Geary v. Blewett ( 2023 )


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  • No. 667             December 20, 2023                   669
    IN THE COURT OF APPEALS OF THE
    STATE OF OREGON
    BRIAN JOSEPH GEARY,
    Petitioner-Appellant,
    v.
    Tyler BLEWETT,
    Superintendent,
    Two Rivers Correctional Institution,
    Defendant-Respondent.
    Umatilla County Circuit Court
    18CV15650; A173425
    J. Burdette Pratt, Senior Judge.
    Argued and submitted August 1, 2022.
    Lindsey Burrows argued the cause for appellant. Also on
    the brief was O’Connor Weber LLC.
    E. Nani Apo, Assistant Attorney General, argued the cause
    for respondent. Also on the brief were Ellen F. Rosenblum,
    Attorney General, and Benjamin Gutman, Solicitor General.
    Brian J. Geary filed the supplemental brief pro se.
    Before Ortega, Presiding Judge, and Powers, Judge, and
    Hellman, Judge.
    HELLMAN, J.
    Reversed and remanded.
    670                                           Geary v. Blewett
    HELLMAN, J.
    Petitioner appeals from the denial of post-conviction
    relief. On appeal, he raises two assignments of error involv-
    ing claims of inadequate and ineffective assistance of coun-
    sel. Petitioner also submits a pro se supplemental brief in
    which he requests that we review all the claims that were
    presented in his post-conviction petition, which he attaches
    and incorporates by reference. For the reasons below, we
    reverse and remand for a new trial in the underlying crimi-
    nal case based on petitioner’s first assignment of error: that
    counsel was inadequate and ineffective for eliciting, failing
    to object to, and failing to move to strike vouching testi-
    mony. Accordingly, we do not address petitioner’s second
    assignment of error, nor the claims raised in petitioner’s pro
    se supplemental brief.
    A petitioner is entitled to post-conviction relief under
    ORS 138.530 when “there has been a ‘substantial denial’ of
    a petitioner’s ‘rights under the Constitution of the United
    States, or under the Constitution of the State of Oregon, or
    both, and which denial rendered the conviction void.’ ” Green
    v. Franke, 
    357 Or 301
    , 311, 350 P3d 188 (2015) (quoting ORS
    138.530(1)(a)). Although we interpret and apply Article I,
    section 11, of the Oregon Constitution independently of the
    Sixth Amendment to the United States Constitution, “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).
    To be entitled to post-conviction relief based on a
    claim of inadequate assistance of counsel, 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 from counsel’s inade-
    quacy. Id. at 7 (describing analysis under Article I, section
    11 (internal quotation marks omitted)); see also Strickland
    v. Washington, 
    466 US 668
    , 694, 
    104 S Ct 2052
    , 2068, 80
    LEd2d 674, 697 (1984) (describing analysis under Sixth
    Amendment). We review the post-conviction court’s decision
    Cite as 
    329 Or App 669
     (2023)                                                  671
    “for errors of law” and are bound by the post-conviction
    court’s findings of fact “if there is evidence in the record to
    support them.” Green, 
    357 Or at 312
    .
    Petitioner was charged with various counts of sex
    crimes against two children, M and V. In her initial inter-
    view with the CARES Northwest team, M denied that
    defendant had sexually abused her. But in an interview
    with an investigating officer, conducted immediately after-
    ward, M disclosed that defendant did sexually abuse her.
    As to M, part of defense counsel’s trial strategy was to chal-
    lenge the way in which the investigating officer interviewed
    M, thereby demonstrating that M’s accusations were the
    by-product of improper investigative techniques.
    During cross-examination of that officer, defense
    counsel inquired as to why the officer had decided to inde-
    pendently interview M, instead of relying on M’s statements
    to the CARES Northwest team. Counsel suggested that
    the independent interview was because the officer did not
    believe M’s statements. The state objected to the question,
    as asking for a comment on the credibility of a witness, but
    the trial court overruled the objection. In response to the
    question, the officer testified that she “knew” from V’s ear-
    lier disclosures that “certain things occurred” between peti-
    tioner and M. She also testified that, even though M had not
    directly said so during the CARES Northwest interview, she
    “knew that things had occurred” between petitioner and M
    based on M’s demeanor and some of the things that M had
    said. In sum, the officer testified that she knew abuse had
    occurred because she believed both M and V were telling
    the truth. Although the officer’s testimony was inadmissible
    indirect vouching, see State v. Black, 
    364 Or 579
    , 587-88, 437
    P3d 1121 (2019), counsel made no objection to the testimony,
    nor did he seek any curative instruction from the court.1
    Petitioner sought post-conviction relief alleging,
    in relevant part, that he received inadequate and ineffec-
    tive assistance of counsel when his attorney elicited the
    vouching evidence, then failed to object and take curative
    1
    Respondent does not argue that the officer’s testimony was not vouching,
    only that in the context of this case trial counsel was not ineffective for eliciting
    it and failing to thereafter take corrective action.
    672                                          Geary v. Blewett
    actions regarding it. The post-conviction court denied peti-
    tioner’s claim because it determined that the vouching was
    “brought in deliberately as part of the defense strategy” and
    “[i]n the context of the case, that strategy was reasonable.”
    More specifically, the post-conviction court determined that
    “[t]he issue of who [the investigating officer] believed, or
