McLaughlin v. Pedro , 336 Or. App. 9 ( 2024 )

No. 795 November 6, 2024 9
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
DONALD McLAUGHLIN,
Petitioner-Appellant,
v.
David PEDRO,
Superintendent,
Eastern Oregon Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
20CV17899; A180102
J. Burdette Pratt, Judge.
Argued and submitted September 24, 2024.
Mark Kimbrell argued the cause for appellant. Also on
the briefs was Michael R. Levine.
Adam Holbrook, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
EGAN, J.
Affirmed.
10 McLaughlin v. Pedro
Cite as 336 Or App 9 (2024) 11
EGAN, J.
Petitioner appeals a judgment denying his petition
for post-conviction relief from convictions for first-degree
sodomy, ORS 163.405; first-degree sexual abuse, ORS
163.427; and first-degree unlawful sexual penetration, ORS
163.411 after a jury trial. Petitioner presents four assign-
ments of error. Reviewing for legal error and accepting the
post-conviction court’s supported implicit and explicit fac-
tual findings, Green v. Franke, 357 Or 301, 312, 350 P3d 188
(2015), we affirm.
This case relates to sexual assault allegations
against petitioner by two people: S and M. After a jury
trial that resulted in his convictions, petitioner sought post-
conviction relief. He alleged, among other things, that his
trial counsel was constitutionally ineffective and inade-
quate because counsel (1) did not object or move for a mis-
trial when the trial court made statements during closing
arguments that petitioner argues made the court “an advo-
cate for the prosecution”; (2) did not move for the court to
instruct the jury that it had to decide each count separately;
(3) did not object or move for a mistrial when witnesses and
the prosecutor referred to the complainants as “victims”;
and (4) failed to elicit testimony that a witness saw M hug
petitioner immediately after the sexual assault. In the post-
conviction proceeding, petitioner argued that those deficien-
cies required reversal because they prejudiced him. The
post-conviction court denied relief on all claims. Petitioner
now appeals that decision.
“Post-conviction relief is warranted when there has
been a ‘substantial denial’ of a petitioner’s ‘rights under
the constitution of the United States, or under the consti-
tution of the State of Oregon, or both, and which denial
rendered the conviction void.’ ” Delgado-Juarez v. Cain, 307
Or App 83, 90, 475 P3d 883 (2020) (quoting Green, 357 Or
at 311). A criminal defendant has a constitutional right to
adequate and effective assistance of counsel. Strickland v.
Washington, 466 US 668, 687, 104 S Ct 2052, 80 L Ed 2d 674(1984); Krummacher v. Gierloff, 290 Or 867, 872, 627 P2d 458(1981). Under Oregon law, a petitioner claiming inadequate
assistance of counsel must prove by a preponderance of the
12 McLaughlin v. Pedro
evidence that (1) his trial counsel failed to exercise reason-
able professional skill and judgment and that, (2) because
of that failure, the petitioner suffered prejudice. Pereida-
Alba v. Coursey, 356 Or 654, 661-62, 342 P3d 70 (2015); ORS
138.620. The federal standard is similar, requiring that peti-
tioner establish that “counsel’s performance was deficient”
and that “the deficient performance prejudiced the defense
so as to deprive the defendant of a fair trial.” Strickland, 466
US at 687. The state and federal standards are “functionally
equivalent.”1 Montez v. Czerniak, 355 Or 1, 6-7, 322 P3d 487
(2014). With that legal background, we turn to petitioner’s
assignments of error.
Closing Argument. Petitioner argues that his coun-
sel was ineffective for failing to object or move for a mistrial
on the ground that, during defense counsel’s closing argu-
ment, the court “became an advocate for the prosecution.”
During trial, S and M testified that a witness, Garbowski,
saw petitioner sexually assault S and attempted to pull peti-
tioner away from S during the sexual assault. Garbowski
testified for the state, and he denied that the events took
place and being present for them. During closing argument,
defense counsel argued that, if the jury had reasonable doubt
as to whether Garbowski was present during S’s assault,
then the jury must have reasonable doubt about the entirety
of S’s and M’s testimony, including whether they were sexu-
ally assaulted. The state objected to that argument, and the
trial court sustained the objection. The trial court explained
to defense counsel that his argument was an incorrect
description of the reasonable doubt standard. During that
explanation, the trial court described Garbowski as a “tan-
gential” witness. The trial court also told the jury that it
must follow the court’s instructions as to reasonable doubt.
