Pico v. Highberger ( 2024 )

610 August 28, 2024 No. 600
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
MARCOS ANDRES PICO,
Petitioner-Appellant,
v.
JOSH HIGHBERGER,
Superintendent,
Oregon State Correctional Institution,
Defendant-Respondent.
Marion County Circuit Court
18CV09134; A177951
Patricia A. Sullivan, Senior Judge.
Submitted August 1, 2024.
Lindsey Burrows and O’Connor Weber LLC filed the
brief for appellant. Marcos A. Pico filed the supplemental
brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Ryan Kahn, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge, Kamins, Judge, and Balmer,
Senior Judge.
LAGESEN, C. J.
Affirmed.
Nonprecedential Memo Op: 334 Or App 610 (2024) 611
LAGESEN, C. J.
Petitioner appeals a post-conviction court judgment
denying his petition for post-conviction relief from a jury
conviction for first-degree murder. Reviewing for legal error,
and accepting the post-conviction court’s supported implicit
and explicit factual findings, Green v. Franke, 357 Or 301,
312, 350 P3d 188 (2015), we affirm.
Petitioner was charged with first-degree murder in
the death of his wife’s ex-husband. At the seven-day-long jury
trial, the state presented evidence that petitioner had motive
to kill the victim based on a contentious child custody dis-
pute between petitioner’s wife and the victim. The evidence
connecting petitioner to the crime, in addition to the motive
evidence, included tests showing that blood smudges found in
petitioner’s car matched the victim’s DNA, cellphone location
data showing that petitioner’s cellphone was in the vicinity
of the murder scene at the time the victim was killed and
then moved away from the scene, and testimony from police
officers and petitioner’s roommates about their observations
of petitioner and his car the night of the murder. Those wit-
nesses variously testified that petitioner did not seem sleepy
or tired, that petitioner’s face and head were freshly shaved
and no longer had the “rat tail” he’d had earlier in the day,
and that his fingernails appeared newly trimmed. The offi-
cers testified, in addition, that they observed on the night
of the murder that petitioner’s car was warm and did not
have frost on it, even though petitioner told them he had not
driven his car that night. That was notable because most of
the cars parked at petitioner’s apartment complex had frost
on the windows given that it was a cold night.
The jury convicted petitioner of first-degree mur-
der. Petitioner appealed; we affirmed the conviction with-
out opinion, the Oregon Supreme Court denied review, and
the United States Supreme Court denied certiorari. State v.
Pico, 283 Or App 424, 388 P3d 751, rev den, 361 Or 240, cert
den, 583 US 853 (2017).
Petitioner then sought post-conviction relief. He
alleged, among other things, that his trial counsel was inef-
fective and inadequate in two ways, explained in more detail
612 Pico v. Highberger
below. He also argued that counsel’s deficiencies amounted to
cumulative error warranting reversal. The post-conviction
court denied relief on all claims, and petitioner appeals.
First Assignment of Error. Petitioner assigns error
to the post-conviction court’s denial of his claim alleging
that his trial counsel was ineffective and inadequate in fail-
ing to invoke the spousal privilege for certain incriminating
statements that petitioner made to his wife after she picked
him up from the police station following an interview about
the crime. Although the statements were included in the
discovery provided by the state, counsel did not see them,
so he did not move to exclude them before trial. Then, in
mapping out the state’s case in opening statement, the pros-
ecutor told the jury about the statements:
“[Wife] picks [petitioner] up [from the police station],
and when she picks him up, curious as to what’s going on
and why he’s been there, talking to police, she asks him
what went on, why he was there. And he says to her that
‘[police officers] think there’s some blood in my car.’ And
then she starts to become ill and she’s starting to make the
connection.
“ ‘Why would there be blood in your car?’ is what she’s
thinking. And then their conversation continues. It’s mostly
one-sided. And [petitioner] tells her that she’s better off and
the kids are better off without [the victim] in their life, a
curious comment, a seeming ownership of responsibility.
“And then [wife] will testify that, as he continues to
talk, he says to her, ‘he cried. He cried.’ ‘Who cried? And
how would you know he cried unless you were staring at
him with a knife in your hand, stabbing him 16 times?’ ”
After opening statements, defense counsel asked
to confer with the court outside the presence of the jury to
address the statements. At that point, counsel invoked the
spousal privilege as to the statements, and the parties agreed
not to refer to the statements again for the remainder of trial.
Counsel did not request, and the court did not provide, any
instruction to the jury specifically addressing the prosecu-
tor’s reference to the now-excluded statements. The instruc-
tions provided to the jury before deliberations included the
standard instructions on what the jury could and could not
Nonprecedential Memo Op: 334 Or App 610 (2024) 613
permissibly consider in making its decision. The jury was
instructed that “[t]he lawyer’s statements and arguments
are not evidence. If your recollection of the evidence is dif-
ferent from the lawyers’ recollection, you must rely on your
memory.” Additionally, it was instructed, “Do not allow bias,
sympathy, or prejudice anyplace in your deliberation. Do not
decide this case on guesswork conjecture or speculation.”
On appeal, petitioner contends that trial counsel’s
failure to review the discovery and invoke the spousal priv-
ilege before trial prejudiced him because the statements
were incriminating and likely affected the jury’s verdict.
