Stomps v. Persson ( 2020 )

47
Argued and submitted October 22, 2018, affirmed July 1, 2020
HAZELYNN K. STOMPS,
Petitioner-Appellant,
v.
Rob PERSSON,
Superintendent,
Coffee Creek Correctional Facility,
Defendant-Respondent.
Washington County Circuit Court
C146351CV; A164247
469 P3d 218
Petitioner appeals a judgment rejecting her claims for post-conviction relief
after her conviction for murder. She asserts that trial counsel who represented
her at a hearing on a motion to suppress evidence that the police had obtained
from a search of petitioner’s house and property was inadequate and ineffective
in failing to present evidence in support of counsel’s theory that petitioner had
been unable to give consent to the search. Held: Counsel exercised reasonable
professional skill in calling an expert witness to provide an opinion as to the
effects of medications on petitioner’s ability to consent, and counsel’s failure to
obtain the desired testimony from that witness or through other means did not
constitute inadequate assistance. But even assuming that counsel was inade-
quate in failing to seek other testimony, petitioner has not shown that obtaining
that testimony would have changed the trial court’s ruling on the motion to sup-
press, which was necessary to establish prejudice.
Affirmed.
Dale Penn, Senior Judge.
Lindsey Burrows argued the cause for appellant. Also on
the briefs was O’Connor Weber LLC.
Susan G. Howe, 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.
ARMSTRONG, P. J.
Affirmed.
48 Stomps v. Persson
ARMSTRONG, P. J.
Petitioner appeals a judgment rejecting her claims
for post-conviction relief after her conviction for murder. She
asserts that trial counsel who represented her at a hearing
on her motion to suppress evidence obtained from a search
of her house and property was inadequate and ineffective in
failing to present evidence in support of counsel’s theory that
petitioner had been unable to give consent to the search.1
We conclude that counsel was not inadequate or ineffective
and therefore affirm.
We review the post-conviction court’s legal conclu-
sions for legal error and are bound by its findings of fact if
they are supported by evidence in the record. Green v. Franke,
357 Or 301, 312, 350 P3d 188 (2015); Montez v. Czerniak, 355
Or 1, 8, 322 P3d 487, adh’d to as modified on recons, 355 Or
598, 330 P3d 595 (2014). We summarize the relevant facts
as reflected in the record and in the post-conviction court’s
explicit and implicit findings, which we conclude are sup-
ported by evidence in the record.
Early on the morning of February 6, 2009, in a rural
area of Multnomah County near the Gordon Creek Bridge
in the Columbia Gorge, petitioner waved from the side of
the road to a passing vehicle for help. Men in the vehicle
found petitioner on the ground, injured and unable to walk.
Sheriff’s deputies responded to the scene. Petitioner told the
officers that she and her husband had come to the river to
meet a man named Dave, who was interested in purchasing
their boat. Petitioner told officers that they were attacked by
Dave and another assailant, that she thought her husband
had been abducted by Dave, and that she had been thrown
from a bridge by the other assailant.
Petitioner was hospitalized for treatment of pelvic
and rib fractures while law enforcement officers searched
for her husband and conducted an investigation. Over the
next week, officers interviewed petitioner several times. At
10:00 a.m. on February 6, 2009, the day that she was admit-
ted to the hospital, Multnomah County Sheriff Sergeant
1
She further asserts that trial counsel was inadequate and ineffective in
failing to object to testimony that she contends constituted improper vouching.
We reject that argument without discussion.
Cite as 305 Or App 47 (2020) 49
Kubic and another officer interviewed petitioner. Petitioner
was in pain but alert and coherent. A nurse asked officers
to leave so that petitioner could be prepared for a procedure.
The officers obtained petitioner’s verbal consent to search
the couple’s residence and property for evidence of criminal
activity directed at the couple.
A cursory search of the property did not result in
the discovery of incriminating evidence. Officers returned
to the hospital on February 6 at 8:30 p.m. to continue inter-
viewing petitioner. Petitioner was coherent but obviously
under the effects of medication and would nod off and then
regain consciousness.
The following day, February 7, 2009, petitioner’s
medical chart includes a note that at 7:30 a.m., petitioner’s
“mental status was essentially normal[,] * * * her speech was
clear and [she] followed commands.” Officers returned to the
hospital that morning at 11:00 a.m., to request petitioner’s
consent for a more thorough search of the property, which
consisted of approximately 60 acres. The nurse who admit-
ted the officers to petitioner’s room told them that petitioner
was lucid. The officers testified that petitioner was alert and
in better shape than the previous night. She engaged in con-
versation with them, and they requested permission to do
a more thorough search of the property. Petitioner initially
hesitated and expressed concern that her husband might not
approve. But after talking on the telephone to her husband’s
brother, petitioner gave written consent to the deputies for a
more thorough search of her house and property.