On appeal, petitioner argues that the trial court’s
responses to the state’s objections “created an unaccept-
able risk that the jury’s decision would be influenced by the
1
In this opinion, we discuss Article I, section 11, of the Oregon Constitution.
For the same reasons articulated in that analysis, we likewise conclude that the
post-conviction court did not err under the Sixth Amendment. See Montez, 355
Or at 6 (noting that we interpret and apply the state and federal standards inde-
pendently of one another). Petitioner does not advance any argument suggesting
that, even if his trial counsel’s performance was not constitutionally inadequate
under the Oregon Constitution, it fell below federal constitutional standards.
Cite as 336 Or App 9 (2024) 13
court’s attitude toward petitioner,” and the jury would dis-
regard a critical defense witness as “tangential.” Petitioner
relies on Maney v. Angelozzi, 285 Or App 596, 397 P3d 567
(2017), to argue that his counsel performed inadequately
by not addressing the court’s interruptions and comments.
In that case, the trial court, without any objection from the
state, “repeatedly interrupted defense counsel,” and it inter-
rupted the examination of two witnesses to admonish them
and ask additional questions. Id. at 598, 616-17. The trial
court had “intervened on behalf of the state, weakened the
credibility of a significant defense witness, afforded preferen-
tial treatment to a state’s witness, and conveyed the court’s
apparent belief that defense counsel was an unreliable and
perhaps untrustworthy advocate.” Id. at 613. We concluded
that the trial court’s actions “would have alerted any reason-
able attorney that defendant’s right to a fair trial was at risk
and there was a need to for counsel to bring that risk to the
court’s attention through an appropriate motion.” Id.This case is distinguishable from Maney. In this
case, the prosecutor objected to defense counsel’s arguments
about the reasonable doubt standard, so the trial court
had reason to respond to that objection. See id. at 616-17(“[N]one of the court’s more notable criticisms were prompted
by objections from the state, and the transcript reveals rela-
tively little reason to object, much less anything that would
seem to justify the court’s unilateral decision to repeatedly
admonish counsel in front of the jury.”). The trial court cor-
rected trial counsel’s argument as to the reasonable doubt
standard, and it told the jury that it must follow the court’s
instructions. None of those actions or statements would have
alerted defense counsel that petitioner’s right to a fair trial
was at risk.
We conclude that the post-conviction court did not
err in concluding that petitioner did not prove that his trial
attorney failed to exercise reasonable professional skill and
judgment. When read in context, the record indicates that
the trial court sought to clarify that the jury must look
at the evidence as a whole, and that the jury could deter-
mine, beyond a reasonable doubt, that S had been sexu-
ally assaulted even if they also determined that they had a
14 McLaughlin v. Pedro
reasonable doubt as to whether Garbowski was present or
tried to stop the assault. Thus, the trial court’s statements
during defense’s closing argument did not deny petitioner
a fair trial, and, under the circumstances of this case, the
post-conviction court did not err in ruling that defense coun-
sel did not fail to exercise reasonable professional skill and
judgment, and petitioner was not entitled to post-conviction
relief.
Jury Instruction. Petitioner argues that trial coun-
sel was inadequate for failing to ask the court to instruct
the jury that it had to “consider separately the evidence on
each count and determine guilt or innocence separately on
each count.” In the post-conviction proceeding, trial counsel
testified that the fact that M and S were friends and “had
discussed the allegations against [petitioner] together before
going forward to police * * * was evidence that [he] strategi-
cally wanted the jury to hear.” (Emphasis added.) Trial coun-
sel “wanted the jury to consider [M’s and S’s] testimony to
police in concert to underscore [his] argument that it was
fabricated and rehearsed,” and he “spent considerable time
in [his] closing argument addressing all the reasons why
their version of events as they told police did not make
any logical sense.” The post-conviction court determined
that trial counsel made a reasonable strategic decision to
not request the instruction, because it “would have worked
against the central defense theory of the case.” According to
the post-conviction court, “[h]ad the jury been asked to con-
sider the charges separately, trial counsel would not have
been able to make the arguments he made to the jury.”
