Zyst v. Kelly

No. 203 March 12, 2025 597

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

TARA ELLYSSIA ZYST,

Petitioner-Appellant,

v.

Brandon KELLY,

Superintendent,

Oregon State Penitentiary,

Defendant-Respondent.

Marion County Circuit Court

02C15732; A164370

Don A. Dickey, Judge.

Argued October 25, 2023.

Daniel J. Casey argued the cause for appellant. Also on

the briefs was Lindsey Burrows. Tara Zyst filed the supple-

mental brief pro se. Lindsey Burrows and O’Connor Weber

LLC filed the supplemental brief for appellant.

Ryan P. Kahn, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, Benjamin Gutman, Solicitor

General, David B. Thompson, Assistant Attorney General,

and Philip M. Thoennes, Assistant Attorney General.

Before Shorr, Presiding Judge, Pagán, Judge, and

Mooney, Senior Judge.

SHORR, P. J.

Affirmed.

598 Zyst v. Kelly

Cite as 338 Or App 597 (2025) 599

SHORR, P. J.

Petitioner appeals a judgment denying her1 petition

for post-conviction relief. As relevant to this appeal, that

petition largely focused on allegations that her defense team

performed deficiently throughout every stage of her prosecu-

tion and the appeal that followed. In the criminal proceed-

ing, petitioner was convicted of two counts of aggravated

murder for the killing of two victims who were camping with

petitioner on the bank of the Willamette River. Early in the

investigation, police suspected that petitioner was respon-

sible for the killings. Police then arrested petitioner, and

she was indicted for the crimes. A jury ultimately convicted

petitioner and sentenced her to death for both murders.

On direct review of the criminal judgment that imposed

the death penalty, the Oregon Supreme Court affirmed

the convictions and sentences of death. State v. Terry, 333

Or 163, 165, 172, 37 P3d 157 (2001), cert den, 536 US 910

(2002). Petitioner then filed her petition for post-conviction

relief, which the post-conviction court—in a 288-page opin-

ion—denied after trial. In this appeal of the post-conviction

court’s judgment, she assigns error to that court’s denial of

her claims and to the exclusion of several exhibits that she

sought to introduce at the post-conviction trial. As we will

explain, none of petitioner’s arguments provide a basis for

reversing the post-conviction court’s judgment. Accordingly,

we affirm.

I. PRELIMINARY MATTERS

At the outset, we note that we will not address at

length many of petitioner’s arguments because they are

either moot, contrary to controlling case law, or undevel-

oped. We will first address the issues that are moot and con-

trolled by existing case law and briefly discuss the nature of

many of the undeveloped arguments. Then we will turn to

an extended discussion of the remaining arguments.

The moot issues arise in petitioner’s fourth and

eighth assignments of error, in which she argues that trial

1

Petitioner is a transgender woman who uses feminine pronouns. She tran-

sitioned during the pendency of this appeal. To recognize that transition, this

opinion refers to petitioner with feminine pronouns except when citing prior

cases involving her.

600 Zyst v. Kelly

counsel wrongly failed to challenge the constitutionality

of Oregon’s death-penalty scheme. Former Governor Kate

Brown commuted petitioner’s death sentence to a sentence

of life without the possibility of parole.2 “[T]he legal effect of

the commutation is that the sentence of life without the pos-

sibility of parole stands as if it had been originally imposed.”

Thompson v. Fhuere, 372 Or 81, 97, 545 P3d 1233 (2024).

That means petitioner’s death sentence no longer exists. Id.

at 97-99. Thus, we reject as moot any arguments that would

provide as a remedy only the reduction of petitioner’s death

sentence to a sentence of life without the possibility of parole.

The remainder of petitioner’s sentencing-related arguments

(i.e., those that would have as a remedy a new penalty-phase

proceeding) are addressed below. See id. at 99 (explaining

that the commutation of the petitioner’s death sentence did

not “preclude[ ] other claims for relief that challenge the

underlying judicial proceedings that ultimately resulted in

petitioner’s [death] sentence”).

The arguments contrary to controlling case law

arise in petitioner’s ninth and tenth assignments of error,

in which she argues that the post-conviction court erred in

denying her claims of cumulative error, and in her twelfth

assignment of error, in which she argues that we should

overrule Palmer v. State of Oregon, 318 Or 352, 867 P2d

1368 (1994). With respect to the former, we have held that

cumulative error is not recognized in Oregon, and so we

affirm the post-conviction court on that point. Vega-Arrieta

v. Blewett, 331 Or App 416, 428, 545 P3d 746, rev den, 372

Or 763 (2024); Manning v. Kelly, 325 Or App 31, 36, 528 P3d

311 (2023). With respect to the latter, petitioner recognizes

2

The parties do not dispute the fact that petitioner’s sentence of death was

commuted. However, petitioner has filed a successive petition for post-conviction

relief challenging the legality of the governor’s commutation. Tara Zyst v.

Brandon Kelly, Marion County Case No. 21CV39651.

Nevertheless, petitioner does not argue that that pending case has any

impact on the issue of mootness in this one. Cf. State v. Walraven, 282 Or App

649, 654, 385 P3d 1178 (2016) (explaining that “speculative or merely possible”

effect of this court’s decision is not sufficient to avoid mootness (internal quota-

tion marks omitted)). Neither does petitioner contend that the moot issue should

otherwise be considered by us under ORS 14.175 or that her original death sen-

tence itself has any ongoing collateral effect on her. But, even assuming for the

sake of argument that the arguments were not moot, we would reject them as

inadequately developed.

Cite as 338 Or App 597 (2025) 601

that we are bound by Palmer but “raises [the challenge] for

purposes of preserving it for review by the Oregon Supreme

Court, and exhausting it for a possible habeas corpus action

in federal court.” Because we are bound by the Supreme

Court’s case law, we reject petitioner’s argument.

Turning to petitioner’s many undeveloped argu-

ments, we first note that most of petitioner’s assignments of

error do not comply with ORAP 5.45(3) and (4). That is, they

do not separately identify and address the specific ruling of

the post-conviction court that is being challenged and fail to

specifically identify error in the post-conviction court’s rul-

ing, which complicates our ability to analyze the arguments

she raises. Nevertheless, we have attempted to carefully con-

sider each and every one of petitioner’s arguments. Often,

the arguments simply assert that her counsel rendered defi-

cient performance while ignoring the post-conviction court’s

ruling entirely, disregarding the standard of review, and

framing the issues as if we were exercising de novo review.

We reject such arguments as undeveloped. See, e.g., Waldorf

v. Premo, 301 Or App 572, 457 P3d 298 (2019), rev den, 366

Or 451 (2020) (not addressing undeveloped argument); Beall

Transport Equipment Co. v. Southern Pacific, 186 Or App

696, 701 n 2, 64 P3d 1193, adh’d to as clarified, 187 Or App

472 (2003) (declining to address “conclusory sentences”

requesting a remand and new trial); ORAP 5.45(3) (“Each

assignment of error must identify precisely the legal, proce-

dural, factual, or other ruling that is being challenged.”).

Finally, we have thoroughly evaluated every argu-

ment that we could identify in petitioner’s briefing. To the

extent that any argument is not explicitly addressed below

(including those raised in petitioner’s pro se supplemental

brief), we reject them without further discussion.

Having addressed those preliminary issues, we will

address petitioner’s challenge to the post-conviction court’s

exclusion of several exhibits. Then we will address the

remainder of petitioner’s arguments by sorting them into

the stages of the criminal case they pertain to (i.e., pretrial,

guilt phase of the trial, penalty phase of the trial, and direct

appeal).

602 Zyst v. Kelly

II. EVIDENTIARY ISSUES

In petitioner’s eleventh assignment of error, she

challenges the exclusion of various exhibits that she sought

to admit at the post-conviction trial. As we will explain, the

post-conviction court did not err in excluding the exhibits

at issue, and so we also necessarily reject those arguments

that are premised upon the admissibility of those exhibits.

A. Exhibit 70: Declaration of Dr. Richard Ofshe

Petitioner sought to introduce as expert testimony

Exhibit 70, the declaration of Dr. Ofshe, a purported expert

in and researcher of police interrogation techniques, false

confessions, and “cult activities.” Petitioner offered Ofshe’s

declaration to support her argument that trial counsel

should have retained him to determine whether police offi-

cers used coercive tactics to elicit a false confession from her.

The post-conviction court excluded the declaration in an

email order on the grounds that (1) it did not have attached

his “CV and other attachments to evaluate expertise,” and

(2) it did not state “what his opinion would have been had

he testified” nor did Ofshe provide “any testimony he would

have given then.”

On appeal, petitioner defends Ofshe’s qualifications

as an expert and contends that the summaries of the arti-

cles he included in his declaration are sufficient to assess

their substance. Petitioner does not, however, challenge the

court’s additional basis for excluding the exhibit: that the

declaration did not include any opinion or testimony that

Ofshe would have provided had he been called to testify.

The post-conviction court’s unchallenged ruling provides

a basis for affirmance. Austin v. Premo, 280 Or App 481,

486-87, 380 P3d 1253, rev den, 360 Or 697 (2016) (“[T]he

unchallenged, independent, and adequate basis for the

court’s decision generally will require affirmance, regard-

less of the merits of the legal challenge to the other basis

for decision.”); Roop v. Parker Northwest Paving, Co., 194 Or

App 219, 236, 94 P3d 885 (2004) (trial court’s ruling must be

affirmed when a party “fail[s] to challenge the alternative

basis of the trial court’s ruling”). Without any statement

from Ofshe as to the contents of his testimony, petitioner

Cite as 338 Or App 597 (2025) 603

cannot carry her burden of production to show that Ofshe

“would have provided testimony likely to have changed the

result of the [post-conviction] trial.” Hale v. Belleque, 255 Or

App 653, 681, 298 P3d 596, adh’d to on recons, 258 Or App

587, 312 P3d 533, rev den, 354 Or 597 (2013).

B. Exhibit 26: Report of FBI Agent James Trainum

Petitioner sought to introduce Exhibit 26, a report

from FBI agent James Trainum, a purported expert in false

confessions. Trainum opined in his report that police offi-

cers may have used improper interrogation tactics to elicit

a false confession from petitioner. The post-conviction court

excluded the exhibit on the ground that Trainum did not

aver in his report that he would have been available to tes-

tify in petitioner’s criminal trial and because the report was

not sworn. The court, however, received the exhibit only as

an offer of proof at petitioner’s request.

The post-conviction court did not err in excluding

Exhibit 26 as evidence because Trainum did not aver that

he would have been available to testify to the contents of

his report at the time of petitioner’s criminal trial. In order

for Trainum’s report to have been relevant to petitioner’s

contentions that police elicited a false confession from her,

petitioner needed to show that “the witness would have been

available to testify * * * at the time of trial.” Hale, 255 Or

App at 681. Nowhere in his report did Trainum ever state

that he would have been available to testify at petitioner’s

criminal trial on the subject of false confessions. The post-

conviction court did not err in excluding Exhibit 26.

