly found Ferris not
to be credible, concluding that his testimony was not “help-
ful in any manner” to petitioner.6 However, the court did
credit testimony that petitioner presented from two addi-
tional expert witnesses, Dr. Julien and Dr. Ophoven. Julien,
a retired anesthesiologist, opined that the amount of mor-
phine in HF’s body was sufficient to have caused her death,
and concluded that it was “very likely” that she had died of
a morphine overdose, assuming she had not developed a tol-
erance to opioids. Ophoven, a forensic pathologist, testified
similarly that HF had a potentially lethal level of morphine
in her bloodstream. Ophoven also testified that she did not
observe clinical findings typically associated with drown-
ing, and that the injuries to HF’s neck were not indicative of
death by strangulation, given the lack of damage to internal
structures in her neck. Although Ophoven could not defini-
tively rule out other possible causes of death, she ultimately
opined that HF likely had died of a morphine overdose. Like
“[Walker and Peters] knew that if Petitioner was correct as to where she
died, that as a fact, HF did not die by drowning because she was already
dead.”
(Emphasis in original.)
6
The post-conviction court noted extensive evidence in the record that coun-
sel had informed Ferris that petitioner had asserted that HF had overdosed on
drugs, which contradicted Ferris’s testimony at the post-conviction trial.
696 Johnson v. Premo
Julien, Ophoven based her opinion on an assumption that
HF had not built up a tolerance to opioids.
The state’s expert witness at the post-conviction
trial, Dr. Rosenblum, an anesthesiologist, did not offer an
opinion as to the likely cause of HF’s death. However, he
conceded that the amount of morphine in HF’s system “could
actually represent a lethal dose.”
C.  The Post-Conviction Court’s Decision
The post-conviction court acknowledged that there
was evidence that Walker had considered the morphine-
overdose theory as a defense.7 However, the court opined
that, if defense counsel had “considered and pursued” that
theory, they would have either (1) not presented Ferris’s
opinion as to the cause of death and instead have prepared
to use petitioner as a witness in support of a drug overdose
theory of death; or (2) sought the opinion of a toxicologist
to support an overdose theory of death. The post-conviction
court acknowledged that the first alternative alone would
not have been viable, in light of petitioner’s vulnerability to
impeachment on cross-examination,8 as well as the strength
of the medical examiner’s testimony.
The post-conviction court’s analysis, therefore,
rested on whether counsel should have pursued the sec-
ond possibility. The court acknowledged that an overdose
theory might, in fact, have required petitioner to take the
stand, but the court nevertheless concluded that it “factu-
ally it was an option.” (Emphasis in original.) The court
explained that the drowning theory advanced by Ferris not
only was inconsistent with petitioner’s version of the facts,
but “there was virtually little chance that any jury would
acquit upon Petitioner’s defense which acknowledged that
7
In particular, the post-conviction court cited Walker’s deposition testimony
that Ferris’s confidence about the cause of HF’s death factored into his decision to
pursue the drowning theory rather than a morphine-overdose theory.
8
As noted above, the defense team knew from pretrial rulings that evidence
would be admitted about petitioner’s prior drugging and sexual assaults of other
teenaged victims. In addition, petitioner had a criminal history and other pend-
ing criminal charges. Given those factors, as well as the facts that petitioner had
related to the defense team about what had occurred, we understand the post-
conviction court to have recognized that adequate counsel would have understood
the significant risks of having petitioner testify.
Cite as 361 Or 688 (2017) 697
Petitioner killed [HF].” The court similarly described the
venue defense that counsel had pursued as “more than just
distasteful,” and one on which a jury was “very unlikely” to
acquit.
