Waldorf v. Premo

                                       572

Submitted December 19, 2017, affirmed December 26, 2019, petition for review
                    denied May 7, 2020 (

)


                       BRUCE E. WALDORF,
                         Petitioner-Appellant,
                                   v.
                             Jeff PREMO,
                           Superintendent,
                      Oregon State Penitentiary,
                       Defendant-Respondent.
                     Marion County Circuit Court
                         14C18923; A161591
                                   

     Petitioner appeals a judgment denying his petition for post-conviction
relief, arguing that he received inadequate and ineffective assistance of coun-
sel. Specifically, petitioner argues that his trial counsel failed to object when a
detective testified in a manner that petitioner contends amounted to impermis-
sible comments on his credibility. Held: The post-conviction court did not err.
Petitioner did not establish that all attorneys exercising reasonable professional
skill and judgment would have objected to or otherwise sought to exclude the
detective’s testimony.
    Affirmed.



    Linda Louise Bergman, Senior Judge.
  Jason Weber and O’Connor Weber LLC filed the brief for
appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney General,
filed the brief for respondent.
  Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.
    DEHOOG, P. J.
    Affirmed.
Cite as 

 (2019)                              573

        DEHOOG, P. J.

          Petitioner, who was convicted of first-degree sexual
abuse following a jury trial, appeals a judgment denying
his petition for post-conviction relief. In a single assign-
ment of error, petitioner identifies three instances in which
the detective who interviewed petitioner was permitted to
testify, without objection by petitioner’s trial counsel, in a
manner that petitioner argues impermissibly commented
on his credibility. Petitioner contends that trial counsel’s
failure to object or move to strike in each of those instances
constituted inadequate and ineffective assistance of coun-
sel, and that the post-conviction court erred in denying his
petition for relief on that ground. Writing to address two of
the three instances of trial counsel’s allegedly deficient per-
formance, we conclude that, even if the identified testimony
was objectionable “vouching” testimony, petitioner did not
establish that all attorneys exercising reasonable profes-
sional skill and judgment would have objected to that testi-
mony or otherwise sought to exclude it. As a result, the post-
conviction court did not err in denying petitioner’s claim for
relief, and we, therefore, affirm.

         We review the grant or denial of post-conviction
relief for legal error. Alne v. Nooth, 

, 308,

 (2017). We accept the post-conviction court’s
express and implicit findings of fact if there is evidence in
the record to support them. 

 We state the facts in accor-
dance with that standard.

          The underlying allegations of sexual abuse arose
from an incident involving petitioner and J, the 10-year-
old friend of one of petitioner’s granddaughters. Petitioner
drove two of his granddaughters and J from Springfield to
Corvallis to watch a high school basketball tournament.
According to J, while she and petitioner were alone in the
car after the tournament, he tickled her leg. He then moved
his hand up her leg until the back of his thumb touched her
vagina on the outside of her clothing. J told him to stop,
moved his hand away, and got out of the car. Shortly there-
after, all three girls returned to the car, and petitioner drove
them home.
574                                                         Waldorf v. Premo

         Based on that incident and the related investiga-
tion, petitioner was indicted for first-degree sexual abuse
and, after a jury trial, convicted of that offense.1 Petitioner
appealed his conviction, and we affirmed without opinion.
Petitioner then filed this action for post-conviction relief
raising numerous claims, all of which the post-conviction
court denied. Petitioner now appeals, assigning error only
to the post-conviction court’s denial of relief on his claim
of inadequate and ineffective assistance of counsel under
Article I, section 11, of the Oregon Constitution, and the
Sixth and Fourteenth Amendments to the United States
Constitution.
         On appeal, as in the post-conviction court, petitioner
identifies three statements to which, he contends, his trial
attorney should have responded by objecting or moving to
strike. Each statement was made by Martin, the detective
who had interviewed petitioner in the course of investigating
J’s allegations. We discuss only the second and third of those
statements.2 In the second statement, made by Martin on
direct, he testified that he had “found it curious” that peti-
tioner could recall certain facts from the day in question, but
that he did not recall “an issue that in [Martin’s] opinion he
would have remembered, like touching a ten-year-old girl’s
vagina.” According to petitioner, that testimony effectively
told the jury that, in Martin’s opinion, petitioner was a liar
and his denial of J’s accusation could not be believed. That,
petitioner contends, constituted an impermissible comment
on his credibility to which any competent attorney would
have objected.
        Martin made the third statement while being
cross-examined by petitioner’s trial counsel about the inter-
view. In response to counsel’s suggestion that petitioner’s
conduct—putting his head in his hands and saying “Oh,