C. Exhibit 25: Declaration of Joseph Laycock

Petitioner sought to introduce Exhibit 25, the decla-

ration of Dr. Joseph Laycock, a professor of religious studies,

which included a discussion about satanism and the occult. It

appears that petitioner sought to introduce Laycock’s report

to show that her trial counsel should have presented expert

testimony to demonstrate that the “satanism” referred to

throughout petitioner’s case “is an imaginary religion that

does not exist,” that petitioner’s writings were not satanic

in nature, and to explain the true nature of the writings as

artistic expression.

604 Zyst v. Kelly

The post-conviction court excluded that exhibit

on the ground that Laycock’s declaration did not include a

“statement that the witness was available to testify at the

original trial.” The court did not err in doing so, because as

noted, petitioner must demonstrate that “the witness would

have been available to testify * * * at the time of trial,” Hale,

255 Or App at 681, and she failed to do so.

D. Exhibit 104: Spreadsheet of Counsel Dane’s Cases in

Washington State

During the deposition of trial counsel Irving Dane,

petitioner sought to introduce Exhibit 104, a spreadsheet

listing Dane’s active cases in Washington state court at the

time he was working on petitioner’s case. It appears that

petitioner offered that exhibit to show that Dane was too

busy with other criminal cases, including a first-degree

murder case, to have adequately represented petitioner in

the criminal trial.

The spreadsheet was never marked as an exhibit to

Dane’s deposition, and so it was not made part of the record

before the court’s discovery deadline. When petitioner real-

ized the oversight and brought it to the court’s attention, the

court posited, and petitioner agreed, that the same infor-

mation from the spreadsheet could be introduced through

witness testimony. The court excluded the spreadsheet on

timeliness grounds.

On appeal, petitioner argues that the post-conviction

court abused its discretion and violated her federal consti-

tutional rights in excluding the spreadsheet. Those argu-

ments are unpreserved because petitioner did not argue to

the court that the exclusion of the spreadsheet on timeliness

grounds was legally improper or a violation of her federal

constitutional rights. In any event, the court had the discre-

tion to enforce its deadlines. Weaver v. Highberger, 334 Or

App 96, 101, 555 P3d 315, rev den, 373 Or 119 (2024) (citing

State v. Rogers, 330 Or 282, 300, 4 P3d 1261 (2000)). And,

although the court allowed petitioner to have introduced the

same information from the spreadsheet through other wit-

ness testimony, she did not attempt to do so. Thus, we affirm

the court’s exclusion of the spreadsheet.

Cite as 338 Or App 597 (2025) 605

E. Exhibits 31 and 32: Excerpts of the US Department of

Justice’s Forensic Serology Book and an Article About

Presumptive Blood Tests

Petitioner sought to introduce Exhibits 31 and 32 in

the post-conviction court. Exhibit 31 is a sourcebook from the

United States Department of Justice regarding presumptive

blood tests, and Exhibit 32 is a journal article about pre-

sumptive blood tests. Petitioner sought to introduce these

exhibits to support an argument now at issue in her sixth

assignment of error, in which she contends that her defense

counsel performed deficiently by not educating themselves

on the problems with presumptive blood tests and raising

challenges to the state’s evidence on that basis.

The post-conviction court held a pretrial hearing

on the superintendent’s motion in limine to exclude those

exhibits. The court did not issue a final ruling on the admis-

sibility of the exhibits at that hearing and stated that it was

open to receiving them at a later time if petitioner made a

case for them:

“What I’m going to do right now is just deny a lot of

the [superintendent’s objections]. So I’m going to reject or

not receive [Exhibits] 31 and 32, and if [petitioner] really

want[s] those in, [she] might be able to convince me.”

The court’s statements, although a bit confusing,

show that, at a minimum, the court did not issue a final

ruling on the admissibility of the exhibits at that hearing.

Rather, the court allowed for the possibility that petitioner

would offer the exhibits at a later time and afford the court

the opportunity to issue a final ruling. Petitioner never did

so. The court’s statements demonstrate that, at most, it

engaged in a merely preliminary discussion on the admis-

sibility of Exhibits 31 and 32, which was not a final ruling

and cannot be challenged. See State v. Brown, 300 Or App

192, 199, 452 P3d 482 (2019), rev’d on other grounds, 367 Or

220 (2020) (“[A] party may not assign error to a preliminary

evidentiary ruling.”); State v. Johnson, 315 Or App 66, 496

P3d 1075 (2021) (so holding).

Given that the post-conviction court did not err in

excluding Exhibits 31 and 32, petitioner’s reliance on those

606 Zyst v. Kelly

exhibits for her argument that her counsel should have chal-

lenged, based on information in the exhibits, the “presump-

tive blood tests” used by the state lab to test blood stains on

petitioner’s jacket renders that argument unavailing.

F. Exhibit 83: Petitioner’s Psychiatric Evaluation Conducted

by Dr. Soroush Mohandessi

Petitioner sought to introduce Exhibit 83, the

report of Dr. Soroush Mohandessi. Mohandessi evaluated

petitioner in 2010, while she was incarcerated, to support

a medical habeas case. Mohandessi opined that petitioner

had schizoaffective disorder of the bipolar type as of 2010.

Petitioner wanted the report in the post-conviction record to

show that her trial counsel “should have helped [her] con-

vince Clackamas County jail to put her on a proper medica-

tion,” which in her view, “may have aided in the relationship

between [her and] counsel.”

The post-conviction court excluded the report

because it determined that it was not relevant given (1) that

the report was offered for, but did not provide, “an opinion

about [the] relationship” between counsel and petitioner and

(2) that the report did not contain Mohandessi’s opinion on

petitioner’s mental state during defense counsel’s represen-

tation of her.

The court did not err. The report provided an opin-

ion about petitioner’s mental state at the time of the eval-

uation in 2010—15 years after petitioner’s criminal trial.

Although Mohandessi looked at petitioner’s mental condition

in 1994 and 1995, when the murders and petitioner’s trial

occurred, he did not provide an opinion on that time frame,

and so petitioner did not show that Mohandessi “would have

provided testimony likely to have changed the result of the

trial.” Hale, 225 Or App at 681.

G. Exhibit 54: Articles from The Oregonian

Petitioner sought to introduce Exhibit 54, a combina-

tion of several articles published in The Oregonian about the

murder convictions of Laverne Pavlinac and John Sosnovske.

According to the articles, those convictions resulted from

false confessions that were elicited by Detective Corson of

Cite as 338 Or App 597 (2025) 607

the Oregon State Police—the same detective who obtained

petitioner’s confession.

Before the post-conviction court, the superinten-

dent moved to exclude the exhibit on relevance and hearsay

grounds. In response, petitioner argued that the exhibit was

relevant because, had trial counsel “had more information

about Corson’s methodology,” they “may have been able to

present a better argument at the hearing on petitioner’s

motion to suppress her confession.” However, petitioner

acknowledged that she was not certain whether or not trial

counsel was aware of the information contained in Exhibit

54 during the relevant time period. The post-conviction court

excluded the exhibit because it determined that the exhibit

was not relevant and reasoned that the articles would not be

helpful to its determination of counsel’s performance.

On appeal, petitioner challenges that ruling, argu-

ing that the articles were relevant to establish “informa-

tion that was available to trial counsel and thus probative

of their state of mind.” In turn, petitioner argues that, had

trial counsel had that information, trial counsel (1) would

have been better able to respond to the state’s objection

to questions about prior false confessions during Corson’s

cross-examination and (2) would have been able to make

better arguments to the jury about Corson’s pattern of elicit-

ing false confessions. Again, petitioner points to no evidence

in the record to establish whether or not trial counsel was

aware of the information contained in the exhibit.

We reject petitioner’s arguments as unpreserved.

Below, petitioner’s theory of relevance was that the infor-

mation in Exhibit 54 may have aided trial counsel in litigat-

ing a motion to suppress petitioner’s statements, but peti-

tioner has seemingly abandoned that argument on appeal

and instead focuses on theories of relevance related to trial

counsel’s performance during the guilt phase of trial.

Even if we were to reach the issue on the merits,

however, petitioner has failed to establish error. At best, the

exhibit was conditionally relevant depending on whether trial

counsel had knowledge of the facts contained therein (with

the actual relevance of the exhibit changing depending on the

608 Zyst v. Kelly

nature of trial counsel’s knowledge). But petitioner acknowl-

edged below that there was no evidence to establish whether

trial counsel had knowledge of the facts or not; thus, that con-

dition is left unfulfilled, rendering the exhibit irrelevant. See

OEC 104(2) (“When the relevancy of evidence depends upon

the fulfillment of a condition of fact, the court shall admit it

upon, or subject to, the introduction of evidence sufficient to

support a finding of the fulfillment of the condition.”). Thus,

the post-conviction court did not err in excluding Exhibit 54.3

III. CLAIMS OF INADEQUATE AND INEFFECTIVE

ASSISTANCE OF COUNSEL

We proceed to the arguments concerning petition-

er’s claims of inadequate assistance of counsel. The under-

lying facts of the crime and investigation are extensive and

have been thoroughly recounted by the Supreme Court. See

Terry, 333 Or at 165-70. We do not repeat them in full here,

opting instead for a short overview. We will include addi-

tional facts below, as they become relevant to our discussion

regarding specific arguments.

In August 1994, two brothers were found dead at

a campsite beside the Willamette River near downtown

Milwaukie in Clackamas County. Terry, 333 Or at 166.

The victims had been stabbed multiple times. Id. 184-85.

Petitioner, a close friend of one of the victims, became a per-

son of interest and, after an investigation, was arrested and

charged for the murder of the two victims. Id. at 168-70.

The court appointed a team of two attorneys to represent

petitioner at trial. Although the same second-chair attorney

represented petitioner throughout the case, petitioner had

three different lead attorneys.4 A jury ultimately convicted

petitioner of two counts of aggravated murder and sen-

tenced her to death in November 1995. Id. at 170. Petitioner

sought automatic review of her conviction and sentence, the

Supreme Court affirmed, and the United States Supreme

Court denied review.

3

Given that the post-conviction court did not err in excluding Exhibit 54,

we necessarily reject petitioner’s arguments that rely on the admission of that

exhibit in her fourth and seventh assignments of error.

4

Unless otherwise noted, we do not explicitly differentiate amongst the

attorneys, referring instead simply to “trial counsel.”

Cite as 338 Or App 597 (2025) 609

Years later, in this case, petitioner sought post-

conviction relief from her convictions. Among other things,

she asserted that her trial and appellate counsel provided

inadequate and ineffective assistance in hundreds of ways.

The post-conviction court struck many of those claims on

summary judgment. And it ultimately denied relief in a

288-page opinion following a trial on petitioner’s remaining

claims.