The post-conviction court concluded that, in light
of the patent weakness of the venue defense,9 trial counsel
could “not simply hide behind the expert’s opinion because
trial counsel knew there was another factual defense which
was at least plausible even if it was difficult under the cir-
cumstances to prove.” The court ultimately concluded:
“The point here isn’t that trial counsel made an informed
choice after due diligence toward being well informed on
potential defenses, but that trial counsel limited the uni-
verse of options from which to make an informed decision
by choosing not to consider hiring a toxicologist. Thus, trial
counsel made a choice of defense without due diligence
toward being informed.”
The court further concluded that petitioner was
prejudiced by counsel’s failure to pursue the overdose the-
ory; the court noted, in particular, that all the experts at the
post-conviction trial had testified that the amount of mor-
phine found in HF’s system was, at least possibly, a fatal
level. The court therefore granted petitioner relief in the
form of a new trial.
D.  The Court of Appeals Opinion
On appeal from the ensuing judgment, the Court
of Appeals rejected the state’s assertion that the post-
conviction court’s conclusion meant, in effect, that adequate
counsel always must consult additional experts to seek opin-
ions supporting a factual theory advocated by the client, even
after multiple experts already had ruled out that theory.
Johnson, 277 Or App at 236. Relying on this court’s decision
in Lichau v. Baldwin, 333 Or 350, 361, 39 P3d 851 (2002),
and the post-conviction court’s determination that counsel
knew that a drug overdose theory of defense was “plausi-
ble,” the Court of Appeals concluded that counsel’s decision
to limit the investigation of that defense “was not based on a
9
Peters acknowledged in the post-conviction trial that he understood the
venue defense to be very undesirable.
698 Johnson v. Premo
reasonable evaluation of the likely costs and potential ben-
efits to petitioner.” Johnson, 277 Or at 239 (internal quota-
tion marks and citations omitted). In particular, the Court
of Appeals noted that the post-conviction court had found
that “a request to hire a toxicologist would most likely have
been granted because there would not have been any time
or cost constraints associated with the request.” Id. As the
Court of Appeals saw the calculus, the costs of pursuing the
investigation would have been minimal, “while the benefit
of pursuing the overdose defense could have been immense.”
Id.
The Court of Appeals also rejected the state’s argu-
ment that petitioner had not shown that he was prejudiced
by counsel’s failure to further investigate and present a
defense based on a drug overdose theory. The state had
asserted that, because petitioner was not willing to testify,
he was not prejudiced by counsel’s failure to pursue that
theory, which the state viewed as dependent on petitioner’s
testimony. The Court of Appeals rejected that argument
for two reasons. First, the court noted, the record did not
establish that petitioner was unwilling to testify under any
circumstances, but only that he was not willing to testify
if the venue defense was presented. Id. at 241. Second, the
Court of Appeals concluded, if necessary, counsel could have
presented the factual basis for the overdose theory without
petitioner’s testimony. Id.
The Court of Appeals did not view the drug over-
dose theory as a complete defense of the sort that could have
resulted in petitioner’s outright acquittal. Rather, the Court
of Appeals stated:
“We emphasize that petitioner was prejudiced by his
attorneys’ lack of due diligence even though evidence that
the victim died of a morphine overdose might simply mean
that petitioner caused the victim’s death in a different way.
Testimony from a toxicologist that the victim died from a
morphine overdose would have allowed petitioner’s defense
counsel to argue that petitioner was guilty of a different
offense—such as manslaughter, ORS 163.118(1)(a); crim-
inally negligent homicide, ORS 163.145(1); or felony mur-
der not committed intentionally, ORS 163.115(1)(b)—that,
unlike aggravated murder, does not implicate the death
Cite as 361 Or 688 (2017) 699
penalty. Alternatively, the evidence could have allowed the
jury, even if it convicted petitioner of aggravated murder,
to find that petitioner did not ‘deliberately’ cause the vic-
tim’s death, a finding that would result in a sentence of life
imprisonment without the possibility of parole but not in a
sentence of death.”
Id. at 240-41 (footnote and citation omitted). Accordingly,
the Court of Appeals upheld the judgment granting peti-
tioner post-conviction relief.