    1
      Below we discuss an investigative interview of petitioner and the state’s
reliance on a detective’s account of that interview at petitioner’s criminal trial.
    2
      In the first statement identified by petitioner, Martin testified during direct
examination that, when petitioner had used the word “touch” in telling Martin
that he did not recall touching J, Martin had understood him to mean a “sexu-
ally motivated touch.” Petitioner contends that the statement was akin to Martin
having told the jury that petitioner had confessed to the alleged crime. We reject
that aspect of petitioner’s assignment of error without further discussion.
Cite as 

 (2019)                              575

God, Oh God”—had nothing to do with whether he had sexu-
ally assaulted J, Martin testified, “Well, if he’d done nothing
wrong[,] I found his behavior to be completely out of char-
acter.” Martin further testified that, if he himself had been
accused of something that he had not done, he would not ask
for forgiveness or try to strike a bargain, as petitioner had
done during the interview; he would instead say that he had
done nothing wrong. Petitioner characterizes that testimony
as Martin “expressly offering his opinion that petitioner was
acting like a person who was guilty.”

         The superintendent responds that petitioner failed
to demonstrate that his trial attorney’s performance was
constitutionally deficient in regard to either of those aspects
of Martin’s testimony. As to the first instance, the super-
intendent argues that Martin’s statement that he “found
it curious” that petitioner did not recall whether he had
touched J was not offered as evidence that Martin found
petitioner untrustworthy; rather, that testimony provided
context for his description of petitioner’s conduct—holding
his head and saying, “Oh, God.” See State v. Chandler, 

, 

 (2016) (trial court’s admission
of portions of investigative interview in which a detective
repeatedly indicated that she believed the alleged victim
over the defendant was not error; evidence provided context
for defendant’s statements in interview and was not offered
as evidence that detective found the defendant unbelievable).
As to the second instance, the superintendent argues that,
even if Martin’s statement is properly considered “vouching”
testimony, trial counsel reasonably did not object to it. The
superintendent reasons that, because counsel elicited that
response during cross-examination, either he invited the
response and so could not object to it, or it would at least
have been reasonable for counsel to believe that he could
not object to it under those circumstances. Either way, the
superintendent argues, counsel’s decision not to object did
not fall below constitutionally required standards.

        To succeed on his claim of inadequate assistance of
counsel under Article I, section 11, petitioner must prove,
by a preponderance of the evidence, that trial counsel did
not exercise reasonable professional skill and judgment and
576                                                       Waldorf v. Premo

that petitioner suffered prejudice as a result of counsel’s
inadequacy. Alne, 288 Or App at 312. The requirement that
petitioner show prejudice means that he must establish that
his trial attorney’s acts or omissions tended to affect the
outcome of his case. Id.3

         Oregon’s courts have long held that a witness, expert
or otherwise, may not express an opinion as to whether he
or she believes that another witness is telling the truth.
State v. Middleton, 

, 

 (1983).
We refer to direct testimony to that effect—such as when a
witness testifies “ ‘that he or she believes that another wit-
ness is or is not credible’ ”—as “true vouching.” 4 Alne, 288
Or App at 314 (quoting State v. Corkill, 

,

, rev den, 

 (2014)); see also State v.
Milbradt, 

, 

 (1988) (“An opinion
that a person is not deceptive, could not lie without being
tripped up, and would not betray a friend * * * is tantamount
to the same thing.”). As the Supreme Court has explained,
the rule against vouching serves the important policy goals
of “ensuring that the jury remains the sole arbiter of wit-
ness credibility and that the jury’s role in assessing witness
credibility is not usurped by another witness’s opinion testi-
mony.” Chandler, 

; see also Berg v. Nooth, 

, 

 (2013) (“[T]he concern with
vouching testimony—particularly testimony from experts—
is that jurors will defer to the vouching witness’s credibil-
ity determinations instead of making those determinations
themselves.”).