On appeal, petitioner challenges the denial of sev-

eral of her claims for relief. As we mentioned above, we will

address those arguments by moving through each stage of

her criminal case. But we begin by summarizing the legal

standards broadly applicable to all of petitioner’s claims of

inadequate and ineffective assistance of trial counsel.

Petitioner asserts parallel claims of inadequate

and ineffective assistance of trial counsel under Article I,

section 11, of the Oregon Constitution and the Sixth and

Fourteenth Amendments to the United States Constitution.

The legal standards to obtain relief under both constitutions

are “functionally equivalent”: (1) a petitioner must show that

her trial counsel failed to exercise reasonable professional

skill and judgment, and (2) a petitioner must show that

she suffered prejudice as a result of counsel’s inadequacy.

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); Perkins

v. Fhuere, 332 Or App 290, 292-93, 549 P3d 25 (2024).

In assessing the first prong (i.e., the “performance”

prong), a court “must make every effort to evaluate a law-

yer’s conduct from the lawyer’s perspective at the time [of the

trial or hearing], without the distorting effects of hindsight.”

Lichau v. Baldwin, 333 Or 350, 360, 39 P3d 851 (2002). In

cases alleging a failure to investigate or that such inves-

tigation was inadequate, tactical decisions “must be based

on ‘a reasonable investigation,’ ” unless counsel has a reason

to think that an investigation would be “fruitless or even

harmful.” Richardson v. Belleque, 362 Or 236, 256, 406 P3d

1074 (2017) (quoting Johnson v. Premo, 361 Or 688, 703, 709,

399 P3d 431 (2017)). “[E]ach decision to limit investigation

* * * must be a reasonable exercise of professional skill and

judgment under the circumstances.” Id. (quoting Lichau,

610 Zyst v. Kelly

333 Or at 360). Nonetheless, in the context of a mitigation

investigation, counsel need not investigate “every shred of

evidence regarding petitioner’s background, psychological

makeup, or other factors that the jury might possibly have

found to be mitigating.” Montez, 355 Or at 16.

In assessing the prejudice prong, a court must

determine whether there was more than a mere possibil-

ity that the outcome of the criminal trial could have been

different if counsel’s performance was not deficient. Green

v. Franke, 357 Or 301, 322, 350 P3d 188 (2015). Where, as

here, a petitioner asserts that trial counsel failed to conduct

a reasonable investigation, the petitioner carries the bur-

den to “adduce evidence at the post-conviction hearing that

would have been discovered and introduced at the criminal

trial had trial counsel undertaken the proposed investiga-

tion.” Short v. Hill, 195 Or App 723, 729, 99 P3d 311 (2004),

rev den, 338 Or 374 (2005); Jenkins v. Cain, 310 Or App

608, 614, 487 P3d 433 (2021). With regard to mitigation evi-

dence, a court must assess “whether ‘there was more than a

mere possibility’ that an adequate investigation would have

yielded information that could have been used at the sen-

tencing hearing in a way that gave rise to ‘more than a mere

possibility’ that the outcome of the proceeding could have

been different.” Monfore v. Persson, 296 Or App 625, 636,

439 P3d 519 (2019) (quoting Richardson, 362 Or at 266-68).

We review a post-conviction court’s judgment for

legal error, accepting the court’s implicit and explicit find-

ings of fact. Green, 357 Or at 312. If the post-conviction court

did not make findings of fact on an issue, and there is evi-

dence from which such facts could be decided more than one

way, we presume that the court made any necessary factual

findings in a manner consistent with its legal conclusions.

Id. As for the issues decided by the post-conviction court on

summary judgment, we review the grant of summary judg-

ment “to determine whether the court correctly concluded

that there are no genuine issues of material fact and that

[the superintendent] was entitled to judgment as a matter

of law.” Putnam v. Angelozzi, 278 Or App 384, 388, 374 P3d

994 (2016). With those standards in mind, we proceed to the

arguments before us.

Cite as 338 Or App 597 (2025) 611

A. Pretrial Phase

We begin by addressing petitioner’s arguments that

the post-conviction court erred in denying relief on claims

asserting that her trial counsel performed deficiently before

trial. In her first, third, fourth, and twelfth assignments of

error, petitioner contends that her counsel were inadequate

and ineffective in numerous ways.

1. Qualification and succession of trial counsel

In her first and twelfth assignment of error, peti-

tioner asserts that her trial counsel did not meet Oregon’s

then-existing standards for court-appointed counsel, and

she argues that the succession of multiple lead attorneys on

her case compromised the effectiveness of her representa-

tion overall. The post-conviction court granted the super-

intendent’s motion for summary judgment on those claims

and denied relief on closely related arguments after trial.

The PCR court appears to have relied on two alternative

grounds for doing so: (1) that the claims were barred by

Palmer because petitioner could have raised those argu-

ments at trial or on direct appeal and (2) that petitioner

failed to establish that the alleged lack of qualifications and

succession of lawyers actually resulted in her defense team

rendering inadequate and ineffective assistance of counsel.

On appeal, insofar as the PCR court granted sum-

mary judgment on the claims, petitioner does not dispute

that there were no issues of material fact with regard to

those arguments. Instead, she argues first that, under

Hicks v. Oklahoma, 447 US 343, 100 S Ct 2227, 65 L Ed 2d

175 (1980), and United States v. Cronic, 466 US 648, 104 S

Ct 2039, 80 L Ed 2d 657 (1984), Oregon’s failure to comply

with its own qualification standards amounted to due pro-

cess violations and that her attorneys’ lack of qualification

amounted to violation of her right to counsel even without

a showing of prejudice.5 Second, she argues that the succes-

sion of counsel compromised the constitutional adequacy of

her representation.

5

We note that, unlike nearly all of the arguments that follow, petitioner’s

arguments under Hicks and Cronic are not standard inadequate-assistance-of-

counsel claims; rather, they are claims that petitioner was denied due process

and deprived of her right to counsel.

612 Zyst v. Kelly

Even assuming that it erred in holding that the

claims were barred by Palmer, we are not persuaded that

the post-conviction court erred in granting summary judg-

ment. First, neither Hicks nor Cronic are implicated here.

In Hicks, the Court recognized that, where a state creates

a legal procedure, it can be a federal due-process violation

to arbitrarily deprive a criminal defendant of the protec-

tions of that procedure. 447 US at 346. However, petitioner

presented no evidence that she was arbitrarily deprived of

any state-sanctioned procedure to ensure she had qualified

counsel, she simply argues that—in her view—her counsel

did not meet Oregon’s standards.

In Cronic, the Court recognized that the denial of

the right to effective assistance of counsel can merit relief

without a specific showing of prejudice in two situations: (1)

when there is a complete denial of counsel or the surround-

ing circumstances of a trial were such that no attorney

could provide adequate assistance of counsel, or (2) when the

attorney “entirely fail[ed] to subject the prosecution’s case

to meaningful adversarial testing.” 466 US at 659-61. It is

a petitioner’s burden to prove that one of those standards

is met. Id. at 658. If they fail to do so, the petitioner must

resort to litigating claims of ineffective assistance, which

requires pointing out specific errors made by trial counsel.

Id. at 666.

Here, petitioner’s argument about the failure to sat-

isfy Oregon’s qualification requirements does not meet either

of the situations discussed in Cronic. First, she was repre-

sented by counsel and is not arguing that no attorney could

provide adequate assistance in the circumstances. Second,

she has not made a colorable showing that her attorneys

failed to subject the state’s case to any meaningful adver-

sarial testing. Absent the showings required by Hicks and

Cronic, petitioner cannot obtain post-conviction relief solely

based on the qualifications of her attorneys or on the suc-

cession of attorneys in her case. See State v. Maletta, 98 Or

App 643, 650, 781 P2d 350 (1989), rev den, 309 Or 522 (1990)

(The “adequacy of counsel is measured by performance, not

credentials.”). Thus, the post-conviction court did not err

Cite as 338 Or App 597 (2025) 613

in granting summary judgment to the superintendent and

denying relief on this claim.

2. Client care and trust building

In her first assignment of error, petitioner also

argues that trial counsel were constitutionally inadequate

because they (1) failed to obtain adequate psychiatric sup-

port for petitioner, (2) failed to spend sufficient time with

her, (3) failed to address problems that arose in pretrial cus-

tody, and (4) failed to assemble and manage an adequate

defense team.

a. Failure to provide adequate psychiatric support

We understand petitioner to argue that (1) she had

a constitutional right to “participate meaningfully” in her

own defense, and (2) that trial counsel rendered constitu-

tionally deficient performance by failing to provide the psy-

chiatric and medical support needed to stabilize petitioner

enough for her to do so. Petitioner appears to argue that

trial counsel should have retained a mental-health provider

to treat her and to prescribe her medication.

The post-conviction court found as a factual mat-

ter that trial counsel “promptly sought psychiatric medical

assistance” from Dr. Cooley and that, whenever counsel

suggested mental health “evaluations” or “examinations,”

petitioner refused to cooperate and “the door came down.”

Therefore, it concluded that petitioner failed to establish

inadequacy or prejudice.

Petitioner argues that the court’s factual findings

were unsupported by the record. Yet she acknowledges that

there is evidence in the record that Cooley “attempted to”

help “stabiliz[e]” petitioner and that trial counsel sought

an aid-and-assist determination. And she acknowledges

that “[n]umerous * * * members of the defense team simi-

larly described petitioner’s refusal to explore or even discuss

her mental health[.]” To the extent that petitioner is argu-

ing that trial counsel should have done more to ensure that

petitioner received adequate medication while in custody,

she fails to point to evidence in the record either that coun-

sel would have had any ability to get medication prescribed

614 Zyst v. Kelly

and administered to her or that medication would have been

effective at that time. In light of the evidence in the record

supporting the post-conviction court’s ruling and the lack of

sufficient evidence of prejudice, we are not convinced that

the court erred in rejecting the claim.

b. Failure to spend sufficient time with petitioner

Next, petitioner argues that trial counsel was defi-

cient for failing to have sufficient face-to-face meetings

with her. She argues that such meetings are necessary to

build trust and confidence between an attorney and client.

Additionally, she argues that the three changes in lead

counsel undermined her ability to develop rapport and trust

with her attorneys.

Yet petitioner’s arguments focus only on the first

seven months of her case, and she argues that visits by inves-

tigators did not count because “such contacts could hardly

have fostered petitioner’s trust.” She also acknowledges that

she had the same second-chair attorney throughout the life

of her case, but she argues that he “spent little time in the

first months of his representation, either meeting with peti-

tioner or establishing a trusting relationship.”

The post-conviction court rejected this claim, find-

ing that trial counsel “met with [p]etitioner regularly and

communicated in writing.” Further, to the extent that peti-

tioner focused on early failures to spend enough time with

her, the court found that such failings could be “repaired by

later [counsel].” The court explained:

“For example, if an early [attorney] was arguabl[y] inad-

equate in some particular, a subsequent [attorney] could

cure that failure. Thus, it is possible that a failure by attor-

ney 1 is remedied by the work of attorney 3 or 4, in which

case review of the earlier counsel’s representation becomes

irrelevant or does not result in harm.”