On review before this court, the state contends that
the post-conviction court and the Court of Appeals erred
in concluding that counsel provided inadequate assistance.
The state posits that, as a matter of law, when a qualified
defense expert who has been informed of the relevant facts
opines that the evidence does not support a possible defense
theory, counsel is not constitutionally inadequate for fail-
ing to seek additional expert opinions to contradict such an
opinion.10
II. ANALYSIS
To be entitled to post-conviction relief based on
inadequate assistance of counsel, a petitioner must show
that counsel failed to exercise reasonable professional skill
and judgment, and that the petitioner suffered prejudice as
a result of counsel’s inadequacy. Trujillo v. Mass, 312 Or 431,
435, 822 P2d 703 (1991). To demonstrate prejudice, a peti-
tioner must show that counsel’s failure had “a tendency to
affect the result of his trial.” Lichau, 333 Or at 359. Although
this court interprets and applies Article I, section 11, inde-
pendently of Sixth Amendment jurisprudence concerning
the effectiveness of counsel, we have “recognized 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.” 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) (citing cases). As the Court stated in Strickland
v. Washington, 466 US 668, 688, 104 S Ct 2052, 80 L Ed 2d
10The state has not entirely abandoned its arguments concerning prejudice,
but it has not separately briefed that issue before this court, instead relying on
its arguments before the Court of Appeals with respect to that issue.
700 Johnson v. Premo
674 (1984), to demonstrate ineffective assistance of counsel,
a petitioner must show that trial counsel’s performance “fell
below an objective standard of reasonableness.” And, if a
petitioner proves that counsel was ineffective, he or she also
must show that there was a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.” Id. at 694.
In evaluating counsel’s performance, we view the
conduct in question “without the distorting effect of hind-
sight.” Lichau, 330 Or at 360. That, however, can be eas-
ier said than done. In every post-conviction case, a court
is called on to evaluate counsel’s actions and omissions in
circumstances that resulted in the petitioner’s conviction.
Thus, in hindsight, a court may tend to scrutinize counsel’s
decisions in an overly critical light, given the known out-
come, and be more inclined to conclude that the petitioner
received inadequate assistance of counsel. That type of hind-
sight reflects “outcome” bias. See generally Stephanos Bibas,
The Psychology of Hindsight and After-the-Fact Review of
Ineffective Assistance of Counsel, 2004 Utah L Rev 1 (2004)
(discussing this type of bias). In contrast, given the known
outcome of conviction, there may be a tendency to evaluate
the second prong of the inquiry—whether counsel’s ineffec-
tive assistance had a tendency to affect the outcome—with
a confirmation bias. That is, 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.” Id., 2004 Utah L Rev at 3. In sum, in the absence
of disciplined scrutiny, the distorting lens of hindsight could
make a court more likely to view counsel’s decisions as inad-
equate, but make it less likely to view counsel’s errors as
having had a tendency to affect the outcome.
In the present case, as explained below, the ques-
tion whether counsel provided inadequate assistance is a
close one. But, unlike in many cases, this is not the type
of case in which it would one would readily conclude that
there was no prejudice. That is, unlike cases in which a ret-
rospective view might suggest a foreordained outcome, in
this situation, there is a significant dispute concerning one
of the most crucial facts in any death penalty case: How did
Cite as 361 Or 688 (2017) 701
the victim die? And even where, as in this case, there is
no serious dispute that petitioner caused the victim’s death,
a jury’s determination of how the death occurred not only
could affect the degree of the petitioner’s culpability, but
also obviously could affect the jury’s determination whether
petitioner should receive the death penalty. Accordingly, our
focus—like the state’s focus in its arguments on review—is
primarily on the question whether counsel provided inade-
quate assistance.
