Pachl v. Zenon , 145 Or. App. 350 ( 1996 )

HASELTON, J.,

concurring.

I write separately to express my disagreement with the lead opinion’s analysis of defense counsel’s failure to object to the spectators’ buttons. Specifically, unlike the majority, I believe that counsel’s failure to object to the buttons breached the standard of competent professional representation. Nevertheless, petitioner did not demonstrate that that breach had such “a tendency to affect the result of the prosecution” to warrant post-conviction relief. Stevens v. State of Oregon, 322 Or 101, 110, 902 P2d 1137 (1995) (original emphasis deleted). Accordingly, I concur.

In Stevens, the court described petitioner’s burden in demonstrating constitutionally inadequate assistance of counsel for purposes of Article I, section 11, of the Oregon Constitution. First,

“a petitioner must show ‘by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment [.]’ ” Id. at 108 (quoting Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1991)).

Second, if defense counsel’s conduct breached the standard of professional representation, petitioner must show prejudice of constitutional magnitude — that is, that counsel’s advice, acts, or omissions had “a tendency to affect the result of the prosecution.” Id. at 110 (emphasis in original).

The first aspect of that cumulative inquiry is distinct from the second. Consequently, counsel may breach the standard of professional representation, even if the consequence of that breach is not so prejudicial as to warrant post-conviction relief. In other words, and most simply, there can be instances in which, because of a possibility of prejudice, criminal trial counsel is obligated to act even if, ultimately, his or her failure to do so did not “[tend] to affect the result of the prosecution.” Id. at 110 (original emphasis deleted).

This is such a case. Here, from the outset of the trial, between six and 12 spectators wearing two-inch wide buttons, bearing the legend “C.V.U.” and “Crime Victims United,” sat in a block of seats closest to the jury and immediately adjacent to the aisle by which the jury entered and left the courtroom. The buttons were clearly visible to the jury. On at least one occasion, several of the button-wearing spectators embraced and expressed support to the victim’s widow in the jury’s presence. Other spectators, including attorneys who were not participants in the case, immediately noticed the presence of the buttons and were concerned about their potentially prejudicial impact.¹

Nevertheless, defense counsel did nothing — until the sixth day of trial, after all evidence had been presented and the case had been submitted to the jury. See 145 Or App at 355-56 (quoting colloquy). At that point, long after the potentially prejudicial “horse” had bolted, counsel suggested that he might at least try to bar the door — and then didn’t. Subsequently, defense counsel filed a motion for a new trial that was predicated, in part, on the presence of the buttons in the courtroom,² and the court denied that motion.

In the circumstances of this case, regardless of the ultimate demonstrable “tendency” to affect the jury’s verdict, the exercise of reasonable professional skill and judgment compelled a timely objection to the buttons, out of the jury’s presence. Bluntly: Competent criminal defense counsel would have raised such an in limine objection at the beginning of trial. That is not a matter of uncharitably “second-guessing” trial counsel’s performance from a distance of months or years. See Krummacher v. Gierloff, 290 Or 867, 875, 627 P2d 458 (1981) (“[I]f counsel exercises reasonable professional skill and judgment, a reviewing court will not second-guess the lawyer in the name of the constitution[.]”). It is, instead, a matter of acknowledging that, where there was some possibility of prejudice from the buttons and there were no countervailing tactical or strategic considerations, competent defense counsel would have objected. Id. at 875-76 (“[B]ut neither will the court ignore decisions made in the conduct of the defense which reflect an absence or suspension of professional skill and judgment.”).

Here, there was a possibility of prejudice. The buttons’ legend, “Crime Victims United,” did not comment directly on the specific crime charged, murder.³ Nevertheless, the buttons communicated the spectators’ belief that a crime had occurred, and the button-wearers’ presence at petitioner’s trial conveyed their further belief that petitioner had committed it. Any other characterization of the buttons, or of the spectators’ presence, blinks reality.