In the search of petitioner’s property, police dis-
covered a metal trash can that contained burned human
remains. The police also found a revolver from which two
rounds had been discharged and on which police later dis-
covered blood. Petitioner was charged on February 12 with
her husband’s murder.
Petitioner sought to suppress the evidence found as
a result of the February 7 search, contending that, because
of medications administered at the hospital, she was cogni-
tively impaired and unable to give consent to the search. See
State v. Larson, 141 Or App 186, 198, 917 P2d 519, rev den,
324 Or 229 (1996) (among factors to consider in determining
50 Stomps v. Persson
the voluntariness of a consent to search is whether drug or
alcohol use has impaired the defendant’s ability to make
a knowing, voluntary, and intelligent choice). At the sup-
pression hearing, petitioner’s counsel called Dr. Izenberg,
a trauma surgeon and attending physician. Izenberg had
admitted petitioner to the hospital and had performed
two procedures on petitioner while she was there—a pro-
cedure on February 6 and a pelvic surgery on February 9.
Counsel testified at the post-conviction hearing that, after
telephone conferences with Izenberg, she decided to call him
as a witness. Counsel testified that Izenberg came off on
the telephone as dynamic, and she thought that he would
be the perfect witness because he had treated petitioner,
he had excellent credentials, and he had a previous posi-
tive relationship with an investigator in counsel’s office.
Additionally, Izenberg had experience with pharmaceuti-
cals and a criminal-justice background. Counsel believed
that Izenberg could testify as to facts but could also give an
expert opinion as to the effects of the drugs that petitioner
was taking at the time that she gave her consent. Counsel
did not expect Izenberg to be able to testify as to whether the
medications had, in fact, affected petitioner, but she thought
that he could describe their possible side effects. Counsel did
not request funding for Izenberg as an expert.
Shortly before the hearing, counsel learned that
Izenberg was not happy that he would not be paid an
expert-witness fee. Counsel tried at the last minute to
obtain a fee for him but was unable to do so.
Thus, Izenberg was a challenging witness. However,
after the trial court’s encouragement and in response to
counsel’s questions, Izenberg described petitioner’s med-
ications and their general effects.2 Izenberg testified from
2
Izenberg initially refused to answer counsel’s question about the possible
side effects of Fentanyl, stating that was not a “simple fact question.” The court
intervened at that point, noting that the questions were “getting into an area
of expert testimony.” The court directed that counsel limit questions “to obser-
vations by this witness related to this particular case and circumstances and
not general [effects].” But the court encouraged Izenberg to cooperate with the
questioning:
“Okay. Dr. Izenberg, you’ve been subpoenaed to be a fact witness in this case.
You happen to be a doctor, too. And so we’re in a gray area here. You’re not being
subpoenaed to be an expert witness, but I think the way your time is going to be
minimized, which I know is your goal here, is to just get through this.”
Cite as 305 Or App 47 (2020) 51
petitioner’s medical record, which was received as an exhibit
at the post-conviction hearing. He testified that he had
not personally administered medications to petitioner on
February 7, the day that she consented to the search, but
he described in detail the medications that she had received
and their general effects. He explained that some of the
medications were opiates that could have “variable” seda-
tive effects.
Izenberg testified that the medical record for
February 7 includes a nurse’s note at 7:30 a.m. that peti-
tioner’s “mental status was essentially normal[,] * * * her
speech was clear and [she] followed commands.” Izenberg
testified that the medications he ordered that day were
given intravenously at low doses to control their effects, and
were short acting:
“We gave these for pain medication. We gave them in low
doses. We gave them in the IV route, so they were quickly
metabolized and wore off. And that’s how we give the
medications.”
The medical record shows that, on the morning
of February 7, petitioner received an intravenous dose of
valium at 8:00 a.m. and an intravenous dose of morphine
at 9:00 a.m. Izenberg testified that the dose of valium that
petitioner received would not last longer than 90 minutes
(9:30 a.m.) and that the dose of morphine that petitioner
received would wear off in 20 to 30 minutes or as long as 45
minutes (9:45 a.m.). Petitioner signed the consent to search
at 11:00 a.m. Thus, Izenberg’s testimony supported a finding
that, when she signed the consent to search at 11:00 a.m.,
petitioner was no longer under the effects of the two med-
ications that she had received two and three hours before.