The post-conviction court denied relief, determining that
petitioner had not demonstrated prejudice; the court did not
address the performance element of petitioner’s claim.
We agree with the court’s conclusion regarding prej-
udice and reject this assignment of error for that reason.
Trial counsel’s failure to review discovery before
trial no doubt represents a failure to exercise reasonable
professional skill and judgment. Krummacher v. Gierloff,
290 Or 867, 875, 627 P2d 458 (1981) (trial counsel have an
obligation to “investigate the facts and prepare [themselves]
on the law to the extent appropriate to the nature and com-
plexity of the case”); cf. In re Munn, 372 Or 589, ___ P3d
___ (2024) (in attorney discipline case, criminal defense
counsel’s failure to review discovery violated the Rules of
Professional Conduct). Had counsel satisfied that obligation
here, counsel would have invoked spousal privilege before
trial, and the jury would not have heard about petitioner’s
incriminating statements to his wife.
Nevertheless, on this record, the post-conviction
court correctly determined that counsel’s deficiency did not
prejudice petitioner. That is so for two reasons.
First, the jury was instructed that the lawyers’
statements are not evidence and, under our case law, a jury
is presumed to have followed the trial court’s instruction,
“unless there was an overwhelming probability that [the
jury] would have been unable to do so.” Grant v. Coursey, 277
Or App 165, 180-81, 370 P3d 360, rev den, 360 Or 235 (2016).
This record does not allow for the conclusion that there was
614 Pico v. Highberger
an “overwhelming probability” that the jury was not able to
follow the instructions not to treat the prosecutor’s opening
statement as evidence.
Second, and perhaps more significantly, although
petitioner’s statements to his wife are of the type that could
potentially influence a jury’s verdict, they are not likely to
have affected the verdict in this case, because the evidence
against petitioner, summarized above, left little room for
doubt about his guilt. That is, on this record, we conclude
the jury would have reached a guilty verdict even if counsel
had reviewed the discovery and asserted the spousal privi-
lege before trial. Accordingly, the post-conviction court did
not err in concluding that counsel’s failure to review the dis-
covery and invoke the spousal privilege before trial did not
have a tendency to affect the outcome of the jury’s verdict.
Green, 357 Or at 322 (stating prejudice standard under the
state constitution); Strickland v. Washington, 466 US 668,
694, 104 S Ct 2052, 80 L Ed 674 (1984) (stating prejudice
standard under the federal constitution).
Second Assignment of Error. Petitioner contends
that the post-conviction court erred in denying relief on
his claim alleging that his trial counsel was ineffective for
failing to object to the state’s closing argument. The post-
conviction court denied relief, concluding that counsel had
made a strategic decision not to object and that counsel’s
decision was reasonable. On review of the record, we agree
with that assessment.
Third Assignment of Error. In his third and final
assignment of error asserted through counsel, petitioner
contends that the post-conviction court erred in rejecting his
claim of cumulative prejudice. We reject that assignment of
error, because Oregon’s appellate courts have not recognized
the doctrine of cumulative error. Vega-Arrieta v. Blewett, 331
Or App 416, 428, 545 P3d 746 (2024) (citing Monica v. Myers,
319 Or App 376, 386-87, 510 P3d 238, rev den, 370 Or 212(2022)).
First Pro Se Assignment of Error. In a pro se brief,
petitioner contends that the post-conviction court erred
in denying his motion pursuant to Church v. Gladden, 244
Nonprecedential Memo Op: 334 Or App 610 (2024) 615
Or 308, 311, 417 P2d 993 (1966). The post-conviction court
denied the Church motion on the grounds that the motion was
untimely and because the court determined that the motion
was not a cognizable Church motion. The post-conviction court
did not err in denying the Church motion, because the motion
merely expressed petitioner’s dissatisfaction with the manner
in which his post-conviction counsel raised certain issues and
was not seeking to raise claims that post-conviction coun-
sel had not already raised. See Bogle v. State of Oregon, 363
Or 455, 458, 423 P3d 715 (2018) (“[T]he purpose of a proper
Church motion is to notify the post-conviction court that [post-
conviction] counsel has failed to raise certain grounds for
relief.”).
Second Pro Se Assignment of Error. Petitioner
assigns error to the post-conviction court’s denial of his
motion under ORCP 71 for relief from the denial of his
Church motion, arguing that the post-conviction court did
not allow him sufficient time to review a potential claim for
relief based on newly discovered DNA evidence. Petitioner
does not identify the newly discovered DNA evidence. Under
those circumstances, the post-conviction court did not abuse
its discretion in denying petitioner’s motion for relief from
the judgment. See Knutsen v. Sager, 134 Or App 104, 106,
894 P2d 1204 (1995) (review of denial of ORCP 71 motion is
for abuse of discretion).
Third Pro Se Assignment of Error. Petitioner assigns
error to the post-conviction court’s denial of his motion to
compel DNA testing of the blood found in his car by an out-
of-state lab based on his belief that the tests conducted by
the Oregon State Police were faulty. The post-conviction
court denied the motion because it did not find any reason
to distrust the testing by the Oregon State Police, because
it determined that sending the blood to an out-of-state lab
would consume the remaining blood samples, and because
sending the samples out-of-state would create chain-of-cus-
tody issues. Petitioner has not developed an argument as to
why the court erred by relying on those considerations, and
we reject the assignment of error for that reason.
Affirmed.