Ellam-Meriwether v. Blewett ( 2023 )

855
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted February 21, affirmed March 22, petition for review
denied July 20, 2023 (371 Or 308)
JOHN M. ELLAM-MERIWETHER,
Petitioner-Appellant,
v.
Tyler BLEWETT,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
18CV45097; A174228
J. Burdette Pratt, Senior Judge.
Harrison Latto argued the cause and filed the briefs for
appellant. John M. Ellam-Meriwether filed the supplemen-
tal brief pro se.
Paul L. Smith, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed.
856 Ellam-Meriwether v. Blewett
KAMINS, J.
Petitioner appeals a judgment denying his petition
for post-conviction relief, challenging his convictions for two
counts of first-degree unlawful sexual penetration, ORS
163.411; one count of first-degree sodomy, ORS 163.405; one
count of first-degree sexual abuse, ORS 163.427; and one
count of third-degree sexual abuse, ORS 163.415. Petitioner
contends that trial counsel rendered inadequate assistance
under Article I, section 11, of the Oregon Constitution,
and ineffective assistance under the Sixth and Fourteenth
Amendments to the United States Constitution. On appeal,
he raises a single assignment of error through counsel, as
well as five pro se supplemental assignments of error. We
affirm.
“We review a post-conviction court’s decision for
legal error, and we are bound by the court’s factual findings
if there is evidence in the record to support them.” Boswell v.
State of Oregon, 305 Or App 515, 519, 469 P3d 846, rev den,
367 Or 387 (2020). To demonstrate that he received inad-
equate assistance of counsel under Article I, section 11, of
the Oregon Constitution, “petitioner must prove two things,
commonly referred to as the performance and prejudice
prongs: (1) that trial counsel failed to exercise reasonable
professional skill and judgment and (2) that petitioner suf-
fered prejudice as a result.” Id. (internal quotation marks
omitted). “To demonstrate ineffectiveness of counsel under
the Sixth Amendment of the federal constitution, a peti-
tioner must make a functionally equivalent showing.” Id.(internal quotation marks omitted).
Petitioner’s Assignment of Error Raised Through
Counsel: Petitioner contends that the post-conviction court
erred “in rejecting petitioner’s claim that he was deprived of
his constitutional right to the effective assistance of counsel
as a matter of law when his defense attorney in his criminal
trial neglected to object when the trial court instructed the
jury” with a particular instruction regarding when a person
is “physically helpless” under Oregon law.
As a preliminary matter, we reject petitioner’s
argument that the instruction at issue, if improper, is an
Nonprecedential Memo Op: 324 Or App 855 (2023) 857
instruction from which prejudice must be presumed because
it instructed the jury with an improper mandatory presump-
tion. See McDonnell v. Premo, 309 Or App 173, 188, 192, 483
P3d 640 (2021), rev den, 369 Or 507 (2022) (holding that pre-
sumed prejudice “is not permissible in the post-conviction
context under Oregon law” and noting that under the fed-
eral constitution, “when a structural error is raised in the
context of an ineffective-assistance claim, finality concerns
require a petitioner to show prejudice in order to obtain a
new trial, unless the ineffective assistance amounts to a
constructive denial of counsel” (internal quotation marks
and brackets omitted)); see also Carella v. California, 491 US
263, 266, 109 S Ct 2419, 105 L Ed 2d 218 (1989) (noting that
a “Sandstrom error”—i.e., when the jury is given an instruc-
tion regarding a presumption and the jury “might have
understood the presumption to be conclusive or as shifting
the burden of persuasion”—is “subject to the harmless-error
rule”). Petitioner’s reliance on Sullivan v. Louisiana, 508
US 275, 113 S Ct 2078, 124 L Ed 182 (1993), is misplaced,
because the holding in Sullivan—the only time the United
States Supreme Court has held an instructional error to
be structural error—“rested on the fact that an improper
reasonable-doubt instruction ‘vitiates all the jury’s findings’
and produces ‘consequences that are necessarily unquanti-
fiable and indeterminate.’ ” State v. Ramos, 367 Or 292, 301,
478 P3d 515 (2020) (quoting Neder v. United States, 527 US 1,
11, 119 S Ct 1827, 144 L Ed 2d 35 (1999) (emphasis in Neder)).
The instruction petitioner asserts was error was not akin to
an improper reasonable-doubt instruction.
Having rejected petitioner’s presumed prejudice
argument, we conclude that the post-conviction court did not
err in determining that petitioner failed to establish preju-
dice based on the jury instruction. Petitioner’s defense at
trial was that no sexual contact had occurred between him
and the victim. The instruction had no bearing on any fact
in dispute during petitioner’s trial. For that reason, the fail-
ure to object to the instruction, even if it was an improper
instruction (an issue we do not decide), could not have had a
tendency to affect the result of the trial. Johnson v. Premo,
361 Or 688, 699, 399 P3d 431 (2017) (“To demonstrate prej-
udice, a petitioner must show that counsel’s failure had a
858 Ellam-Meriwether v. Blewett
tendency to affect the result of his trial.” (Internal quotation
marks omitted.)).
