Davis v. Kelly ( 2020 )

253
Argued and submitted December 3, 2018, affirmed April 1, petition for review
denied August 27, 2020 (366 Or 826)
MICHAEL ANDRE DAVIS,
Petitioner-Appellant,
v.
Brandon KELLY,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
09C22052; A163243
461 P3d 1043
Petitioner appeals a post-conviction judgment that denied post-conviction
relief with respect to the guilt phase of his trial. The post-conviction court con-
cluded that trial counsel performed deficiently in three respects: failing to dis-
credit the state medical examiner’s conclusion about the time of death based on
the gastric contents of one of the victims; acquiescing to the perpetuation depo-
sition of a dying witness and the admission of the videotaped testimony at trial;
and failing to establish that a number of the state’s witnesses had an oppor-
tunity to conspire and fabricate testimony during their overlapping periods of
incarceration. The post-conviction court nonetheless denied relief on those claims
because it determined that petitioner did not prove that the deficiencies preju-
diced him. On appeal, petitioner argues that the post-conviction court’s prejudice
determination was erroneous and that he is entitled to relief in the form of a new
trial. The superintendent defends the court’s prejudice determination and cross-
assigns error to the court’s determinations regarding deficient performance.
Held: Petitioner failed to demonstrate that trial counsel made an unreasonable
decision to agree to perpetuate testimony in exchange for a continuance to better
prepare for trial. In light of that earlier choice, and the fact that petitioner was
given an opportunity to cross-examine the witness during that deposition, peti-
tioner also failed to demonstrate that subsequent trial counsel made an unrea-
sonable decision by not lodging an objection to playing the videotape at trial—an
objection that would have been futile. And, even assuming that counsel’s per-
formance was deficient with regard to establishing an opportunity for prisoners
to conspire against petitioner and the handling of the medical examiner’s tes-
timony regarding time of death, the post-conviction court correctly determined
that petitioner failed to prove that those deficiencies could have tended to affect
the outcome of the trial.
Affirmed.
Paul G. Crowley, Judge pro tempore.
Andy Simrin argued the cause for appellant. Also on the
opening brief were Andy Simrin PC and Peter B. Fahy. Also
254 Davis v. Kelly
on the reply brief on cross-assignment of error was Andy
Simrin PC.
Rebecca M. Auten, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Affirmed.
Cite as 303 Or App 253 (2020) 255
LAGESEN, P. J.
Petitioner was sentenced to death for the murder
of two people. In this post-conviction proceeding, the post-
conviction court granted post-conviction relief as to the pen-
alty phase of petitioner’s case but denied relief as to the guilt
phase. With regard to the guilt phase, the post-conviction
court concluded that trial counsel performed deficiently in
three respects: failing to discredit the state medical exam-
iner’s conclusion about the time of death based on the gas-
tric contents of one of the victims; acquiescing to the per-
petuation deposition of a dying witness and the admission
of the videotaped testimony at trial; and failing to establish
that a number of the state’s witnesses had an opportunity to
conspire and fabricate testimony during their overlapping
periods of incarceration. The court nonetheless denied relief
on those guilt-phase claims because it determined that peti-
tioner did not prove that those deficiencies prejudiced him.
On appeal, petitioner argues that the post-conviction
court’s prejudice determination was erroneous and that he
is entitled to relief in the form of a new trial as to his guilt.
The superintendent defends the court’s prejudice determi-
nation and cross-assigns error to the court’s determina-
tions regarding deficient performance. As explained below,
we agree with the superintendent that petitioner failed to
demonstrate that trial counsel’s approach to the perpetu-
ation deposition amounted to deficient performance. And,
even assuming that counsel’s performance was deficient
with regard to establishing an opportunity for prisoners to
conspire against petitioner and the handling of the medi-
cal examiner’s testimony regarding time of death, the post-
conviction court correctly determined that petitioner failed
to prove that those deficiencies prejudiced petitioner, that is,
that they tended to affect the outcome of the trial. We there-
fore affirm.
I. BACKGROUND
A. Underlying Criminal Trial Proceedings
The Supreme Court’s opinion on direct appeal pro-
vides a helpful summary of the events giving rise to petitioner’s
post-conviction case, and we draw from that summary here
256 Davis v. Kelly
unless otherwise noted.1 See State v. Davis, 345 Or 551, 554-
63, 201 P3d 185 (2008).
On Sunday, November 3, 1991, the police found the
bodies of Phillips and Flannigan inside a motel room at the
Ara’Bel Motel. Inside the room, investigators found four .45
caliber shell casings, all of which had been fired from the
same pistol, and three spent bullets; a fourth spent bullet
was later found in Phillips’s body. Investigators also found
several personal items and recently purchased food prod-
ucts, but they found no useful fingerprints in the room. Id.
at 554.
The state medical examiner, Gunson, performed
autopsies on both Phillips and Flannigan. Based on the
partially digested food in Phillips’s stomach, combined
with information concerning the time that Phillips last had
eaten, Gunson concluded that Phillips had died between
8:45 to 10:45 p.m. or 11:00 p.m. on November 2.2 Gunson was
unable to use the undigested food in Flannigan’s stomach to
assess her time of death, because Gunson had no informa-
tion about when Flannigan last had eaten. Id. at 555.
Detectives interviewed petitioner shortly after the
murders and learned that he had met Flannigan sometime
in October 1991 at the Five Spot Tavern where she worked.
At the time, petitioner had been living with his half-brother,
Foreman. Petitioner and Flannigan had started dating,
and they eventually both moved into the apartment of
Bynum. According to petitioner, Flannigan stopped return-
ing to the apartment, and petitioner eventually learned
that Flannigan had resumed her relationship with her
ex-boyfriend (Phillips). A few days later, when Flannigan
returned to Bynum’s apartment to retrieve her clothing,
1
The Supreme Court explained that it was stating the facts in the light most
favorable to the state, which is not the standard that applies to our review of
the post-conviction judgment. To the extent that aspects of the trial record now
must be viewed differently in light of the issues presented at the post-conviction
proceedings, we discuss those aspects of the record later in the opinion.
2
The Supreme Court’s opinion reflects the window described in Gunson’s
pretrial testimony, 8:20 to 10:20 p.m. At trial, Gunson put the time of death in a
two-hour window from 8:45 to 10:45 p.m., “maybe up to 11,” as opposed to 8:20 to
10:20 p.m.
Cite as 303 Or App 253 (2020) 257
Flannigan and petitioner argued about a $500 debt and
Flannigan left on foot without her clothing. Id. at 556.
Petitioner told detectives that, on the day of the
murders, he and Bynum had planned that night to go to a
friend’s house to watch a Trail Blazers game on television,
but that he decided to go home instead. He said that Bynum
dropped him off at their apartment between 6:30 p.m. and
6:45 p.m., and that Bynum later called him at the apart-
ment during halftime, between 8:00 p.m. and 8:30 p.m., to
tell him that he was not missing anything because the cable
TV connection had gone out. Petitioner also told detectives
that, between 10:00 p.m. and 10:30 p.m., he drove one of
Bynum’s cars to a Safeway store, bought beer and cigarettes,
and returned to the apartment. Bynum was home when he
returned and, a short time later, Foreman arrived at the
apartment with a friend. Foreman, his friend, and petitioner
then went to the New York Diner, a nightclub, where they
remained until closing time, about 2:30 a.m. They then tried
to eat at restaurants but the restaurants were too crowded,
so they returned to Bynum’s apartment between 3:00 a.m.
and 4:00 a.m. on November 3. Id. at 557.
Bynum gave statements to detectives that were
consistent with petitioner’s. Bynum also stated that peti-
tioner had taken one of his cars without permission and
that Bynum had called Foreman to ask about petitioner’s
whereabouts, but, as he did, petitioner walked in carrying a
40-ounce bottle of beer. Id.