Other witnesses testified that, on the morning that she gave
her consent to the search, petitioner was lucid, alert, and
eager to talk to the officers and remain informed about the
search for her husband.
The trial court considered all of the factors relevant
to a determination whether a person’s consent to search is
voluntary, see State v. Stevens, 286 Or App 306, 399 P3d
1053 (2017), rev’d on other grounds, 364 Or 91, 430 P3d 1059
(2018) (“whether physical force was used or threatened”;
52 Stomps v. Persson
“whether weapons were displayed”; “whether the consent
was obtained in public”; “whether the person who g[ave] con-
sent [was] the subject of an investigation”; “the number of
officers present”; “whether the atmosphere surrounding the
consent [was] antagonistic or oppressive”; and whether drug
use impaired the defendant’s “capacity to make a knowing,
voluntary, and intelligent choice.” (citing Larson, 141 Or
App at 198)), and found that, with the exception of the pos-
sible effects of medication, all the factors militated in favor
of a conclusion that the consent was voluntary. As to the
effects of medication, the court found that petitioner had
been given “mild” amounts of morphine, valium, and other
drugs during her hospitalization as necessary for her treat-
ment and pain. The court cited Izenberg’s testimony that
the drugs’ effects would have been “mild,” based on both
the “nature of the drugs and the amounts given.” The court
found that on the morning of February 7, petitioner was
“lucid and alert,” that police officers thoroughly discussed
the purpose of their search with petitioner on the morning
of February 7, and that petitioner had talked with one of the
officers on the telephone while the search was underway, in
a cooperative and helpful manner. In light of those findings,
the court concluded that petitioner’s consent was voluntary,
and the court denied the suppression motion.
Petitioner was ultimately convicted of her husband’s
murder. She filed a petition for post-conviction relief, con-
tending in her first claim:
“[Counsel] failed to consult and call an expert to testify
at petitioner’s motion to suppress hearing regarding the
effects of petitioner’s medications on her ability to consent
to the search of her house.”
Petitioner argued that, because Izenberg had not given an
opinion concerning the effect of medications on petitioner’s
cognitive ability to give consent, counsel had failed to call
an expert to give testimony regarding her ability to give
consent.3 Petitioner offered the declaration of Dr. Julian, a
3
Petitioner’s post-conviction counsel argued:
“However he was initially, he had become combative and shown he was not
going to be a cooperative expert witness. And to blithely [go] into a motion
to suppress hearing knowing that you have to show this person could not
Cite as 305 Or App 47 (2020) 53
psychopharmacologist who is now retired and unlicensed,
as the type of testimony that counsel should have presented
to support her motion. Julian, who had reviewed petition-
er’s medical records, did not address dosages or the timing
of medications but opined that petitioner “may have been
under the influence of medications that may have affected
her mental clarity and her ability to fully comprehend the
significance of what she is agreeing to,” and that petitioner’s
cognitive abilities were “likely compromised” when she gave
consent to search her property.
Petitioner’s counsel testified on behalf of respon-
dent at the post-conviction hearing and provided two affida-
vits about her recollections. She stated in her affidavit and
testimony that she chose to call Izenberg as an expert in
support of the suppression motion because she was familiar
with him and believed, after prehearing conversations, that
he was well-qualified and that, as petitioner’s admitting
physician, he could testify about the medications that peti-
tioner had been given and the effects that they could have
on petitioner’s mental state. Counsel testified that Izenberg
was “hyper-qualified, well educated.” Counsel testified that
she thought that, with Izenberg, she was getting an “expert
plus,” and that, although he would be called as a fact wit-
ness as petitioner’s treating doctor, he could also give expert
testimony regarding the effects of her medications. Counsel
stated in her affidavit that it was only very shortly before
the hearing that she learned that Izenberg was reluctant to
testify because he would not be receiving an expert-witness
fee. She tried but failed to obtain last minute approval for
compensation for Izenberg equivalent to an expert-witness
consent without any expert witness to talk about that, to talk about what the
standards are or how morphine acts on a person is inadequate assistance.”
And again:
“[Counsel] argued in the motion to suppress that [petitioner] couldn’t con-
sent. She went into the motion to suppress hearing unprepared, without a
witness who could and would testify to that fact. There were two people who
did, the two detectives who were in the room. Not a nurse who said she was
lucid at some point before and told one of the detectives—two detectives. They
said she was with it. They provided that information in their police reports.
