- Court: Oregon Court of Appeals
- Area(s) of Law: Post-Conviction Relief
- Date Filed: 12-06-2017
- Case #: A156053
- Judge(s)/Court Below: DeHoog, J. for the Court; Tookey, P.J.; & Aoyagi, J..
- Full Text Opinion
Defendant appealed a remanded post-conviction court’s determination Defendant’s trial attorney did not provide adequate assistance of counsel, but ultimately denied relief because the inadequate assistance of counsel did not prejudice Defendant. On appeal, Defendant argued the prosecutor did not have a reasonable basis for the character witness cross-examination questions, to which the defense attorney did not adequately object nor requested a motion in limine to discuss the issues, and the trial court’s jury instructions were misleading and resulted in prejudice of his case. In response, the Superintendent argued the prosecutor had a reasonable basis for the questions during cross-examination and the result did not unduly prejudice the defendant’s case. Only acts or omissions by an attorney that have a “tendency to affect the result of the prosecution” entitle a person to post-conviction relief for ineffective assistance of counsel. Stevens v. State of Oregon, 322 Or 101, 110 (1995). A post-conviction court must consider evidence that would have been proffered had the attorney performed adequately. Lichau v. Baldwin, 333 Or 350, 363 (2002). The Court of Appeals held that the attorney’s inadequate performance requires post-conviction relief because if counsel had performed either a motion in limine or properly objected to the cross-examination questions, the prosecutor would not have been able to ask the questions or the objection would have preserved the claim for appeal to correct the trial court’s error. Reversed and remanded.