On appeal, petitioner argues that trial counsel was
deficient because his conscious decision not to request the
limiting instruction was “premised on a misapprehension
of the law, rather than an appropriate consideration of the
risks and benefits of seeking the instruction.” See Delgado-
Juarez, 307 Or App at 93 (“[I]f defense counsel’s cost-benefit
analysis is based on an erroneous or incomplete under-
standing of the law, the resulting choice, much like a choice
based upon a flawed perception of the facts, is unlikely to
be the product of competent representation.”). Petitioner
argues that the instruction would not have limited counsel
Cite as 336 Or App 9 (2024) 15
from making the arguments that he made in closing; rather,
the instruction would have limited the jury from using the
state’s evidence for propensity purposes.
In response, the superintendent argues that trial
counsel made a reasonable strategic decision to not request
such an instruction because that instruction would have
worked against the central defense theory. In addition,
the superintendent argues that petitioner “specifically
instructed” counsel that he did not want a split verdict, he
specifically instructed defense counsel that he wanted an
“all-or-nothing strategy,” and counsel said that he went
along with that directive, so counsel did not ask the jury to
consider the cases separately.
We agree with the superintendent. First, in his
post-conviction petition, petitioner alleged that trial counsel
should have requested an instruction for the jury to “consider
separately the evidence on each count.” That instruction
would have limited trial counsel’s theory of the case—that
the evidence related to S and M, when considered together,
showed that the complainants colluded in their allegations
against petitioner. See Delgado-Juarez, 307 Or App at 95(“[T]here are circumstances in which an attorney may make
the deliberate choice not to request a limiting instruction.”).
Second, we have articulated that “[a] petitioner cannot pre-
vail on a claim for post-conviction relief if the attorney merely
carried out tactical decisions at the directions of the client in
furtherance of the client’s goals for litigation—goals that the
client now regrets.” Evans v. Nooth, 300 Or App 331, 338, 452
P3d 1026 (2019), rev’d on other grounds, 368 Or 159 (2021).
The post-conviction court found defense counsel’s testimony
to be credible, defense counsel stated that petitioner “specifi-
cally instructed” counsel that he did not want a split verdict,
and counsel believed that requesting the instruction could
have put petitioner at risk for that result. Thus, we conclude
that the post-conviction court did not err in its determina-
tion that petitioner’s counsel did not fail to exercise reason-
able professional skill and judgment when he did not request
a limiting instruction to limit the evidence for each count.
References to “Victims.” Petitioner argues that his
counsel was inadequate for failing to move to prohibit witnesses
16 McLaughlin v. Pedro
and the prosecutor from referring to the complainants as
“victims” and for failing to object to those references during
trial. The post-conviction court concluded that petitioner
did not prove that all reasonable trial attorneys would have
objected to the prosecutor and witnesses using the term
“victim,” because his trial occurred five months prior to the
Supreme Court’s decision in State v. Sperou, 365 Or 121, 442
P3d 581 (2019), in which the Supreme Court determined
that such references constitute impermissible vouching. The
post-conviction court also noted that Sperou did not prohibit
prosecutors from using the term “victim” in all circum-
stances. Id. at 135.
“[A]n appellate decision issued after petitioner’s
trial cannot, on its own, demonstrate that trial counsel
failed to exercise reasonable professional judgment in fail-
ing to spot a debatable legal issue.” Antoine v. Taylor, 368
Or 760, 769, 499 P3d 48 (2021). To obtain post-conviction
relief, petitioner “must show that, based on the state of law
as it existed at the time of his trial, trial counsel exercis-
ing reasonable professional skill and judgment would have
made the argument that any references to [the complainant]
as a ‘victim’ at trial constituted unlawful vouching.” Curry
v. Highberger, 326 Or App 259, 269, 531 P3d 702, rev den,
371 Or 511 (2023). At the time of petitioner’s criminal trial,
the Supreme Court had granted the petition for review in
Sperou based on two questions: whether the trial court
erred in admitting other-acts evidence, and whether the
trial court erred in allowing witnesses and the prosecutor to
describe the complainant and other witnesses as “victims.”
365 Or at 123. Thus, the vouching rule from Sperou was not
the law “as it existed at the time” of petitioner’s trial, but the
Supreme Court had taken the issue under advisement.