Detectives also interviewed Foreman, who told them
that he and two friends—Lowery and Payne—had planned
to go to the Trail Blazers game at halftime and watch it in
the arena. Foreman said that, when they could not get into
the game, they went to the Five Spot between 9:00 p.m. and
9:15 p.m., where Flannigan was dancing. Foreman said he
and his friends left the Five Spot soon after Flannigan fin-
ished her shift, around 9:30 p.m. and 9:45 p.m., and went
to a Safeway store and then to a 7-Eleven store. After that,
they dropped Payne off at the University of Portland, went
to a McDonald’s, and then went to Bynum’s apartment
sometime between 10:30 p.m. and 11:30 p.m. to pick up peti-
tioner. Foreman stated that the group, including petitioner,
258 Davis v. Kelly
then went to the New York Diner and remained there until
2:30 a.m., then attempted to eat at two restaurants that were
too crowded, and finally dropped petitioner back at Bynum’s
apartment between 4:00 a.m. and 4:30 a.m. on November 3.
Detectives got a similar description of events from Lowery.
They were not able to locate Payne. Id. at 557-58.
The investigation stalled until 1996, when a person
named Grihm, who was facing unrelated criminal charges,
disclosed to police that petitioner was involved in the mur-
ders. Grihm had been staying in Portland with his sister,
who was in a sporadic relationship with petitioner and had
lived with him for several years in the mid-1990s. Grihm
told detectives that he had overheard two conversations in
which petitioner and Grihm’s sister talked about Flannigan
and Phillips, and that petitioner had admitted killing them.
Id. at 559-60.
The investigation then stalled again until a break in
April 2002, when detectives learned that petitioner, who had
been incarcerated on other charges at the Eastern Oregon
Correctional Institution, admitted to an inmate there, Teal,
that he had killed Flannigan and Phillips. Detectives inter-
viewed Teal on May 17, 2002, and he informed them that
he had been petitioner’s weightlifting partner in prison
and that petitioner had told him that Flannigan had stolen
$70,000 from Bynum and had purchased a Mercedes Benz
for Phillips. According to Teal, petitioner had characterized
himself as a hit man for Bynum and described in detail how
he had murdered Flannigan and Phillips. After interview-
ing Teal, detectives again interviewed petitioner, and peti-
tioner confirmed that his statements in the previous inves-
tigative report were correct. Id. at 561.
By then, Bynum was under investigation for drug
trafficking, and detectives reinterviewed him as well. He
initially confirmed the statements that he had made to
detectives in 1991. But then he negotiated a deal in which
the state would agree to a reduction in Bynum’s sentence on
the drug trafficking charge in exchange for his participation
in the murder case against petitioner. At that point, Bynum
changed his earlier story in one regard: He reported that he
could not remember whether he had telephoned petitioner
Cite as 303 Or App 253 (2020) 259
during halftime of the basketball game, no longer corrob-
orating petitioner’s whereabouts from 8:00 to 8:30 p.m. on
the night of the murders. He also added a new admission
from petitioner: that, after the 1991 interview with detec-
tives, Bynum had asked petitioner whether he had killed
Flannigan and Phillips, and petitioner said, “Yeah, I killed
them, Cuz.” Id. at 561.
Detectives then interviewed another inmate who
had been part of petitioner’s weightlifting circle in prison,
Modaff. Modaff told detectives that petitioner had talked
about having problems with a black pimp and a white girl,
referring to Phillips and Flannigan, and told Modaff that
“I got them motherfuckers.” Modaff also reported that their
weightlifting circle grew to include Ford and Eddie Lee
Davis. Modaff asked petitioner why he had let Ford and
Davis join the group, and petitioner replied something to
the effect of, “You keep your friends close, and your enemies
even closer.” Modaff asked what he meant by that, and peti-
tioner explained that he had killed a member of Davis’s fam-
ily. Investigators later confirmed that Phillips was related
to Davis. Id. at 562-63.
In light of those new developments, police renewed
their efforts to locate Payne, who had been with petitioner
on the night of the murders but had not previously been
interviewed. A detective eventually found him in Helsinki,
Finland, and interviewed him by phone in October 2002.
Payne told the detective that, on the night of the murders,
he had been in Foreman’s SUV with Lowery, petitioner,
and a fifth person, whom he could not remember, and that
Foreman had been driving. Payne said that petitioner had
been extremely angry and upset over $500 that Flannigan
had stolen from him and used to buy a car for another man.
According to Payne, petitioner was “ranting and raving”
about how he was going to kill Flannigan and was load-
ing a .45 caliber pistol and telling the others in the vehi-
cle that they had the next 45 minutes to establish an alibi.
Payne recalled dropping petitioner off between 9:00 p.m.
and 10:00 p.m. at the motel. Id. at 562. Payne also told the
detective that, shortly after he had learned about the mur-
ders in the news, petitioner had threatened to kill him if he
260 Davis v. Kelly
talked to the police. Payne explained that, after that call, he
avoided any contact with the police. Id. at 563.
Payne returned to Portland from Finland to testify
before the grand jury on November 7, 2002, and the pros-
ecutor and detectives reinterviewed Lowery on the same
date. Lowery revealed several details that he previously
had not told police, including that, after failing to get into
the Trail Blazers game at halftime, he and Foreman had
met petitioner in the parking lot of a bar across the street
from the Ara’Bel Motel between 9:00 p.m. and 10:00 p.m.
Lowery said that they drove to the University of Portland
without petitioner, dropped Payne off at his dormitory, and
went to the New York Diner. While they were there, peti-
tioner called Foreman on his cell phone, and they left to pick
him up at Bynum’s apartment; on the way there, Foreman
told Lowery that petitioner had just killed two people. They
then picked up petitioner at Bynum’s and returned to the
New York Diner, where they stayed until closing. Lowery
also told detectives that, after police initially interviewed
petitioner about the murders in 1991, Lowery and Foreman
constructed an alibi and agreed to tell police the truth about
everything that had happened that night, but to leave out
the trip to the parking lot across from the Ara’Bel Motel.
Lowery said that petitioner later thanked him for providing
an alibi. Id. at 563-64.
Petitioner was subsequently indicted on eight counts
of aggravated murder with a firearm and four counts
of aggravated felony murder with a firearm for killing
Flannigan and Phillips. A jury found petitioner guilty of all
counts and, after a penalty-phase proceeding, the trial court
sentenced him to death. On direct and automatic appeal,
the Supreme Court affirmed the convictions and death sen-
tence. Id. at 593.
B. Post-Conviction Proceedings and Issues on Appeal
Petitioner subsequently initiated this post-conviction
proceeding, alleging that his attorneys provided inadequate
and ineffective assistance of counsel under Article I, section 11,
of the Oregon Constitution and the Sixth Amendment to the
United States Constitution, in both the guilt and penalty
Cite as 303 Or App 253 (2020) 261
phases of his trial. The superintendent conceded below that
petitioner was entitled to post-conviction relief with regard
to his death sentence, and petitioner has since been resen-
tenced to a life sentence without the possibility of parole.3
Accordingly, only specifications related to the guilt phase of
his trial remain at issue.
As relevant to this appeal, petitioner alleged three
ways in which his post-conviction counsel’s assistance fell
below constitutional standards during the guilt phase of
his trial.4 First, he alleged that his counsel “failed to dis-
credit, by means of an independent pathologist or cross-
examination with reference to learned treatises, testimony
by medical examiner Karen Gunson regarding her deter-
mination of Phillips’s time of death on the basis of the con-
tents of his stomach.” Second, he alleged that counsel was
constitutionally inadequate in failing to object to the state’s
presentation of videotaped deposition testimony from Teal, a
key witness for the state who died before the criminal trial.
And, third, he alleged that counsel failed to establish that
witnesses like Teal, who claimed that petitioner had con-
fessed to them in prison, had been housed together and had
an opportunity “to collaborate in their accusations against
him.”
