Running v. Kelly ( 2020 )

589
Argued and submitted June 10, 2019; reversed and remanded with instructions
to grant petitioner relief by vacating the sentence of death, otherwise affirmed
September 23, 2020
ERIC WALTER RUNNING,
Petitioner-Appellant,
v.
Brandon KELLY,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
05C10295; A163582
475 P3d 450
Petitioner appeals a judgment denying him post-conviction relief, contend-
ing, among other points, that the post-conviction court erred when it concluded
that petitioner’s trial counsel’s failure to call an expert on the topic of future
dangerousness during the penalty phase of petitioner’s criminal trial did not
cause petitioner prejudice. Held: The post-conviction court erred. Petitioner met
his burden of showing that there was “more than mere possibility” that the out-
come of the penalty phase of petitioner’s criminal trial would have been different
if his trial counsel had called an expert during the penalty phase on the issue
of future dangerousness. That is, there was “more than mere possibility” that
petitioner would not have been sentenced to death if his trial counsel had called
an expert during the penalty phase of petitioner’s criminal trial on the issue of
future dangerousness.
Reversed and remanded with instructions to grant petitioner relief by vacat-
ing the sentence of death; otherwise affirmed.
Joseph C. Guimond, Senior Judge.
Daniel J. Casey argued the cause and filed the opening
and reply brief for appellant. Eric Walter Running filed the
supplemental briefs pro se.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
590 Running v. Kelly
TOOKEY, J.
Reversed and remanded with instructions to grant peti-
tioner relief by vacating the sentence of death; otherwise
affirmed.
Cite as 306 Or App 589 (2020) 591
TOOKEY, J.
In 1998, petitioner killed two women in a Portland
restaurant and was convicted of two counts of aggravated
murder and one count of being a felon in possession of a fire-
arm. See generally State v. Running, 336 Or 545, 87 P3d 661,
cert den, 543 US 1005 (2004) (setting forth facts underlying
petitioner’s convictions). For one count of aggravated mur-
der, petitioner was sentenced to death. For the other count
of aggravated murder, petitioner was sentenced to life with-
out the possibility of parole. On direct review, the Supreme
Court affirmed petitioner’s convictions and sentences. Id. at
564. He then petitioned for post-conviction relief, contend-
ing that, during his criminal trial, his trial counsel ren-
dered constitutionally inadequate and ineffective assistance
of counsel.
More specifically, in the post-conviction proceeding,
petitioner alleged, among other points, that his trial coun-
sel rendered inadequate and ineffective assistance because
they failed to retain an expert and present expert testimony
on the topic of petitioner’s “future dangerousness” during
the penalty-phase of petitioner’s criminal trial. The post-
conviction court concluded that petitioner’s trial counsel’s
failure to present expert testimony during the penalty phase
on the issue of future dangerousness was “inexcusable under
the circumstances of this case and [that] this failure falls
below the acceptable standard of conduct.” Nevertheless, it
concluded that that failure did not prejudice petitioner and
denied petitioner post-conviction relief.
Petitioner appeals the judgment denying him post-
conviction relief and, in his first assignment of error, argues
that the post-conviction court erred when it concluded that
he was not prejudiced by his trial counsel’s failure to call an
expert witness on the subject of future dangerousness. We
agree with petitioner.
Consequently, we reverse and remand the judgment
and instruct the post-conviction court to grant petitioner
relief by vacating his sentence of death.1
1
Our resolution of petitioner’s contention regarding trial counsel’s failure
to present expert testimony on the subject of future dangerousness obviates the
592 Running v. Kelly
We review judgments granting or denying post-
conviction relief for errors of law. Heroff v. Coursey, 280 Or
App 177, 179, 380 P3d 1032 (2016), rev den, 360 Or 851 (2017).
“In doing so, however, we are bound by the post-conviction
court’s findings of fact if they are supported by evidence in
the record.” Id. (internal quotation marks omitted).
I. THE UNDERLYING CRIMES AND
PROCEDURAL BACKGROUND
A. Petitioner’s Crimes and the Guilt Phase of Petitioner’s
Criminal Trial
As context for our discussion, we first recount the
facts regarding the aggravated murders committed by peti-
tioner and the guilt phase of petitioner’s trial, largely drawn
from the Supreme Court’s opinion in State v. Running, 336
Or 545, 87 P3d 661, cert den, 543 US 1005 (2004).