Furthermore, the court found that both of the attorneys that

represented petitioner at her actual trial “had a good rela-

tionship with [p]etitioner.”

We can find no error in the post-conviction court’s

ruling. Petitioner’s argument appears to be simply that she

Cite as 338 Or App 597 (2025) 615

had a constitutional right to adequate contact throughout the

life of her case, which is no doubt true. But that argument

fails to account for her burden to establish prejudice. And

she does not specify, in any concrete way, how she was prej-

udiced by any early deficiencies building trust and rapport.

c. Failure to address pretrial custody problems

Petitioner asserts that trial counsel “deficiently

failed to advise petitioner and guide her conduct in custody

regarding correctional officers, inmates, and other govern-

ment agents, and failed to advocate for her on those issues.”

She raises four specific arguments, which we address in

turn.

First, petitioner argues that trial counsel failed to

adequately prepare her for her aid-and-assist evaluation

with court-appointed expert Dr. Hulteng. But her argument

relies on her own testimony that they failed to render ade-

quate advice and on an absence of billing records showing

that trial counsel met with her near in time to the evalua-

tion. However, she acknowledges evidence in the record that

one of her trial counsel “testified that his standard practice

was to meet with clients before an aid-an-assist psychologi-

cal evaluation, to give them an idea of what was happening

and why, to talk about the process, and to make sure they

understood their rights.”

We conclude that there was no error. In short, the

post-conviction court was not required to credit petitioner’s

testimony and the lack of billing records is not incontrovert-

ible proof that counsel failed to advise her properly. Nor does

petitioner point to evidence in the record to establish prej-

udice. She asserts that she made “damaging statements”

during the interview, but she fails to identify any evidence

to suggest that she would not have done so if she had been

properly advised.

Second, petitioner argues that trial counsel failed

to adequately advise her about how she should act while

in custody. But the only evidence she appears to rely on to

establish that failure is her own ill-advised conduct while in

jail. The post-conviction court could properly find that peti-

tioner failed to establish deficient performance.

616 Zyst v. Kelly

Third, petitioner argues that trial counsel “failed to

advocate with corrections staff to secure petitioner’s right to

contact counsel in jail, protect her from harassing behavior

by correctional staff, and otherwise help meet her needs in

custody.” In summary, petitioner recounts disturbing and

abusive conduct perpetrated by a cellmate and jail staff,

and she asserts that counsel were aware of that conduct

and she believed that counsel failed to follow up. But the

only evidence that she points to is her own testimony that

she “told [her] attorneys about [her] treatment” and that

she “[did] not believe they tried to talk to the jail staff.” She

argues that, because her trial counsel did not affirmatively

contradict that testimony, there was sufficient evidence of

a failure to act. We disagree, the post-conviction court was

not required to credit petitioner’s testimony and, therefore,

the post-conviction court could properly find that petitioner

failed to establish deficient performance.

Finally, petitioner argues that trial counsel failed

to make sure that she was fed lunch during the first few

days of trial, “which caused her to be hungry, irritable, and

unable to focus and assist in her defense.” But petitioner

herself testified that “jail staff were not giving her lunch

the first few days of trial, and it was only when she told [her

attorney], or [her attorney] noticed, that the defense team

arranged to have fast food such as pizza or a ‘hoagie’ sand-

wich provided.” Thus, even according to petitioner, her coun-

sel addressed the problem as soon as they were aware of it.

The post-conviction court could properly find that petitioner

failed to establish deficient performance.

d. Failure to assemble and manage adequate

defense team

Petitioner argues that trial counsel failed to exer-

cise adequate oversight over the defense team, failed to

give adequate direction to investigators, and failed to hire

qualified investigators. However, as explained with regard

to petitioner’s arguments about the qualification of counsel,

the operative question is whether the actual performance

rendered by the defense team was constitutionally inade-

quate and prejudicial. Here, to prove deficient performance

and prejudice, petitioner asks us to consider her other

Cite as 338 Or App 597 (2025) 617

claims, but she does not make an independent argument of

prejudice. Because we find no error in the remainder of the

post-conviction court’s rulings, we likewise find no error in

rejecting this argument for lack of prejudice.

3. Brady material

In the fifth assignment of error, petitioner contends

that her trial counsel rendered deficient performance by

(1) failing to request Brady materials6 except by way of a

generic motion, (2) failing to object to the trial court’s ruling

that the prosecution was required to turn over only favor-

able evidence in the prosecutor’s possession, (3) failing to

object when a prosecutor said it would only turn over infor-

mation about testifying witnesses, and (4) failing to litigate

the state’s destruction of DNA-testing swabs, which peti-

tioner claims would have been helpful to her defense. The

post-conviction court denied those claims for relief.

First, with regard to the Brady motion, the court

found that trial counsel did request all Brady material and

that the trial court granted the motion (with some excep-

tions). The post-conviction court added that petitioner did

not identify any Brady material that was withheld and that

would have been helpful.

The court did not err. The post-conviction court’s

factual findings are binding on us if there is evidence in

the record to support them. Green, 357 Or at 312. Here, the

record supports the court’s finding that defense counsel

presented an adequate Brady motion. Petitioner faults her

counsel for not being more specific in their Brady request,

but there was no need to be. The state acknowledged its

obligation to turn over exculpatory and favorable evidence

to petitioner, and the criminal court ordered the state to

comply with its obligation. Whether or not the state fully

complied with its obligation is another question entirely and

does not turn on the adequacy of trial counsel’s initial Brady

request.

6

“Brady” refers to the seminal case, Brady v. Maryland, 373 US 83, 87, 83

S Ct 1194, 10 L Ed 2d 215 (1963), in which the United State Supreme Court pre-

scribed the prosecution’s duty to disclose evidence that is favorable to the defense

and material to guilt or sentencing.

618 Zyst v. Kelly

Second, with respect to the argument that coun-

sel were deficient because they did not object to the trial

court’s ruling that the state was required to turn over only

evidence in its possession, petitioner faults trial counsel for

not relying on Kyles v. Whitley, 514 US 419, 437, 115 S Ct

1555, 131 L Ed 2d 490 (1995), which held that the prose-

cution has an affirmative “duty to learn of any favorable

evidence known to the others acting on the government’s

behalf in the case.” The post-conviction court denied this

claim because (1) Kyles was decided about five months after

the criminal court granted in part the Brady motion and

(2) petitioner did not establish prejudice given that she did

not identify any favorable evidence that was withheld by

the prosecution as a result of counsels’ failure to object. The

court did not err.

We acknowledge that the record does not support

the post-conviction court’s finding that the United States

Supreme Court issued Kyles after petitioner’s Brady motion—

the record shows otherwise. But the post-conviction court

correctly ruled that petitioner failed to sufficiently identify

the content of any Brady material withheld by the state and

to demonstrate how it resulted in prejudice. See Fisher v.

Angelozzi, 285 Or App 541, 548, 398 P3d 367 (2017) (the com-

ponents of a Brady violation include that the evidence was

favorable to the accused and that prejudice resulted from its

suppression). Third, with respect to petitioner’s claim that

her counsel were deficient for not objecting to the prosecu-

tion’s statement that it would turn over information only

about testifying witnesses, petitioner again relies on Kyles.

The post-conviction court denied this claim for “lack of speci-

ficity,” because it was “unclear what the prosecutor allegedly

said or when,” and because it determined that petitioner did

not establish either deficient performance or prejudice. The

court did not err in doing so because, again, petitioner failed

to identify the content of any Brady material that was with-

held by the state as a result of counsels’ failure to object and,

consequently, failed to establish prejudice.

Finally, with respect to the claim that the prose-

cution violated due process by destroying potentially help-

ful DNA evidence, petitioner has failed to address the legal

Cite as 338 Or App 597 (2025) 619

standards applicable to such a claim. See State v. Dikeos,

330 Or App 698, 712, 544 P3d 1020, rev den, 372 Or 718

(2024) (“[D]ifferent tests apply depending on whether the

lost or destroyed evidence constitutes ‘material, exculpatory

evidence’ or ‘potentially useful evidence.’ ” (Quoting State v.

Faunce, 251 Or App 58, 64, 67, 282 P3d 960 (2012), rev den,

353 Or 203 (2013).)). For that reason, we reject the argument

as undeveloped.

4. Litigation of pretrial motions

Petitioner lodges additional challenges to her trial

counsel’s pretrial performance in her fourth assignment of

error. We do not address most of them because the argu-

ments are undeveloped—that is, petitioner has not specifi-

cally addressed the post-conviction court’s ruling under the

proper standard of review and/or has otherwise failed to

provide a sufficient legal analysis for review.7 See Waldorf,

301 Or App at 584 (declining to address undeveloped argu-

ment). Others fail for lack of prejudice,8 are redundant9 or

depend on the admission of exhibits that, as we explained

above, were properly excluded.10

The arguments properly before us contained in the

fourth assignment of error relate to counsel’s alleged fail-

ure to effectively move to suppress (1) petitioner’s confession,

(2) witness Armstrong’s photo identification of petitioner, (3)

the search of petitioner’s apartment, (4) the search and sei-

zure of petitioner’s jacket, and (5) the seizure of her writings

in jail.

a. Petitioner’s confession

We begin with petitioner’s argument that her trial

counsel performed deficiently in trying to suppress her

7

This includes petitioner’s arguments regarding trial counsel’s failure to

request a continuance and the failure to challenge Hulteng’s testimony.

8

This includes many of petitioner’s arguments regarding Detrick, a state’s

witness at trial.

9

This includes petitioner’s argument regard alternative suspects, which was

also addressed in her third assignment of error.

10

This includes petitioner’s arguments regarding trial counsel’s failure

to consult with or present experts on the topic of false confessions and failure

to effectively cross-examine Detective Corson regarding his role in prior false

confessions.

620 Zyst v. Kelly

confession to killing one of the victims in defense of the

other. She acknowledges that counsel did move to suppress

those statements—but only on the theories that her confes-

sion was involuntary and occurred after the invocation of

counsel. She argues that counsel should have also argued

that her statements (1) were the product of an unlawful

warrantless seizure, (2) followed the invocation of her right

to silence, which she did not thereafter waive, and (3) were

not voluntary in fact (as opposed to involuntary by way of a

Miranda violation).