A.  Ineffective Assistance of Counsel under Article I, section
11
As noted, to establish inadequate assistance of
counsel, a petitioner must demonstrate by a preponderance
of the evidence that counsel “failed to exercise reasonable
professional skill and judgment.” Montez, 355 Or at 7. As we
have long recognized, “any statement of the standard of per-
formance constitutionally required of counsel must neces-
sarily be general.” Krummacher v. Gierloff, 290 Or 867, 873,
627 P2d 458 (1981). That is, what constitutes adequacy in
formulating and executing a defense depends on the “nature
and complexity of the case.” Id. at 875.
As for the “nature” of the underlying criminal case
here, petitioner was charged with aggravated murder, and
the state sought the death penalty. Simply put, there is no
greater crime, or more severe penalty, under state law, and
no type of criminal case requires more care in preparation.
In addition, the factual complexity of petitioner’s crimi-
nal case was manifest. It is true that part of the evidence
was straightforward: The state had strong evidence that
petitioner, who had a history of drugging and raping teen-
aged girls, drugged and raped HF and then killed her. In
addition, counsel knew that petitioner had acknowledged
that he provided the drugs to the victim, that he had sex
with her, and that he threw her off a bridge. However—
and taking care not to view the issue in hindsight—the
forensic evidence known to the defense team was far from
conclusive. The information provided by the state’s medical
examiner and the defense pathologist was extensive, com-
plex, and in conflict as to the cause of the victim’s death.
Both experts recognized, in developing their opinions, that
702 Johnson v. Premo
there was much data to be considered: There were physi-
cal injuries to the victim’s body; water, silt and aspirated
vomit in her lungs; semen in her vagina; and drugs in her
bloodstream.
In sum, there was overwhelming evidence that
numerous crimes had been committed against the 15-year-
old victim. That evidence, however, provided more questions
than answers as to precisely how she had died. This was a
complex case in terms of the forensic evidence. And, it was
a death penalty case. Those circumstances counseled care
in the development of a trial strategy that, in the best of
circumstances, would be difficult.
Of course, the test for adequacy of assistance of
counsel “allows for tactical choices that backfire, because, by
their nature, trials often involve risk.” Krummacher, 290 Or
at 876. “[I]f counsel exercises reasonable professional skill
and judgment, a reviewing court will not second-guess the
lawyer in the name of the constitution, but neither will the
court ignore decisions made in the conduct of the defense
which reflect an absence or suspension of professional skill
and judgment.” Id. at 875-76. Before assessing whether a
tactical choice is reasonable, though, there is a preliminary
factual question as to whether a choice was made at all.
See Pereida-Alba v. Coursey, 356 Or 654, 670-73, 342 P3d
70 (2015) (remanding for post-conviction court to make fac-
tual determination, given conflicting evidence in record as
to whether counsel made conscious choice about whether to
forego requesting jury instruction); Green v. Franke, 357 Or
301, 320-21, 350 P3d 188 (2015) (remanding for determina-
tion whether counsel made tactical choice not to request lim-
iting instruction). As this court noted in Pereida-Alba,
“whether the failure to consider an issue constitutes inade-
quate assistance will turn on, among other things, whether
the strategy that defense counsel did employ was rea-
sonable, the relationship between the evidence or theory
that defense counsel failed to consider and the strategy
that counsel did pursue, and the extent to which counsel
should have been aware of the strategy that petitioner now
identifies.”
Pereida-Alba, 356 Or at 674 (citing Montez, 355 Or at 24).
Cite as 361 Or 688 (2017) 703
In this case, the post-conviction court determined
that “trial counsel limited the universe of options from
which to make an informed decision by choosing not to con-
sider hiring a toxicologist. Thus, trial counsel made a choice
of defense without due diligence toward being informed.” In
light of the broader context of the court’s decision, we under-
stand it to have meant that trial counsel did not make a
reasonable tactical decision not to pursue a drug overdose
theory: There was uncontradicted evidence that Walker
considered the theory and rejected it in light of Ferris’s cer-
tainty that HF had drowned and the potential problems
with having petitioner testify. Thus, we understand the
post-conviction court to have determined that counsel made
a tactical decision to forego a morphine-overdose defense in
favor of a venue defense, but that that decision was unrea-
sonable because counsel had not undertaken an adequate
investigation of the relevant facts that, in turn, would have
required hiring a toxicologist to review the forensic evidence.
