- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Procedure
- Date Filed: 03-30-2016
- Case #: A150332
- Judge(s)/Court Below: Duncan, P.J. for the Court; DeVore, J.; & Schuman, S.J.
Petitioner was convicted of providing alcohol to minors and sexual assault. Petitioner requested post-conviction relief, arguing that his trial lawyer provided constitutionally inadequate assistance by failing to object to improper statements made in Prosecutor’s closing statement.
During closing statements, Prosecutor characterized Petitioner’s right to remain silent as evidence of guilt, and implied that Petitioner would assault other girls if he were not sent to prison. At post-conviction trial, Petitioner’s trial Counsel explained that he did not object as a tactical choice: Counsel did not object to the first statement because he chose to spin the fact in Petitioner’s favor, and Counsel did not object to the second statement because it seemed that the Prosecutor’s harsh language was alienating the jury. The post-conviction court denied Petitioner’s request, and he appealed.
For post-conviction relief based on inadequate assistance of counsel, a petitioner must demonstrate: (1) trial counsel failed to exercise reasonable professional skill and judgment; and (2) that petitioner suffered prejudice as a result.
The Court found that even if adequate counsel would have objected to the statements, Petitioner failed to show that his Counsel’s inaction caused any prejudice, as the trial court’s instruction to the jury urging them to use their own impressions and memories to come to a conclusion offset the Prosecutor’s remarks.