Petitioner’s seizure and invocation arguments

both rest on the premise that she was in “custody” after

she requested to go home and the police refused. That con-

tention, however, is contrary to the evidence in the record

viewed properly under the standard of review, which showed

that police repeatedly assented to her request before peti-

tioner unilaterally decided to stay put and continue her con-

versation with police. And, with regard to her voluntariness

argument, petitioner has failed to adequately address the

post-conviction court’s ruling or the standard of review;

therefore, we reject it as undeveloped.

b. Armstrong’s identification

Next, we turn to petitioner’s contention that

trial counsel performed deficiently in trying to exclude

Armstrong’s pretrial identification of petitioner in a photo

throwdown. Armstrong testified that he saw a person that

looked like petitioner leave a victim’s apartment without a

jacket shortly after the time of the murder. That testimony

was vital because other witnesses testified that petitioner

was seen at the scene of the murders wearing a jacket,

and that jacket was later found in the victim’s apartment

with blood and the victims’ DNA on it. So, Armstrong was

a pivotal link in the state’s timeline for the night and for

establishing the evidentiary value of the jacket. Petitioner

acknowledges that her counsel did move in limine to exclude

the identification, but she faults trial counsel for doing a

poor job of it. Before discussing what counsel did, we start

with the controlling caselaw at the time of petitioner’s trial.

Cite as 338 Or App 597 (2025) 621

The seminal case at that time on the admissibility

of out-of-court identifications was State v. Classen, 285 Or

221, 590 P2d 1198 (1979). Under Classen, when a defendant

sought to suppress a pretrial identification, courts applied a

two-step analysis: (1) it “must determine whether the pro-

cess leading to the offered identification was suggestive,”11

and (2) if it was suggestive, then “the prosecution must sat-

isfy the court that ‘the proffered identification has a source

independent of the suggestive confrontation’ or photographic

display, or that other aspects of the identification at the time

it was made substantially exclude the risk that it resulted

from the suggestive procedure.” Id. at 232 (citation omitted).

Here, counsel’s motion in limine to exclude Armstrong’s iden-

tification relied on Classen to argue that “the photographic

identification procedure was impermissibly suggestive and

conducive to irreparable mistaken identity.”

At the hearing on the motion, police officers testi-

fied about the procedure used for the throwdown. Detective

McCrum testified that he asked Sergeant Poppen to prepare

an array of six photographs for a throwdown by having a

computer program arrange petitioner’s mug shot with pho-

tos of five other people with similar features and similar

in age. Once the photos for the throwdown were selected,

Detective McCrum informed Armstrong of the identification

procedures, explained that the murder suspect may not nec-

essarily be shown in the photographs, and had Armstrong

turn away while McCrum laid the photos out on the table in

a 3x2 format. McCrum prepared a stopwatch timer, asked

Armstrong to turn toward the pictures, and recorded that it

took Armstrong three-and-a-half minutes to identify peti-

tioner’s photo. When he did so, Armstrong said, “This guy

looks like him, but I’m not certain for sure.”

Petitioner’s trial counsel argued that Armstrong’s

statements (i.e., that he was “not certain for sure” that the

photo he identified was petitioner) showed that Armstrong

did not really identify petitioner at all. Counsel also argued

11

At the first step, a trial court also looked to whether police “needlessly

departed” from procedures designed to minimize suggestiveness. Classen, 285 Or

at 232. But that analysis is only relevant if the pretrial identification is admissi-

ble as an evidentiary matter and the court is forced to proceed to a constitutional

due process analysis. Id. at 232 n 7.

622 Zyst v. Kelly

that the photo array was unlawfully suggestive for several

reasons, such as petitioner sharing hair color, hair style,

facial hair, facial expressions, and t-shirt color with only

one other person (but not all the same person). Ultimately,

the criminal trial court denied counsel’s motion in limine

to exclude Armstrong’s photo identification because it con-

cluded that Armstrong in fact identified petitioner, that the

photo array was not suggestive, and that McCrum followed

all procedures for photo identification.

In the post-conviction court, petitioner argued that

her counsel should have argued the motion in limine with

more rigor. The post-conviction court denied the claim, con-

cluding that counsel’s attempt to impeach Armstrong and

to argue that the photo array was suggestive was not inade-

quate or ineffective.

On appeal, petitioner argues that her counsel

should have raised a number of additional questions and

arguments to challenge Armstrong’s identifications. None of

those arguments prevail because they either do not impli-

cate the suggestiveness prong of the Classen analysis or are

contradicted by the post-conviction court’s implied findings

of fact, which are supported by the evidence. Accordingly, we

affirm the post-conviction court’s determination of counsel’s

performance on their attempt to exclude Armstrong’s photo

identification of petitioner.12

c. Search of petitioner’s apartment

The next issue pertains to counsel’s alleged failure

to more effectively challenge the warranted search of her

apartment, which resulted in the discovery of petitioner’s

“satanic” writings and the “satanic” symbols and blood on

her walls.

Petitioner first contends that her counsel should

have moved to suppress the discovery of the writings on the

12

We reject petitioner’s argument that trial counsel was deficient for not

trying to exclude Armstrong’s in-court identification, because petitioner failed

to demonstrate that a reasonable attorney would have challenged that in-court

identification under then-existing law. Similarly, we reject petitioner’s argument

that counsel should have sought to extend or overrule Classen itself because she

makes no attempt to show that a lawyer exercising reasonable skill and judg-

ment would have done so at that time.

Cite as 338 Or App 597 (2025) 623

grounds that the warrant, issued by a Clackamas County

magistrate judge for petitioner’s apartment in Multnomah

County, did not contain a “finding that there was proba-

ble cause to believe that one or more objects of the search

related to the homicides in Clackamas County as required

by ORS 133.545(2).” The post-conviction court granted sum-

mary judgment on this claim. Although the issue had not

been addressed by an appellate court at the time of petition-

er’s trial, we later observed that “[t]he plain text of [ORS

133.545(2)] does not require a trial court to make any explicit

findings.” State v. Chamu-Hernandez, 229 Or App 334, 346,

212 P3d 514, rev den, 347 Or 43 (2009) (holding that ORS

133.545(2) “does not require an issuing magistrate to make

express findings of fact when issuing an out-of-district war-

rant”). Thus, trial counsel were not ineffective for failing to

make an argument based on the lack of express findings in

the warrant. That means there is no genuine issue of mate-

rial fact for that issue, and the superintendent was entitled

to summary judgment as a matter of law on this point. See

Putnam, 278 Or App at 388 (summary judgment standards).

Petitioner’s second argument pertaining to the

search of her apartment contends that counsel should have

argued a better motion to controvert the warrant authoriz-

ing the search. She acknowledges that her counsel did, in

fact, file a motion to controvert in which counsel challenged

“the good faith, accuracy and truthfulness of the affiant”

who presented the warrant affidavit, but she argues that

her counsel failed to allege any specific bad faith, inaccura-

cies, or untruthfulness contained within the warrant affida-

vit. And she argues that her counsel should have challenged

the overbreadth of the warrant itself. The post-conviction

court rejected her arguments on prejudice grounds, ruling

that petitioner failed to identify what particular writings

were seized pursuant to the search warrant and failed to

point to the location in the record where that evidence was

admitted against her at trial.

The court did not err. First of all, petitioner does

not explicitly address the post-conviction court’s ruling

or apply the standard of review. Beyond that, the post-

conviction court was correct that petitioner failed to identify

624 Zyst v. Kelly

the writings that were seized and failed to locate where they

were admitted against her, which was critical because peti-

tioner voluntarily turned over at least some of her writings

to police on the day of the warranted search and even more

while she was in pretrial custody. Thus, without particu-

larly identifying which writings would have been suppress-

ible under a proper motion to controvert, petitioner failed to

demonstrate prejudice.

d. Seizure and search of petitioner’s jacket

Petitioner next argues that her trial counsel failed

to adequately challenge the warrantless seizure and search

of her black jacket found in petitioner’s backpack in the vic-

tims’ apartment. She recognizes that her trial counsel moved

to suppress the jacket for lack of a warrant or valid consent

but contends that they failed to move for suppression based

on lack of probable cause or exigent circumstances. The post-

conviction court denied this claim based on its conclusion

that petitioner had abandoned her backpack and, therefore,

had no possessory or privacy interest in the backpack. On

appeal, petitioner does not challenge the basis of the post-

conviction court’s ruling, aside from summarily stating that

it was incorrect, and fails to discuss the status of abandon-

ment case law at the time of her trial. Accordingly, we reject

the argument as undeveloped.

e. Seizure of petitioner’s writings

Finally, petitioner argues that trial counsel were defi-

cient for failing to challenge the unconstitutional seizure of

her writings while she was in jail. The superintendent objects

to us considering this assertion because petitioner did not

raise the claim in her petition for relief (although petitioner

did raise it in her trial memorandum), the post-conviction

court did not explicitly rule on the issue, and therefore the

claim is not properly before us. In reply, petitioner argues that

she raised the arguments at the post-conviction court, but the

superintendent never objected to them on procedural grounds,

which petitioner argues “den[ied] petitioner the opportunity to

make a different record to amend her petition to plead such a

claim.”

Cite as 338 Or App 597 (2025) 625

We assume without deciding that petitioner’s argu-

ment is properly before us because the superintendent

impliedly consented to an implicit amendment of the petition

pursuant to ORCP 23 B. See Ogle v. Nooth, 365 Or 771, 788,

453 P3d 1274 (2019) (“[A] party’s failure to object to evidence

that is clearly directed to a new issue constitutes implicit con-

sent to trial of that issue.”). And, because petitioner does not

assign error to the post-conviction court’s failure to explicitly

rule on this argument, we assume that the court implicitly

denied the claim and apply the standard of review accordingly.

The factual predicate for petitioner’s argument is that

jail staff unconstitutionally seized her writings from her cell

during a shakedown. According to petitioner, those writings

included an Order of the Black Dove membership list that was

a “major item of evidence” at trial. The problem is that there is

evidence in the record sufficient to support the post-conviction

court’s implicit finding that petitioner gave that membership

list to a deputy. Indeed, the deputy testified at the criminal

trial that petitioner gave him the materials, and petitioner

now concedes that she did share some of her writings with

the deputy. In an attempt to rebut that evidence, petitioner

argues that—based on the timeline of the dates on various

pages before and after the membership list—that the only

plausible inference is that the membership list was seized

during the shakedown. But petitioner’s logic cuts both ways.

The same batch of writings at issue contain journal entries

from before and after the date of the shakedown, making the

actual source of the entries unclear. Thus, there is sufficient

evidence in the record to uphold an implicit factual finding

that the membership list was given to the deputy voluntarily,

and therefore, trial counsel lacked a basis to seek suppression

of the list. Accordingly, the post-conviction court did not err.

5. Guilt-phase investigation

In the sixth assignment of error, petitioner con-

tends that her counsel performed deficiently in failing to

investigate various matters. We do not discuss most of them

because petitioner either failed to establish prejudice13 or

13

This includes all arguments relating to the murder weapon that are

not explicitly addressed, to DNA population frequencies, and to fingerprint

standards.