Petitioner’s First Supplemental Assignment of Error.
Petitioner contends that the post-conviction court erred “in
rejecting petitioner’s claim that he received constitution-
ally ineffective assistance of counsel (IAC) when his defense
attorney in the criminal trial neglected to ask that the jury
be instructed that the state was required to prove, as an
element of the crime charged, that petitioner knew that the
victim was physically helpless at the pertinent time.”
We conclude that the post-conviction court did not
err in determining that trial counsel made a reasonable stra-
tegic decision, with petitioner, to proceed on a trial strategy
that denied any sexual activity rather than to pursue the
affirmative defense that petitioner did not know of the facts or
conditions responsible for the victim’s incapacity to consent,
ORS 163.325(3). We further agree with the post-conviction
court that the failure to request the instruction could not
have had a tendency to affect the result of petitioner’s
trial, because petitioner’s mental state with regard to con-
sent was not at issue during petitioner’s trial.1
Petitioner’s Second Supplemental Assignment of Error.
Petitioner contends that the post-conviction court erred “in
rejecting petitioner’s claim that he received constitutionally
IAC when his defense attorney chose not to call as a witness
an expert in DNA evidence.” More specifically, petitioner
argues that trial counsel should have called Karen Lawless
as an expert witness to provide an explanation for certain
inculpatory DNA evidence. The difficulty with that argu-
ment is that, as the post-conviction court found, trial coun-
sel consulted with Lawless and learned that her testimony
would be more favorable to the state than to the defense.
For that reason, we conclude that the post-conviction court
did not err in determining that petitioner failed to meet his
burden to establish that trial counsel’s performance was
deficient or to establish prejudice.
1
To the extent petitioner’s argument in his first supplemental assignment
of error involves a statement the victim made to police, that argument is insuffi-
ciently developed for us to address it. Beall Transport Equipment Co. v. Southern
Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193, adh’d to as clarified on recons, 187
Or App 472, 68 P3d 259 (2003).
Nonprecedential Memo Op: 324 Or App 855 (2023) 859
Petitioner’s Third Supplemental Assignment of Error.
Petitioner contends the post-conviction court erred “in
rejecting petitioner’s claim that he received constitutionally
IAC when his defense attorney did not present evidence of
prior sexual contact between petitioner and the victim.” The
post-conviction court determined that trial counsel made
a reasonable strategic decision not to elicit testimony from
petitioner concerning petitioner’s claimed prior sexual con-
tact with the victim. Given the post-conviction court’s fac-
tual findings—among others, that “petitioner was not able
to respond to the most basic questions that would have been
asked * * * on cross-examination” about his prior sexual con-
tact with the victim—we conclude that the post-conviction
court’s determination that trial counsel made a reasonable
strategic decision not to elicit testimony from petitioner con-
cerning petitioner’s prior sexual contact with the victim was
not error.
Petitioner’s Fourth Supplemental Assignment of Error.
Petitioner contends that the post-conviction court erred “in
rejecting petitioner’s claim that he received constitution-
ally IAC when his defense attorney did not object when the
prosecutor began his closing argument by professing his
personal belief in petitioner’s guilt.” We understand that
assignment to refer to the prosecutor’s use of the words
“that I believe” regarding certain evidence. The post-
conviction court determined that petitioner had not met his
burden to establish that trial counsel’s performance was
deficient because not all reasonable attorneys would have
objected to that statement under the circumstances, which
included that “it was a fleeting comment that [the prose-
cutor] appeared to catch and correct in mid-sentence” and
“[o]bjecting could have brought it to the attention of the jury
when otherwise they may not have noticed the comment.”
We conclude that the post-conviction court did not err in
doing so. McDonnell, 309 Or App at 196 (counsel not inef-
fective for failing to object to term where not “all reasonable
attorneys would have objected to the term”).
Petitioner’s Fifth Supplemental Assignment of Error.
Petitioner contends that the post-conviction court erred “in
rejecting petitioner’s claim that he received constitution-
ally IAC when his defense attorney did not object when the
860 Ellam-Meriwether v. Blewett
prosecutor, during his closing argument, referred improp-
erly to the nature of sex crimes.” We agree with the post-
conviction court that the comments that petitioner argues
were improper addressed information within the common
knowledge of most jurors and, even if improper, could not
have had a tendency to affect the outcome of the trial.
Therefore, we conclude that the post-conviction court did not
err.
Affirmed.