Petitioner proffered compelling evidence that, given that potential prejudice, trial counsel’s inaction with respect to the buttons was deficient. The statements of Charles Crookham, Marc Blackman, and Robert McCrea are exemplary. Crookham, who served for 26 years as a trial judge, including eight years as presiding judge of the Multnomah County Circuit Court, and who later served as Oregon’s Attorney General, explained the potential prejudice:

“Well, the button is designed to convey an impression to someone that these are people supporting crime victims, and it’s certainly very visible.

‡ ‡ ‡ ‡

“And it’s sort of a cheering section is what it amounts to. And it’s, again, vouching, and these people are vouching for the prosection witnesses. * * * [W]hen you come down the aisle and here are a series — and I understood it was estimated at up to a dozen — you certainly have a conveying of something to the jury that has to do with guilt or innocence or sympathy for the victim.”

Crookham further expressed his opinion that, because of the potential prejudice, the trial court, even without an objection by counsel, should have removed the buttons:

“Q [By petitioner’s counsel] On a practical level, in your opinion, just as the trial judge or a trial judge, who had the duty there to get rid of the buttons?

“A Well, first of all, the judge does because he’s ultimately responsible for everything that occurs in the course of the trial. And so you have a choice of saying to people, we won’t have that, or we won’t have picket signs, or anything else like that. I’m not going to tell you you can’t do it in the hallways or out in front because that’s not before me. But I can certainly dampen that and give them a choice of removing the button or staying outside. But I think that if the judge is aware of what those signs are, and not every judge has 20/20 vision, something is apparent when all these people are wearing it. Just like a uniform, it conveys something.”

Crookham opined, finally, that if the trial judge had not previously removed the buttons on his or her own motion, defense counsel had a duty to make such motion promptly.

Blackman, a former president of the Multnomah County Bar Association, who has specialized in criminal cases for over 20 years, including serving for four years as a prosecutor with the United States Attorney’s Office, opined that:

“effective trial counsel would have raised the issue of the impropriety of allowing button wearing spectators to attend Mr. Pachl’s trial before the jurors had been exposed to them and the trial court would have granted the relief of prohibiting spectators from wearing such buttons. * * * If trial counsel did not become aware of the presence of button wearing spectators until after the jury had been exposed to them, then it is my opinion that this indicates ineffective assistance of counsel, because it is incumbent on counsel to be aware of things occurring in the courtroom that would prejudice his or her client’s right to a fair trial.

“But even if immediate lack of awareness is excusable, effective counsel would have moved for relief immediately upon becoming aware that spectators were wearing such buttons and I believe to a reasonable legal certainty that had counsel immediately sought relief, the court would have granted it. The relief an effective defense lawyer would have sought was a mistrial, which the trial court may well have granted if made early enough in the proceeding. But even if the court refused to grant a mistrial, it is my opinion to a reasonable legal certainty that the trial court would have granted relief from the continued display of such buttons and would further have sought to cure the harm already done by inquiring of the jurors whether their exposure to the spectators might affect the performance of their duties, and instructing them that the display of the buttons was improper and was to be completely disregarded by them.”

McCrea, who has practiced criminal law for nearly 40 years in this state, including serving as a prosecutor with the Lane County District Attorney’s Office for over seven years, testified that “absolutely” the first thing defense counsel should have done was ask to have the buttons removed:

“Q [By petitioner’s counsel] And how soon into the trial should he have moved for that?

“A As soon as he was aware that the persons were there with the buttons. Before the jury was even impaneled if he was aware of it at that time. In other words, it’s not a situation where he wants to wait until the jury sees the buttons and have them removed. What one wants to do is avoid it ever happening, if possible.

“Q And again, the difficulty with the button wearers is?

“A The buttons are a form of communication. It is in essence tantamount to persons holding up signs in the courtroom as to what their position is concerning what should happen. It’s not directly stated on the button what they believe should happen, but it’s not that subtle either. Any person would reasonably interpret what these persons — what their sentiments are concerning what should happen. And that fact that they talked in terms of victim means that they believe there is a victim. And if there’s a victim, that means someone has victimized the person or in essence committed a crime.”