626 Zyst v. Kelly

failed to articulate why the post-conviction court’s ruling

was erroneous,14 or else they rely upon properly excluded

exhibits.15 As explained above, to establish prejudice in a

claim alleging a deficient investigation, the petitioner must

present evidence to establish what an adequate investiga-

tion would have found. Here, petitioner largely failed to do

so. The one argument that warrants discussion relates to

petitioner’s claim that her counsel failed to adequately inves-

tigate the lack of damage to the murder weapon. Ultimately,

though, the post-conviction court did not err in denying that

claim for relief.

a. Failure to retain experts to investigate murder

weapon

Petitioner claimed as a basis for relief that her trial

counsel performed deficiently in failing to retain expert

assistance to investigate the lack of damage to the pur-

ported murder weapon. At the criminal trial, the prosecu-

tion introduced Trial Exhibit 54,16 a photograph of a tantō

knife (a short sword), which the prosecution claimed was the

weapon petitioner used to murder the victims. Petitioner

argues that the tantō’s blade was relatively undamaged,

which was inconsistent with the prosecution’s theory that

the victims were stabbed over 20 times with that weapon

while they were lying asleep on a rocky riverbank. By

retaining experts, petitioner argues that counsel could have

evaluated whether there was a viable argument that it was

not actually the murder weapon.

In support of the claim, petitioner introduced at

her post-conviction trial the declarations of two experts:

William Harsey, an expert in knives and metallurgy, and

Dr. Steven Symes, a forensic anthropologist. Briefly stated,

Harsey explained that the photographed tantō did not show

significant dulling or damage to the tip of the blade. He

opined that, if the tip of the blade had cut through the bodies

14

This includes arguments relating to the failure to challenge criminalist

Scarpone’s testimony and to address DNA contamination on petitioner’s jacket.

15

This includes an argument about the failure to challenge preliminary

blood test results.

16

This is a different Exhibit 54 than the Exhibit 54 excluded by the post-

conviction court.

Cite as 338 Or App 597 (2025) 627

of the victims and to the basalt beneath the victims—as it

appeared it should have given the autopsy reports showing

deep wounds—the knife should have had “noticeable dam-

age or defect on the blade.” Similarly, Symes opined that the

sword would have been “susceptible to severe damage when

used in a violent manner near the ground in terrain such as

where the victims were found.”

The post-conviction court denied the claim for relief.

It reasoned that a reasonable trial attorney could “choose

not to present evidence about speculative possible damage

the murder weapon may have received” in committing the

murders and that a reasonable trial attorney could opt to

forego a defense theory that necessarily accused police of

illegally planting false evidence. The court also found that

petitioner failed to prove prejudice because neither Harsey

nor Symes foreclosed the possibility that the minor damage

found on the blade was the result of the murders and did not

prove that more damage would have necessarily resulted

from the murders.

It may be that the post-conviction court erred in

concluding that trial counsels’ performance was constitu-

tionally adequate. That is because the tactical decision to

abandon a possible defense theory must itself be premised

on an adequate investigation. See Richardson, 362 Or at 256

(explaining that tactical decisions “must be based on ‘a rea-

sonable investigation,’ ” unless counsel has a reason to think

that an investigation would be “ ‘fruitless or even harmful’ ”

(quoting Johnson, 361 Or at 703, 709)); Lichau, 333 Or at

360 (“[E]ach decision to limit investigation of a particu-

lar defense itself must be a reasonable exercise of profes-

sional skill and judgment under the circumstances.”). And

it appears that trial counsel failed to investigate whether

there was a reasonable basis in fact to argue that the state’s

purported murder weapon was not actually the murder

weapon based on the lack of damage to the blade.

However, even assuming that the post-conviction

court erred in that regard, we find no error in its alternative

ruling that petitioner failed to demonstrate prejudice. As

we explain below, both Harsey’s and Symes’s declarations

left open the possibility that the photographed knife was

628 Zyst v. Kelly

in fact the murder weapon, notwithstanding their reserva-

tions about the lack of damage to its blade, and there was

substantial evidence to corroborate the state’s theory that it

was the murder weapon. Therefore, an investigation reveal-

ing the less-than-expected damage to the blade would not

have had “more than [a] mere possibility” of affecting the

outcome of the criminal trial such that it could have been

different had counsel performed differently. Green, 357 Or

at 322.

First, neither expert’s declaration foreclosed the

possibility that the tantō was the murder weapon. Symes’s

report was chiefly concerned with whether the victims’

wounds matched the blade profile of the tantō’s blade, and

ultimately, he could not rule it out. In reaching that conclu-

sion, he explained that he would expect at least some defects

in the blade from the murders:

“Certainly the victims were associated with sleeping

bags and possibly Styrofoam pads that were used to sepa-

rate them from the rocky terrain, I would certainly be con-

cerned if I found no defects on the assaulting weapon, since

[t]his weapon was used on supine individuals with actually

very little separating them from the rocky terrain. It’s hard

for me to imagine that if a tantō was used, the blade is long

and thin, particularly at the point, and this blade would be

susceptible to severe damage when used in a violent man-

ner near the ground in terrain such as where the victims

were found.”

(Emphasis added.) But importantly, he did not say that he

was concerned by the lack of defects, as he observed that

the “knife tip has been bent to the right.” He suggested that

the bent tip may have resulted from using the blade “to pry

open objects,” but he nevertheless observed some defect in

the blade.

Similarly, Harsey documented a “minor bend” and

“micro chipping” at the tip of the blade but, “[u]nable to

determine the alloy of steel or quality of [the blade’s] heat

treat (hardness),” he could not opine as to “how much force

would be required to make this slight bend.” He described

the damage as “an impact defect to the very point of the tip.”

Although he did not opine that it could have been caused

Cite as 338 Or App 597 (2025) 629

by the murders, his description of its possible cause at least

allows for the possibility that it was caused by stabbing the

victims:

“It is very difficult to guess what may have caused the

micro chipping of the blade without knowing the hardness

and strength of the steel. These defects by themselves do

not indicate this was a murder weapon. The very small

impact defect to the very point of the blade is called ‘upset-

ting’ and this means the point had to hit something harder

than the steel it was made from. Many common accidents

or mishandling could have caused this and no conclusion

can be drawn from this observation.”

In short, both experts observed some damage to

the tip of the blade but opined only that they would have

expected more damage from a strike to the rocky ground

beneath the victims. Importantly, however, neither expert—

nor any other evidence that we are aware of—established

that the murder weapon necessarily would have struck rock

beneath the victims. In fact, Symes noted only two instances

where the murder weapon penetrated through the body of

a victim. Instead, both experts worked off the presumption

that the blade would have repeatedly hit rock. Therefore,

the absence of evidence to show that the murder weapon

would have actually struck rock severely undercuts petition-

er’s prejudice argument.

Second, there was a substantial amount of evidence

to corroborate that the tantō was the murder weapon: (1)

after petitioner confessed to one of the murders, she showed

police the area where she had discarded the weapon, and

it was found there the next day; (2) both victims’ blood was

found on the blade; (3) as Symes confirmed, the shape of

the blade was not inconsistent with the shape and depth

of the stab wounds; and (4) one of the victim’s friends con-

firmed that she had seen the tantō at one victim’s apartment

before the murders. In light of that corroborating evidence,

the only viable theory for establishing that the tantō was

not the murder weapon was that it was illegally planted by

police. But even then, the likelihood that a knife owned by

one of the victims happened to be consistent with the size

and shape of the stab wounds would be extremely coinciden-

tal, to say the least.

630 Zyst v. Kelly

In the end, had trial counsel obtained an expert

analysis of the blade, they would have learned that the tantō

displayed less damage than would be expected if the blade

hit basalt beneath the victims, but that analysis would not

have foreclosed the tantō as the murder weapon. And, in

light of the evidence corroborating the tantō as the murder

weapon, the post-conviction court could properly conclude

that such an ambivalent expert analysis would not have had

more than a mere possibility that it could have led to a dif-

ferent outcome in the criminal trial. Accordingly, the court

did not err in denying that claim for relief.

b. Failure to investigate timeline and alibi

In her third assignment of error, petitioner alleges

that her trial counsel rendered inadequate and ineffective

assistance of counsel because they failed to conduct an ade-

quate guilt-phase investigation. Petitioner raises ten argu-

ments in that assignment of error, addressing numerous

claims ranging from counsel’s alleged failure to investigate

petitioner’s account of events on the night of the murders

in order to compare it against the state’s account to coun-

sel’s alleged failure to locate and investigate additional wit-

nesses and suspects. The post-conviction court denied relief

on the claim because it determined that petitioner did not

establish either deficient performance or prejudice.

The court did not err. Again, when a petitioner

alleges that trial counsel failed to conduct an investigation,

they “must adduce evidence at the post-conviction hear-

ing that would have been discovered and introduced at the

criminal trial had trial counsel undertaken the proposed

investigation.” Short, 195 Or App at 729; accord Horn v.

Hill, 180 Or App 139, 148-49, 41 P3d 1127 (2002) (“Where

evidence omitted from a criminal trial is not produced in a

post-conviction proceeding * * * its omission cannot be prej-

udicial.”). Petitioner has not produced the evidence that her

trial counsel would have discovered and introduced had they

undertaken the investigation she claims they should have.17

17

One exception is in regard to petitioner’s argument that trial counsel

was deficient for failing to obtain testimony from two prisoners who would have

rebutted another prisoner’s claim that petitioner confessed to committing mur-

der. On that point, we simply determine that the post-conviction court did not err

in concluding that any such deficiency was not prejudicial.

Cite as 338 Or App 597 (2025) 631

At most, petitioner speculates about the evidence that her

counsel may have found had they conducted an adequate

investigation, but that alone does not meet the required

standard in failure-to-investigate cases.

B. Guilt Phase of Trial

In her seventh assignment of error, petitioner chal-

lenges her trial counsel’s performance during the guilt

phase of the criminal trial, presenting four arguments.

First, she argues that her counsel failed to inves-

tigate, develop, present, and argue appropriate defenses.

But that argument is premised upon other arguments con-

tained in her third, fourth, and sixth assignments of error.

Because we have already rejected those arguments in this

opinion, we reject this argument as well. And, to the extent

petitioner makes a new argument that her counsel failed to

timely file a notice of an alibi defense, she does not acknowl-

edge the post-conviction court’s denial of that claim, which

was grounded on her failure to carry her burden of produc-

tion, and we see no reason to disturb that ruling.

Second, petitioner contends that her trial counsel

rendered deficient performance in their cross-examination

and impeachment of certain witnesses or, when necessary,

failed to make a sufficient offer of proof. Again, however,

petitioner’s arguments here depend on other arguments in

other assignments of error that we have rejected on the mer-

its or as undeveloped (e.g., the post-conviction court’s exclu-

sion of Exhibit 54). Petitioner does not present or adequately

develop any additional arguments separate from those pre-

sented in those other assignments of error, and so we reject

her arguments here for the same reasons.