    did not believe, was the very detail that counsel wanted to
    explore.” The post-conviction court further determined that
    “[a]n objection, a motion to strike, or a request for a curative
    instruction[ ] would have been contrary to the defense the-
    ory and counterproductive.”
    We confronted a nearly identical situation in Berg
    v. Nooth, 
    258 Or App 286
    , 309 P3d 164 (2013). In that case,
    the defense counsel “adopted a strategy of attempting to
    show that the ‘system’ automatically believes children’s
    allegations of sexual abuse.” Id. at 298. In connection with
    that strategy, defense counsel asked a witness whether she
    always believed the children, to which the witness replied
    that she “ ‘did believe the children in this case.’ ” Id. The
    prosecutor objected on the basis that defense counsel was
    asking for a comment on the victim’s credibility. Id. at 292.
    The trial court asked defense counsel if he wanted to have
    the jury instructed to disregard the answer, and when
    defense counsel did not answer, allowed the testimony to
    stand. Id. In his post-conviction case, the petitioner argued
    that counsel provided ineffective assistance when he failed
    to protect against impermissible vouching, both in asking
    the question and in failing to obtain a curative instruction.
    Id. at 294. The post-conviction court denied the petitioner’s
    claim because it determined there was no prejudice. Id. On
    appeal, we reversed. Id. at 287.
    We first held that trial counsel “failed to exer-
    cise reasonable professional skill and judgment, given the
    Supreme Court’s emphatic condemnation of allowing one
    witness to vouch for another.” Id. at 295. In reaching that
    conclusion, we explained that our decision was not based
    on a disagreement with trial counsel’s chosen strategy, but
    with the unnecessary use of vouching to achieve it. Id. at
    298 (While “[w]e do not second guess the reasonableness of
    trial counsel’s overall strategy of attempting to undermine
    Cite as 
    329 Or App 669
     (2023)                             673
    the integrity and objectivity of the government’s investiga-
    tion[,]” we have asserted that “such a strategy can be pur-
    sued without allowing witnesses to testify that they believe
    certain statements made by people who allegedly are vic-
    tims of sexual abuse.”). We also noted that it would “be the
    rare case in which a reasonable trial strategy” would allow
    the introduction of vouching testimony. 
    Id.
    In the case before us, the post-conviction court
    found that “[t]rial counsel testified that he made a strategic
    decision to ask a question suggesting that [the investigat-
    ing officer] did the second interview of [M] because she did
    not believe that [M] was disclosing all that she knew.” The
    post-conviction court further found that although the offi-
    cer’s answer “may have technically been vouching, it was
    brought in deliberately as part of the defense strategy.” But
    the record does not contain evidence from which the post-
    conviction court could have concluded that introducing the
    vouching was a strategic choice or otherwise needed for
    counsel’s trial strategy. In fact, in response to questioning
    at the post-conviction trial, defense counsel explained that
    he “opened the door” to the officer’s testimony but that it
    “wasn’t [his] intent to elicit the vouching.”
    In sum, although defense counsel’s strategy included
    seeking to demonstrate that how the officer conducted her
    interview improperly influenced M’s answers, that strategy
    could have been “pursued without allowing [the officer] to”
    indirectly vouch for V and M. Berg, 258 Or App at 298. Like
    in Berg, we do not question the reasonableness of counsel’s
    trial strategy itself but determine that counsel did not exer-
    cise reasonable professional skill and judgment when he
    elicited vouching testimony and then failed to take curative
    steps to address it. Id.
    Turning to prejudice, “[i]n a post-conviction case,
    prejudice is established if counsel’s deficient performance
    ‘had a tendency to affect the result.’ ” Id. at 300 (quoting
    Gorham v. 
    Thompson, 332
     Or 560, 564, 34 P3d 161 (2001)).
    The Supreme Court has explained that vouching testimony
    like the testimony presently at issue is so prejudicial that
    “the trial judge, sua sponte, should summarily cut off the
    inquiry [eliciting such vouching testimony] before a jury is
    674                                          Geary v. Blewett
    contaminated by it.” State v. Milbradt, 
    305 Or 621
    , 630, 
    756 P2d 620
     (1988); see also State v. Lupoli, 
    348 Or 346
    , 366
    n 11, 234 P3d 117 (2010) (where the children’s credibility
    “was paramount” in a child sex abuse case, error in admit-
    ting expert vouching testimony was not harmless).
    As was the case in Berg, the childrens’ credibility
    was critically important in petitioner’s criminal trial. The
    officer’s testimony that she “knew” that “certain things
    occurred with M” because of V’s statements and that she
    “knew that things had occurred” because of M’s demeanor
    and answers to CARES Northwest was inadmissible vouch-
    ing for the childrens’ credibility. Counsel’s elicitation of the
    testimony and failure to take corrective steps after the offi-
    cer gave that inadmissible testimony was a failure of pro-
    fessional skill and judgment. That failure allowed the inad-
    missible testimony to be part of the jury’s consideration.
    Counsel’s deficient performance therefore had a tendency to
    affect the verdict. See Berg, 258 Or App at 302. Accordingly,
    petitioner is entitled to post-conviction relief.
    Reversed and remanded.
    

Document Info

Docket Number: A173425

Filed Date: 12/20/2023

Precedential Status: Precedential

Modified Date: 12/20/2023