The possibility of prejudice was manifest.⁴

Conversely, there was no plausible reason for failing to object. There was no “downside” to objecting, and there was nothing to gain from failing to object. The lead opinion posits various theories as to why defense counsel might not have objected. See 145 Or App at 359-60. Those theories are flawed in at least five respects. First, the state did not adduce testimony by defense counsel explaining his inaction. Thus, the rationales the lead opinion posits are entirely speculative and conjectural. Significantly, defense counsel did submit an affidavit in the post-conviction proceeding rebutting petitioner’s other allegations of inadequate assistance, but that affidavit did not mention, much less explain, counsel’s inaction as to the buttons.

Second, counsel’s silence with respect to the buttons is unsurprising because, after trial, the same attorney moved for a new trial, in part because of the buttons: If, as the lead opinion suggests, the presence of the buttons was “entirely consistent” with counsel’s “overall trial strategy” — a “consistency” that counsel himself never asserted — counsel could not, presumably, have moved in good faith for a new trial based, in part, on the “[denial] of a fair trial” because of “misconduct” involving “efforts on the parts of spectators to arouse sympathy * * * for the wife of the victim.”

Third, the lead opinion is based on the premise that the defense advanced a consistent “overall” “overriding” trial strategy, by which he attempted to “separate himself from the culpability of his companions” and “did not seriously contest that a crime had occurred, only his involvement in it.” That premise is wrong. Although defendant did advance the theory the lead opinion suggests, he also advanced others— including, most significantly, the proposition that his companion’s use of deadly physical force was justified by the decedent’s aggressive and threatening conduct. In particular, defendant requested and received lengthy self-defense instructions that provided, in part:

“Therefore, if you find that Stanley Reed [the decedent] was about to use or threatened to use physical force against Brian Hobson [defendant’s companion] in the commission of a felony, or Stanley Reed was using or about to use unlawful deadly physical force against Brian Hobson, then you may find that Brian Hobson was acting in self-defense by using deadly physical force against Stanley Reed. A finding that Brian Hobson was acting in self-defense would allow you to find that Randy Pachl was also acting in self-defense.”

During closing argument, defense counsel argued extensively about notions of justification and self-defense.

There is no possible “consistency’ between a justification defense and a characterization of the decedent as a “victim.” Indeed, defense counsel alluded to that in closing argument: “Whenever we talk about Mr. Reed as the ‘victim,’ * * * perhaps that’s not true.” Thus, counsel’s failure to object to the buttons cannot be laid at the door of a coherent trial strategy.

Fourth, the lead opinion’s assessment of counsel’s supposed unexplained “tactical” decision pertains solely to counsel’s failure to move for a mistrial on the sixth day of trial. See 145 Or App at 359-60. That focus impermissibly narrows the scope of petitioner’s claim of inadequate assistance⁵ and does not explain any plausible tactical or strategic reason for failing to move in limine at the beginning of trial to exclude the buttons.

Fifth, the suggestion that petitioner “presumably would have agreed with” the buttons’ message — i.e., “generic support [for] all victims of crimes,” see 145 Or App at 359 — is, with all respect, specious. Presumably, the same could be said of any extraneous message in any criminal trial in which a defendant asserts his or her innocence. By that reasoning, if the defendant in a murder case relied on an alibi or misi-dentification defense, spectators could freely display buttons and placards bearing the picture of the decedent with the legends, “Her Death Must Be Avenged” and “Her Killer Must Be Punished.” The inescapable truth is that petitioner here, like the hypothetical defendant, had nothing to gain by having the buttons before the jury.

