Full Opinion (html_with_citations)

No. 667             December 20, 2023                   669

            IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

               BRIAN JOSEPH GEARY,
                  Petitioner-Appellant,
                            v.
                   Tyler BLEWETT,
                    Superintendent,
           Two Rivers Correctional Institution,
                Defendant-Respondent.
             Umatilla County Circuit Court
                 18CV15650; A173425

  J. Burdette Pratt, Senior Judge.
  Argued and submitted August 1, 2022.
   Lindsey Burrows argued the cause for appellant. Also on
the brief was O’Connor Weber LLC.
   E. Nani Apo, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Brian J. Geary filed the supplemental brief pro se.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Reversed and remanded.
670                                           Geary v. Blewett

         HELLMAN, J.
         Petitioner appeals from the denial of post-conviction
relief. On appeal, he raises two assignments of error involv-
ing claims of inadequate and ineffective assistance of coun-
sel. Petitioner also submits a pro se supplemental brief in
which he requests that we review all the claims that were
presented in his post-conviction petition, which he attaches
and incorporates by reference. For the reasons below, we
reverse and remand for a new trial in the underlying crimi-
nal case based on petitioner’s first assignment of error: that
counsel was inadequate and ineffective for eliciting, failing
to object to, and failing to move to strike vouching testi-
mony. Accordingly, we do not address petitioner’s second
assignment of error, nor the claims raised in petitioner’s pro
se supplemental brief.
         A petitioner is entitled to post-conviction relief under
ORS 138.530 when “there has been a ‘substantial denial’ of
a petitioner’s ‘rights under the Constitution of the United
States, or under the Constitution of the State of Oregon, or
both, and which denial rendered the conviction void.’ ” Green
v. Franke,
357 Or 301, 311
,
350 P3d 188
 (2015) (quoting ORS
138.530(1)(a)). Although we interpret and apply Article I,
section 11, of the Oregon Constitution independently of the
Sixth Amendment to the United States Constitution, “the
standards for determining the adequacy of legal counsel
under the state constitution are functionally equivalent to
those for determining the effectiveness of counsel under the
federal constitution.” Montez v. Czerniak,
355 Or 1, 6-7
,
322 P3d 487
, adh’d to as modified on recons,
355 Or 598
,
330 P3d 595
 (2014).
         To be entitled to post-conviction relief based on a
claim of inadequate assistance of counsel, a petitioner must
prove two elements: first, that trial counsel “failed to exercise
reasonable professional skill and judgment[,]” and second,
that the petitioner suffered prejudice from counsel’s inade-
quacy. Id. at 7 (describing analysis under Article I, section
11 (internal quotation marks omitted)); see also Strickland
v. Washington,
466 US 668, 694
,
104 S Ct 2052, 2068
,
80 LEd2d 674, 697
 (1984) (describing analysis under Sixth
Amendment). We review the post-conviction court’s decision
Cite as
329 Or App 669
 (2023)                                                  671

“for errors of law” and are bound by the post-conviction
court’s findings of fact “if there is evidence in the record to
support them.” Green,
357 Or at 312
.
        Petitioner was charged with various counts of sex
crimes against two children, M and V. In her initial inter-
view with the CARES Northwest team, M denied that
defendant had sexually abused her. But in an interview
with an investigating officer, conducted immediately after-
ward, M disclosed that defendant did sexually abuse her.
As to M, part of defense counsel’s trial strategy was to chal-
lenge the way in which the investigating officer interviewed
M, thereby demonstrating that M’s accusations were the
by-product of improper investigative techniques.
          During cross-examination of that officer, defense
counsel inquired as to why the officer had decided to inde-
pendently interview M, instead of relying on M’s statements
to the CARES Northwest team. Counsel suggested that
the independent interview was because the officer did not
believe M’s statements. The state objected to the question,
as asking for a comment on the credibility of a witness, but
the trial court overruled the objection. In response to the
question, the officer testified that she “knew” from V’s ear-
lier disclosures that “certain things occurred” between peti-
tioner and M. She also testified that, even though M had not
directly said so during the CARES Northwest interview, she
“knew that things had occurred” between petitioner and M
based on M’s demeanor and some of the things that M had
said. In sum, the officer testified that she knew abuse had
occurred because she believed both M and V were telling
the truth. Although the officer’s testimony was inadmissible
indirect vouching, see State v. Black,
364 Or 579, 587-88
,
437 P3d 1121
 (2019), counsel made no objection to the testimony,
nor did he seek any curative instruction from the court.1
        Petitioner sought post-conviction relief alleging,
in relevant part, that he received inadequate and ineffec-
tive assistance of counsel when his attorney elicited the
vouching evidence, then failed to object and take curative
     1
       Respondent does not argue that the officer’s testimony was not vouching,
only that in the context of this case trial counsel was not ineffective for eliciting
it and failing to thereafter take corrective action.
672                                          Geary v. Blewett

