Salas-Juarez v. Washburn

No. 574 August 14, 2024 413

This is a nonprecedential memorandum opinion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

LUIS ALBERTO SALAS-JUAREZ,

Petitioner-Appellant,

v.

Susan WASHBURN,

Superintendent,

Eastern Oregon Correctional Institution,

Defendant-Respondent.

Umatilla County Circuit Court

CV150526; A177456

Daniel J. Hill, Judge.

Submitted December 20, 2023.

Jedediah Peterson and O’Connor Weber, LLC, filed the

brief for appellant.

Lisa M. Udland, Deputy Attorney General, Benjamin

Gutman, Solicitor General, and Adam Holbrook, Assistant

Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, Powers, Judge, and

Hellman, Judge.

HELLMAN, J.

Affirmed.

414 Salas-Juarez v. Washburn

HELLMAN, J.

Petitioner appeals from a judgment that denied his

petition for post-conviction relief. On appeal, he raises seven

assignments of error that rest on claims that trial counsel

provided inadequate and ineffective assistance of counsel

and that he was actually innocent. For the reasons below,

we affirm.

A petitioner claiming inadequate assistance of coun-

sel under Article I, section 11, of the Oregon Constitution

has the burden “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.” Trujillo v. Maass, 312 Or 431,

435, 822 P2d 703 (1991). Under the federal standard, a peti-

tioner is required to “show that counsel’s representation fell

below an objective standard of reasonableness” and that as a

result, petitioner was prejudiced. Strickland v. Washington,

466 US 668, 687-88, 104 S Ct 2052, 80 L Ed 2d 674 (1984).

As the Oregon Supreme Court has recognized, those stan-

dards are “functionally equivalent.” Montez v. Czerniak, 355

Or 1, 6-7, 322 P3d 487, adh’d to as modified on recons, 355 Or

598, 330 P3d 595 (2014).

We review the post-conviction court’s decision for

legal error. Green v. Franke, 357 Or 301, 312, 350 P3d 188

(2015). “A post-conviction court’s findings of historical fact

are binding on this court if there is evidence in the record to

support them.” Id.

In 2006, petitioner was charged with murder and

attempted murder based on a fight in which one victim was

stabbed and attempts were made to stab a second victim.1

Petitioner was convicted, but that conviction was reversed

on appeal. State v. Salas-Juarez, 349 Or 419, 245 P3d 113

(2010). Petitioner was convicted again after a retrial, and we

affirmed his conviction and sentence. State v. Salas-Juarez,

264 Or App 57, 59, 329 P3d 805, rev den, 356 Or 575 (2014).

Thereafter, petitioner pursued post-conviction

relief, challenging trial counsel’s representation, and was

1

A detailed recitation of the facts can be found in State v. Salas-Juarez, 264

Or App 57, 59-61, 329 P3d 805, rev den, 356 Or 575 (2014).

Nonprecedential Memo Op: 334 Or App 413 (2024) 415

unsuccessful. This appeal followed. We address each of peti-

tioner’s seven assignments of error below.2

Failure to object to improper closing arguments

(Assignments of Error 1 and 3): Petitioner challenges the

post-conviction court’s denial of claims 20F and 20R, in

which he argued that counsel provided inadequate and inef-

fective assistance when counsel failed to object to the prose-

cutor’s improper closing arguments. He argues that counsel

should have objected to the prosecutor’s improper state-

ments regarding the presumption of innocence, and that

counsel should have objected when the prosecutor shifted

the burden of proof to petitioner by comparing the number

of witnesses that each party called.3

Petitioner first challenges the portion of the prose-

cutor’s closing argument in which the prosecutor stated:

“They are saying, ‘Well, Tim Russell is the real killer.’

They do not have to prove a thing. Not a thing. Zero. They

do not have to prove anything. It is my burden. So if I seem

like I am harping on the evidence it is because I have to

convince you but I do not think I have to anymore, because

when whatever (Inaudible) said, ‘Hey, as [petitioner] sits

here right now, is he guilty or innocent?’ the correct answer

was, ‘He’s presumed innocent.’ When is he presumed

2

Petitioner advances a “combined argument” for his first through sixth

assignments of error but does not identify which assignment of error addresses

which post-conviction court ruling, nor does he identify what claims the rulings

addressed, beyond an alphanumeric notation, such as claim 20N. In addition,

the court has expended considerable time ascertaining which arguments in

the “combined argument” section relate to each assignment of error, because

petitioner’s brief does not clearly indicate which assignments were combined.