     3
       Petitioner also argues that the post-conviction court erred in denying him
relief based on his claim of ineffective assistance of counsel under the Sixth
Amendment to the United States Constitution. The state and federal constitu-
tional standards for determining whether counsel’s performance was deficient
are “functionally equivalent.” Montez v. Czerniak, 

, 

, adh’d
to as modified on recons, 

, 

 (2014). Petitioner does not
advance any argument suggesting that, even if his trial counsel’s performance
was not constitutionally inadequate under the Oregon Constitution, it fell below
federal constitutional standards.
     4
       In State v. Chandler, 

, 331 n 3, 

 (2016), the Supreme
Court explained that “[t]he rule that one witness may not comment on the cred-
ibility of another witness applies both to comments that bolster and comments
that undermine a witness’s credibility,” and the court stated that it would use the
phrase “vouching rule” to refer to the prohibition against both types of testimony.
We do the same in this opinion.
Cite as 

 (2019)                              577

         It is also settled law that testimony that falls short
of “true vouching” is nonetheless impermissible when it con-
veys the speaker’s opinion as to the credibility of another
witness. State v. Lupoli, 

, 

 (2010);
see also State v. Beauvais, 

, 

(2015) (stating that vouching rule prohibits both direct
comments on another witness’s credibility and statements
that are “tantamount” to direct comments). In determin-
ing whether a given statement is an impermissible—even if
indirect—comment on credibility, we consider “whether the
testimony at issue directly expressed an opinion on the truth
of another witness’s statement or merely tended to show that
another witness either is or is not telling the truth.” Alne,
288 Or App at 314. We have explained that testimony that
may inform a factfinder’s credibility determinations but
that does not “connect the dots” for the factfinder is typically
permissible. State v. Wilson, 

, 

 (2014), rev den, 

 (2015); see also State v. Black,

, 

 (2019) (distinguishing tes-
timony that, if believed, would suggest that another witness
is being truthful from testimony that directly expresses an
opinion that the witness is being truthful). On the other
hand, testimony that makes that determination for the fact-
finder typically is not permissible. State v. Brand, 

, 

 (2019) (officer’s testimony that the
alleged victim had delayed reporting the defendant’s con-
duct because she feared reprisals impermissibly vouched for
her credibility); see also Black, 

 (noting that
trial courts have no discretion to admit vouching testimony).
Simply put, “testimony must assist, not supplant, the jury’s
assessment of credibility.” State v. Remme, 

, 

 (2001); see also State ex rel Juv. Dept. v.
Smith, 

, 

 (2002), rev den, 

 (2003) (with alleged vouching testimony, the line
between permissible and impermissible testimony can be a
fine one); Brand, 

 (same).
         Here, petitioner never contended that Martin
directly commented on his credibility by, for example, opin-
ing on whether petitioner had been truthful during his inter-
view; thus, Martin’s testimony was not objectionable as “true
vouching.” See, e.g., Wilson, 

 (collecting
578                                             Waldorf v. Premo

case law illustrations of true vouching). Rather, the parties’
dispute raised two questions for the post-conviction court:
first, whether Martin’s testimony tied petitioner’s behavior
and statements to “more general phenomena or dynamics
bearing on credibility,” Remme, 

