Horn v. Hill

BYERS, S. J.,

concurring.

I concur in the decision but am concerned that we may lead post-conviction trial courts astray by using terms such as “little likelihood.” 1 In my view, the legal conclusion that inadequacy of trial counsel did or did not “have a tendency to affect the result” should not be based upon a probability analysis. See Ashley v. Hoyt, 139 Or App 385, 391-97 , 912 P2d 393 (1996) (“a reasonable probability” that the “result would have been different” is too rigorous a standard). *153 When the Oregon Supreme Court formulated the test of a “tendency to affect the result” in Krummacher v. Gierloff, 290 Or 867 , 627 P2d 458 (1981), it established a standard something less than “probably.” 2 Consequently, I believe a defendant can be prejudiced under Article I, section 11, of the Oregon Constitution, when the error or errors of inadequate counsel reasonably could have affected the result. Whether an error reasonably could have affected the result would depend in part on its importance and how the criminal proceedings would have been different if the error had not been made.

I believe that an appropriate analysis is as follows: (1) determine the relative importance of the error or errors to petitioner’s case; (2) determine how adequate assistance of counsel in the particulars involved would have changed the evidence and arguments presented to the trier of fact; and (3) based on those two determinations, determine whether the trier of fact could, “in the totality of the circumstances,” reasonably have come to a different result or conclusion. See Carias v. State of Oregon, 148 Or App 540, 543 , 941 P2d 571 (1997) (petitioner must show how the failure would have a tendency to affect the result). I believe this approach will lead to the correct legal conclusion of whether the error had a tendency to affect the result.

Applying the first step here, it is clear that the “recantation” evidence went to the heart of petitioner’s case. Petitioner testified that he had not touched the child inappropriately. Mother testified that child said petitioner had. It was mother who reported the accusation to others. Yet when the child testified in the pretrial hearing, she said petitioner had not touched her. More importantly, when the child was asked ‘Who told you that he touched you?” the child replied “Mom.” It is hard to conceive of evidence more important to the petitioner’s case. As petitioner’s expert pointed out in the post-conviction trial, the importance of such evidence *154 increases where the child did not testify in the criminal proceedings, thereby depriving petitioner of the opportunity to cross-examine her.

In considering the second step in the process, petitioner himself suggests ways in which the evidence could have been used. Petitioner points out that the evidence could have been the “central theme” of his defense. His expert witness in the post-conviction proceeding testified that the evidence could have been used to cross-examine mother and other state witnesses who heard the child make the statements. Also, petitioner could have used the evidence to make his testimony more credible. Although the parties pose arguments and counterarguments with regard to leading questions, the fact that the child was young and perhaps amenable to having ideas planted in her mind emphasizes the crucial role the evidence could play. Had the evidence been used as indicated, it could have provided a significant basis for petitioner to argue reasonable doubt.

Having determined that the evidence was very important to petitioner’s case and that it could have been used in several ways, the third step considers how a juror would view it in the “totality of the circumstances.” This requires considering all of the evidence in the case with a view toward determining whether the scales are tipped in favor of guilt or innocence and how steeply the scales are tipped. If there is “overwhelming evidence of* * * guilt,” even serious errors could not reasonably change the result. Davis v. Armenakis, 151 Or App 66, 72 , 948 P2d 327 (1997), rev den 327 Or 83 (1998) (trial counsel’s failure to object to the petitioner being held in shackles in presence of the jury did not require post-conviction relief). If the scales are tipped steeply in favor of guilt, perhaps only an error crucial to the defendant’s case that, had it not been made, would have significantly changed the evidence and the arguments of the proceedings could reasonably affect the result.

In this case, the evidence was not steeply tipped in favor of guilt. The medical evidence was not conclusive. The state’s medical expert testified that the physical condition of the child was “suspicious” and “definitely abnormal,” while *155 petitioner’s expert testified that it was normal. The videotaped interview by the detective took place after the detective had talked to mother and consisted of leading questions. Much of the state’s remaining evidence was based on mother’s reports. While there was sufficient evidence to convict petitioner, the evidence was not overwhelming or conclusive. In these circumstances, and considering the arguments that could have been made, the recantation evidence could have raised the essential reasonable doubt that petitioner sought. Thus, my analysis leads to the legal conclusion that trial counsel’s failure to use the recantation evidence “had a tendency to affect the result.”

The test of “little likelihood” must always be accompanied by “substantial and compelling evidence of guilt.’’ State v. Walton, 311 Or 223, 230 , 809 P2d 81 (1991) (quoting State v. Miller, 300 Or 203, 220-21 , 709 P2d 225 (1985)).

The Supreme Court has indicated that the “inquiry” under the federal and state constitutions is the same. Gorham v. Thompson, 332 Or 560 , 564 n 3, 34 P3d 161 (2001). However, it is clear that the federal standard is “reasonable probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 US 668, 694 , 104 S Ct 2052 , 80 L Ed 2d 674, 698 (1984). Cf. Stevens v. State of Oregon, 322 Or 101 , 110 n 6, 902 P2d 1137 (1995).