“In order to contradict that, she needed to have a witness to talk about
the effects of those medications two hours after they were given when [peti-
tioner] signed the consent.”
54 Stomps v. Persson
fee. She decided to question Izenberg as best she could to
elicit information that might bear on petitioner’s ability to
give consent, and she felt that he begrudgingly gave her the
information she needed.
Under Article I, section 11, of the Oregon Constitu-
tion, “in all criminal prosecutions, the accused shall have
the right * * * to be heard by himself and counsel.” The
Sixth Amendment to the United States Constitution pro-
vides that “[i]n all criminal prosecutions, the accused shall
enjoy the right * * * to have the Assistance of Counsel for his
defence.” Although those provisions are worded differently,
they “embody similar objectives.” Krummacher v. Gierloff,
290 Or 867, 871, 627 P2d 458 (1981). The right to counsel
is the right to effective counsel. Strickland v. Washington,
466 US 668, 686, 104 S Ct 2052, 80 L Ed 2d 674 (1984);
Krummacher, 290 Or at 872 (The right to counsel calls “for
an adequate performance by counsel of those functions of
professional assistance which an accused person relied upon
counsel to perform on his behalf.”).
Under Article I, section 11, a petitioner seeking
post-conviction relief based on inadequate or ineffective
assistance of counsel must demonstrate by a preponderance
of the evidence that counsel failed to exercise reasonable
professional skill and judgment, Green, 357 Or at 312, and
that the petitioner suffered prejudice as a result. Lichau v.
Baldwin, 333 Or 350, 359, 39 P3d 851 (2002); see also Trujillo
v. Maass, 312 Or 431, 435, 822 P2d 703 (1991) (“The burden
is on petitioner to show, by a preponderance of the evidence,
facts demonstrating that trial counsel failed to exercise rea-
sonable professional skill and judgment and that petitioner
suffered prejudice as a result.”); ORS 138.620(2) (“The bur-
den of proof of facts alleged in the petition shall be upon
the petitioner to establish such facts by a preponderance of
the evidence.”). Under the Sixth Amendment, the petitioner
must establish that counsel’s representation fell below an
objective standard of reasonableness, and that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” Strickland, 466 US at 694; Montez, 355 Or at 7-8. The
standards for determining adequacy of counsel under the
state and federal constitutions are functionally equivalent.
Cite as 305 Or App 47 (2020) 55
State v. Davis, 345 Or 551, 579, 201 P3d 185 (2008) (equating
“effective” assistance with “adequate” assistance).
Whether counsel rendered deficient performance is
a legal question. Simpson v. Coursey, 224 Or App 145, 153-54,
197 P3d 68 (2008), rev den, 346 Or 184 (2009). To prevail on
the performance prong of the claim under Article I, section 11,
the petitioner must prove, by a preponderance of the evi-
dence, facts demonstrating that counsel failed to exercise
reasonable professional skill and judgment. Trujillo, 312 Or
at 435. To prevail under the United States Constitution, the
petitioner must prove that trial counsel’s performance “fell
below an objective standard of reasonableness * * * under
prevailing professional norms.” Strickland, 466 US at 694.
The legal standard for reviewing counsel’s perfor-
mance is a deferential one. The reasonableness of counsel’s
performance is evaluated from counsel’s perspective at the
time of the alleged error and in light of all the circumstances.
Kimmelman v. Morrison, 477 US 365, 381, 106 S Ct 2574,
91 L Ed 2d 305 (1986); Johnson v. Premo, 361 Or 688, 700,
399 P3d 431 (2017) (in evaluating counsel’s performance, the
court views the conduct without the distorting effect of hind-
sight). “A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from coun-
sel’s perspective at the time.” Strickland, 466 US at 689. In
reviewing a post-conviction claim of ineffective assistance of
counsel, the court “will not second-guess a lawyer’s tactical
decisions unless those decisions reflect an absence or sus-
pension of professional skill and judgment.” Cunningham v.
Thompson, 186 Or App 221, 226, 62 P3d 823, adh’d to as
modified, 188 Or App 289, 71 P3d 110 (2003), rev den, 337
Or 327 (2004) (citing Krummacher v. Gierloff, 290 Or at 875).
Adequacy of assistance of counsel allows for tactical choices
that backfire, because, by their nature, trials often involve
risk. Krummacher, 290 Or at 875.