Third, she argues that, had her trial counsel inves-

tigated the case better early on, better argued pretrial mat-

ters described above, and better argued the Brady motion,

the evidence from those efforts would have provided suf-

ficient ground for counsel to pursue an actual-innocence

theory. Again, however, we have already rejected other

arguments on which this point relies, and so we affirm the

post-conviction court’s conclusion that petitioner “does not

identify any material evidence that would have established

632 Zyst v. Kelly

[her] innocence, or reasonable doubt as to [her] guilt or [her]

intent.”

Finally, she contends that trial counsel should

have objected to numerous parts of the prosecution’s clos-

ing statements on the ground that those statements were

not supported by the record. Petitioner’s arguments on this

point do not assert error in the post-conviction court’s denial

of the claim after it made detailed findings and rulings on

each statement, so we decline to address them. See Waldorf,

301 Or App at 584 (declining to address undeveloped argu-

ment). The remaining arguments on this point suffer from

the same flaw of not addressing the post-conviction court’s

rulings, and we decline to address them for that reason.18

C. Penalty Phase of Trial

A person convicted of aggravated murder is entitled

to present mitigation evidence that militates against the

imposition of the death penalty. ORS 163.150(1). Mitigation

evidence does not need to be evidence related to the offense.

State v. Wagner, 309 Or 5, 19, 786 P2d 93, cert den, 498 US

879 (1990). Instead, mitigation evidence may include, but is

not limited to, evidence about the petitioner’s age, the extent

and severity of their prior criminal conduct, the extent of the

mental and emotional pressure under which the petitioner

was acting at the time the offense was committed, and any

aspect of defendant’s character and record. ORS 163.150(1)

(c)(A); Penry v. Lynaugh, 492 US 302, 319, 109 S Ct 2934,

106 L Ed 2d 256 (1989). Mitigation evidence in aggravated

murder cases is intended to allow for “the jury’s exercise of a

reasoned moral response to the question, ‘should [petitioner]

receive a death sentence?’ ” Wagner, 309 Or at 19.

With respect to her trial counsel’s performance at

the penalty phase of the criminal trial, petitioner contends

that the post-conviction court erred in denying her claims

for relief predicated on the assertion that her trial counsel

rendered inadequate and ineffective assistance of counsel in

failing to (1) conduct a timely investigation into mitigation

18

We reject, as inadequately developed, petitioner’s argument that her coun-

sel was constitutionally inadequate for failing to make adequate closing argu-

ments, to present or object to certain jury instructions, to move for a judgment of

acquittal, or to move for a new trial.

Cite as 338 Or App 597 (2025) 633

evidence for the penalty phase of trial, (2) seek a continuance

at the request of the mitigation investigator, and (3) present

a coherent theory of and/or sufficient mitigation evidence at

the penalty phase to militate against the imposition of the

death penalty. She also contends that the post-conviction

court erred in denying her claims for relief predicated on the

assertion that her trial counsel failed to advise petitioner

to testify or make a statement in allocution, and failed to

challenge the prosecution’s incorrect assertions, misrepre-

sentations, and arguments on the issue of future dangerous-

ness.19 We address each argument in turn.

1. Timeliness of mitigation investigation

Petitioner contends that her trial counsel were

inadequate and ineffective for failing to conduct a timely

mitigation investigation because, she submits, her defense

team did not begin a mitigation investigation until July

1995, about a year after petitioner was indicted and only

four months before the penalty phase. Petitioner argues that

her defense counsel did not begin a mitigation investigation

until they hired Teresa McMahill, a mitigation specialist, in

July 1995.

The post-conviction court denied this claim for

relief. The court first stated that “there is no constitutional

standard for the amount of time guaranteed to a criminal

defendant [to conduct a mitigation investigation].” The court

then concluded that when McMahill joined the defense team

in July 1995, McMahill “joined an ongoing mitigation inves-

tigation rather than starting a new mitigation investiga-

tion.” The court determined that petitioner’s defense team

began an investigation into mitigation evidence a soon as

they were appointed to represent petitioner, and that the

fact that McMahill was the only person on the defense team

to call herself a mitigation specialist was not determinative

of the timing of counsel’s investigation.

The post-conviction court did not err in denying

this claim. As stated by the post-conviction court, “there is

19

In both the second and eighth assignments of error, petitioner lodges

additional challenges to her trial counsel’s performance that we do not address

because they are undeveloped and do not identify any error in the post-conviction

court’s ruling.

634 Zyst v. Kelly

no constitutional standard for the amount of time guaran-

teed to a criminal defendant [to conduct a mitigation inves-

tigation].” Indeed, the case law on failure-to-investigate

cases has always centered on the substance of trial coun-

sel’s investigation and presentation of that evidence. See e.g.,

Sparks v. Premo, 289 Or App 159, 177, 408 P3d 276, rev den,

363 Or 119 (2017), cert den, 586 US 1023 (2018) (rejecting the

petitioner’s contention that counsel’s decision to hire a foren-

sic analyst a few weeks before the criminal trial was inad-

equate performance because the petitioner did not present

evidence that the time of hiring “hampered [the analyst’s]

ability to properly prepare for petitioner’s defense” in light

of counsel’s presentation of mitigation evidence); Montez, 355

Or at 12-25 (analyzing counsel’s performance regarding the

mitigation investigation and presentation of that evidence in

light of the state’s evidence and theory of guilt); Washington

v. Kelly, 333 Or App 235, 250-52, 552 P3d 80, rev den, 372 Or

787 (2024) (looking to counsel’s performance to determine

whether the investigation and presentation of mitigation evi-

dence was constitutionally adequate); Maxfield v. Cain, 322

Or App 405, 408-416, 520 P3d 890 (2022) (concluding that

counsel performed deficiently in failing to present any mit-

igation evidence). The record supports the post-conviction

court’s finding that petitioner’s trial counsel began their

mitigation investigation as soon as they were appointed to

represent petitioner. Again, the post-conviction court did not

err in so concluding.

2. Failure to request a continuance at the request of the

mitigation investigator

Relying on her submission that trial counsel did

not begin a mitigation investigation until July 1995, when

McMahill was brought on to the defense team, petitioner

next contends that trial counsel should have moved for a

continuance of the penalty-phase trial to allow McMahill

more time to conduct a mitigation investigation. She claims

that, had McMahill had more time to conduct a mitigation

investigation, McMahill would have obtained additional evi-

dence that could have aided counsel in their mitigation argu-

ment; specifically, petitioner claims that, with more time to

build a relationship with petitioner, McMahill would have

Cite as 338 Or App 597 (2025) 635

obtained a Social Security record indicating that petitioner

may have been sexually abused at an institution where she

was housed as a juvenile.

Trial counsel testified that they did not recall

whether they sought continuances, but also testified that,

had McMahill asked for one, they would have sought one.

Indeed, McMahill herself could not recall whether she asked

for a continuance, and even if she did, she could not recall

why she would have asked for one; she stated that her only

“recollection” about ever having asked for a continuance

was included in her notes. McMahill’s notes were in a check-

list format in which she wrote the word “continuance” on a

list, which to her indicated that she did ask counsel for a

continuance.

The post-conviction court found McMahill’s testi-

mony about feeling like she needed more time to investigate

petitioner’s case not credible. That credibility finding is bind-

ing on us, Perkins, 332 Or App at 295, and is dispositive of

this claim. In any event, petitioner has not explained how, if

counsel had asked for a continuance for McMahill to obtain

the Social Security record and introduce it at the criminal

trial, the presentation of that Social Security record could

have militated against the imposition of the death penalty.

For that reason, petitioner does not prove that any alleged

deficiencies in failing to ask for a continuance prejudiced

her. As a result, the post-conviction court also did not err in

concluding that petitioner failed to demonstrate prejudice.

3. Mitigation theory and sufficient evidence

Petitioner contends that her trial counsel performed

inadequately because they failed to present a coherent mit-

igation theory and/or sufficient mitigation evidence. The

post-conviction court denied the claims, reasoning that trial

counsel:

“pursued a mitigation strategy that (1) humanized peti-

tioner—explained how her family history damaged a sweet

and loving child, (2) explained family and psychological

problems that tarnished her life and prospect[s], (3) dimin-

ished her conduct to the extent her serious mental disor-

ders affected her ability to control her actions, (4) ensured

the jury that a life sentence was a serious and complete

636 Zyst v. Kelly

punishment, and (5) gave jurors an explanation as to why

she did not deserve death.”

The court did not err.

The record supports the court’s determination that

petitioner’s defense counsel had a coherent theory of mitiga-

tion. Although we will not reprise the entirety of the defense’s

mitigation theory, we agree with the post-conviction court

that counsel focused on a mitigation theory that human-

ized petitioner; explained that her violent, aggressive, and

antisocial behavior was the result of internal and external

forces outside of her control; and argued that the best way

to keep petitioner in line was with a regimented and super-

vised living environment. “The fact that petitioner would,

in retrospect, have implemented [her] mitigation defense in

one or more different ways is not a ground for post-conviction

relief if counsel acted reasonably in presenting the defense

that they did.” Montez, 355 Or at 24. The record supports

the post-conviction court’s determination that petition-

er’s counsel provided a reasonable and coherent mitigation

theory that allowed the jury to provide a reasoned moral

response to the question, “should [petitioner] receive a death

sentence?” Wagner, 309 Or at 19.

As for the sufficiency of mitigation evidence, peti-

tioner contends that her counsel failed “to discover, pres-

ent, and explain to the jury [an] abundance of other avail-

able mitigation evidence,” such as evidence related to “her

mental health and mental illness, prior diagnoses of men-

tal illness, family history of mental illness, her inability to

function independent[ly] as an adult, her substance abuse/

self-medication, and the effect her execution would have on

her family, along with evidence of other positive character

traits.” Petitioner argues that her trial counsel should have

included testimony about her childhood abuse and neglect,

sexual abuse of petitioner as a juvenile, testimony from her

younger sisters, more evidence about her mental illness,

more evidence of her behavior and developmental disorders,

evidence from adult-treatment providers, and evidence about

petitioner’s disabilities closer to the time of the murders.

The post-conviction court rejected that claim

for relief, concluding that trial counsel’s presentation of

Cite as 338 Or App 597 (2025) 637

mitigation evidence was adequate, and that their mitiga-

tion theory was adequate. In so doing, the court noted that

defense penalty-phase witnesses “generally testified to all of

the evidence that petitioner identifies.” The court did not err.

A criminal defense lawyer is not required to inves-

tigate or introduce “every shred of evidence regarding [a]

petitioner’s background, psychological makeup, or other fac-

tors that the jury might possibly have found to be mitigat-

ing; rather, the standard under Oregon law is whether [the]

petitioner proved by a preponderance of the evidence that

[their] defense counsel failed to exercise reasonable profes-

sional skill and judgment.” Montez, 355 Or at 16. Given that

standard, the post-conviction court’s conclusion that the evi-

dence petitioner seeks would have been cumulative of the

evidence counsel did present was legally correct.