Before Sperou, and at the time of petitioner’s crim-
inal trial, the state of vouching law was State v. Lupoli,
348 Or 346, 234 P3d 117 (2010). In that case, a nurse tes-
tified at trial that she had diagnosed the complainant as
having been sexually abused, and the nurse testified that
the complainant’s responses during the forensic interview
were “very clear and spontaneous,” “consistent,” and “com-
pelling.” Id. at 353. The Supreme Court concluded that the
Cite as 336 Or App 9 (2024) 17
nurse improperly vouched for the child’s credibility because,
“given the lack of physical evidence of abuse,” the nurse’s
statement “necessarily was based on her assessment of
the child’s believability.” Id. at 362. Thus, Lupoli related
to witness testimony that vouched for the credibility of a
complainant based on the witness’s diagnosis of a child
having been sexually abused, and it did not focus on the
witness’s use of the term “victim.” Id. Sperou extended the
rule against vouching to witnesses referring to complain-
ants as “victims,” and it also applied that rule to prosecu-
tors’ uses of the term “victim” in some circumstances. The
court in Sperou “observed that a prosecutor’s use of the term
‘victim’ entails a ‘qualitatively different’ analysis” than the
rule articulated in Lupoli. Curry, 326 Or App at 270 (quot-
ing Sperou, 365 Or at 137); see also id. at 273 (Aoyagi, P. J.,
concurring) (“Sperou effected a significant extension of the
principle animating Lupoli[.]”).
Although Sperou was under advisement at the time
of petitioner’s trial, petitioner did not submit any evidence
to the post-conviction court to show that, at the time of his
trial, criminal defense attorneys were making those types
of vouching objections to witnesses’ or prosecutors’ refer-
ences to “victims.” See Hagberg v. Coursey, 269 Or App 377,
381, 344 P3d 1118, rev den, 358 Or 69 (2015) (noting that the
petitioner had submitted evidence from an expert witness,
a criminal defense lawyer, who testified that the legal issue
“was a subject of discussion within the criminal defense bar,
and that defense lawyers were making motions pursuant to
that rule in other cases”); Antoine, 368 Or at 780 (the peti-
tioner did not present “any evidence” that his reading of the
law “was widely shared or even that any other attorney had
read [the law] in that manner prior to [the appellate court
decision]”); but see Williams v. Laney, 321 Or App 1, 4, 514
P3d 1120 (2022), rev den, 370 Or 714 (2023) (before Sperou
was decided, the petitioner’s defense counsel was “aware of
the potential prejudicial effect of referring to the five teen-
aged girls as ‘victims,’ ” and counsel objected to those ref-
erences several times throughout trial). Petitioner also did
not show that trial counsel should have understood that the
Supreme Court was going to decide Sperou on the vouching
issue when it took the case taken under advisement on two
18 McLaughlin v. Pedro
distinct issues. See Mesta v. Franke, 261 Or App 759, 781,
322 P3d 1136 (2014) (“[A]lthough the Supreme Court had
indicated that the OEC 403 issue might be considered in
Southard, there was nothing to particularly indicate that
the court was going to decide the case on that issue, let alone
decide it in a manner favorable to petitioner.”).
The majority of the references to “victims” that peti-
tioner cites in his brief relate to the prosecutor’s characteri-
zation of the complainants when examining witnesses and
in closing arguments. But Sperou “extended the principles
underlying its decision in Lupoli to statements made by a
prosecutor,” Curry, 326 Or App at 270, and defense counsel
was not inadequate for failing to anticipate that the pros-
ecutor’s references might be disallowed under Sperou. In
addition, the rule against prosecutorial uses of the word
“victim,” as articulated in Sperou, is nuanced. Prosecutors
are permitted to argue about witness credibility, but prose-
cutors cannot make arguments as to their own beliefs about
the complainant. Sperou, 365 Or at 135 (“In light of a pros-
ecutor’s dual responsibilities to refrain from inflammatory
remarks and personal commentary, on the one hand, but
to be an advocate for the state’s cause, on the other, it is
difficult to state a categorical rule regarding a prosecutor’s
use of the term ‘victim’ to describe a complaining witness
where victimhood is disputed.”). That nuance within the
prosecutorial vouching rule would be particularly difficult
for defense counsel to anticipate before Sperou, and the fact
that prosecutors are allowed to argue their case makes peti-
tioner’s argument that every reasonable counsel would have
made an objection untenable.