Although petitioner’s brief technically complies with our rules of appellate pro-

cedure, its approach is unhelpful for the court. Nonetheless, we have addressed

each assignment of error, aside from petitioner’s challenge to the post-conviction

court’s denial of his claim 20V in Assignment of Error 4, in which he challenged

counsel’s failure to object to racist comments in a 9-1-1 call. Despite summarily

mentioning the claim, petitioner presents no argument. Accordingly, we do not

address it. See Beal Transport Equipment Co. v. Southern Pacific, 186 Or App 696,

700 n 2, 64 P3d 1193, adh’d to as clarified on recons, 187 Or App 472, 68 P3d 259

(2003) (“[I]t is not this court’s function to speculate as to what a party’s argument

might be. Nor is it our proper function to make or develop a party’s argument

when that party has not endeavored to do so itself.”).

3

The record demonstrates that trial counsel made a strategic decision not to

move for mistrial. Therefore, at most, petitioner’s claims challenge trial counsel’s

failure to address the prosecutor’s improper statements by objecting and moving

to strike or requesting curative instructions.

416 Salas-Juarez v. Washburn

innocent? Before what? Until the State has proven beyond

a reasonable doubt. The State has proven its case. It is

proven beyond a reasonable doubt. As he sits there, now, he

is guilty. Presumption of innocence was at the beginning.

“You have heard the evidence, now you can deliberate

and make that determination.”

(Emphasis added.)

As the post-conviction court correctly found, and as

the state concedes, the prosecutor incorrectly stated the law

when he said, “As [petitioner] sits there, now, he is guilty.

Presumption of innocence was at the beginning.” The pre-

sumption of innocence does not end at the conclusion of the

evidentiary presentations. It extends until the jury returns

its verdict. Salas-Juarez, 264 Or App at 70 (“[W]hen the

prosecutor stated—without objection by defendant—during

closing argument that ‘[a]s [defendant] sits there, now, he

is guilty. Presumption of innocence was at the beginning.’

The prosecutor misstated the law[.]”); see also State v. Worth,

231 Or App 69, 77, 218 P3d 166 (2009), rev den, 347 Or 718

(2010) (explaining that “the presumption [of innocence] con-

tinues past the ‘start’ of deliberations; it remains in place

until deliberations are complete”).

We do not decide whether trial counsel’s failure

to object to the improper statement constituted deficient

performance, because we conclude that petitioner did not

demonstrate that he “suffered prejudice as a result” of trial

counsel’s conduct. Trujillo, 312 Or at 435. Because counsel

made a strategic decision not to move for a mistrial, the

possible remedies petitioner could have received are a cura-

tive instruction or to have the testimony stricken from the

record. In the context of this case, petitioner did not demon-

strate that the absence of a curative instruction or strik-

ing the testimony tended to affect the verdict, Montez, 355

Or at 7, or that there was a reasonable probability that a

curative instruction or striking the testimony would have

led to a different trial outcome. Strickland, 446 US 668. The

improper statement was brief and occurred in the middle of

the prosecutor’s initial closing argument. In addition, both

before and after making the improper statement, the prose-

cutor correctly stated that the state had the burden of proof

Nonprecedential Memo Op: 334 Or App 413 (2024) 417

in the case. The court also correctly instructed the jury on

the burden of proof, and in trial counsel’s closing argument,

they emphasized that the burden of proof laid with the state.

Because petitioner did not demonstrate prejudice, the post-

conviction court did not err in denying relief on this claim.

Petitioner also claims that counsel was ineffective

for failing to object to the prosecutor’s statements regard-

ing the number of defense witnesses. Specifically, petitioner

takes issue with the following three statements made by the

prosecutor during closing arguments: “[The defense] put on

two witnesses. And only two witnesses.”; “[Y]ou have seen

37 witnesses over nearly a week, here—35 for the state and

two for the defense[.]”; and “How was the State’s case con-

troverted? I want you to think about that. There are two

witnesses that came in.”