, such that
it impermissibly “connected the dots” for the trier of fact and
was therefore tantamount to a comment on petitioner’s cred-
ibility; and, second, if it was an impermissible comment on
petitioner’s credibility, whether counsel’s failure to recognize
it as such and take appropriate action constituted a failure
to exercise reasonable professional skill and judgment.
         We examine each statement with those principles
in mind. Martin’s “found it curious” statement arose during
the following part of his testimony:
   “[Prosecutor]:   What did you ask him about then?
   “[Martin]: Well, I found it curious that he had very
   detailed recall of the car he drove up, the times he drove
   out of Springfield, arriving in Corvallis, the events that led
   to him leaving, the events that led to him when he returned
   home and had a confrontation or a discussion with his wife
   to return, and would not have recall of an issue that in my
   opinion he would have remembered, like touching a ten-
   year-old girl’s vagina.
   “[Prosecutor]:   How did he respond to that?
   “[Martin]: He began—he agreed with me that most peo-
   ple would remember touching a ten-year-old girl’s vagina
   for sexual purposes.
   “[Prosecutor]:   Did he do anything else at that time?
   “[Martin]: Yeah. He put his head in his hands and started
   exclaiming ‘Oh, God’ repetitively.”
(Emphases added.)
         Several things are notable about this exchange.
First, the statement, “I found it curious,” appears to be
declaratory rather than interrogatory, as one might expect
in response to the prosecutor’s question: “What did you
ask him about then?” But, in context, Martin’s testimony
does appear responsive to the prosecutor’s question, even
though, rather than telling the prosecutor what he next
Cite as 

 (2019)                             579

asked petitioner, Martin tells the prosecutor what he next
told petitioner: that he “found it curious” that petitioner had
a detailed recollection of the day’s events but no recollection
of whether he had touched J’s vagina.

          Second, although petitioner’s briefing suggests that
Martin was permitted at trial to comment on his credibility,
it is evident from the above colloquy that Martin was testify-
ing as to what he had said during his out-of-court interview
of petitioner; he was not testifying that he currently “found
it curious” that petitioner could not remember whether he
had touched J inappropriately. The Supreme Court has
recently clarified that, for purposes of the vouching rule,
it is immaterial whether a witness’s comment on another
person’s credibility occurred at trial or on some previous
occasion. Chandler, 

 (“We * * * expressly recog-
nize that the bounds of the vouching rule are not defined by
the setting in which the credibility comment was uttered.”).
As we explain below, however, that distinction may have
some bearing on whether trial counsel’s failure to recognize
Martin’s statement as potentially objectionable constituted
inadequate assistance of counsel.

         Third, the prosecutor’s follow-up questions—“How
did he respond to that?” and “Did he do anything else at that
time?”—provide support for the superintendent’s conten-
tion that the state did not offer Martin’s statement that he
found petitioner’s memory issues curious as an opinion that
he was not credible but, instead, to provide context for peti-
tioner’s responses to that statement. That is, even though
neither the parties nor the court articulated at trial what
relevance the statement had, the above excerpt supports the
conclusion that Martin’s “found it curious” statement was
not “offered for the truth of the credibility opinion that it
expresse[d].” Chandler, 

 (vouching rule does
not apply to statements regarding credibility if “offered for a
relevant, non-opinion purpose”); see 

 (Although
record was “somewhat sparse as to the purpose for which
the challenged portions of the interview were offered,”
court was able to glean from context that they “were not
admitted for the truth of the credibility opinions that they
contained.”).
580                                           Waldorf v. Premo

         In light of the foregoing, we conclude that petitioner
has not demonstrated that counsel’s performance was defi-
cient when he did not object to the “found it curious” state-
ment. As noted, petitioner’s argument is that, when Martin
testified that he had told petitioner that he found it curi-
ous that petitioner could recall the day in detail but had
no memory of sexually touching J, Martin was “essentially
telling the jury that petitioner was a liar who should not
be believed.” We disagree. Although, in isolation, Martin’s
testimony may appear to express his distrust of petitioner,
the context belies petitioner’s contention that it was offered
as evidence that he should not be believed. Rather, it was
offered to provide context for Martin’s testimony as to how
petitioner had responded during his interview, and thereby
enable the jury to assess petitioner’s credibility for itself. See
Remme, 

 (testimony that assists but does
not supplant jury’s credibility assessments is not vouching).
Thus, it was not objectionable, see Chandler, 

(statement regarding credibility offered for relevant, non-
opinion purpose does not constitute vouching), and, there-
fore, trial counsel did not perform deficiently in allowing
Martin to testify about that statement without objection.
         Two further considerations support our conclusion
that petitioner has not established that counsel performed
inadequately in regard to the second statement. First, even
if Martin’s statement was, contrary to our understanding,
offered as a comment on petitioner’s credibility, the pre-
ceding discussion would nonetheless foreclose the conclu-
sion that every reasonable attorney would have recognized
it as objectionable and responded accordingly. See Maney
v. Angelozzi, 