Petitioner was romantically involved with one of the
victims, Anderson. At some point prior to the murders, it
appeared to petitioner that Anderson would end her rela-
tionship with petitioner and return to a previous romantic
partner, Gilpin.
On the day of the shootings, Anderson and peti-
tioner were at a restaurant. Petitioner left the restaurant,
and later Gilpin joined Anderson at the restaurant.
Petitioner returned to the restaurant armed with
a shotgun. When petitioner entered the restaurant, he
encountered Gilpin and shot her in the abdomen. Petitioner
went to another room in the restaurant. Anderson was in
that room, and petitioner shot her in the hip at close range.
After Anderson fell to the floor, petitioner aimed the gun
very close to her cheek and fired, killing her. Petitioner
then left the room and walked toward the entrance of the
need to address petitioner’s other arguments and assignments of error related
to the penalty phase of his criminal trial. To the extent petitioner’s other argu-
ments and assignments of error related to the penalty phase of his criminal trial
implicate his sentence of life without the possibility of parole, we reject those
arguments and assignments of error without further discussion.
We also reject without discussion petitioner’s assignments of error related
to the guilt phase of his criminal trial, and those related to his direct appeal
from his criminal trial.
Cite as 306 Or App 589 (2020) 593
restaurant. As he approached the entrance, he encoun-
tered Gilpin’s body. Petitioner stopped, kicked the body and,
although it appeared that she already had died, placed the
gun above Gilpin’s ear and shot her again. Petitioner left the
restaurant.
Petitioner was arrested and charged with two
counts of aggravated murder and one count of being a felon
in possession of a firearm.
During petitioner’s criminal trial, he did not deny
that he had shot Anderson and Gilpin. Instead, his theory
of defense was that he lacked the requisite mental state—
intent—to support the charge of aggravated murder and
that he was under the influence of an extreme emotional
disturbance at the time that he killed Anderson and Gilpin.
The jury found petitioner guilty of all three counts.
B. The Penalty Phase of Petitioner’s Criminal Trial
The penalty phase of petitioner’s criminal trial was
governed, in part, by ORS 163.150(1)(b)(B) (1997), which
required that the jury, as a prerequisite to the trial court
imposing a death sentence, determine “[w]hether there is
a probability that the defendant would commit criminal
acts of violence that would constitute a continuing threat
to society[.]”2 Unless the jury unanimously voted “yes” on
that question, a death sentence could not be imposed. ORS
163.150(1)(e), (2)(a) (1997). Accordingly, during the penalty
phase of petitioner’s trial, the prosecutor sought to convince
the jury that there is a probability that the petitioner would
commit criminal acts of violence that would constitute a
continuing threat to society.
1. The prosecutor’s opening statement
During the prosecutor’s opening statement, the
prosecutor told the jury that “the best predictor of future
behavior is past conduct.” In the prosecutor’s view, “the
2
ORS 163.150 has been amended several times. Or Laws 1999, ch 1055, § 1,
Or Laws 2001, ch 306, § 1, Or Laws 2005, ch 480, § 1, Or Laws 2017, ch 359, § 4,
Or Laws 2019, ch 635, § 5. It no longer requires that the jury determine whether
there is a probability that the defendant would commit criminal acts of violence
that would constitute a continuing threat to society.
594 Running v. Kelly
circumstances of the [murders themselves], the deliberate-
ness, the calculated nature of the [murders], the brutality
of the [murders], that the [petitioner] killed two defenseless,
unarmed women by itself shows that the [petitioner] consti-
tutes a continuing threat to society.” The prosecutor further
told the jury that the murders were not an “aberration in
the [petitioner’s] conduct,” because petitioner “led a life of
crime for 35 years,” and asserted that the deaths of Gilpin
and Anderson “were the predictable result of the [petition-
er’s] lifetime of criminal and antisocial behavior.” The pros-
ecutor told the jury that “more often than not the victims of
the [petitioner’s] acts of violence were women,” a “common
theme” of petitioner’s criminal conduct “is a complete lack of
respect for people in positions of authority,” and that, while
petitioner was in jail awaiting trial, he “got[ ] into fights with
inmates.”