Petitioner argues that those statements suggested

to the jury that petitioner had a burden to present evidence,

and that he failed to meet that burden. To determine whether

those statements did, in fact, shift the burden of proof onto

petitioner, and whether counsel’s failure to take curative

action was ineffective or inadequate, we must examine each

statement in context.

The prosecutor made the first statement near the

start of the state’s closing argument. Trial counsel objected

to that statement and argued that the prosecutor was trying

to shift the burden of proof. The trial court overruled that

objection, ruling that the particular argument was permis-

sible. Thus, trial counsel was not inadequate in the manner

asserted by petitioner.

As to the remaining two statements, we conclude

that, viewed in context, the statements did not impermissi-

bly shift the burden of proof to petitioner. The prosecutor’s

second statement was not an overt attempt at placing a bur-

den on petitioner but was part of a description of the evi-

dence the jury had received. Similarly, the prosecutor’s third

statement introduced the state’s argument, which discussed

each defense witness and explained why the jury should not

find the testimony persuasive and why the state’s evidence

was more persuasive. Thus, trial counsel did not perform

418 Salas-Juarez v. Washburn

inadequately when he did not object to those specific state-

ments or move to strike them.

In sum, the post-conviction court did not err in

denying relief on claims 20F and 20R.

Failure to object to vouching by Detective Young and

the prosecutor (Assignment of Error 2): Petitioner argues

that the post-conviction court erred when it denied relief on

claim 20N. In that claim, petitioner argued that trial coun-

sel was ineffective and inadequate for failing to object to tes-

timony of Detective Young that vouched for the truthfulness

of another witness and a related statement by the prosecu-

tor in closing about the credibility of Young.

Petitioner argues that two statements by Young

were impermissible vouching to which counsel should have

objected. First, petitioner argues that Young vouched for

Russell’s credibility when, in the course of discussing his

interview with Russell, he explained that when interview-

ing people:

“[T]he most important thing, is look at how they’re answer-

ing your questions. As—not as much as what’s being said,

how it’s being said, and what’s going on during the inter-

view. Are they directly answering your questions.”

Vouching falls into two categories: direct and indirect.

Direct or “true” vouching occurs when one witness directly

comments on the credibility of another witness. State v.

Corkill, 262 Or App 543, 552, 325 P3d 796, rev den, 355 Or

751 (2014). Indirect vouching occurs when one witness con-

veys their opinion about the truthfulness of another witness

without directly commenting on the other witness’s credi-

bility. Waldorf v. Premo, 301 Or App 572, 577, 457 P3d 298

(2019), rev den, 366 Or 451 (2020) (explaining that “testimony

that falls short of ‘true vouching’ is nonetheless impermissi-

ble when it conveys the speaker’s opinion as to the credibil-

ity of another witness”). Young’s statement is neither direct

nor indirect vouching. As a result, counsel did not perform

deficiently when he did not object to that testimony.

Petitioner additionally asserts that Young imper-

missibly vouched for Russell during the following exchange:

Nonprecedential Memo Op: 334 Or App 413 (2024) 419

“[Prosecutor]: From an investigative standpoint, what

was the next thing that occurred during the proffer, that

you felt was of interest to you, as a detective, a case agent?

“[Young]: That the information I had to that point,

from the witness statements, to what I knew of the scene,

again, this is on August 22nd, I did not find Mr. Russell’s

statement to be evasive or—and it appeared to fit with the

circumstances, it appeared to be truthful, to me.”

The superintendent argues that the detective’s testimony

was admissible under State v. Chandler, 360 Or 323, 380

P3d 932 (2016), because the state did not solicit the state-

ment for its truth, but rather for the non-opinion purpose of

providing context for the investigation.

We do not need to decide whether the testimony was

inadmissible vouching or admissible evidence. Even if the

testimony was inadmissible vouching, trial counsel’s testi-

mony in the post-conviction hearing supports that he made a

reasonable strategic decision not to object. Counsel testified

that in retrospect, he “certainly could have * * * kept [Young]

a little more honest in terms of where they were going with

Russell,” but “[f]or the most part, Mr. Russell’s statement

wasn’t objectionable to us.” He also explained that Young’s

trial testimony “fit into” the defense theory that police incor-

rectly and exclusively focused on petitioner, not Russell, as

the assailant. Evidence that the police believed Russell and

treated him as a witness, rather than a codefendant, bol-

stered that defense theory. Accordingly, trial counsel did not

perform deficiently when he did not object to Young’s testi-

mony and the post-conviction court did not err in denying

relief on that basis.

