- Court: Oregon Court of Appeals
- Area(s) of Law: Post-Conviction Relief
- Date Filed: 10-18-2017
- Case #: A158811
- Judge(s)/Court Below: Egan, J. for the Court; Armstrong, P.J.; & Shorr, J.
- Full Text Opinion
Mark Nooth, (Superintendent), appealed a post-conviction court's judgment that granted post-conviction relief and overturned Petitioner's convictions of first-degree sodomy, ORS 163.405; first-degree unlawful sexual penetration, ORS 163.411; and first-degree sexual abuse of a minor child, ORS 163.427. Superintendent assigned error to the post-conviction court’s conclusion that trial counsel’s failure to object to an expert witness's vouching testimony resulted in constitutionally inadequate legal counsel that prejudiced Petitioner. On appeal, Superintendent argued that some reasonable attorneys might have found the expert’s testimony permissible and therefore this did not necessarily constitute constitutionally inadequate counsel. Pursuant to Article I, section 11 of the Oregon Constitution, in order to be granted post-conviction relief on the basis of inadequate counsel, "a petitioner must prove, by a preponderance of the evidence, that his trial counsel did not exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result of counsel’s inadequate performance." Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1991). The Court of Appeals determined that because the inadmissibility of vouching testimony had been made clear by decades-old case law, trial counsel's failure to object to the expert witness's constituted unreasonable professional judgment and skill. Additionally, the Court concluded that because only testimonial evidence was provided to the jury, the expert witness's testimony likely "affected the outcome of the trial." Accordingly, trial counsel's failure to object consisted constitutionally inadequate counsel. Affirmed.