The existence of prejudice is a legal question that
may be dependent on predicate facts. Ashley v. Hoyt, 139 Or
App 385, 395 n 8, 912 P2d 393 (1996). To establish prejudice
of state constitutional magnitude, the petitioner must show
56 Stomps v. Persson
that counsel’s advice, acts, or omissions had a tendency
to affect the result of the prosecution. Stevens v. State of
Oregon, 322 Or 101, 110, 902 P2d 1137 (1995). The Supreme
Court explained in Green, 357 Or at 322-23, that the “ten-
dency to affect” standard requires petitioners to show “more
than mere possibility, but less than probability” of an effect.
The issue is whether trial counsel’s acts or omissions “could
have tended to affect” the outcome of the case. That is, a
petitioner must show more than it is possible that the out-
come 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.
Under the federal constitution, prejudice is estab-
lished by showing that there is a reasonable probability
that, but for counsel’s deficient performance, the result
would have been different. Strickland, 466 US at 694 (peti-
tioner seeking post-conviction relief must show that “there
is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
different,” with “reasonable probability” defined as “a proba-
bility sufficient to undermine confidence in the outcome”).
The post-conviction court rejected petitioner’s claim
that counsel had performed inadequately in failing to con-
sult or call an expert who could offer an opinion concerning
the effects of petitioner’s medications, finding that Izenberg
“was an expert witness who just didn’t get paid as an expert
witness and that was a problem for him.” The post-conviction
court found credible counsel’s explanation that she thought
that Izenberg would be a strong witness and that she was
surprised when Izenberg proved not to be cooperative on
the stand. The court reasoned that counsel’s decision to call
Izenberg had to be evaluated as of the time that the decision
was made, see Johnson, 361 Or at 700 (in evaluating counsel’s
performance, the court views the conduct without the dis-
torting effect of hindsight), and the fact that Izenberg did not
provide the testimony that counsel had hoped to obtain from
him did not mean that the decision to call him was a flawed
one. Izenberg, the post-conviction court found, would have
been called as a witness by the state if not by petitioner. The
court determined that counsel had demonstrated reasonable
professional judgment in calling Izenberg as a witness.
Cite as 305 Or App 47 (2020) 57
Addressing prejudice, the post-conviction court dis-
cussed petitioner’s contention that Julien could have offered
an opinion that petitioner was still under the influence of
medications at the time of her consent and that his opin-
ion would have changed the result of the trial court’s rul-
ing on the suppression motion. The court did not think that
Julien’s opinion had established prejudice. The court found
that those who were in the room with petitioner, those who
treated her, and those who prescribed her medications were
the ones “that have the information.” The court concluded
that Julien, who was not licensed and had not treated peti-
tioner, “cannot give any real opinion.” Further, the court
explained, Julien’s opinion regarding the potential effects
of medications lacked a “standard” to guide the court in
its determination whether petitioner’s ability to consent
was impaired by the medications. The court concluded that
Julien’s opinion would not “in any way” have changed the
trial court’s ruling on the suppression motion. Thus, the
post-conviction court concluded, petitioner had not met her
burden to show prejudice.
On appeal, petitioner makes this assignment of
error:
“The trial court erred by denying petitioner relief on her
claim that her trial attorney was ineffective and inade-
quate for failing to present expert testimony regarding the
effects of the medications on her ability to provide knowing,
intelligent, and voluntary consent to search her home.”
(Emphasis added.) In the face of Izenberg’s recalcitrance
and failure to provide an opinion that was consistent with
the theory of the motion to suppress, petitioner contends
that reasonable counsel would have done more to pursue an
opinion that petitioner was unable to give consent. Petitioner
contends that, “[o]nce an attorney elects a trial strategy, the
attorney must execute it in a reasonable fashion to provide
effective assistance.” She asserts that counsel, having cho-
sen to assert that petitioner’s consent to search was invalid
because she lacked the ability to give consent, had a duty
to follow through with that strategy and secure testimony
consistent with that theory. She contends that the success
of petitioner’s theory depended on evidence regarding the
58 Stomps v. Persson
effects of the medications on petitioner at the time of the
consent. Petitioner contends that, when Izenberg failed
to provide the desired opinion that the medications had
affected petitioner’s cognitive functioning at the time of the
consent, counsel had a duty to find another way to present
that evidence, either by impeaching Izenberg with his prior
statements, seeking a continuance to provide him with an
expert-witness fee, or calling a different witness who would
provide the desired opinion.4
We reject petitioner’s contention. First, contrary to
petitioner’s contention, whether petitioner provided know-
ing, intelligent, and voluntary consent was a legal question
that was not subject to expert testimony. State v. Unger, 356
Or 59, 79-80, 333 P3d 1009 (2014) (whether defendant vol-
untarily consented to a search is a legal determination, to
be made by a court, based on the totality of circumstances).