2. Petitioner’s trial counsel’s opening statement
During petitioner’s trial counsel’s opening state-
ment, petitioner’s trial counsel highlighted that when peti-
tioner was previously in prison he never had any “disci-
plinary write-up or bad conduct.” Additionally, petitioner’s
trial counsel noted that they intended to call Captain Hepler
of the Oregon State Penitentiary (OSP) to testify that OSP
is “equipped to handle any individual who acts out, who acts
out towards other inmates, [or] who acts out towards other
staff,” and that OSP “is an appropriate place” for petitioner.
3. The state’s evidence
The state’s evidence during the penalty of phase
included information regarding petitioner’s numerous prior
criminal convictions, military court martial, and wit-
nesses who testified about petitioner’s long history of vio-
lent and criminal conduct. Testimony presented by the state
reflected, among other facts, that petitioner had stabbed
people, pointed a loaded gun at two women who had appar-
ently angered him, masturbated in a car parked in down-
town Portland on 30 or more occasions while women walked
by, grabbed a female strangers’ buttocks and called her
derogatory names, threatened to kill a police officer who
had arrested him for DUII, and drove a semi-truck while
high on methamphetamine.
Cite as 306 Or App 589 (2020) 595
Petitioner’s ex-wife, who was called as a witness,
testified (1) that petitioner committed numerous violent acts
against her, (2) that when the her daughter was 12-years old,
petitioner put a gun to his step daughter’s head, and (3) that,
after she left petitioner, petitioner got a tattoo depicting a
woman’s throat being cut by a knife and told her, “See my
new tattoo[,] I got this just for you,” which she understood
to be a threat to kill her. Additionally, petitioner’s ex-wife’s
daughter testified that, when she was a minor, petitioner
had “offered” her to strangers for sex, sexually abused her,
and threatened to kill her family if anyone found out about
his conduct toward her.
As for evidence of petitioner’s conduct while jailed
for the murders of Anderson and Gilpin but prior to the pen-
alty phase of his criminal trial, petitioner was observed in
fistfights with inmates, petitioner told a corrections officer
that he would kill the corrections officer if given the oppor-
tunity, and petitioner made a sexual comment to a female
corrections officer.
4. Petitioner’s evidence
During the penalty phase of his trial, petitioner
called Hepler to support the argument that, if petitioner
was sentenced to life in prison, he would not pose a threat
to other inmates or corrections officers because inmates at
OSP are “well-managed” and OSP has facilities to “deal
with incorrigible inmates.”
Hepler described what life was like for an inmate
in the general prison population at OSP and noted that the
general prison population includes some convicted murder-
ers serving life sentences. Hepler also described the special
housing units at OSP, one of which is the intensive man-
agement unit. That unit is for inmates who have “demon-
strated inappropriate behavior for a period of time.” In
intensive management, an inmate’s day-to-day routine is
restricted more than prisoners in the general population:
inmates exercise in a “cubicle,” which does not permit direct
sunlight; visits are conducted through a glass partition; and
the cells have no windows and the lights in the cells are
never turned off, only dimmed at night. Additionally, Hepler
596 Running v. Kelly
testified that there is an “honor block” for inmates who have
had two years of “no major writeups.” Cells on the honor
block have a solid door and inmates are given a padlock to
lock the cell. Hepler also explained the safety precautions
that corrections officers at OSP take in an effort to keep
inmates and staff safe.
Hepler also testified that after a person is sen-
tenced, in order to determine which prison facility will house
the inmate, an assessment is done on the inmate’s “psycho-
logical needs, education needs, treatment needs, [and] secu-
rity concerns, which would include past escapes, assaults,
threats on law enforcement officers, [and] any gang notifica-
tions from other agencies.” From that assessment, “a deter-
mination [is] made of what they are likely to do in the future
based upon their past conduct.”
Notwithstanding the safety precautions taken
by corrections officers, according to Hepler, inmates have
been found in possession of weapons at OSP, drugs have
been smuggled into OSP, inmates “often” take advantage
of “weaker inmates,” and inmates assault other inmates
and corrections staff. Hepler believed that prison officials
only witness or see the results of around 30 percent of the
assaults that occur in prison. Additionally, Hepler remarked
that, over the past 20 years, there have been five murders
by inmates of other inmates, and, over the history of OSP,
inmates have killed eight or nine OSP employees. Hepler
also noted that, among inmates, convicted murderers have
“greater status” in the prison system.