As this court has observed on numerous occasions,
“tactical decisions must be grounded on a reasonable inves-
tigation.” Gorham v. Thompson, 332 Or 560, 567, 34 P3d 161
(2001) (citing Krummacher 290 Or at 875; Stevens v. State,
322 Or 101, 108, 902 P2d 1137 (1995)). In Lichau, this court
considered whether the petitioner’s trial counsel had made
a “reasonable investigation” in the context of his decision
to withdraw from the jury’s consideration the petitioner’s
alibi defense. We discuss that decision, and Stevens, in some
detail, because those decisions provide helpful guidance in
determining what constitutes a reasonable investigation of
a factual theory of defense.
In Lichau, the petitioner had been charged with
numerous sexual offenses against his 11-year-old niece. 333
Or at 352. At the time of the alleged offenses, the petitioner
had been stationed at a military base on the East Coast.
Defense counsel prepared an alibi defense, based on mili-
tary records, that the petitioner was not in Oregon when
the offenses were committed. On the morning of trial, how-
ever, the prosecutor threatened to present evidence that did
not appear on official military leave records that the peti-
tioner had been on military leave in Oregon at the time of
704 Johnson v. Premo
the crimes. Id. at 353. Counsel withdrew the alibi defense in
anticipation of reviewing the prosecutor’s evidence, but the
prosecutor never provided the evidence. Id.In the ensuing post-conviction action, the petitioner
argued that adequate counsel would have determined, after
a sufficient investigation, that the petitioner had not, in
fact, been on leave in Oregon at the time of the offenses or,
alternatively, would have reinstated the alibi defense when
the prosecutor failed to provide the touted evidence about
petitioner’s military leave. Id. at 354. Evidence at the post-
conviction hearing established that defense counsel had
relied entirely on military records provided by the prosecu-
tion, and had not attempted to subpoena any military records
before trial. Id. Evidence at the post-conviction hearing also
showed that the petitioner had not been on leave at the time
of the alleged offenses, and that proof of that fact could have
been obtained if counsel had subpoenaed the petitioner’s
military records, interviewed witnesses, and obtained other
documents such as the petitioner’s bank statements and cor-
respondence. Id. at 356-57.
Ultimately, this court agreed with the post-
conviction court that defense counsel had failed to conduct an
adequate investigation, noting that counsel had limited his
preparation of the alibi defense to reviewing materials pro-
vided by the state, seeking information from the petitioner’s
prior lawyer (who provided no relevant information), and
contacting the petitioner’s parents. Id. at 360-61. This court
acknowledged that the petitioner had told defense counsel
that he was uncertain of his whereabouts at the time of the
alleged crime, but, in this court’s view, that fact was not dis-
positive: counsel knew that the petitioner had been stationed
at a military base thousands of miles away, and the peti-
tioner had told counsel “that military records demonstrating
that he had no taken leave in June 1989 were available and
that supervisors might be able to confirm” that he was at the
base at the pertinent time. Id. at 361. This court therefore
concluded that counsel’s decision to limit his investigation of
the alibi defense was not “based on a reasonable evaluation
of the likely costs and potential benefits” to the petitioner. Id.(quoting Stevens, 322 Or at 109).