In sum, the buttons had some possibility of prejudicing the jury, and there were no plausible countervailing considerations for keeping the buttons before the jury. Given that cost/benefit balance, competent trial counsel would have objected. Thus, defense counsel’s silence breached the standard of competent representation.⁶

Nevertheless, on this record, the possibility of prejudice, which required an objection, fell short of the “tendency ” required for post-conviction relief. Assuming that some extraneous messages in some courtroom context can be so inflammatory as to be deemed presumptively prejudicial for post-conviction purposes, the circumstances of this case did not cross that “structural error”-like threshold. Although the buttons’ message clearly aligned the wearers with the prosecution, that message, as the post-conviction court observed, “did not accuse the petitioner of having committed the subject crime, nor did it imply that the button wearers had any extra-judicial knowledge or information concerning the petitioner’s guilt.” Thus, although the buttons were hardly neutral, they were relatively benign, even given the wearers’ proximity to the jury. Accord Franklin, 327 SE2d 449; Norris, 918 F2d 828 (both described in note 3 above).

Without the benefit of some “structural error”-like presumption of prejudice, it was incumbent on petitioner, as the proponent of post-conviction relief, to prove affirmatively that the content and proximity of the buttons’ message, when coupled with the wearers’ conduct, had the requisite impermissible “tendency to affect” the jury’s verdict. Despite post-conviction counsel’s best efforts, I believe that petitioner did not meet that burden. Without further and unnecessary amplification, my conclusion in that regard is based on the criminal trial record, including the strength of the state’s case, and the circumstances of the buttons’ display, as found by the post-conviction court. Accordingly, I concur that petitioner is not entitled to post-conviction relief based on his counsel’s failure to challenge the spectators’ buttons.

Riggs, Landau, Leeson, and Armstrong, JJ., join in this concurring opinion.

1 One of those spectators, an attorney who specializes in real estate and construction law, testified that the button wearers were a “significant” and identifiable group in the courtroom and that he had the “impression * * * that it was the entire courtroom versus the defendant in that trial. The playing field was a little tilted.” Another spectator, an investigator with the metropolitan public defender’s office, stated that the persons wearing buttons “kind of hung together; sort of reminded me of maybe a rooting section, if you will. Pretty obvious, pretty — pretty obvious.”

2 Defendant’s new trial motion in the criminal proceeding asserted, in part;

“Defendant was denied a fair trial because of the misconduct of others in the courtroom which materially affected the jurors and interfered with the proper verdict. This misconduct involved efforts on the parts of spectators to arouse sympathy for witnesses who testified and for the wife of the victim.”

In support of that motion, defendant proffered affidavits of various spectators recounting their observations of the buttons in the courtroom and of the button wearers’ conduct.

3 Compare, e.g., State v. Franklin, 327 SE2d 449 (W Va 1985) (spectators at drunk driving trial wore buttons reading “MADD,” i.e., “Mothers Against Drunk Driving”); Norris v. Risely, 918 F2d 828 (9th Cir 1990) (spectators in rape trial wore buttons reading “Women Against Rape”).

4 In so stating, I do not minimize or denigrate the importance of participation by complainants and victims’ rights groups in our system of criminal justice. Moreover, the public’s right to attend criminal trials is manifest. Nevertheless, those considerations do not override a defendant’s right to a fair trial.

5 The petition for post-conviction relief alleges, in part, that petitioner was denied effective assistance of counsel, due process, and a fair trial because criminal defense counsel

“[flailed to adequately protect defendant’s rights to a fair trial and due process of law by failing to object to the presence of numerous victim’s advocates in the courtroom at the trial. On petitioner’s personal knowledge, during the trial, a number of individuals wearing buttons prominently identifying them as members of a victim’s advocacy organization were present in the courtroom. * * * It does not appear from the record that trial counsel ever moved the court to exclude these individuals or require them to remove their buttons.”

6 The lead opinion’s assertion that counsel is obligated to object only if “the buttons were so inherently prejudicial” as to preclude a fair trial, 145 Or App at 360-61, impermissibly conflates and equates breach of the standard of representation and prejudice. That is, it suggests that counsel is required to act only when an actionable “tendency to affect” the verdict is manifest. That analysis cannot be squared with Oregon’s post-conviction methodology. See, e.g., Stevens, 322 Or 101, and Krummacher, 290 Or 867, described at 145 Or App at 364-65.