We have also reviewed the instances in the record
in which witnesses used the word “victim,” and we conclude
that those instances did not indicate that petitioner’s trial
counsel was inadequate for failing to object. The witnesses’
use of the word “victim” mostly entailed witnesses describ-
ing their work investigating sex abuse crimes in the general
sense, rather than referring to the specific complainants in
this case as “victims.” For example, a property evidence clerk
testified that the protocol for sexual assault reports includes
“contacting the victim;” a detective described “pretext calls,”
Cite as 336 Or App 9 (2024) 19
which require that “a victim” call the suspect to see if the
suspect will provide incriminating statements over the
phone; and another detective testified that he works for the
“special victims unit.” Those statements did not refer to the
complainants as “victims,” so they do not run afoul of the
vouching rule in Sperou. See id. at 132 (“[T]he use of the
term ‘victim’ to refer to the complaining witness or other wit-
nesses * * * conveys the speaker’s belief that the accusers are
credible.” (Emphasis added.)). In addition, the witnesses also
referred to complainants as “victims” based on the prose-
cutor’s initial characterization. See Curry, 326 Or App at
274 (Aoyagi, P. J., concurring) (“[I]t is fairly apparent that
the witnesses were simply accepting the prosecutor’s char-
acterization for purposes of answering his questions * * *
and occasionally repeating his phrasing * * * rather than
expressing their own views on whether the complainant was
‘the victim.’ ”). For example, one of the detectives testified
that he did not talk to anyone else “as far as victims go.” The
detective gave that answer in response to the prosecutor’s
question about whether, after reading a police report, the
detective determined that there was another victim. Those
references likely did not express the witnesses’ “own views
on whether the complainant was ‘the victim,’ ” because they
came in response to the prosecutor’s characterization. Id.
at 274 (Aoyagi, P. J., concurring) (emphasis added). The few
remaining uses of the term “victim” likewise were not the
type of references where all trial counsel, exercising reason-
able professional skill and judgment, would have objected,
particularly before the Supreme Court’s decision in Sperou.
Thus, based on the state of the law at the time of his
trial and the evidence that petitioner submitted to the post-
conviction court, petitioner did not show that trial counsel
failed to exercise reasonable professional skill and judgment
when he did not object to references to M and S as “victims.”
See id. at 269-70 (noting that the law “did not obligate peti-
tioner’s trial attorney to object to the prosecutor’s and eye-
witness’s use of the term ‘victim’ at trial in 2015 or even sug-
gest that such an objection might be successful”). Because
“we must make every attempt to not analyze counsel’s per-
formance with the benefit of hindsight,” Mesta, 261 Or App
at 782-83, we conclude that the post-conviction court did not
20 McLaughlin v. Pedro
err in determining that trial counsel did not fail to exercise
reasonable professional skill and judgment when he did not
object to references to the complainants as victims.
Failing to Ask a Witness About M Hugging Petitioner.
Lastly, petitioner argues that trial counsel failed to exercise
reasonable skill and judgment when he failed to elicit testi-
mony from a witness that she saw M hug petitioner imme-
diately after the incident in which M alleged that petitioner
orally sodomized her. The post-conviction court determined
that petitioner failed to prove that the trial counsel was
unreasonable or that all reasonable attorneys would have
asked that question, because counsel made a split-second
strategic decision in the middle of trial to not ask the wit-
ness a leading question.
We conclude that the post-conviction court did not
err. We “will not second-guess a lawyer’s tactical decisions
in the name of the constitution unless those decisions reflect
an absence or suspension of professional skill and judgment.”
Gorham v. Thompson, 332 Or 560, 567, 34 P3d 161 (2001).
Trial counsel made a tactical decision not to ask the wit-
ness about whether M hugged petitioner. Counsel testified
that he thought the jury would believe that he “rigged all [of
his] witnesses” if he asked the leading question. In addition,
the post-conviction court noted that “[w]itnesses have been
known to change their accounts while on the stand, so it was
reasonable for trial counsel to move on after trying to ask
[the witness] about it generally.” Those are valid concerns,
and we will not second-guess trial counsel’s tactical deci-
sions in this case because they “are based upon reason and
professional judgment.” Krummacher, 290 Or at 881.
Affirmed.