Cite as 361 Or 688 (2017) 705
Stevens likewise involved a failure to adequately
investigate a possible factual theory of defense. In that case,
the petitioner was charged with the rape of a child that was
alleged to have occurred as he drove her to school. The child
testified to the details of the alleged offense, and further
testified that upon arrival at school, she had told one of her
teachers what had occurred. No physical evidence corrobo-
rated the crime. Id. at 103-04. Although the petitioner told
defense counsel that he was not physically capable of having
committed the crime due to impotence, counsel did not seek
information about the petitioner’s physical condition from
his urologist. Id. at 104, 106. In addition, counsel did not
interview the child’s teachers or peers at her school. Id. at
105. Had counsel done so, he would have discovered that the
child had not, in fact, reported a rape to her teacher, that
she had told various classmates different stories about what
had occurred, and that she had revealed to classmates that
her mother intended to sue the petitioner for “money.” Id. at
105-06. This court stated:
“In investigating a case, a lawyer inevitably is faced
with choices as to what avenues of investigation to pursue.
A ‘tactical decision’ in the course of an investigation is a
conscious choice by a lawyer either to take or to omit some
action on the basis of an evaluation of the nature and com-
plexity of the case, the likely costs and potential benefits of
the contemplated action, and other factors. But the fact that
a lawyer has made a ‘tactical decision’ does not mean that
the lawyer’s choice meets the constitutional standard for
adequate assistance of counsel. Indeed, this case illustrates
the point. Considering the nature and complexity of this
case, trial counsel’s choice not to interview the complaining
witness’s teachers and classmates was a ‘tactical decision,’
but it did not result in adequate representation of peti-
tioner. The complaining witness’s statements to classmates
suggested a possible motive to fabricate (i.e., obtain money
through litigation). The teachers’ testimony would have
impeached the testimony of the parents of the complaining
witness. The conflicting accounts to classmates regarding
the location of the alleged rape would have impeached the
complaining witness’s account at trial. Medical evidence of
impotence would have contradicted part of the complaining
witness’s testimony.
706 Johnson v. Premo
“Trial counsel’s decision not to interview potential wit-
nesses at the complaining witness’s school was not a choice
that was based on a reasonable evaluation of the likely
costs and potential benefits of pursuing the investigation.”
Id. at 109.
In some ways, the present case was more compli-
cated factually than either Lichau or Stevens. Here, there
was no evidence that counsel knew of some specific witness
or evidence that might assist in developing a drug overdose
theory, yet failed to follow through with contacting that per-
son or seeking that evidence. Still, counsel had a wealth of
relevant information to consider. They knew that their cli-
ent believed that the victim had died in his bed after he
had given her drugs and had sex with her, and they at least
implicitly understood that petitioner believed that the vic-
tim had died of a drug overdose. They knew, in contrast,
that the medical examiner who examined the victim’s body
believed that she had been strangled.
Given the discrepancy between what petitioner said
had occurred and the medical examiner’s conclusion, coun-
sel needed to—and did—obtain more information about the
cause of the victim’s death. In particular, counsel obtained
the opinion of an experienced forensic pathologist who had
performed thousands of autopsies. In the normal course,
counsel might reasonably expect such an expert either to
confirm the client’s version of what had occurred or confirm
the state’s version of events. This case, however, did not fol-
low that course. Instead, the expert added a third possible
theory of how the victim’s death had occurred: by drowning.
Contrary to petitioner’s suggestions, it is unlikely
that any of the three possible theories of death would have
produced a strong defense in his criminal case. Bluntly, if
the theory was death by strangulation, there was ample
evidence that petitioner strangled the victim; if the theory
was death by drowning, there was ample evidence that peti-
tioner drowned the victim, albeit not in the county in which
the prosecution was commenced; and, if the theory was
death by drug overdose, there was ample evidence that peti-
tioner gave the victim the drugs that caused the overdose.
Moreover, although the state pursued the strangulation
Cite as 361 Or 688 (2017) 707
theory, none of the three theories of death necessarily was
incompatible with a charge of aggravated murder committed
in the course of, or to conceal, sex crimes committed against
the victim.