Second, for the reasons given by the post-conviction court,
the evidence in the record supports the post-conviction
court’s findings and its conclusion that counsel exercised
reasonable professional judgment in calling Izenberg to give
an opinion as to the effects of medication on petitioner’s cog-
nitive ability to give consent.
Counsel testified that her goal in calling Izenberg
was for him to describe the effects of petitioner’s medica-
tions, and he did that. Izenberg testified, essentially, that
the medications petitioner received had potentially mild
sedative effects. His testimony, along with the medical
record, shows that those sedative effects would likely have
worn off by the time that petitioner consented to the search
at 11:00 a.m. on February 7. Petitioner contends, in essence,
that, when Izenberg did not testify that petitioner could
4
Preservation principles apply in the context of post-conviction relief.
Arguments that are not encompassed within the claims of the petition will not
be considered on appeal. Hale v. Belleque, 255 Or App 653, 660, 298 P3d 596,
adh’d to on recons, 258 Or App 587, 312 P3d 533, rev den, 354 Or 597 (2013). The
state asserts that petitioner’s current argument on appeal—that counsel should
have done more to obtain favorable testimony—is different from the argument
raised below—that counsel was inadequate in failing to consult and call an
expert regarding the effects of petitioner’s medication—and is therefore unpre-
served. We conclude that, although there is a difference in emphasis, the essence
of the argument is the same—that counsel was inadequate in failing to present
evidence in support of her theory that, as a result of the effects of medication,
petitioner was cognitively unable to consent to the search.
Cite as 305 Or App 47 (2020) 59
have been cognitively impaired when she gave her consent,
counsel should have figured out a different way to obtain
that testimony. Because counsel exercised reasonable pro-
fessional skill in calling Izenberg to provide an opinion as to
the effects of medications on petitioner’s ability to consent,
we reject petitioner’s contention that her failure to obtain
the desired testimony through other means constituted
inadequate assistance. See Krummacher, 290 Or at 875(adequacy of assistance of counsel allows for tactical choices
that backfire, because, by their nature, trials often involve
risk).
But even if we were to conclude that counsel was
inadequate in failing to seek out other testimony, we would
conclude, for the reasons expressed by the post-conviction
court, that petitioner has not shown that counsel’s failure to
obtain that testimony was prejudicial. Petitioner offered the
declaration of Julien to establish that the trial court would
have granted the suppression motion. However, as the post-
conviction court explained, in light of the evidence provided
by Izenberg concerning the mild and short-acting effects of
petitioner’s medications and the testimony of other witnesses
that petitioner was lucid and alert at the time she consented,
Julien’s opinion that petitioner’s ability to give consent was
“likely compromised,” which was not based on an accurate
summary of petitioner’s dosages or their timing, and which
did not provide a standard for evaluating whether a person
is experiencing lingering effects of medication, would not
have affected the trial court’s ruling on petitioner’s suppres-
sion motion.5 We conclude, therefore, that the failure to call
5
Petitioner contends that the post-conviction court applied an incorrect legal
standard in determining that the offered evidence would not have affected the
trial court’s ruling on the motion to suppress, contending that the proper ques-
tion is whether it could have had a tendency to change the outcome. Petitioner is
correct that, under Green, 357 Or at 323, a petitioner establishes prejudice under
Article I, section 11, by showing that counsel’s deficient performance “could have
tended to affect the outcome of the case.” But in evaluating the prejudicial effect
of counsel’s performance in the context of a suppression motion, the question is
whether, had counsel performed adequately, the ruling on the motion would have
been favorable to petitioner. See Alne v. Nooth, 288 Or App 307, 316, 406 P3d 109
(2017) (“To establish prejudice on a claim based on a trial counsel’s failure to
object to the admission of evidence, a petitioner must establish that the objection
would have been well taken when the criminal case was tried. * * * The petitioner
must then establish that, given the totality of the circumstances, the admission
of the objectionable evidence had a tendency to affect the jury’s verdict.”).
60 Stomps v. Persson
Julien could not have had a tendency to affect the outcome of
the trial. Accordingly, the post-conviction court did not err
in rejecting petitioner’s claim.
Affirmed.