Hepler testified that, if people serving life sentences
have to be removed from the prison, they are an escape risk,
because people serving life sentences “don’t have anything
to lose.” He further stated that the “concept of not having
anything to lose” applies “within prison walls” as well.
5. The state’s closing argument
In its closing argument, the state sought to counter
petitioner’s theory that he would not pose a threat to other
inmates or corrections officers if petitioner was given a
sentence of life in prison. The prosecutor emphasized peti-
tioner’s “criminal history spanning 35 years peppered with
Cite as 306 Or App 589 (2020) 597
violence, juvenile, military, adult, criminal conduct that
continued even during this trial, peppered with violence,
serious assaults, knife attacks, sudden, unpredictable out-
bursts of violence in response to little or no provocation
whatsoever.” In particular, the prosecutor noted that peti-
tioner abused his ex-wife and ex-wife’s daughter. The pros-
ecutor contended that, given the “compelling and believable
evidence, your answer to the * * * question [of] whether it
is more likely than not that this defendant would commit
acts of violence that would constitute [a] continuing threat
to society must be yes.”
6. Petitioner’s trial counsel’s closing argument
In closing argument, petitioner’s trial counsel
argued that Captain Hepler’s testimony demonstrated that
the penitentiary could “handle” petitioner, that there was
“no evidence from the state of Oregon that [petitioner] can-
not be controlled by [corrections officers] who watch him
constantly,” and that petitioner “disrespecting” corrections
officers while he was in jail was not a reason to kill him.
Petitioner’s trial counsel further argued that penitentiary
employees are capable of preventing escapes and that there
was no evidence that petitioner had been found with a
weapon while in jail.
Trial counsel further argued that the state did
not prove that petitioner is a continuing threat to society
because no “experts” testified, and no lay person testified
that they feared petitioner.
7. The state’s rebuttal argument
Finally, during the state’s rebuttal argument, the
prosecutor argued that “[t]he evidence presented in this
case proves that [petitioner] is an evil, cruel, unrepentant,
double murderer who is extremely dangerous and who has
promised to kill again.” In response to petitioner’s comment
about the absence of expert witnesses, the state argued that
“you don’t need any professionals” because “common sense
tells you that people make this type of decision every day”
and reiterated his view that “the circumstances of the mur-
ders” show that petitioner “poses a serious risk to society
and will pose that risk for the remainder of his life,” and
598 Running v. Kelly
that petitioner’s history of criminal conduct demonstrates
the murders were not an aberration.
The prosecutor also argued that, even in jail, peti-
tioner continued to commit “acts of violence and threatened
officers knowing that it would be used against him in the
penalty phase in the case,” so “[o]ne can only reasonably
assume that his behavior will get worse once he’s in prison
and has nothing to lose.”
The prosecutor added that, although petitioner’s
trial counsel suggested that petitioner was “not a prob-
lem” the last time he was in prison, petitioner’s prior stint
in prison was “less than 10 months,” and that the staff at
the penitentiary would not be able to control petitioner’s
behavior because, if petitioner “receives anything less than
a death sentence, he will be housed in general population for
15 hours a day” and “be able to obtain weapons.”
8. The jury’s verdict
At the conclusion of the penalty phase of petition-
er’s trial, the jury determined that petitioner should be
sentenced to death for the murder of Anderson and to life
imprisonment without the possibility of parole for the mur-
der of Gilpin. The trial court sentenced petitioner in accor-
dance with the jury’s determinations.
C. The Post-Conviction Proceeding
As noted above, petitioner alleged that his trial
counsel rendered inadequate and ineffective assistance
because they failed to retain an expert and present expert
testimony during the penalty phase of petitioner’s trial on
the topic of petitioner’s “future dangerousness.”
To support that claim, petitioner presented evi-
dence from a forensic psychologist, Dr. Thomas J. Reidy,
who, after review of documents and other materials, formed
an opinion that petitioner posed a “relatively low” risk or
probability of “serious violence” in prison. “Serious violence”
includes things like “broken bones, or causing concussions
or hospitalizations,” and is different from “mild violence,”
which includes such things as “fistfights,” which, Reidy
acknowledged are more common in prisons. We summarize
Cite as 306 Or App 589 (2020) 599
some of the salient points from Reidy’s testimony and
declaration.