After a two-day hearing, the post-conviction court
issued a detailed letter opinion in which it agreed with peti-
tioner that trial counsel had performed deficiently in those
three respects. But, the court concluded, petitioner was
not prejudiced by counsel’s failings. The court ruled that
the three specifications, whether standing alone or viewed
cumulatively, were not “trial outcome-changing issues”
in light of the overwhelming strength of the state’s case.
3
Petitioner had alleged, and the superintended conceded, that trial coun-
sel failed to investigate and assert that petitioner’s mental capacity and level
of adaptive behavior rendered him ineligible for the death penalty. The post-
conviction court entered a limited judgment on that issue, remanding the case
to the trial court for an Atkins hearing to determine petitioner’s eligibility. See
Atkins v. Virginia, 536 US 304, 321, 122 S Ct 2242, 153 L Ed 2d 335 (2002).
Following that hearing, petitioner was determined to be ineligible for the death
penalty, and the parties stipulated to a life sentence without the possibility of
parole.
4
Petitioner raised a number of other specifications of inadequate assistance
related to the guilt phase that are not before us.
262 Davis v. Kelly
Accordingly, the post-conviction court entered a judgment
denying relief as to the guilt phase of petitioner’s trial.
Petitioner appeals that judgment, arguing that the
post-conviction court erred in its prejudice assessment. The
superintendent defends the post-conviction court’s conclu-
sion regarding prejudice and also cross-assigns error to the
post-conviction court’s rulings as to counsel’s performance,
which the superintendent argues met state and federal con-
stitutional standards.
II. APPLICABLE LEGAL PRINCIPLES AND
STANDARD OF REVIEW
Under Article I, section 11, a criminal defendant has a
right to a lawyer who provides adequate assistance. To estab-
lish that his counsel rendered inadequate assistance within
the meaning of that provision, 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—in this context,
that counsel’s failure had “ ‘a tendency to affect the result of
his trial.’ ” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431
(2017) (quoting Lichau v. Baldwin, 333 Or 350, 359, 39 P3d
851 (2002)). To satisfy the performance prong, a petitioner
must prove that counsel’s decision “reflects an absence of
reasonable professional skill and judgment,” a question
that “turns on the facts known to counsel at the time that
[counsel] made that decision.” Cartrette v. Nooth, 284 Or App
834, 841, 395 P3d 627 (2017). As for the prejudice prong,
“because many different factors can affect the outcome of a
jury trial, in that setting, the tendency to affect the outcome
standard demands more than mere possibility, but less than
probability.” Green v. Franke, 357 Or 301, 322, 350 P3d 188
(2015).
A functionally equivalent two-element standard
governs claims of ineffective assistance of counsel under the
Sixth Amendment. Johnson, 361 Or at 699. To prevail under
the federal standard, petitioner was required to demon-
strate that “trial counsel’s performance ‘fell below an objec-
tive standard of reasonableness,’ ” and also that “there was a
‘reasonable probability that, but for counsel’s unprofessional
Cite as 303 Or App 253 (2020) 263
errors, the result of the proceeding would have been differ-
ent.’ ” Id. at 700 (quoting Strickland v. Washington, 466 US
668, 688, 694, 104 S Ct 2052, 80 L Ed 2d 674 (1984)).
In reviewing the post-conviction court’s determina-
tions concerning adequate performance and prejudice, our
review “is not open-ended. We review such proceedings for
errors of law,” and a “post-conviction court’s findings of his-
torical fact are binding on this court if there is evidence in
the record to support them.” Green, 357 Or at 312. If the
post-conviction court did not make express findings of fact
on all the issues—and there is evidence from which such facts
could be decided more than one way—we will presume that
the facts were decided consistently with the post-conviction
court’s conclusions of law. Id.We examine each of the challenged rulings of the
post-conviction court in light of the foregoing standards.
III. DISCUSSION
A. Failure to Object to the Presentation of Teal’s Deposition
Testimony
The state’s case, as recounted above, relied heavily
on evidence that petitioner confessed both murders to vari-
ous inmates, including Teal, petitioner’s weightlifting part-
ner at the Eastern Oregon Correctional Institution. Teal
had agreed to cooperate with prosecutors in exchange for
his own early release from prison. He was terminally ill.
At a pretrial hearing in November 2003, petitioner’s
attorneys at the time, Krasik and Shertz, sought to postpone
the trial date that was set for the following March. The pros-
ecutor explained that the state was ready to try the case in
March and objected to petitioner’s request for a continuance,
but he also signaled the state’s willingness to accommodate
petitioner’s motion.5 The prosecutor explained:
“And before you ultimately decide, one of the state’s
positions, and all of this has been discussed with counsel,
one of the state’s expected witnesses, a Mr. Ronald Teal,
5
The prosecutor stated, “[T]here’s the table pounding objection and the other
type of objection. And this is that. We are ready. We could try it.”
264 Davis v. Kelly
I’m told is quite ill, possibly life threatening illness. And I
get this from his parole officer and from a significant other
of his. I haven’t spoken with him recently.
“* * * [Teal] may pass away in the relevant time period
in front of us.
“So one of the things the state has let defense know, is
that pursuant to ORS 136.080 would ask that before you
order this trial altered or different than March, is that we
perpetuate Mr. Teal’s testimony.”
The statute cited by the state, ORS 136.080, pro-
vides:
“When an application is made for the postponement of a
trial, the court may in its discretion require as a condition
precedent to granting the same that the party applying
therefor consent that the deposition of a witness may be
taken and read on the trial of the case. Unless such consent
is given, the court may refuse to allow such postponement
for any cause.”
Following the state’s request, the trial court
explained to petitioner that the decision to postpone was
ultimately petitioner’s but that, “if in fact we do have to set
it over, we probably will have to perpetuate this person’s tes-
timony. If the person lives, great, we don’t use it.” The court
explained that, even in the case of a deposition, the court
would still be ruling “on what is and is not admissible” and
that “[w]e will preserve your right to confrontation, which is
really an eyeball to eyeball thing. And we’ll have to video-
tape it in a way so that the witness is visible to the jury. So
you really aren’t giving anything up. It is your request.”
After petitioner was given an opportunity to con-
sult with Krasik and Shertz, petitioner told the trial court
that he had no further questions about the matter. Krasik
then stated, “We would join in the state’s request to perpet-
uate Mr. Teal’s testimony, and do it in a manner that we
believe we can work out.” The court then asked petitioner
again whether he understood why his lawyers were seeking
a continuance, and petitioner responded that he understood
their reasoning and was satisfied that it was in his interest
Cite as 303 Or App 253 (2020) 265
to obtain additional time between March and October. The
court then stated, “All right. Then with those two under-
standings, I would reset it.”
Teal’s deposition was subsequently taken in court
and videotaped, with petitioner present, and subject to
cross-examination by Shertz and Krasik; a judge was also
present and ruling on objections. Teal died before trial, and
the videotaped deposition, in which Teal recounted a confes-
sion from petitioner, was later played for the jury. By that
time, petitioner had new lawyers, and they did not object
when the testimony was played.
In his petition for post-conviction relief, petitioner
alleged that counsel was inadequate in failing to “object to
the presentation to the jury of the videotaped perpetuation
deposition of witness Ronald Teal.” At the post-conviction
hearing, petitioner argued that an objection to playing the
testimony would have been sustained, because it violated
petitioner’s right to confront witnesses; in his view, even
though Teal had been subject to cross-examination by Shertz
and Krasik during the deposition, they were no longer part
of the defense team at the time of trial, and the two-dimen-
sional image of Teal was no substitute for a living person.
Petitioner argued that, in light of the prosecution’s focus on
Teal—more than 80 references to him during arguments to
the jury—he was prejudiced by the lack of an objection to
the admission of Teal’s testimony.
