Stau v. Taylor ( 2020 )

313
Argued and submitted September 27, 2018, reversed and remanded
February 20, 2020
JONATHAN STARBUCK STAU,
Petitioner-Appellant,
v.
Jeri TAYLOR,
Superintendent,
Eastern Oregon Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
CV150898; A163261
461 P3d 255
In this post-conviction case, petitioner was convicted of first-degree robbery.
At trial, the only issue was whether petitioner used a gun; the defense theory was
that the jury should have reasonable doubt on that issue. After the state’s closing
argument, which defense counsel considered to be unmoving, petitioner, on coun-
sel’s advice, waived closing argument to “forestall a much stronger rebuttal” from
the state. The jury convicted petitioner. After an unsuccessful appeal, petitioner
sought relief on, among other grounds, the ground that trial counsel’s decision to
waive closing argument violated his rights to the adequate assistance of counsel
under Article I, section 11, of the Oregon Constitution and the effective assis-
tance of counsel under the Sixth Amendment to the United States Constitution.
The post-conviction court denied relief, crediting counsel’s waiver of closing
argument as a reasonable tactical decision. Petitioner appeals, assigning error
to the post-conviction court’s denial of relief on his adequate assistance claim.
He argues that trial counsel was inadequate and ineffective for failing to make
a closing argument pointing out the reasons for the jury to doubt whether peti-
tioner had used a gun in committing the robbery and that he “suffered prejudice
as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d
431 (2017). Held: The post-conviction court erred in determining that counsel’s
decision to waive closing argument was the product of reasonable professional
skill and judgment, and counsel’s waiver could have affected the outcome of the
case.
Reversed and remanded.
Patricia A. Sullivan, Senior Judge.
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. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Jonathan N. Schildt, Assistant Attorney General.
314 Stau v. Taylor
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Reversed and remanded.
Cite as 302 Or App 313 (2020) 315
LAGESEN, P. J.
Petitioner robbed a Chase Bank in a Fred Meyer
store, making off with $7,980. For that conduct, he was
charged with, among other things, first-degree robbery.
At his trial, it was not disputed that defendant robbed the
bank; he was caught fairly quickly with most of the money
in hand. What was disputed was whether defendant used a
gun. The state’s theory was that he had, making defendant’s
crime first-degree robbery; defendant’s theory was that he
had not, or, at the very least, that the jury should have rea-
sonable doubt on the point, making his crime third-degree
robbery. Defendant’s trial counsel, however, waived closing
argument out of fear of a strong rebuttal argument by the
state and, thus, did not articulate that theory fully to the
jury, which convicted defendant of first-degree robbery.
That brings us to the present post-conviction pro-
ceeding, in which petitioner seeks relief from his conviction
for first-degree robbery on the ground that trial counsel’s
decision to waive closing argument violated his constitu-
tional rights to the adequate assistance of counsel under
Article I, section 11, of the Oregon Constitution and the
effective assistance of counsel under the Sixth Amendment
to the United States Constitution. The post-conviction court
denied relief, concluding that trial counsel made a reason-
able tactical decision under the circumstances to waive clos-
ing. We conclude otherwise and, further, that trial counsel’s
failure to make a closing argument prejudiced petitioner for
purposes of Article I, section 11. We therefore reverse and
remand.
I. BACKGROUND
A. Underlying Criminal Proceedings
Defendant was charged with first-degree robbery,
among other things, for robbing the Chase Bank. At trial,
the primary dispute was whether defendant had used or
threatened to use a gun when he told the teller to give him
the money. As trial counsel put it in his opening statement:
“My opening statement’s going to be short and sweet
because the issue in this case is short and sweet. Weapon,
or no weapon ladies and gentlemen? [Petitioner] is guilty of
316 Stau v. Taylor
stealing that money. He was apprehended. Subsequently he
had the money. Robbery with a weapon, in fact I guess I’ll,
I’ll read what Judge Baker, read again what Judge Baker
read to you earlier. On October 31st, in Josephine County,
not, not argued by the parties, did unlawfully and know-
ingly, while in the course of committing theft, with the
intent of compelling another to deliver the property, used
or threatened the immediate use of physical force upon
another and used or attempted to use a dangerous weapon.