Reidy explained the group statistical concept of
“base rate”—which is the “statistical prevalence of a par-
ticular behavior in a given group over a period of time”—
and explained that many base rates are “counter-intuitive.”
More specifically, “base rates of serious institutional vio-
lence among former death row inmates, incarcerated mur-
derers, long-term inmates, and federal high security prison-
ers are relatively low, and in some samples are below those
of inmates convicted of less serious offenses.” Further, Reidy
explained that research refutes the idea that inmates serv-
ing life-without-parole sentences are likely to behave vio-
lently because they have “nothing to lose.” In Reidy’s view,
“research suggests that [petitioner] as a long-term inmate
would have a lower likelihood of disciplinary difficulties,
despite the seriousness of his crime” because “the reality of
* * * inmate management * * * is that there is always some-
thing to be gained by behaving, which is a reality that is
not lost on long-term inmates who recognize that they will
spend much if not all of their lives in prison.”
Reidy also explained that “[c]ontext is a critically
important variable in assessing the likelihood of violence”
and, therefore, it “cannot be reliably assumed that behav-
ior in the community will be observed in prison.” He also
explained that the “well-known maxim” that “the best pre-
dictor of future behavior is past behavior” is only true “up to
a point.” That is, according to Reidy, “behavior can reliably
estimate future behavior, but only when the pattern is suffi-
ciently established and the predicted context is sufficiently
similar.”
Reidy explained the context in which petitioner
committed his criminal conduct is different from prison:
petitioner’s “capital offense was against defenseless females
using overwhelming firepower[,]” but that most other
“inmates are of equal or greater stature than petitioner
and have equivalent access to weapons,” and correctional
officers “in prison are trained in the physical application of
force” and generally “have rapid backup by other officers”;
much of petitioner’s prior violence was “associated with his
600 Running v. Kelly
relationships,” but “[w]hile imprisoned [petitioner] would not
have access to a female for a romantic or sexual relation-
ship, and thus this context of risk would not be replicated in
prison”; and much of petitioner’s prior violence was associ-
ated with “substance abuse,” and that alcohol and drugs are
harder to come by in prison than they are outside of prison.
According to Reidy, “[p]rison violence does not predictably
follow from pre-confinement criminal and violent behavior.”
Further, Reidy explained that misconduct in jail is
not necessarily indicative of prison behavior. In Reidy’s view,
“relying sole[ly] on the patterns of behavior in jail to pre-
dict future prison violence reflect a confirmatory bias,” and
“ignor[es] or giv[es] little attention to situational, interper-
sonal, or contextual factors differentiating jail and prison.”
Further, in Reidy’s view, “[t]hreats, mutual fistfights, and
disruptive or disrespectful behavior in jail * * * are not
strongly predictive of prison violence and can be managed
as [a] general rule by methods available to prison staff,
including medication, incentives, and specialized housing.”
During cross-examination, Reidy acknowledged,
among other points, that the data he relied on in forming his
opinions did “not account for unreported prison violence.”
After the close of evidence and argument in the
post-conviction proceeding, the post-conviction court deter-
mined that “failure by trial counsel to call an expert in the
penalty phase on the issues of future dangerousness and
mitigation [are] inexcusable under the circumstances of
this case and this failure falls below the acceptable stan-
dard of conduct for trial counsel in the penalty phase of a
death-penalty case.” The post-conviction court observed that
“this case revolved around the penalty phase and competent
trial counsel should have known this from the outset of the
case” because “the evidence of guilt against petitioner was
overwhelming.”
The post-conviction court then turned to what it
described as the “close and difficult” issue of whether peti-
tioner had proven by a “preponderance” that he was preju-
diced by his trial counsel’s deficient performance, and ulti-
mately determined that it could only “find from the evidence
that it is a ‘possibility’ that the expert testimony would have
Cite as 306 Or App 589 (2020) 601
affected the outcome of the penalty phase” and, therefore,
petitioner did not suffer prejudice. It also noted “additional
evidence might have helped petitioner in the penalty phase,
but as the [superintendent] argues, it might have actually
hurt the petitioner.”