The post-conviction court agreed that counsel per-
formed deficiently, stating that it was not aware of “any
legal authority for the perpetuation” apart from the stipu-
lation; that the trial court had “failed to ascertain whether
Petitioner understood the confrontation clause issues related
to agreeing to perpetuated testimony”; and that, “in the
absence of any detail of the reasons for a need to continue
the case,” the decision by Krasik and Shertz to agree to the
deposition was unreasonable. The court further explained
that, irrespective of the stipulation by Krasik and Shertz,
petitioner’s trial counsel could have objected to the presen-
tation based on the confrontation clause, thereby preserv-
ing the issue for appellate review. Thus, the court concluded
266 Davis v. Kelly
that petitioner “has proven error in (i) the initial agreement
to the perpetuation and (ii) the failure to object to the evi-
dence being presented at trial.”
The superintendent cross-assigns error to that rul-
ing, arguing that the record reflects legitimate, good-faith
reasons for Krasik and Shertz to have sought the contin-
uance, that both petitioner and his counsel expressly stip-
ulated to the perpetuation deposition in exchange for the
continuance, and that, under those circumstances, a subse-
quent objection by trial counsel would have been futile. We
agree with the superintendent.
The post-conviction court appears to have assessed
trial counsels’ initial decision to agree to the perpetuation
of Teal’s testimony based on an erroneous view of the record.
The post-conviction court stated that it was required to ana-
lyze the reasonableness of the decision “solely on the weight
of Teal’s testimony and the jurors’ inability to make a face-
to-face assessment of his credibility,” because of the “absence
of any detail of the reasons for a need to continue the case.”
But the trial transcript and court file, which were part of
the record before the post-conviction court, detail exactly
why petitioner’s counsel sought the continuance.
In an affidavit in support of a written motion for a
continuance, Shertz laid out the reason for the request:
“The reason for this request for continuance is: this case
when it was charged was already twelve years old. Finding
witnesses has been difficult and sometimes impossible.
There have been changes in [petitioner’s] defense team.
More importantly, a case that until two weeks ago had a
codefendant no longer has a codefendant because the state
chose to dismiss the case against [petitioner’s] brother,
Edgar Foreman. This has led to a substantial shifting of
the legal posture this case is in; evidence which was pre-
viously admissible no longer is, witnesses who previously
were likely to testify in this case have become irrelevant.
In short, we simply need additional time to assess our situ-
ation and provide a competent defense to [petitioner].”
Then at the hearing, after the prosecutor explained
his objection to moving the trial date, the trial court identified
similar reasons that petitioner might need a continuance:
Cite as 303 Or App 253 (2020) 267
“[T]wo things happened. One was that [petitioner’s code-
fendant] Mr. Foreman was removed from the mix, which
is really not the defense’s fault in any way, shape or form.
“But then also, too, evidence keeps turning up, doesn’t
it? You wait a bit longer, and Lord knows what will turn up.
So there was another reason why you needed the time. It
wasn’t just the dismissal against Mr. Foreman.”
Petitioner’s counsel responded, “That’s correct, Your Honor.”
Thus, contrary to the post-conviction court’s ruling,
the record reflects why Krasik and Shertz sought the con-
tinuance: They believed they needed more time, in light of
evidentiary complications and a shift in the legal posture of
the case, to provide a competent defense to petitioner. Under
those circumstances, it was reasonable for them to conclude
that the need for the continuance outweighed the risks of
perpetuating Teal’s testimony, where petitioner would retain
the right to cross-examine Teal, the court would still rule on
evidentiary issues, and, as the trial court stated, “If the per-
son lives, great, we don’t use it.” See Gorham v. Thompson,
332 Or 560, 567, 34 P3d 161 (2001) (explaining that strategic
decisions will not be second-guessed during post-conviction
proceedings unless they reflect “an absence or suspension of
professional skill and judgment”).
Nor were petitioner’s subsequent trial counsel
inadequate for failing to object to playing the deposition
testimony at trial. Neither the state nor federal constitu-
tion requires counsel to advance a futile objection. See, e.g.,
Krummacher v. Gierloff, 290 Or 867, 884, 627 P2d 458 (1981)
(stating that “the constitution does not require counsel to
make useless and futile gestures for the sake of form”). ORS
136.080, on which the prosecutor and criminal trial court
relied, is an express exception to the general rule that “the
testimony of a witness shall be given orally in the presence
of the court and jury.” ORS 136.420(1) (stating the general
rule and creating an exception “[i]n the case of a witness
whose testimony is taken by deposition by order of the court
in pursuance of the consent of the parties, as provided in
ORS 136.080 to 136.100”). That exception for perpetuated
testimony has existed since before the time of statehood,
and our Supreme Court has held that testimony of a witness
268 Davis v. Kelly
obtained pursuant to the statute satisfies Article I, section
11’s requirement of “face to face” confrontation “when at
some stage of the case against him in a proceeding autho-
rized by law, he is confronted with the witness, and given
an opportunity to cross-examine him.” See State v. Bowker,
26 Or 309, 313, 38 P 124 (1894).6 The process of perpetuat-
ing and admitting the testimony of a since-deceased witness
in that manner—with the criminal defendant present, and
with an opportunity for cross-examination by counsel—also
passes muster under the Sixth Amendment. See Crawford
v. Washington, 541 US 36, 68, 124 S Ct 1354, 158 L Ed 2d
177 (2004) (“Where testimonial evidence is at issue, how-
ever, the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-
examination.” (Emphasis added.)).7
In sum, petitioner failed to demonstrate that Krasik
and Shertz made an unreasonable decision to agree to per-
petuate Teal’s testimony in exchange for a continuance to
6
Bowker, which involved the statutory predecessor to ORS 136.080, is
directly on point:
“But the defendant expressly consenting, in open court, to the taking of
Mrs. Vann’s deposition, the case was postponed, under the provisions of sec-
tion 1345 of the Code, until a future day. The deposition of Mrs. Vann was
subsequently taken, in the presence of the defendant and his counsel, and on
the trial offered in evidence by the state, she having died in the meantime.
The objection of defendant to this deposition is based upon the contention
that he had a constitutional right, which he could not waive, to meet the wit-
nesses against him face to face on the trial, in the presence of the court and
jury. The constitution of this state provides that in all criminal prosecutions
the accused shall have the right ‘to meet the witnesses face to face.’ Article 1,
§ 11. But this language does not require that in all cases he shall be confronted
with the witnesses on a pending trial. The right secured by the constitution
to the defendant is ‘to meet the witnesses face to face,’ and this requirement is
satisfied when at some stage of the case against him in a proceeding authorized
by law, he is confronted with the witness, and given an opportunity to cross-
examine him.”
26 Or at 313 (emphasis added).
7
The post-conviction court also stated that the trial court “failed to ascer-
tain whether Petitioner understood the confrontation clause issues related to
agreeing to perpetuated testimony.” It is not clear what role that observation
played in the court’s analysis, but we note that the record reflects that the trial
court gave petitioner an opportunity to speak with counsel about perpetuating
Teal’s testimony, received assurance from petitioner that his counsel had cleared
up any questions he had, and then expressly asked petitioner if he understood the
reasons for seeking a continuance and was satisfied with those reasons, to which
he responded affirmatively. We are not aware of any authority that would require
more from the trial court under the circumstances.
Cite as 303 Or App 253 (2020) 269
better prepare for trial. In light of that earlier choice, and
the fact that petitioner was given an opportunity to cross-
examine Teal during that deposition, petitioner also failed
to demonstrate that subsequent trial counsel made an
unreasonable decision by not lodging an objection to play-
ing the videotape at trial—an objection that would have
been futile. We therefore conclude that the superintendent’s
cross-assignment of error is dispositive: Petitioner failed to
prove that he was denied adequate or effective assistance of
counsel regarding Teal’s perpetuated testimony.