, 

 (2017)
(inadequate-assistance test considers whether, “given * * *
the arguments available to counsel under the circumstances,
* * * every attorney exercising reasonable professional skill
and judgment” would have made a particular argument).
Second, and relatedly, at the time of petitioner’s criminal
trial, the Supreme Court had not yet issued Chandler. Thus,
as the court acknowledged in that opinion, there was some
uncertainty whether the vouching rule applied to out-of-
court comments regarding credibility. Chandler, 

 (discussing State v. Odoms, 

, 829 P2d
Cite as 

 (2019)                                                581

690 (1992)). And, indeed, as the court noted in Chandler, 

, our own decision in that case maintained that
distinction. State v. Chandler, 

, 

 (2014). For that additional reason, we cannot conclude
that all reasonable counsel at the time would have objected
to Martin’s statement even if it did amount to an impermis-
sible comment on petitioner’s credibility.
        For somewhat different reasons we reach the same
conclusion as to the third statement that petitioner identi-
fies, which Martin made during cross-examination. That
statement arose during the following exchange:
    “[Defense Counsel]: So, I mean, touch—a person can use
    touched to mean, you know, they touched somebody in the
    ordinary sense of touching or touched in a sexual manner?
    “* * * * *
    “[Martin]: I was not inside his mind but I was confident
    in watching him with his head buried in his hands saying
    ‘Oh, god. Oh, god’ that he was well aware of what we were
    talking about.
    “[Defense Counsel]: Alright. Well, are you aware of
    whether or not perhaps he was just worried about what
    was going to happen to him regardless of whether he’d done
    something wrong or not?
    “[Martin]: Well, if he’d done nothing wrong I found his
    behavior to be completely out of character.
    “[Defense Counsel]: Well, have you, for example—don’t
    you think that anybody who is accused of something like
    this would have reason to be scared and upset?
    “[Martin]: If I had done nothing wrong I would not—I
    would not be asking for forgiveness, I would not be bargain-
    ing, I would be telling you I did nothing wrong.”
(Emphases added.)5 As noted, petitioner characterizes
that testimony as Martin “expressly offering his opinion
that petitioner was acting like a person who was guilty.”
We understand petitioner to contend that, although it was

    5
      Petitioner does not quote the specific statement that he finds objectionable.
For purposes of our discussion, we treat the emphasized language collectively as
the statement that petitioner contends trial counsel should have contested.
582                                                    Waldorf v. Premo

permissible for Martin to describe petitioner’s conduct for
the jury, he was not permitted to opine on the significance, if
any, of that conduct. The superintendent’s response is three-
fold. First, he notes that Martin’s statements were respon-
sive to trial counsel’s questions. The superintendent argues
that, because defendant’s attorney invited the purported
vouching evidence, the trial court would have denied any
objection to that evidence because counsel’s questions had
“open[ed] the door.” As a result, not all reasonable counsel
would have objected, and trial counsel’s performance there-
fore was not deficient.6 Second, and relatedly, the superin-
tendent argues that, since trial counsel had invited Martin’s
responses and any objection to them would therefore have
been unsuccessful, petitioner cannot show prejudice even if
counsel’s performance was inadequate. Third, the superin-
tendent argues, to the extent that petitioner is now argu-
ing that trial counsel’s cross-examination as a whole was
deficient, he did not allege that deficiency in his petition
for post-conviction relief, and, in any event, his approach
to questioning Martin reflected, on the whole, a reasonable
strategic decision, even if it may have backfired. That is,
counsel appears to have been trying to minimize the impact
of Martin’s testimony on direct, specifically, his testimony
that petitioner claimed not to recall whether he had sex-
ually touched J. See Krummacher v. Gierloff, 