And it’s that part that the parties differ on, and it’s that
part where we differ on what you just saw. With a robbery
with a weapon, the fact finders, and that’s you folks, you’ve
got the right to say, * * * ‘Show me that weapon’ and you
ain’t gonna see that weapon. The best photos you just saw
and I, I, and I’m pleased that you’re also going to see the,
the video in real time. The photos you just saw didn’t show
you a weapon. [Petitioner] entered the Chase, entered the
Chase Bank and an understandably traumatized teller
said she saw what she described as a gun. [Petitioner]
entered the Chase Bank, put down a note, and you’ll see
this in real time with the, the actual video, entered, put
down the demand note, again understandably, poor [teller]
immediately began to comply with that, with that demand
note by reaching down into the till and [petitioner] indeed
is fumbling with his shirt because he’s trying to get out,
and you’ll see him produce the, the Wal-Mart plastic bag
that he’s gonna use to take out his money. It didn’t take
much to, to get her towards the, the money. As she moved
immediately towards the money, he’s fumbling around for
the, for the bag which he produced, which the money was
put in. He is later apprehended with the money, with the
bag, with the note, but not with any gun. He, the advantage
obviously of, to both sides I would suggest, and for you folks
in terms of your job as fact finders is that this happened at
a bank so we have video. And you’re gonna see that video.
Stills and video. And as you saw on the, I think the second,
second and third stills that Ms. Turner showed you, the
view wasn’t the same as [the teller’s] from here. No, but
you’ve got a pretty clear view of the front of [petitioner].
He wore black jeans, he had some black gym shorts under-
neath those jeans with a draw string that was tied in front.
He was also when he was apprehended, he had a black
belt as well. And we believe the evidence will show when
you review it, your review of the evidence is gonna show
that there was never, never, first of all you’re also, or let
Cite as 302 Or App 313 (2020) 317
me give you this aside, you’re not going to hear that there
were any overt threats, ‘Hey, look at my gun.’ The demand
note didn’t say, ‘By the way, I have a gun.’ And you’re not
going to see in any review of video or stills something like
a, you know, ‘Here, I mean business.’ He’s fumbling for the
bag he subsequently produces. Nothing from the angle, the
angles that you’re going to see show a shirt being lifted
high enough to display a, a gun and handle as described
by, by [the teller]. Accordingly, at the conclusion of the case,
before you folks get the case for deliberations, there’s gonna
be, it’s gonna be Judge Baker that decides this, depending
on the arguments of the, of the attorneys and depending on
what the evidence, how the evidence plays out for you folks,
Judge Baker may or may not decide to give you what are
called lesser included instructions, meaning allowing you
to consider charges other than robbery in the first degree.
That’s a robbery with the, with the use or attempted use
of a dangerous weapon. Potentially robbery in the second
degree, potentially robbery in the third degree. I’m not
gonna go over the definitions of those right now, because
you don’t know whether you’re going to be hearing those,
but if you hear robbery in the first degree, and the, you’re
being asked to conclude beyond a reasonable doubt that
there was use, use or attempted use of an actual dangerous
weapon, a gun is what [the teller] said, we’re going to be
expecting you to return a verdict of not guilty. Thank you.”
Some evidence supported the state’s theory that
petitioner robbed the bank using a gun. The teller testified
that, after petitioner had handed her a note demanding
money, he lifted his shirt, displaying the handle of a gun
tucked into his waistband. Surveillance video also showed
petitioner lifting his shirt. The teller’s 9-1-1 call, which was
played in court, reflected that, on the heels of the crime, the
teller indicated that petitioner had a handgun.
Other evidence cut against that theory. On cross-
examination, the teller admitted that she had only seen
the gun for at most a few seconds and did not know if what
she saw was a real gun. No gun was visible in the surveil-
lance video, and the video showed that, after he lifted his
shirt, petitioner pulled out a plastic bag and placed it on the
counter. When petitioner was apprehended, he did not have
a gun. No gun was found in the area in which petitioner was
318 Stau v. Taylor
apprehended or elsewhere, although petitioner took a cab
away from the scene, so he covered some ground.