B. Failure to Establish that Prisoners had an Opportunity
to Collaborate in Their Accusations Against Petitioner
Petitioner’s trial counsel sought to discredit Teal’s
testimony and that of other “inmate witnesses” on the
ground that they had lied about petitioner confessing in
order to obtain more lenient sentences or early release from
prison. His post-conviction petition alleged that counsel
should have done more to undermine their testimony by
establishing “that prisoners who provided evidence against
Petitioner had opportunity to collaborate in their accusa-
tions against him”—that is, counsel should have presented
the jury with information that the inmates’ periods of incar-
ceration had overlapped, thereby giving them an opportu-
nity to propagate a false story about alleged confessions.
In support of that allegation, petitioner presented
evidence that Krasik had created a spreadsheet and chart
to show where state informants had been incarcerated and
at what times, to show “multiple clear pathways for infor-
mation to be propagated down the line from one to another,
and back and forth, and overlaps and who was where when.”
Krasik had provided that information to his successor coun-
sel, but no evidence or argument related to the chart or
housing of inmates was presented at trial.
The post-conviction court agreed with petitioner
that his trial counsel performed deficiently by failing to
establish a “propagation line”:
“A large part of the State’s case was premised upon con-
fessory statements Petitioner made to many people, includ-
ing the inmate witnesses. In any case involving inmate wit-
nesses, motive to fabricate is a common defense argument.
270 Davis v. Kelly
That a common thread can be woven between the inmates
in this case, establishing the prospect of a propagation
line, is a unique argument. Under the desperate defense
circumstances in this case, the argument should have been
made. That is not to suggest that the argument would have
prevailed. It would, however, have given the jurors another
reason to doubt.”
The superintendent cross-assigns error to that rul-
ing, arguing that Krasik’s chart itself would not have been
admissible because it was hearsay or opinion evidence,
and that petitioner therefore did not establish that counsel
performed deficiently by not offering it into evidence. The
superintendent also argues that, in any event, the post-
conviction court correctly ruled that the failure to present
a propagation theory had no tendency to affect the outcome
of the trial, considering how speculative that theory was on
this record. Because we agree with the superintendent with
regard to prejudice, we need not address the parties’ conten-
tions regarding the performance prong.
We begin our analysis of prejudice with a brief sum-
mary of the context in which a propagation theory would
have been offered by petitioner. The state presented multi-
ple witnesses who testified that petitioner had talked about
the murders at various times, both with inmates and with
people who were not incarcerated. The state called six wit-
nesses who had been incarcerated and at some point claimed
to have heard petitioner admit to the murders: Teal, Bynum,
Modaff, Williams, Wesson, and Weinberger. Two additional
witnesses who do not appear on Krasik’s chart as inmates,
Lowery and Grihm, also testified that they heard petitioner
claim to have murdered Flannigan and Phillips.
Faced with that evidence, petitioner’s counsel made
the decision to acknowledge that petitioner had talked about
the murders and was the source of much of the witnesses’
knowledge about the case against him. But counsel argued
that each of the inmates, in order to obtain a benefit from
the state, then traded on that knowledge or other widely
available information, inventing additional incriminat-
ing admissions. For example, with regard to Teal, counsel
explained:
Cite as 303 Or App 253 (2020) 271
“The point is, is there anything about Mr. Teal’s infor-
mation that is so unique, so unknown to anyone else that
by virtue of the fact that Ronald Teal has that information,
[petitioner] must have told him or are we getting caught up
in yet another con game.
“* * * * *
“He tells the detectives and he tells you on the video-
tape Gerald Phillips is a pimp. Well, how hard is it to add
[petitioner] hates pimps. The woman owed him money.
[Petitioner] told that to the detectives. [Petitioner] never
saw any reason to hide that. That was a fact. He’s told the
police that in 1991. So of course when he talks about his
case, he’s going to tell Ronald Teal that.”
(Emphases added.)
Given that context—where the jury would have no
reason to doubt that petitioner had talked about his case
with different inmates—the addition of evidence and argu-
ment about a possible “propagation line” could only tend to
affect the jury’s view of the credibility of the inmate wit-
nesses to the extent it explained something beyond the type
of general knowledge of the case that they would have had
from conversations with petitioner—that is, to the extent
that it would explain either how different witnesses came to
know about certain specific admissions they later reported
or why and how they would have conspired against peti-
tioner. For a number of reasons, that was not the case here.
First, to the extent that there was any overlap
between specific details of the testimony about admissions
between Teal, Modaff, and Williams, the jury was already
aware of their potential to collude, and petitioner’s counsel
made that point explicitly in closing. For example, petition-
er’s counsel pointed out that Teal and Modaff were part of
the same weightlifting group and that Modaff was there
“when [petitioner] talked to Ron Teal and said, That guy,
meaning Eddie Davis, thinks I killed his brother.” With
regard to Williams, petitioner’s counsel argued, “[Williams]
tells you that way back when, me and Ron Teal were good
buddies and me and Ron Teal had lots of conversations
about this case. So we know where his information came
from, even if he had any information, we would know where
272 Davis v. Kelly
it came from.”8 Additional evidence and argument about a
propagation line would not have added anything beyond
what the jury already knew about the credibility of those
witnesses or the source of their information about petition-
er’s admissions.
Second, the post-conviction record does not estab-
lish that a propagation theory based on Krasik’s chart
would have had any likelihood of affecting the jury’s assess-
ment of the credibility of the remaining three inmate
witnesses—Bynum, Wesson, and Weinberger. It bears
emphasis that Krasik’s chart and petitioner’s post-conviction
claim is about establishing the opportunity to conspire, not
that the witnesses actually associated with one another
while imprisoned. That distinction is critical with regard to
Bynum, Wesson, and Weinberger.
Bynum, unlike the other inmates, was personally
involved in the underlying events, and his version of the mur-
ders was diametrically opposed to Teal’s (to recall: In Teal’s
version of events, Bynum authorized the execution of the
victims over a financial debt). Under those circumstances, it
is not likely that a jury would view Bynum’s testimony any
differently simply because he overlapped with Teal or other
witnesses who testified against petitioner, without any evi-
dence that he in fact associated with or spoke to any of those
other inmates.
As for Wesson, Krasik’s chart does not show that
he was incarcerated at the same time with any other wit-
nesses or informants. The chart reflects that Wesson was
released from the Oregon State Penitentiary a few weeks
before Weinberger arrived. Moreover, even if there had been
an overlapping period of incarceration, it would have been
clear to the jury that Wesson and Bynum had an opportu-
nity to share information about the murder. As petitioner’s
counsel argued during closing:
“So I questioned [Wesson] directly from a police report
written by one of the Portland Police Bureau detectives and
8
He continued, “I’ll get to Ronald Teal, but keep in mind that Mr. Williams
has already acknowledged discussing in ‘99, 1999 and 2000 on numerous occa-
sions what it is Mr. Teal says [petitioner] told him.”
Cite as 303 Or App 253 (2020) 273
read to him the statement in there that he had had many
conversations with Eddie Bynum about this case. What did
he do? He looked at me and he said, No, I didn’t. Yeah, he
did.”
(Emphasis added.) Thus, the jury was presented with a more
plausible and direct line of propagation between Bynum and
Wesson, and it is implausible to think that a more specu-
lative and convoluted explanation—that they could have
encountered and conspired with other inmate witnesses—
could have had any tendency to affect the jury’s credibility
assessment of either witness.
Weinberger was the only inmate witness who,
during trial, was not tied to other sources of information
besides petitioner, but who is shown on Krasik’s chart
as being housed at relevant times with other inmates.9
However, Weinberger’s testimony about petitioner confess-
ing to the murders included almost no details of the crimes;
in fact, he disclaimed knowing any details:
“[WEINBERGER:] I think I asked him when he was
getting out, and he said that they wanted to give him the
rest of his life, they wanted to kill him. And that he was in
for two murders and said that I might have read about it
in the paper and, you know, I don’t read the paper a whole
lot, so I didn’t know nothing about his case. And pretty much
still don’t.”