Although petitioner suggests that pursuing the
overdose theory could have led to an outright acquittal on
the charges, that seems at least as improbable as the pros-
pects for the venue defense that was presented. Petitioner’s
position appears to be that a factual defense could have been
presented that HF had voluntarily ingested the drugs, vol-
untarily had sex with petitioner, and then accidentally died
from an overdose. But, such a theory would have required
counsel to argue that HF was neither physically nor men-
tally incapacitated due to the allegedly lethal dose of mor-
phine when petitioner had sex with her, and that the sexual
contact was not forcible. As noted, the state presented evi-
dence to the contrary,11 and convincing a jury that the victim
was not incapacitated by an amount of morphine that ulti-
mately killed her could have proven extremely difficult, even
if petitioner had testified to that effect in his own defense.
Nonetheless, pursuing such a defense had one
major advantage—unlike the competing cause of death the-
ories, neither of which could easily be characterized as unin-
tentional, with a drug overdose theory, counsel could have
argued that the homicide did not constitute aggravated mur-
der because it was not committed intentionally.12 Although
such an approach would have left petitioner vulnerable to
conviction for a variety of lesser offenses, it had the potential
to remove the death penalty from the equation. Simply put,
it is impossible to overstate the importance of that consider-
ation in a capital murder case.
In addition, even if an overdose theory had not
succeeded in the guilt phase and the jury had convicted
of aggravated murder, that theory would have laid better
11
As this court observed in the opinion on direct review, the state presented
evidence that HF was a lesbian in support of its theory that she would not have
willingly had sexual contact with petitioner. Johnson, 340 Or at 342.
12
Every charge of aggravated murder that the state alleged in the underly-
ing criminal proceeding was based on allegations that the crime was committed
intentionally.
708 Johnson v. Premo
groundwork for arguing in the penalty phase that the jury
should not impose a sentence of death. In the penalty phase,
the jury was required to answer four questions, including
a specific question about whether the offense was commit-
ted “deliberately,” and a more open-ended question about
whether “the defendant should receive a death sentence.”
ORS 163.150(1)(b)(A), (D). It is reasonably possible that
a jury, in considering those questions, could view a death
caused by drug overdose as less heinous than one caused by
strangulation or intentional drowning, and therefore be less
inclined to impose the death penalty.
The state counters that petitioner’s “refusal to coop-
erate [with defense counsel] left them with little confidence
in any approach based on a theory of accidental death.”
(Emphasis added.) That, however, is an overstatement. It
is true that the record shows that petitioner had no interest
in pursuing a strategy that would have involved acknowl-
edging that he had strangled the victim. It is also true that
petitioner was not forthcoming with his defense team and
was unhelpful in numerous respects. Those facts, however,
do not foreclose the possibility that petitioner would have
been more cooperative if counsel had pursued a strategy
based on facts that matched, at least in a general sense, the
account that petitioner gave his defense team about the cir-
cumstances of the victim’s death.
The state remonstrates that the field of forensic
pathology includes interpretation of toxicological tests, and
that both of the criminal trial expert’s reports included such
interpretations. Thus, the state suggests, adequate defense
counsel should not have been expected to seek additional
information from a toxicologist because they already had
expert opinions that encompassed the subject of toxicology.
To be sure, the state’s position has some force. We do not
suggest that, whenever a homicide involves the use of drugs,
the opinions of forensic pathologists about the cause of the
victim’s death must be supplemented by information from a
toxicologist. Here, however, the information that the defense
team had at hand should have prompted adequate counsel
to seek additional information about the effects of the drugs
found in the victim’s body. First, as noted, petitioner told
counsel that he and the victim had taken not only morphine,
Cite as 361 Or 688 (2017) 709
but numerous other drugs, and also had consumed alcohol.
He also told the defense team that the victim had vomited
after taking morphine. Second, although the medical exam-
iner ruled out morphine overdose as a cause of death, his
report indicated that her morphine level was significant
enough that HF would have had difficulty resisting an
assault. He also indicated that there was evidence that HF
had aspirated vomit at some point before her death and that
a drug screen had revealed marijuana metabolites in HF’s
urine. Third, although Ferris, like the medical examiner,
ruled out morphine overdose as a cause of death, his report
suggested that the victim likely had aspirated vomit while
unconscious due to morphine, and he also opined that mor-
phine levels are very difficult to interpret.