After the state rested, the defense called no wit-
nesses. The prosecutor argued in closing that, to acquit peti-
tioner, the jury would have to disbelieve the teller: “[T]o find
[petitioner] not guilty, you’re gonna have to disbelieve [the
teller] that she saw a gun. And there’s nothing contradict-
ing that. Nothing. So beyond a reasonable doubt, [the teller]
was robbed.” Trial counsel did not respond. He waived clos-
ing argument for the defense, stating, “We’re satisfied Your
Honor, we’re ready for the jury to be instructed.” The trial
court instructed the jury, telling it, among other things, that
to convict petitioner of first-degree robbery, the state had
to prove beyond a reasonable doubt that petitioner “used or
attempted to use a dangerous weapon.” As noted, the jury
found defendant guilty of first-degree robbery. It also found
defendant guilty of first-degree theft. The trial court sen-
tenced petitioner to 144 months’ incarceration. Petitioner
pursued an unsuccessful appeal.
B. Post-Conviction Proceedings
Following his direct appeal, petitioner initiated
the present post-conviction proceeding. In his third claim
for relief, petitioner alleged that trial counsel was inade-
quate and ineffective, in violation of Article I, section 11,
and the Sixth Amendment, for waiving closing argument.
In response to that claim, the superintendent submitted an
affidavit from trial counsel in which counsel explained his
reason for waiving oral argument:
“Concerning the Third Claim, I waived closing argument
as a strategic matter, after consultation with [petitioner],
because of what I considered to be the relative paucity of
the prosecutor’s first closing argument. Defense attorneys
are generally aware that prosecutors typically save their
best available points and most forceful appeals for their
second or rebuttal closing argument. I recall being partic-
ularly struck in [petitioner’s] case by what I considered to
be the failure of the prosecutor’s first closing argument to
meaningfully address the solid points about the deficien-
cies in investigation and proof I believed we had established
during the State’s case. I was watching the jury closely
and believed they were notably unmoved too, even bored,
Cite as 302 Or App 313 (2020) 319
at least by that first closing argument. As such, I thought
it would be of strategic advantage under these narrow
circumstances—perhaps the second or third such occa-
sion in many years of trying criminal cases—to forestall a
much stronger rebuttal closing and also reinforce the idea
that we’d done all we needed to do already for reasonable
doubt, even—especially—in view of the State’s arguments.”
The post-conviction court credited that explana-
tion and denied relief on the third claim, as well as all oth-
ers. Regarding the third claim, the court explained in its
judgment:
“Trial Counsel was not ineffective for failure to offer
closing. While unusual, failure to offer a defense closing
is not unheard of. This Court is not prepared to find that
failure to make a closing is ineffective assistance as a mat-
ter of law. Rather, the particular circumstances of the case
must be considered in determining if counsel was inef-
fective. Trial Counsel is able to articulate a clear tactical
reason that he felt the closing was weak and he wished to
avoid rebuttal to which he would not be able to respond.
Counsel did not advise the client beforehand he intended
to waive, as the decision was made after hearing the prose-
cution closing, where many if not all of his arguments were
anticipated and articulated by the prosecution. [Petitioner]
argues now he decided not to testify based on trial counsel’s
representations that nothing he could testify that could not
be argued in closing. This is not sufficient evidence that
counsel was ineffective, particularly in view of the opening
arguments, cross-examination of witnesses, and otherwise
adequate defense made by trial counsel, and the many fac-
tors that come into play in deciding whether a defendant in
a criminal matter should testify.”
(Record citation omitted.)
Petitioner appealed. On appeal, he assigns error to
the post-conviction court’s denial of relief on the third claim,
as well as one other.1 He argues that other courts have rec-
ognized that only in rare circumstances is it appropriate for
defense counsel to forgo closing arguments, and that rea-
sonable trial counsel would have recognized that this case
1
Ultimately, our resolution of petitioner’s assignment of error addressing the
third claim for relief obviates the need to address the other assignment of error.