(Emphasis added.) According to Weinberger, when he and
petitioner were together in the Multnomah County Jail in
2002, petitioner asked him whether he could be convicted on
circumstantial evidence. Weinberger testified that, at one
point in that conversation, petitioner said, “Yeah, I left no
evidence behind.” That fact was consistent with testimony by
Wesson, but again, Krasik’s chart does not show that Wesson
overlapped in prison with Weinberger or other inmate wit-
nesses. Weinberger further testified that petitioner later told
him that “I’m willing to die for what I believe in. Those two
people I killed, I believed they had it coming. I’m willing to
die for it.” That purported admission—that petitioner would
do it again because he believed they had it coming—was
9
Weinberger is listed by a different name, Hensley.
274 Davis v. Kelly
not repeated by the other witnesses. In that context, evi-
dence that Weinberger overlapped with other witnesses and
merely had an opportunity to conspire against petitioner
would have done little to cast his testimony in a different
light, let alone in a way that could have tended to affect the
verdict. The mere possibility that the jury could have seized
on a speculative propagation theory is not enough to show
prejudice under either the state or federal standard. Green,
357 Or at 322; Johnson, 361 Or at 700.
For those reasons, we affirm the post-conviction
court’s denial of relief on the ground that petitioner did not
prove that his counsel’s failure to establish that prisoners
had an opportunity to collaborate in their accusations
against him could have tended to affect the jury’s verdict.
C. Failure to Discredit Gunson’s Time-of-Death Testimony
Last, we address petitioner’s claim regarding coun-
sel’s handling of expert testimony about the time of Phillips’s
death. As described above, Gunson, the state medical exam-
iner, testified at trial that, based on the partially digested
food in Phillips’s stomach, along with information concern-
ing the time that Phillips had last eaten, it was her opinion
that Phillips had died between 8:45 p.m. and 11:00 p.m. on
November 2. That timeline was significant to the state’s case
because it substantially overlapped with a window of time
for which petitioner had no alibi. In his petition for post-
conviction relief, petitioner alleged that counsel was inad-
equate in failing “to discredit, by means of an independent
pathologist or cross-examination with reference to learned
treatises, testimony by medical examiner Karen Gunson
regarding her determination of Phillips’s time of death on
the basis of the contents of his stomach.”
Petitioner supported that allegation with testimony
from Krasik. When deposed as part of this post-conviction
proceeding, Krasik testified that he had anticipated Gunson’s
testimony and consulted with Dr. Brady, who was the state
medical examiner before Gunson and had served as her
mentor. Krasik testified that he could have effectively cross-
examined Gunson with a medical treatise undermining her
conclusion but that, in any event, Brady was available and
Cite as 303 Or App 253 (2020) 275
would have testified that Gunson’s gut-content analysis was
“scientifically bankrupt.”
Petitioner also supported his claim with an affida-
vit from a specialist in forensic pathology, Dr. Raven, who
opined that “[u]tilizing gastric contents to estimate the time
of death is an extremely unreliable method,” and that there
is “no scientific support in the available literature” to sup-
port Gunson’s estimate of the narrow two-hour window in
which Phillips died, because of the myriad variables that
influence gastric emptying. Among other problems, “and
probably most importantly, the estimate of the time of
death is predicated on the statement by a witness of when
Mr. Phillips consumed a meal. It is not known if this meal
was indeed the last time Mr. Phillips ate prior to his death.
He may well have eaten again without the witness’ knowl-
edge.” From the available data, and without relying on gas-
tric contents, Raven believed that Phillips’s time of death
could have ranged anywhere from 5:00 p.m. on November 2
to 5:00 a.m. on November 3.
Petitioner argued that counsel’s failure to discredit
Gunson’s analysis, either through cross-examination or the
use of an opposing expert, was especially prejudicial because
it allowed the prosecutor to use petitioner’s own statements
against him. The prosecutor had argued in closing:
“Why is the time line [in which petitioner told detec-
tives that he was alone between 8:00 p.m. and 10:00 to
10:30 p.m.] so important? Up until very recently, no doubt,
certainly in 2002 [when petitioner talked to detectives],
[he] still did not know, would have no way of knowing what
Dr. Gunson knew.”
The power of that argument, petitioner contended, had the
potential to sway the jury’s decision.
The post-conviction court agreed with petitioner
that his trial attorneys failed to exercise reasonable skill
and judgment in not offering available expert testimony
or cross-examining Gunson about the scientific validity of
her gastric-content analysis. However, as with the other
deficiencies it identified in counsel’s performance, the court
276 Davis v. Kelly
concluded that the mistake did not tend to affect the out-
come of the trial and denied his claim for post-conviction
relief.
Petitioner assigns error to the post-conviction court’s
prejudice ruling, and the superintendent cross-assigns error
to the court’s ruling as to counsel’s performance. We agree
with the court’s conclusion regarding prejudice and affirm
on that basis. As we will explain, if counsel had discredited
Gunson’s gut-content analysis through cross-examination
or an opposing expert, it would have resulted in a larger
window of time in which the murder could have been
committed—sometime after Flannigan returned from work
after her 9:30 p.m. shift until 5:00 or 5:30 a.m. the next morn-
ing. But that expanded window still would have included
the period for which petitioner had no alibi (between 8:00
a.m. and 10:00 to 10:30 a.m.), and the hypothetical possibil-
ity of a later time of death would have done little under the
circumstances to affect the jury’s view of (1) other testimony
putting petitioner at the scene of the crime during that same
time, just before Flannigan would arrive home from work;
(2) unchallenged evidence connecting him to the same type
of weapon that killed the victims; (3) testimony about peti-
tioner repeatedly confessing to planning to commit or having
committed the murders during that same window of time—
including testimony by two witnesses, Payne and Lowery,
who had no readily discernable motive to fabricate their tes-
timony; (4) or the absence of any evidence or credible theory
that the murder actually occurred later, when petitioner had
an alibi. It is conceivable, in an abstract sense, that intro-
ducing doubt about Gunson’s theory of the precise time of
death could have allowed defense counsel to point to a gap in
the state’s proof in that regard and posit hypothetical expla-
nations about the murder having occurred sometime after
10:15 a.m. But the prejudice inquiry requires a petitioner
to show something more than that an argument could have
been made; the question is whether the petitioner demon-
strated something less than a probability but more than a
mere possibility that the ultimate outcome could have been
different. See Green, 357 Or at 322; Richardson v. Belleque,
362 Or 236, 265, 406 P3d 1074 (2017) (explaining that the
“tendency to affect the outcome” standard involves “the
Cite as 303 Or App 253 (2020) 277
ultimate outcome of the proceedings as to which counsel’s
deficient performance related”). Petitioner has not done so
here.
In assessing the role that counsel’s purported defi-
ciency could have played at trial, we first note that Gunson’s
testimony on time of death was not limited to an analysis of
gastric contents. On direct examination, she explained that
“the time of death, the determination is based on several
aspects that we look at at the scene and then later on at the
autopsy. And it’s an estimate. It is not—you can’t tell exactly
when somebody died, but you can estimate that time of
death.” She explained that it is based on “several aspects of
the case,” including rigor mortis, post-mortem settling of the
blood, and body temperature. Taking into account those fac-
tors, she initially estimated the time of death to be between
3:30 p.m. on November 2 and 3:30 a.m. on November 3.
Then, accounting for evidence that the investigating officers
turned down the heat in the motel room quickly upon dis-
covering the bodies, she testified that the window “might
move it ahead a little bit more so that maybe it would be 5:30
on the 2nd to 5:30 in the morning on the 3rd.”
After providing that broader window, Gunson then
offered the opinion that is the subject of petitioner’s post-
conviction claim. She testified that “we know basically how
long it takes for the stomach to empty of food,” so “we look
at the gastric contents of everyone we do an autopsy on and
decide how much food is there. We actually measure it.”