, 

 (1981) (recognizing that competent counsel
can make “tactical choices that backfire, because, by their
nature, trials often involve risk”).
         As with Martin’s second statement, we again con-
clude that petitioner has not established that his trial
counsel’s performance was constitutionally inadequate,
albeit on slightly narrower grounds than those advanced
by the superintendent. We express no opinion regarding
the superintendent’s argument that, because counsel some-
how invited Martin’s arguably impermissible responses, he
could not have successfully challenged those responses, or
at least reasonable counsel could so believe. Further, we are

    6
      Although we note that petitioner contends that trial counsel should have
objected or moved to strike Martin’s responses, he has not argued that counsel
should have moved to strike on the grounds that Martin’s answers were not
responsive to his questions.
Cite as 

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skeptical of the argument that, because counsel’s strategy
regarding cross-examination was sound as a whole, counsel
cannot be faulted for any failings that may have occurred in
the course of that otherwise competent cross-examination.
In the limited context of this case, however, we agree that
petitioner’s failure to contend that his trial counsel per-
formed deficiently by asking the questions that he asked
precludes him from establishing that he received inade-
quate assistance of counsel.
         As the superintendent points out, Martin’s answers
were, in fact, responsive to the questions he had been
asked—they probably just were not the answers that coun-
sel had hoped for. That is, counsel was asking for Martin’s
views as to what petitioner was most likely thinking when he
said and did certain things. Counsel asked, in regard to why
petitioner had “buried” his head in his hands: “Well, are you
aware of whether or not perhaps he was just worried about
what was going to happen to him regardless of whether he’d
done something wrong or not?” Given that arguably open-
ended question, Martin understandably gave an answer
that reflected his view of what petitioner had been thinking,
rather than endorsing counsel’s suggestion that he might
have been thinking something entirely different. Similarly,
when counsel suggested that petitioner’s demeanor was due
simply to the accusation rather than his guilt, Martin again
responded that he would have expected a different reaction
from one who had been falsely accused.
         Despite our skepticism of the superintendent’s broad
argument regarding trial counsel’s overall cross-examination
strategy, we draw on related reasoning in concluding that
counsel’s performance has not been shown to be constitu-
tionally inadequate. As the superintendent suggests, sound
questions can, at times, lead to problematic responses. And,
insofar as petitioner has not asserted that counsel’s questions
were constitutionally deficient, that appears to be what hap-
pened here: Martin gave a troublesome response to counsel’s
presumably reasonable question. Thus, the narrow question
on post-conviction is whether all reasonable counsel would
have objected or moved to strike once the witness gave an
undesirable response to an appropriate question, assuming
that there were justifiable grounds for doing so. See Maney,
584                                                       Waldorf v. Premo

 (considering, in an inadequate-assistance
case, whether “every attorney exercising reasonable profes-
sional skill and judgment” would have taken the course of
action asserted in post-conviction proceedings). Put another
way, given that questions that “backfire” are an inherent
risk of even the soundest cross-examination, does it follow
that the only reasonable response to an unexpected answer
is to object or move to strike?
         Petitioner’s briefing sheds no light on these ques-
tions. That is, it may well be that all reasonable counsel
under the circumstances would have done as petitioner
suggests—object or move to strike the offending responses—
but it is petitioner’s burden to persuade us that that is the
case. In our view, petitioner has not satisfied that burden.
Petitioner’s entire argument as to how he received inade-
quate assistance is that Martin’s responses constituted
vouching and that all reasonable counsel would have
objected or moved to strike on those grounds. The difficulty
we have in assessing that contention is that it is simply a
conclusory statement, rather than a developed argument,
and does not assist us in assessing whether, in this case,
the failure to respond constituted inadequate assistance
of counsel. Under the circumstances, we are left to develop
petitioner’s arguments for him, which we decline to do.7
Accordingly, we affirm.
           Affirmed.




     7
       Because, as noted, 

 n 3, petitioner also does not develop
any argument that counsel’s performance as to this statement or the others
should be viewed as ineffective assistance of counsel under the federal constitu-
tional standard, even if it was adequate under the Oregon Constitution, we also
reject petitioner’s claim under the federal constitution. See Lotches v. Premo, 

, 514 n 1, 

, rev den, 

 (2013) (explaining that we
do not separately address an undeveloped federal claim of ineffective assistance
of counsel).