320 Stau v. Taylor
did not present those rare circumstances and would have
made a closing argument to point out the reasons to doubt
whether petitioner had employed a dangerous weapon in
committing the bank robbery. Petitioner argues further that
the omission of the argument could have tended to affect the
outcome of the case. The superintendent responds that the
post-conviction court was correct to conclude that, under the
circumstances, trial counsel’s choice to waive closing was
professionally reasonable. The superintendent argues alter-
natively that, even if trial counsel’s decision to waive closing
was deficient, the omission of argument did not prejudice
petitioner.
II. STANDARD OF REVIEW AND
GENERAL LEGAL STANDARD
We review a post-conviction court’s grant or denial
of relief for legal error, accepting the court’s implicit and
explicit factual findings if there is evidence to support them.
Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). At
issue in this matter are parallel claims of inadequate assis-
tance of trial counsel under Article I, section 11. To estab-
lish that his trial counsel rendered inadequate assistance
for purposes of Article I, section 11, petitioner was required
to prove two elements: (1) a performance element: that trial
counsel “failed to exercise reasonable professional skill and
judgment”; and (2) a prejudice element: that “petitioner suf-
fered prejudice as a result of counsel’s inadequacy.” Johnson
v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).2
III. ANALYSIS
We start and, as it turns out, finish with petitioner’s
claim of inadequate assistance of counsel under the Oregon
Constitution. In evaluating whether counsel’s decision to
omit closing argument comported with Article I, section 11,
we examine it under the circumstances that confronted
counsel at the time he made it. That is, whether counsel’s
decision “reflects an absence of reasonable professional skill
and judgment turns on the facts known to counsel at the
2
As mentioned, petitioner also raises a claim under the Sixth Amendment.
Because we conclude that petitioner is entitled to relief under the Oregon
Constitution, we do not set forth or discuss further the federal standard.
Cite as 302 Or App 313 (2020) 321
time that [he] made that decision.” Cartrette v. Nooth, 284
Or App 834, 841, 395 P3d 627 (2017).
This appeal, in particular, implicates decision mak-
ing about closing argument. In evaluating the reasonable-
ness of counsel’s closing argument strategy, we keep in mind
the central and important function that closing argument
serves in a criminal case. “There is no question * * * that
closing argument is an important part of trial counsel’s rep-
resentation of a criminal defendant. It is the defendant’s
final pitch to the jury—an opportunity to explain the evi-
dence that the jury has heard and to try to cast reasonable
doubt on the state’s case.” Mitchell v. State of Oregon, 300 Or
App 504, 511, 454 P3d 805 (2019). As we noted in Mitchell,
the Supreme Court has explained:
“ ‘It can hardly be questioned that closing argument serves
to sharpen and clarify the issues for resolution by the trier
of fact in a criminal case. For it is only after all the evidence
is in that counsel for the parties are in a position to present
their respective versions of the case as a whole. Only then
can they argue the inferences to be drawn from all the tes-
timony, and point out the weaknesses of their adversaries’
positions. And for the defense, closing argument is the last
clear chance to persuade the trier of fact that there may be
reasonable doubt of the defendant’s guilt.’
“ ‘The very premise of our adversary system of criminal jus-
tice is that partisan advocacy on both sides of a case will
best promote the ultimate objective that the guilty be con-
victed and the innocent go free. In a criminal trial, which
is in the end basically a factfinding process, no aspect of
such advocacy could be more important than the opportu-
nity finally to marshal the evidence for each side before
submission of the case to judgment.’ ”
Mitchell, 300 Or App at 511 (quoting Herring v. New York,
422 US 853, 862, 95 S Ct 2550, 45 L Ed 2d 593 (1975) (con-
cluding that state law permitting court to deny closing argu-
ment in bench trials violated the Sixth Amendment right to
counsel)). In view of the pivotal role of closing argument in
the criminal process, we agree with other courts that it is
a rare case in which the decision to forgo closing argument
will comport with the constitutional standards governing
the performance of criminal trial lawyers. See, e.g., People
322 Stau v. Taylor
v. Wilson, 392 Ill App 3d 189, 199-200, 911 NE2d 413, 422,
appeal den, 234 Ill 2d 550 (2009).