Based on the contents of Phillips’s stomach, coupled with
information supplied by Phillips’s girlfriend about when
Phillips last ate (between 8:30 p.m. and 8:45 p.m.), Gunson
estimated Phillips’s time of death to be between 8:45 p.m.
and 10:45 or 11:00 p.m.
Petitioner’s post-conviction claim is directed solely
at the latter, narrower estimate. In fact, petitioner’s own
expert during the post-conviction hearing offered a time-of-
death window very similar to Gunson’s estimate of 5:30 p.m.
to 5:30 a.m.; Raven opined that the time of death ranged
anywhere from 5:00 p.m. on November 2 to 5:00 a.m. on
November 3, 1991. And, as a practical matter, there was
no dispute that Flannigan was working until 9:30 p.m. on
278 Davis v. Kelly
the night of the murders. Therefore, our prejudice analysis
turns on what difference the two different windows could
have made to the jury’s determination in this case.
As petitioner points out, the prosecutor seized on
the narrower window from 8:45 p.m. to 10:45 or 11:00 p.m.
during closing, and he emphasized that evidence to the jury
because it placed the murder in the window in which peti-
tioner had claimed to have been alone and without an alibi.
But Gunson’s testimony was hardly the only evidence that
the murder occurred in that two-hour window when peti-
tioner lacked an alibi. Rather, all of the most incriminating
testimony against petitioner put the murder in that very
same window.
Two of the state’s most important witnesses, Lowery
and Payne, both of whom testified to statements made by
petitioner about the murder, placed petitioner near the site
of the homicide during the narrower window identified
by Gunson. They both testified that they were in an SUV
between 9:00 p.m. and 10:00 p.m. near the Ara’Bel Motel
when they saw petitioner. Payne testified that he was in an
SUV driven by Foreman when Foreman said that he needed
to go meet his brother. He testified that they then pulled
up to a parking lot where petitioner stepped over to the car.
Payne testified that petitioner got in the backseat of the car
and “just rants and raves. He’s upset about the $500 [that
his girlfriend had taken], saying that she bought another
person a car.” Payne was asked, “What time period? We’re
after the halftime of the Blazer game. What time period are
we talking about at this point?” Payne responded, “Between
9 and 10” and agreed that it was dark outside.
Payne further testified that petitioner “pulls out a
.45” and started to load it with bullets, calling Flannigan
different names. He testified that petitioner got out of the car
and “says that we have 45 minutes to be someplace before
the incident, before he kills her.” Payne also confirmed that
the parking lot where that occurred was near the Ara’Bel;
he testified that he later saw the address in a newspaper
article about the murder and that it was “the same place we
were at” with petitioner in the car, and that the parking lot
was “directly across from the motel.”
Cite as 303 Or App 253 (2020) 279
Lowery likewise testified that, around halftime
of the Portland Trail Blazers game,10 Foreman received
a phone call and said that “he needs to make a run.” He
testified that they met petitioner “in that vicinity” of the
Ara’Bel. Lowery was asked, “The time period when you had
been out to—we saw the pictures here, the Ara’Bel Motel
where the blue awning is, do you remember what time frame
that was?” He responded, “9, 10.” He then responded affir-
matively when the prosecutor asked, “Between 9 and 10; is
that what you’re saying?”
Lowery testified that he later returned with
Foreman to Bynum’s house, and left with petitioner to go to
the New York Diner. Lowery testified that, on the way there,
petitioner, who was in the backseat with him, “said he killed
two people” with a gun—something that Lowery said that
he did not believe until seeing the newspaper the following
day. Lowery said that they arrived at the New York Diner
around “10:30, 11.” Defense counsel did not cross-examine
Lowery.11
Although defense counsel pointed out some incon-
sistencies between Payne’s and Lowery’s recollections and
the fact that they had not come forward sooner, the relevant
timelines in their testimony were largely consistent. Beyond
that, the record does not reveal—and petitioner has not
identified—any plausible motivation that either had to fab-
ricate the key parts of their testimony on which they agreed:
that they had driven to the Ara’Bel and saw petitioner there
between 9:00 p.m. and 10:00 p.m., and that petitioner had
made statements implicating himself in the murder.
That time frame, in turn, corresponded with the
period in which Bynum testified that petitioner had taken
a car from him without permission before returning around
10:00 p.m. or 10:15 p.m., and the undisputed testimony
about when Flannigan got off work and would have been
10
An employee of the Trail Blazers, who served as the team’s historian and
archivist, testified that halftime likely would have begun between 7:56 p.m. and
7:59 p.m. that night.
11
That is another ground on which petitioner brought his post-conviction
petition, but the post-conviction court rejected it. Petitioner has not assigned
error to that ruling.
280 Davis v. Kelly
returning home. Phillips’s girlfriend, Renfrow, testified that
Phillips left their house around 9:10 p.m. or 9:15 p.m. to
rush to the Five Spot, which was approximately 20 minutes
away, because Flannigan was scheduled to get off work at
9:30 p.m. And, the prosecutor relied on that evidence and
Payne’s timeline in closing arguments:
“We know who [petitioner] was with, and we’ll get to that
as we go on. He was with Edgar Foreman, Josh Lowery,
Erik Payne at times, and about 9:35 to 9:45, he was in the
Room No. 24 at the Ara’Bel Motel executing in cold blood
Gerald Phillips and Belinda Flannigan.
“* * * * *
“When does Erik Payne say this happened? November
2nd, 1991, between 9 and 10 p.m. That is exactly when you
would expect to find [petitioner] at the Ara’Bel Motel and
saying you have 45 minutes if you were at 9:00. The shift
ends at 9:30, a few minutes to get there.”
In addition to that evidence implicating petitioner
in the murder between 9:00 p.m. and 11:00 p.m., the state
presented evidence that petitioner and Foreman either
threatened or encouraged witnesses to cover up the mur-
ders. Payne testified that, about 10 days after the murder, he
received a phone call from Foreman, who then put petitioner
on the phone. He testified that petitioner “told me not to talk
to the detectives if they try and get in contact with me” and
that he “threatened that the same thing that happened to
them could happen to me.” Lowery testified that, after his
police interview on November 8, petitioner “thanked me for
giving an alibi.” Another witness, Ford, testified that peti-
tioner had asked her to say that he had arrived earlier in
the evening with Foreman at the New York Diner.
The state also presented testimony from various
witnesses who tied petitioner to the same type of weapon
used in the murder, a .45-caliber gun. The state’s criminalist
testified that the spent casings recovered from the murder
scene were .45 automatic shell casings. As described above,
Payne testified that petitioner was loading a .45-caliber gun
in the car just before saying he was going to kill Flannigan,
and three other witnesses testified that petitioner carried
Cite as 303 Or App 253 (2020) 281
something resembling a .45-caliber gun around the time of
the murders.
One of those witnesses, Cline, who was a regular
at the club where Flannigan danced, also testified that he
had seen petitioner and Flannigan arguing in the park-
ing lot of the club two days before her murder. He testified
that petitioner was upset that Flannigan wanted to get
back together with her previous boyfriend. Petitioner sim-
ilarly told detectives that Flannigan had returned to her
ex-boyfriend who was also her pimp, and Bynum similarly
testified that Flannigan and petitioner had “an argument
about she wanted her clothes [after moving out], but she
owed [petitioner] some money, so he wouldn’t give her her
clothes until she gave him his money.”
In addition, as earlier discussed, the state pre-
sented the testimony of seven witnesses besides Payne and
Lowery—Grihm, and six people who had been incarcerated
with petitioner, who said that petitioner had admitted to the
killings.