Further, the court’s factual finding that petitioner’s

counsel did present the evidence that petitioner claims was

not presented is supported by the record. The record demon-

strates that defense witnesses testified to all of the evidence

that petitioner now argues should have been presented:

petitioner’s childhood abuse and neglect, petitioner’s men-

tal illnesses, and her behavior and developmental disorders.

Although defense counsel did not present testimony from

petitioner’s younger sisters or from adult treatment provid-

ers, those omissions were not prejudicial to petitioner. She

does not explain what her younger sisters would have testi-

fied to. Horn, 180 Or App at 148-49 (“Where evidence omit-

ted from a criminal trial is not produced in a post-conviction

proceeding * * * its omission cannot be prejudicial.”). As for

the adult treatment providers, petitioner claims that those

providers would have testified that “her behavioral problems

originated with her mental-health problems and did not nec-

essarily indicate a criminal mindset.” Several mental health

professionals testified that petitioner had a rough upbring-

ing that, paired with her birth conditions, caused severe

mental instability in her to the point of her not being able to

control her aggressive and violent behavior. Accordingly, the

court did not err in rejecting this claim for relief.

We now turn to arguments made in petitioner’s

eighth assignment of error.

638 Zyst v. Kelly

4. Right to allocution

Article I, section 11, of the Oregon Constitution

provides a criminal defendant the right to allocution, that

is, “the right * * * to be heard by [themselves] and counsel.”

That right allows a criminal defendant to personally make

a case for sentencing mitigation before the imposition of a

sentence. State v. Ross, 331 Or App 570, 571, 546 P3d 960

(2024) (internal citations omitted). Denying a defendant the

right to make a statement before sentencing violates the

allocution right. Id. However, the right to allocution can be

waived by a defendant’s counsel. State v. Juarez-Hernandez,

333 Or App 794, 796, 553 P3d 1068, rev den, 373 Or 119

(2024) (“Because defendant did not in any way indicate to

the court that he wished to speak, nor does he now argue

that the right cannot be exercised by counsel, the court did

not deny him the right of allocution.”).

Following the penalty phase of the criminal

case, after the parties rested their mitigation arguments,

the trial court asked defense counsel whether petitioner

intended to make any statement in allocution, to which

counsel responded, “No, Your Honor. That would be waived.”

The trial court’s question came about because, prior to trial,

petitioner’s counsel filed a motion to allow petitioner to make

a statement in allocution with a supporting memorandum,

and the trial court granted it. Petitioner later sent a letter

to trial counsel, in which she wrote, “It is up to me whether

or not I take the stand.”

Petitioner argued to the post-conviction court that

her trial counsel were inadequate and ineffective for failing

to advise petitioner about her right to testify, her right to

make a statement in allocution at the penalty phase, and for

failing to ensure that her waiver of such rights was know-

ing, intelligent, and voluntary. In support, she cites her tes-

timony in the post-conviction court in which she stated, in

response to a question about whether she “recall[ed] hav-

ing conversations with [her] attorneys about whether or not

[she] should testify,” “Yeah, they told me that I wasn’t going

to testify.” She stated that counsel told her that “it was their

decision and that it was their opinion that I needed to—you

know, everything was fine and I should just leave things as

Cite as 338 Or App 597 (2025) 639

they were.” She further stated that she did not have “any

knowledge about whether or not [she] had the right to take

the stand”; she “thought that was a decision the attorney

makes.”

The post-conviction court found petitioner’s tes-

timony not credible. As discussed below, that credibility

determination is binding on us and is supported by the

record. As to petitioner’s knowledge of the right of allocu-

tion, trial counsel testified that they did speak to petitioner

about whether to testify and that they would not take any

case to trial without having discussed that right, testimony

that the post-conviction court accepted as true. Additionally,

before trial, the trial court granted counsel’s motion to allow

petitioner’s statement in allocution with a supporting mem-

orandum, and petitioner sent her counsel a letter to counsel

in which she wrote “It is up to me whether or not I take

the stand.” Indeed, petitioner testified in the post-conviction

court that she “believed it was my choice [to testify], not

[counsel’s].” Given petitioner’s conflicting testimony about

her knowledge of the right of allocution, the post-conviction

court was entitled to determine petitioner’s testimony not

credible on that point. That credibility finding is binding

on this court and is dispositive. Perkins, 332 Or App at 290;

Newmann v. Highberger, 330 Or App 229, 234-35, 543 P3d

172, rev den, 372 Or 588 (2024) (citing State v. Johnson, 335

Or 511, 523, 73 P3d 282 (2003) (appellate court bound by

factfinding court’s “finding that a party’s evidence is not

sufficiently persuasive”)).

As for whether petitioner’s waiver of that right

through counsel was knowing and voluntary, the post-

conviction court concluded that “[t]here is no showing that

that waiver [of the right to make a statement in allocution]

was not voluntary and knowing.” On appeal, petitioner con-

tends that the post-conviction court erred in that conclusion

because, in her view, the court shifted the burden of per-

suasion from the superintendent to her. The argument does

not square with the fact that the burden of production in

post-conviction cases is always borne by the petitioner. ORS

138.620(2); Montez, 355 Or at 6-7. Petitioner’s only proof

offered to show that the waiver of her right of allocution was

640 Zyst v. Kelly

not knowing or voluntary was her own testimony, which

the post-conviction court found not credible. That leaves no

credible evidence to support petitioner’s contentions.

Finally, petitioner does not argue that her counsel

did not have authority to waive her right to allocution when

the trial court asked. Had petitioner intended a different

decision, she could have indicated that she wished to be

heard. Juarez-Hernandez, 333 Or App at 796; see State v.

Bishop, 336 Or App 161, 167, 559 P3d 950 (2024) (“Defense

counsel argued for mitigation before sentencing and inter-

rupted the court mid-sentencing, but never indicated that

[the] defendant wished to be heard.”). Accordingly, the post-

conviction court did not err in rejecting petitioner’s claim

regarding her right to allocution.

5. The prosecution’s allegedly incorrect assertions, misrepre-

sentations, and arguments regarding future dangerousness

Petitioner contends that her trial counsel were

inadequate and ineffective for failing to challenge the prose-

cution’s incorrect assertions, misrepresentations, and argu-

ments on the issue of future dangerousness. She asserts

that her counsel should have done more to challenge certain

of the state’s arguments on the future dangerousness issue,

but only claims error in the post-conviction court’s judgment

on one: that trial counsel failed to object to Dr. Richard

Hulteng’s references to petitioner’s alleged childhood “sex-

ual acting out.”

The claim is premised on state witness Hulteng’s

testimony that petitioner was committed to a mental health

facility because, according to the facility, she was “reportedly

exposing herself to her sisters,” which Hulteng described as

“sexual acting out.” Petitioner argued to the post-conviction

court that her counsel should have objected to Hulteng’s

testimony because it was inadmissible hearsay. Although

petitioner does not develop this argument further, it can be

assumed that her contention is that, because Hulteng’s tes-

timony was relaying a statement from the facility, Hulteng

could not testify to the reasons for petitioner’s commitment.

The post-conviction court rejected this argu-

ment because it determined that Hulteng’s testimony was

Cite as 338 Or App 597 (2025) 641

admissible under the OEC 803(4) exception to hearsay state-

ments because the challenged statements were offered as

“statements * * * made for the purposes of medical diagno-

sis or treatment and describing [the] inception or general

character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment.”

On appeal, petitioner argues that the post-conviction

court erred in concluding that the testimony was admissible

under OEC 803(4) because, at the time of petitioner’s trial in

1995, we had held that OEC 803(4) allowed only the state-

ment of an alleged victim of sexual abuse “when it is shown

that a physician reasonably relied on the victim’s identifi-

cation of her abuser as a family member in diagnosing or

treating the victim,” and then “the physician may testify

about the victim’s identification of her abuser.” She contends

that Hulteng’s testimony was not based on an out-of-court

statement of a purported victim or of a physician diagnos-

ing the victim as required by State v. Vosika, 83 Or App

298, 309, 731 P2d 449, adh’d to as modified on recons, 85

Or App 148, 735 P2d 1273 (1987). Petitioner’s argument is

unavailing.

A declarant’s out-of-court statement is admissible

under OEC 803(4) if it is “made for purposes of medical diag-

nosis or treatment and describing medical history, or past

or present symptoms, pain or sensations, or the inception

or general character of the cause or external source thereof

insofar as reasonably pertinent to diagnosis or treatment.”

OEC 803(4); Dept. of Human Services v. J. G., 258 Or App

118, 123, 308 P3d 296 (2013); State v. Moen, 309 Or 45, 55,

786 P2d 111 (1990). The rule was the same in 1995 at the

time of petitioner’s trial. See e.g., Vosika, 83 Or at 303; State

v. Barkley, 315 Or 420, 424, 846 P2d 390 (1993). Vosika, on

which petitioner relies, does not say anything to support her

contention that a statement is admissible under OEC 803(4)

only if it comes from a victim of sexual abuse or a physician.

Indeed, “OEC 803(4), by its terms, does not require that the

declarant be the person diagnosed or treated. Rather, the

rule refers broadly to ‘statements’ describing their purpose

and nature, without any reference to the declarant’s status.”

State ex rel Juv. Dept. v. Pfaff, 164 Or App 470, 481, 994

642 Zyst v. Kelly

P2d 147 (1999), rev den, 331 Or 193 (2000). Thus, petitioner’s

reliance on Vosika is misplaced, and we reject petitioner’s

argument that the post-conviction court erred in concluding

that Hulteng’s testimony was inadmissible hearsay because

petitioner has not demonstrated reversible error.

D. Direct Appeal

In her tenth assignment of error, petitioner con-

tends that her appellate counsel in the direct appeal of her

conviction and sentence rendered inadequate and ineffec-

tive assistance under both the state and federal constitu-

tions in numerous ways. None of petitioner’s arguments on

this point assert any error in the post-conviction court’s

judgment denying the claims for relief, and so—as with the

other undeveloped arguments—we do not address them.

Waldorf, 301 Or App at 584 (declining to address undevel-

oped argument).

IV. CONCLUSION

Because petitioner has not carried her burden of

production to adduce evidence that she claims her trial coun-

sel should have presented at the criminal trial, Short, 195

Or App at 729; has not developed many arguments assert-

ing error in the post-conviction court’s judgment, Waldorf,

301 Or App at 584; has advanced arguments contrary to

caselaw, Manning, 325 Or App at 36 (cumulative error not

recognized in Oregon), Palmer, 318 Or 352 (Supreme Court

precedent that binds the Court of Appeals); did not preserve

several arguments; and has otherwise not provided any rea-

son to disturb the post-conviction court’s denial of her peti-

tion for post-conviction relief or exclusion of certain exhibits,

we affirm.

Affirmed.