This is not that rare case. Trial counsel’s desire
to forestall a strong rebuttal by the prosecutor may have
been a reasonable objective. But he based his decision to
give up closing argument in part on his view that “we’d
done all we needed to do already for reasonable doubt,
even—especially—in view of the state’s arguments.” That
assessment—that he had done all he needed to on the
point of reasonable doubt—does not represent a reasonable
assessment of where the case stood, given how the trial had
unfolded.
The defense theory of the case was that the jury
should have reasonable doubt about whether defendant used
a gun to rob the bank. By the time of closing argument, how-
ever, that theory had not been presented to the jury in any
clear way. In his opening statement, counsel told the jury
that the issue for decision was “[w]eapon, or no weapon.”
This argument suggested—somewhat misleadingly—that
the jury’s task was either to find affirmatively that there
was a weapon or, instead, to find affirmatively that there
was not a weapon. In other words, it did not tell the jury that
its real task was to assess how confident it was in the state’s
case about the weapon.
The state’s closing argument reiterated that theme
in a way, also suggesting that the jury had to make some
sort of affirmative findings to acquit petitioner. Specifically,
the prosecutor told the jury that, to find defendant not guilty,
it would have to find that the teller was not credible, some-
thing it should not do because there was no evidence con-
tradicting the teller’s testimony about the gun. Those argu-
ments did not inform the jury that its task was somewhat
different, that it was not required to find affirmatively that
no gun was involved, or that the teller was not believable,
but, instead, to determine whether it was convinced beyond
a reasonable doubt that petitioner had used or threatened to
use a dangerous weapon during the robbery.
It was under these circumstances that counsel made
the decision that closing argument was not needed, and
these circumstances that make counsel’s determination to
Cite as 302 Or App 313 (2020) 323
forgo closing argument—his “last clear chance to persuade
the trier of fact that there may be reasonable doubt” about
petitioner’s guilt, Herring, 422 US at 862—not the product
of reasonable professional skill and judgment. Simply put, it
was not reasonable for counsel to conclude that “we’d done all
we needed to do already for reasonable doubt” when the jury
had not been told that the real issue before it was whether
it should have doubt in the state’s case about the weapon.
The post-conviction court erred in determining that coun-
sel’s decision to waive closing argument was the product of
reasonable professional skill and judgment.
The remaining question is whether trial counsel’s
decision to omit closing argument prejudiced petitioner, that
is, “ ‘could have tended to affect the outcome of the case.’ ”
Mitchell, 300 Or App at 514 (quoting Green, 357 Or at 323).
That standard is met when there is “ ‘more than mere pos-
sibility, but less than probability’ ” that the relevant act or
omission by trial counsel affected the outcome. Id. (quoting
Green, 357 Or at 322).
We conclude that standard is met here. Although
the jury was properly instructed that it had to find each
element of first-degree robbery beyond a reasonable doubt,
including the element that petitioner “used or attempted to
use a dangerous weapon,” defense counsel failed to explain
how that instruction related to the defense theory of the
case. In particular, the jury was not presented with a clear
statement that the issue was whether it should have reason-
able doubt about that element. Further, counsel’s opening
statement suggested incorrectly that the jury might have to
find affirmatively that there was no weapon involved, rather
than simply having doubt about the presence or the use or
attempted use of the weapon. Moreover, the state’s closing
argument suggested incorrectly that it would have to dis-
believe the teller’s testimony, rather than just have doubts
about her perception, to acquit petitioner. Finally, the omis-
sion of closing argument meant that no one pointed out
to the jury all the reasons it might have reasonable doubt
whether petitioner had a gun, despite the teller’s perception
of one. Instead, the jury was left on its own to navigate the
evidence—from a trial that spanned two days—to identify
and recall those reasons. For these reasons, we conclude
324 Stau v. Taylor
that there is more than a mere possibility that trial coun-
sel’s decision to give up the “last clear chance to persuade
the trier of fact that there may be reasonable doubt of the
defendant’s guilt” affected the jury’s verdict of guilt in this
case. Herring, 422 US at 862.
Reversed and remanded.