Notably, the forensic data available to defense coun-
sel tended to confirm important aspects of petitioner’s ver-
sion of what had occurred—that HF may have had multi-
ple intoxicating substances in her system at the time of her
death, and that she had vomited due to morphine ingestion
at some time before her death. In sum, all the evidence indi-
cated that drugs had played a significant role in the events
that surrounded HF’s death. As the state points out, when
counsel has “reason to believe that pursuing certain inves-
tigations would be fruitless or even harmful, counsel’s fail-
ure to pursue those investigations may not later be chal-
lenged as unreasonable.” Strickland, 466 US at 691. Here,
however, the conflicting information from the experts, not
only about the cause of HF’s death but also about the role
that morphine and other intoxicants may have played in
the circumstances surrounding her death, was sufficient to
give adequate counsel reason to believe that further inquiry
about toxicology would not necessarily be “fruitless.” As for
the extent to which it could have been “harmful,” counsel
was well aware before trial commenced that the state would
present evidence of petitioner’s history of drugging teen-
aged girls with morphine in order to have sexual contact
with them. In other words, counsel knew that “harmful”
evidence would be presented about the victim having poten-
tially incapacitating levels of morphine in her body, as well
about petitioner having likely given her that morphine. In
those circumstances, seeking additional information about
710 Johnson v. Premo
the significance of the morphine and other drugs in HF’s
system should not have been foregone on the premise that
such a quest was likely to be “harmful” to the defense.
What constitutes “reasonable professional skill
and judgment” in defending criminal charges is a highly
fact-specific inquiry. Here, the information that defense
counsel had—both from their own client and from discov-
ery and independent investigation—suggested no defense
that had great merit. As a matter of common sense, though,
counsel not only should have realized—but did realize—that
a venue defense provided no reasonable prospect for acquit-
tal. Moreover, that defense had the significant drawback of
essentially acknowledging that petitioner had committed
aggravated murder, and had done so in a particularly cal-
lous manner by throwing a youth whom he had sexually
assaulted off a bridge.
In contrast to that very weak strategy, petitioner
adduced expert testimony in the post-conviction trial that,
in a death penalty case, adequate counsel should attempt,
whenever possible, to develop a unified defense theory for
both the guilt and penalty phases of the trial, with an eye
toward minimizing the risk that a jury that convicts will
impose the death penalty. The defense advanced in this
case, at best marginally viable in the guilt phase, lacked
any tactical value in the penalty phase. In that admittedly
very difficult circumstance, and in light of all the informa-
tion known to defense counsel as described above, we con-
clude that adequate trial counsel should have sought out
additional information concerning the drugs in the victim’s
system at the time of her death, in order to try to develop a
guilt-phase theory that petitioner’s killing of the victim was
unintentional, or alternatively, a penalty-phase theory that,
even if the killing was intentional, it was not the type of
crime for which the death penalty should be imposed.
B. Prejudice
As noted, to obtain post-conviction relief, a peti-
tioner must show that counsel’s inadequacy had “a tendency
to affect the result of his trial.” Lichau, 333 Or at 359. And,
as noted, the state makes no specific argument on review
concerning prejudice. As our analysis indicates, the theory
Cite as 361 Or 688 (2017) 711
of defense advanced by counsel in this case had little chance
of success at the guilt phase of the trial, and it left even less
room in the penalty phase for counsel to argue that the cir-
cumstances of the victim’s death did not justify imposition
of the death penalty. On the other hand—although unlikely
to produce an acquittal—pursuing a drug-overdose defense
held better promise, especially in the penalty phase of this
aggravated murder case. We therefore conclude that peti-
tioner has demonstrated that counsel’s failure to adequately
investigate that defense had a tendency to affect the result
of his trial.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.