II. ANALYSIS
Under Article I, section 11, of the Oregon Consti-
tution, “[i]n all criminal prosecutions, the accused shall
have the right * * * to be heard by himself and counsel.”
The right to counsel calls “for an adequate performance by
counsel of those functions of professional assistance which
an accused person relies upon counsel to perform on his
behalf.” Krummacher v. Gierloff, 290 Or 867, 872, 627 P2d
458 (1981).
To establish that his trial counsel rendered inade-
quate assistance, “petitioner was required to prove two ele-
ments: (1) a performance element—that trial counsel failed
to exercise reasonable professional skill and judgment; and
(2) a prejudice element—that petitioner suffered prejudice
as a result of counsel’s inadequacy.” McMillan v. Kelly, 304
Or App 299, 314, 467 P3d 791 (2020) (internal quotation
marks omitted).
In this case, the superintendent does not contest the
post-conviction court’s determination that petitioner’s trial
counsel’s failure to present expert evidence in the penalty
phase constituted deficient performance.
Turning to prejudice, “The existence of prejudice is
a legal question that may be dependent on predicate facts.”
Stomps v. Persson, 305 Or App 47, 55, 469 P3d 218 (2020).
“To establish prejudice of state constitutional magnitude,
the petitioner must show that counsel’s advice, acts, or
omissions had a tendency to affect the result of the prosecu-
tion.” Id. at 55-56. The Supreme Court explained in Green
v. Franke, 357 Or 301, 322-23, 350 P3d 188 (2015), that the
“tendency to affect” standard requires petitioners to show
“more than mere possibility, but less than probability” of an
effect. As we recently noted in Stomps, 305 Or App at 56,
“[t]he issue is whether trial counsel’s acts or omissions
‘could have tended to affect’ the outcome of the case. That
602 Running v. Kelly
is, a petitioner must show more than it is possible that
the outcome of the prosecution would have been different
if counsel had performed reasonably, but need not show
that it is more likely than not that the outcome would have
changed.”
In this case, we conclude that petitioner has met his
burden of showing “more than mere possibility” that the out-
come of the penalty phase of his criminal trial would have
been different if his trial counsel had called an expert in the
penalty phase on the issue of future dangerousness. That
is, there was “more than mere possibility” that petitioner
would not have been sentenced to death if trial counsel had
called an expert in the penalty phase of his criminal trial on
the issue of future dangerousness.
During the penalty phase of petitioner’s criminal
trial, the prosecutor’s central argument to the jury regard-
ing future dangerousness was that petitioner would commit
criminal acts of violence that would constitute a continuing
threat to society because “the best predictor of future behav-
ior is past conduct.” That argument found support in Hepler’s
testimony that, during an initial intake of new inmates,
“a determination [is] made of what they are likely to do in the
future based upon their past conduct.” But, had petitioner’s
trial counsel called an expert in the penalty phase on the
issue of future dangerousness, e.g., Reidy, the expert could
have explained the importance of “context” in assessing
“the likelihood of violence,” and that it “cannot be reliably
assumed that behavior in the community will be observed
in prison” because the context is different. If credited by the
jury, that testimony would have rebutted a central argument
made by the prosecutor as to future dangerousness, and, at
the very least, would have given petitioner’s trial counsel a
better basis to argue that the central premise of the prosecu-
tor’s case for petitioner’s future dangerousness was flawed.
See Richardson v. Belleque, 362 Or 236, 266-67, 406 P3d 1074
(2017) (failure to obtain records and consult with an expert
at a dangerous-offender sentencing hearing was prejudicial
under Article I, section 11, where information obtained could
have provided additional “ammunition” at that hearing to
oppose an enhanced sentence, either through calling an
expert to the stand, through cross-examination, or both).