Petitioner additionally argues that the prosecutor

vouched for Russell in closing argument when the prosecu-

tor said:

“There are reasons we do what we do. I cannot sit here

and explain to you, because you are going to, you know,

tune out all the reasons that things were done. I tried to

do that through [Young] to show you the process that we

went through to arrive at the situation we are at, now. But

there are things that go into years of having training and

experience in building cases.”

420 Salas-Juarez v. Washburn

Petitioner argues that statement was “tantamount” to

vouching for Russell because it suggested that Young was

qualified to determine if someone was telling the truth or

lying. We disagree. That argument is neither direct or indi-

rect vouching because there is no readily discernable link

between the prosecutor’s argument and Young’s statement

that he believed Russell was truthful. Moreover, trial coun-

sel had a reasonable strategic reason not to object to a dis-

cussion that the state relied on Young’s investigative pro-

cess, because it “fit into” the defense theory that the state

was relying on a fundamentally flawed investigation.

We therefore conclude that petitioner did not prove

either deficient performance or prejudice on either argued

basis, and the post-conviction court did not err when it

denied relief on claim 20N.

Failure to object to vouching by Detective Ivens

(Assignment of Error 5): Petitioner challenges the post-

conviction court’s denial of claim 20L, in which he argued

that trial counsel was ineffective for not objecting when

Detective Ivens vouched for Russell’s credibility while dis-

cussing Russell’s composure during interviews.

Petitioner argues that two of Ivens’s statements

about Russell amounted to vouching. In the first, during

direct examination by the state, Ivens testified:

“And at that point—you know—in looking back now, I

think I probably shouldn’t have asked [Russell] if I could

tape record him right out of the hole, because I think it

scared him. And he immediately said, I think I’d like to

speak with an attorney. Yes, I was present the night of the

stabbing, but I think I need to seek counsel before I say

anything else.”

In the second, when defense asked on cross examination

whether Russell “seemed nervous” when Ivens talked to

him, Ivens testified:

“I—I think that police presence makes people uncom-

fortable no matter whether they’re a suspect or a witness.

I wouldn’t say that [Russell] was shaking, but I mean, I—I

could tell that it was probably not a real comfortable situa-

tion for him, yes.”

Nonprecedential Memo Op: 334 Or App 413 (2024) 421

Petitioner asserts that both statements “suggested that

Russell’s invocation of his right to counsel was not because

of guilt, but rather because he was nervous,” and that such

testimony was “tantamount to vouching for his credibility.”

We conclude that Ivens’s statements are neither

direct nor indirect vouching because Ivens in no way con-

veyed his opinion about Russell’s truthfulness. As a result,

counsel did not perform deficiently when he did not object to

that testimony, and the post-conviction court did not err in

denying relief on claim 20L.

Failure to properly object and make a record regard-

ing attempted impeachment of a state’s witness (Assignment

of Error 6): Petitioner argues that the post-conviction court

erred in denying claim 20O, in which petitioner asserted

that trial counsel failed to make a proper offer of proof and

develop a record about how counsel could have used a trea-

tise to impeach one of the state’s witnesses. But in his post-

conviction case, petitioner did not provide any evidence of

what that offer of proof or record would have been. Moreover,

the evidence that petitioner wanted at the trial was already

introduced through another witness’s testimony. On this

record, petitioner did not establish deficient performance or

prejudice, and the post-conviction court did not err in deny-

ing relief on claim 20O.

Actual innocence (Assignment of Error 7): Petitioner

challenges the post-conviction court’s ruling that a claim

for actual innocence was not cognizable in a post-conviction

case, either as a stand-alone claim for relief or as a proce-

dural pathway to allow consideration of otherwise barred

claims. We do not need to decide whether petitioner can raise

a claim of actual innocence in a post-conviction case, because

the only evidence on which petitioner relies to establish his

innocence is his own testimony, and the post-conviction

court correctly found that his testimony was insufficient to

prove that claim.

Affirmed.