Petitioner rested without calling any witnesses,
instead relying on closing argument to persuade the jury
that there was reasonable doubt that petitioner commit-
ted the murders. His counsel argued that petitioner lacked
a motive (“So if [petitioner] was motivated to kill Belinda
Flannigan because he had learned she was with another
man, he could have done it that night.”); that petitioner’s
brother, Foreman, “might have been the person in that
room”; that various witnesses—Teal, Modaff, Williams,
Wesson, and Weinberger, as well as Bynum and Grihm—
“are people coming to you primarily as a result of having at
some point in time gained a benefit” and did not have any
information that was unique or credible; and that, despite a
search warrant being executed at Foreman’s home, no gun
was found. He then turned to some of the most challenging
evidence that petitioner faced—the testimony from Payne
and Lowery putting him at the Ara’Bel.
Defense counsel acknowledged that Payne “appeared
compelling,” but he argued that his testimony conflicted with
that of Lowery, who did not remember seeing petitioner in
282 Davis v. Kelly
the car ranting about Flannigan and brandishing a .45. He
also noted that Lowery had initially agreed with Foreman
to not tell the police about their time at the motel, suggest-
ing that he was covering for Foreman rather than petitioner.
Counsel further argued that the discrepancy between their
testimony resulted because Payne was never “brought into
the loop on the alibi” that Lowery and Foreman had agreed
upon.
Counsel eventually turned specifically to the time
of death, noting that the prosecutor’s “strongest argument
for that are the stomach contents.” Defense counsel argued
that evidence from the room suggested that Flannigan and
Phillips had perhaps eaten later—that there was evidence
of food containers and drinks in the motel room that could
have been consumed after Flannigan got off work. Relying
on Gunson’s testimony, and focusing on the even narrower
window that the prosecutor suggested in closing, defense
counsel argued that the food “could have been consumed at
any time up till 1:30 or 2:30 in the morning, which places
the time of death far outside, far outside this narrow 9:35 to
9:50.” (Emphasis added.) Counsel added, “Because of that,
we don’t know what to make of Karen Gunson’s testimony
regarding time of death. That is the one variable that she
hung her hat on because she knew there was information
Gerald Phillips had eaten at 8:15 or 8:30.”
Petitioner then presented a timeline to the jury that
attempted to show why he believed it was impossible for peti-
tioner to have committed the murder between 9:35 p.m. and
9:50 p.m. He argued that, “[i]n their efforts to squeeze down
this timeline, you have literally been told that this crime
took place within a 15-minute time span, that it had to have.
Because otherwise, this and that wouldn’t fit”—specifically,
that if Bynum called petitioner at home in Beaverton during
halftime, which started about 8:00 p.m. and lasted 20 min-
utes, the phone call could have come as late as 8:20 p.m.;
petitioner was required to drive about 20 minutes to the
Ara’Bel, then place a call from a phone booth to Foreman,
who left the New York Diner in Beaverton and drove to the
Ara’Bel and talked to petitioner for five or 10 minutes; and
if Flannigan arrived home around 9:50 p.m., it meant that
“petitioner comes into the room, does what the State says
Cite as 303 Or App 253 (2020) 283
he did, comes back out to his car, this borrowed car, and
drives all the way back to Beaverton and arrives there not
later than 10:15 to 10:30. That can’t be done. Simply can’t be
done.”
We draw several conclusions from the way that
that evidence and those arguments were presented. First,
the state presented a volume of evidence tying petitioner
to the murders, in the way of circumstantial evidence of
motive, opportunity, weapon, and purported admissions to
the crimes, which were consistent with the murder occur-
ring somewhere between 9:30 p.m. and 10:00 p.m. Second,
petitioner’s defense, as a practical matter, required the jury
to doubt the testimony of two witnesses, Payne and Lowery,
who placed petitioner at the scene of the murder at that time,
and his strategy as to those witnesses was to suggest that
they were for some reason covering for the actual murderer,
Foreman—a person who was with petitioner after 10:00 p.m.
and would have had the same alibi if the murders had been
committed later. And, third, to the extent that petitioner
posited a theory that the murder may have occurred later
than 10:00 p.m., it actually took advantage of Gunson’s tes-
timony that time of death can be determined from gut con-
tents: that Flannigan and Phillips had eaten at the motel
room, fixing the time of death two hours after that meal.12
Petitioner has not demonstrated, given that con-
text, how the jury’s assessment of the weight of the evidence
implicating petitioner in the murders could have turned in
any meaningful way on Gunson’s narrowing of the time of
death, or that cross-examination or an opposing expert on
that point—which would have still left the broader 12-hour
window that Gunson and Raven identified—could have had
any tendency to affect the outcome. Given the volume and
breadth of the state’s evidence about when the murder likely
occurred and petitioner’s involvement, petitioner failed to
demonstrate any likelihood that the jury’s determination
12
The Supreme Court’s opinion on direct review describes the content of
two 9-1-1 calls from a neighboring room that, according to the Ara’Bel’s phone
records, were made closer to 3:00 a.m., but that, according to the callers, con-
cerned “loud pops” that occurred much earlier in the evening. See Davis, 345 Or
at 555. At trial, only the fact of the Ara’Bel’s records of two 9-1-1 calls—and not
the content of the calls—was ultimately admitted.
284 Davis v. Kelly
of the credibility of Payne or Lowery, or any other wit-
ness, turned on the fact that their timeline about petition-
er’s involvement matched the window offered by Gunson.
Again, the prejudice inquiry does not require a probabil-
ity that the outcome would have been different, but it also
requires something more than an abstract possibility. And
we are confident, based on this post-conviction record, that
the jury would have reached the same verdict if it had been
told instead, either through cross-examination or an oppos-
ing expert, that the murder could have occurred anytime
between 5:00 p.m. and 5:00 a.m. the next morning, which
still would have included the same period that Payne or
Lowery placed petitioner at the Ara’Bel, when Flannigan
would have returned from her 9:30 p.m. shift. If anything,
testimony undermining the reliability of gut-content
analysis would have undercut one of the theories petitioner
used to attempt to sow doubt—the possibility that Phillips
and Flannigan ate in the motel room after their return,
meaning that the time of death must have been two hours
later, during the period in which petitioner had an alibi.
For those reasons, we conclude that this case is
distinguishable from others in which courts have con-
cluded that counsel’s ineffective handling of expert tes-
timony resulted in prejudice.13 In this case, given the role
that Gunson’s gut-content analysis played in the case as a
whole, petitioner failed to demonstrate that there was any
risk that that analysis, or the absence of contrary testimony
about that analysis, affected the jury’s verdict. We therefore
affirm the post-conviction court’s judgment with regard to
13
E.g., Jackson v. Franke, 364 Or 312, 322, 434 P3d 350 (2019) (holding
that counsel’s failure to object to the admission of expert testimony was preju-
dicial, because it created more than a mere possibility that such evidence influ-
enced the determination of guilt in light of the risk that jurors could be “overly
impressed or prejudiced” by “a credentialed expert, surrounded with the hall-
marks of the scientific method” (internal quotation marks and citation omitted));
Farmer v. Premo, 363 Or 679, 701-02, 427 P3d 170 (2018) (concluding that there
was more than a mere possibility that the verdict had been affected by counsel’s
failure to present expert testimony that a gun found at another suspect’s home
was “likely” the murder weapon; that testimony “could have been significant,”
where, among other things, there was evidence that the other suspect resembled
the shooter, the petitioner’s admissions to the murder differed from forensic evi-
dence, and there was evidence that cast doubt on the reliability and credibility
of witnesses identifying the petitioner and placing him in the area before the
shooting).
Cite as 303 Or App 253 (2020) 285
that specification of inadequate and ineffective assistance of
counsel.
IV. CONCLUSION
In summary, we conclude that petitioner failed to
demonstrate that trial counsel’s approach to the perpetu-
ation deposition amounted to deficient performance. We
further conclude that, even if counsel’s performance was
deficient with regard to establishing an opportunity for
prisoners to conspire against petitioner and handling of
Gunson’s gut-content analysis, the post-conviction court cor-
rectly determined that petitioner failed to prove that those
deficiencies prejudiced petitioner. Accordingly, we affirm the
post-conviction court’s judgment.
Affirmed.