Cite as 306 Or App 589 (2020) 603
Petitioner’s trial counsel calling an expert on the
issue of future dangerousness during the penalty phase
of petitioner’s trial also would have assisted petitioner’s
trial counsel in addressing other aspects of the prosecu-
tor’s future dangerousness argument. As noted above, the
prosecutor argued that, even in jail, petitioner continued to
commit “acts of violence and threatened officers knowing
that it would be used against him in the penalty phase in
the case” and “[o]ne can only reasonably assume that [peti-
tioner’s] behavior will get worse once he’s in prison and has
nothing to lose.” That argument was buttressed by Hepler’s
testimony—viz., that the “concept” that inmates serving life
sentences do “not hav[e] anything to lose” applies “within
prison walls.” Had trial counsel called an expert in the pen-
alty phase on the issue of future dangerousness, the expert
could have presented evidence to the jury indicating that
misconduct in jail is not necessarily indicative of prison
behavior and presented evidence that, if credited by a juror,
would have demonstrated the prosecutor’s “nothing to lose”
argument was specious because “research suggests that
[petitioner] as a long-term inmate would have a lower like-
lihood of disciplinary difficulties, despite the seriousness of
his crime.”
On appeal, the superintendent points to what
it views as various difficulties with the evidence elicited
from Reidy during the post-conviction proceeding and
argues that Reidy’s “proffered testimony regarding future-
dangerousness could not have had a tendency to affect the
result.”
First, the superintendent argues that “Reidy’s pro-
posed testimony was limited to the likelihood * * * a con-
victed murderer would later commit acts of so-called ‘serious
violence,’ * * * defined as assaults resulting in broken bones,
burns, etc.,” and did not assess “the likelihood that such an
inmate would engage in what [Riedy] dismissed as ‘mild
violence,’ such as ‘fistfights.’ ” In the superintendent’s view,
because “criminal acts of violence,” as that phrase was used
in ORS 163.150(1)(b)(B), is not limited to “those acts that are
likely to result in physical injury to persons,” but “encom-
passes a broad a range of possible future acts of criminal
violence, as those words are commonly understood,” Reidy’s
604 Running v. Kelly
“entire analytical paradigm * * * did not actually speak to
the future-dangerousness analysis under Oregon law.”
The superintendent is perhaps right that some of
Reidy’s analysis addressed a narrower subset of violent acts
than those that were contemplated by ORS 163.150(1)(b)(B)
(1997). See State v. Tucker, 315 Or 321, 336-37, 845 P2d 904(1993) (rejecting argument that the term “criminal acts of
violence,” as that phrase was used in ORS 163.150(1)(b)(B),
referred to a “relatively narrow” range of conduct likely to
result in physical injury to persons, “including homicide,
forcible rape, aggravated assault, and arson”). For example,
Reidy’s opinion that petitioner posed a “relatively low” risk or
probability of “serious violence” in prison, and he examined
“base rates” of “serious institutional violence.” But, in the
end, that does not affect our analysis in this case because we
disagree with the superintendent that all of the information
presented by Reidy at the post-conviction proceeding was
so limited, and that, if credited by a jury during petitioner’s
criminal trial, there was not “more than mere possibility”
that it would have been beneficial to petitioner when the jury
was assessing petitioner’s future dangerousness. Green, 357
Or at 322. As noted above, given the prosecutor’s central
argument that “the best predictor of future behavior is past
conduct,” evidence regarding the limitations of that maxim
when context differs—i.e., when a person is in prison versus
in the community—would have “laid better groundwork for
arguing” against the death penalty. Johnson v. Premo, 361
Or 688, 707-08, 710-11, 399 P3d 431 (2017) (the petitioner
was prejudiced by trial counsel’s deficient performance in
choosing a defense at trial where, among other things, an
alternative defense would have allowed trial counsel to
argue for guilt on a lesser offense that did not carry the
death penalty and also “would have laid better groundwork
for arguing in the penalty phase that the jury should not
impose a sentence of death”). Further, as described above,
testimony from an expert on the topic of future dangerous-
ness could have assisted petitioner’s trial counsel in arguing
that the prosecutor’s supposition that “one can only reason-
ably assume that [petitioner’s] behavior will get worse once
he’s in prison and has nothing to lose” was not necessarily
grounded in fact.
Cite as 306 Or App 589 (2020) 605
Next, the superintendent argues that Reidy’s “statis-
tical analysis is premised on unrealistic assumptions about
the frequency that violent acts occur in prison” because “it is
based only on reports of such acts over a short period of time
rather than on any hard data of the actual occurrence over
an indefinite period of time” and that “although it may be
true that murderers as a class tend not to violently act out in
prison, that generality may not be true for a murderer who,
like petitioner, (1) had a long, continuous previous history of
committing criminal acts of violence, and (2) who commit-
ted deliberate, public, horrific, gratuitously violent murders
of defenseless victims.” In the superintendent’s view, jurors
“likely would find [Reidy’s] ‘statistics’ as proving nothing of
significance about the probability that petitioner would con-
tinue to commit crimes of violence.” (Emphasis in the super-
intendent’s brief.)
We disagree with the superintendent. The evidence
adduced by post-conviction counsel through Reidy would
have been pertinent to a juror’s assessment of how much
weight to give the state’s penalty-phase evidence—in par-
ticular, the state’s evidence regarding petitioner’s prior vio-
lent criminal conduct. Although Reidy’s testimony was not
“conclusive” regarding petitioner’s future dangerousness,
and any expert called as a witness by petitioner’s trial coun-
sel would have been subject to thorough cross-examination
about the limitations of statistical analysis in predicting
future dangerousness in prison, for the reasons described
above, there was “more than mere possibility” that the out-
come of the penalty phase of petitioner’s criminal trial would
have been different if his trial counsel presented expert tes-
timony on the subject of future dangerousness. Lichau v.
Baldwin, 333 Or 350, 364, 39 P3d 851 (2002) (“[E]vidence
presented at a post-conviction hearing—evidence that could
have been presented at petitioner’s criminal trial” need not
be “ ‘conclusive’ to be deemed to have a tendency to affect the
result of a trial.”).
Finally, the superintendent argues that “any analy-
sis of prejudice also has to take into consideration whether
the omitted evidence might have had a detrimental effect
on the jury’s view of the [petitioner]” and contends that the
post-conviction court was entitled to “conclude[ ] that this
606 Running v. Kelly
additional evidence might have helped petitioner in the pen-
alty phase, but as the [the superintendent] argues, it might
have actually hurt the petitioner.” Without pointing to any
specific aspect of the information presented by Reidy during
the post-conviction proceeding regarding future dangerous-
ness, the superintendent contends that expert testimony on
the issue of petitioner’s future dangerousness would have
aided the state’s case because it would have “established
petitioner’s singular dangerousness.” To the extent that
the superintendent’s argument is premised on the above-
described possible grounds for challenging Reidy’s proffered
testimony—e.g., petitioner’s long history of committing
criminal acts of violence and the specific conduct that led
to his aggravated murder convictions—the jury had already
been apprised of that information. To the extent that the
superintendent is describing some other related grounds
regarding Reidy’s future dangerousness assessment, the
superintendent does not identify those related grounds or
make an argument as to how the jury learning of them
would have been detrimental to petitioner, and therefore the
superintendent’s argument on appeal is insufficiently devel-
oped for us to address it. See Beall Transport Equipment Co.
v. Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193,
adh’d to on recons, 187 Or App 472, 68 P3d 259 (2003) (it is
not “our proper function to make or develop a party’s argu-
ment when that party has not endeavored to do so itself”).3
In sum, we conclude that petitioner has met his bur-
den of showing that, given the particular facts of this case,
there was “more than mere possibility” that the outcome of
the penalty phase of his criminal trial would have been dif-
ferent if his trial counsel had called an expert in the penalty
phase on the issue of future dangerousness. That is, there
3
The superintendent also argues that the “proffered new evidence was
merely cumulative—packaged differently, to be sure, but merely cumulative—of
what already was presented to the jury and that the jury rejected.” Although
some of the information offered by Reidy during the post-conviction proceeding
was raised during petitioner’s criminal trial—such as that there are incentives
to comply with prison rules (e.g., the “honor block”) and specialized housing
can be used for inmates who do not comply with prison rules (e.g., “intensive
management”)—much of the information presented by Reidy during the post-
conviction proceeding was not cumulative of evidence presented during peti-
tioner’s criminal trial, and we therefore reject that argument without further
discussion.
Cite as 306 Or App 589 (2020) 607
was “more than mere possibility” that petitioner would not
have been sentenced to death if trial counsel had called an
expert in the penalty phase of his criminal trial on the issue
of future dangerousness.
Reversed and remanded with instructions to grant
petitioner relief by vacating the sentence of death; otherwise
affirmed.