actions regarding it. The post-conviction court denied peti-
tioner’s claim because it determined that the vouching was
“brought in deliberately as part of the defense strategy” and
“[i]n the context of the case, that strategy was reasonable.”
More specifically, the post-conviction court determined that
“[t]he issue of who [the investigating officer] believed, or
did not believe, was the very detail that counsel wanted to
explore.” The post-conviction court further determined that
“[a]n objection, a motion to strike, or a request for a curative
instruction[ ] would have been contrary to the defense the-
ory and counterproductive.”
         We confronted a nearly identical situation in Berg
v. Nooth,
258 Or App 286
,
309 P3d 164
 (2013). In that case,
the defense counsel “adopted a strategy of attempting to
show that the ‘system’ automatically believes children’s
allegations of sexual abuse.”
Id. at 298
. In connection with
that strategy, defense counsel asked a witness whether she
always believed the children, to which the witness replied
that she “ ‘did believe the children in this case.’ ”
Id.
 The
prosecutor objected on the basis that defense counsel was
asking for a comment on the victim’s credibility.
Id. at 292
.
The trial court asked defense counsel if he wanted to have
the jury instructed to disregard the answer, and when
defense counsel did not answer, allowed the testimony to
stand.
Id.
 In his post-conviction case, the petitioner argued
that counsel provided ineffective assistance when he failed
to protect against impermissible vouching, both in asking
the question and in failing to obtain a curative instruction.
Id. at 294
. The post-conviction court denied the petitioner’s
claim because it determined there was no prejudice.
Id.
 On
appeal, we reversed.
Id. at 287
.
         We first held that trial counsel “failed to exer-
cise reasonable professional skill and judgment, given the
Supreme Court’s emphatic condemnation of allowing one
witness to vouch for another.”
Id. at 295
. In reaching that
conclusion, we explained that our decision was not based
on a disagreement with trial counsel’s chosen strategy, but
with the unnecessary use of vouching to achieve it.
Id. at 298
 (While “[w]e do not second guess the reasonableness of
trial counsel’s overall strategy of attempting to undermine
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329 Or App 669
 (2023)                             673

the integrity and objectivity of the government’s investiga-
tion[,]” we have asserted that “such a strategy can be pur-
sued without allowing witnesses to testify that they believe
certain statements made by people who allegedly are vic-
tims of sexual abuse.”). We also noted that it would “be the
rare case in which a reasonable trial strategy” would allow
the introduction of vouching testimony.
Id.
         In the case before us, the post-conviction court
found that “[t]rial counsel testified that he made a strategic
decision to ask a question suggesting that [the investigat-
ing officer] did the second interview of [M] because she did
not believe that [M] was disclosing all that she knew.” The
post-conviction court further found that although the offi-
cer’s answer “may have technically been vouching, it was
brought in deliberately as part of the defense strategy.” But
the record does not contain evidence from which the post-
conviction court could have concluded that introducing the
vouching was a strategic choice or otherwise needed for
counsel’s trial strategy. In fact, in response to questioning
at the post-conviction trial, defense counsel explained that
he “opened the door” to the officer’s testimony but that it
“wasn’t [his] intent to elicit the vouching.”
         In sum, although defense counsel’s strategy included
seeking to demonstrate that how the officer conducted her
interview improperly influenced M’s answers, that strategy
could have been “pursued without allowing [the officer] to”
indirectly vouch for V and M. Berg,
258 Or App at 298
. Like
in Berg, we do not question the reasonableness of counsel’s
trial strategy itself but determine that counsel did not exer-
cise reasonable professional skill and judgment when he
elicited vouching testimony and then failed to take curative
steps to address it.
Id.
         Turning to prejudice, “[i]n a post-conviction case,
prejudice is established if counsel’s deficient performance
‘had a tendency to affect the result.’ ”
Id.
 at 300 (quoting
Gorham v. Thompson,
332 Or 560, 564
,
34 P3d 161
 (2001)).
The Supreme Court has explained that vouching testimony
like the testimony presently at issue is so prejudicial that
“the trial judge, sua sponte, should summarily cut off the
inquiry [eliciting such vouching testimony] before a jury is
674                                          Geary v. Blewett

contaminated by it.” State v. Milbradt,
305 Or 621, 630
,
756 P2d 620
 (1988); see also State v. Lupoli,
348 Or 346
, 366
n 11,
234 P3d 117
 (2010) (where the children’s credibility
“was paramount” in a child sex abuse case, error in admit-
ting expert vouching testimony was not harmless).
          As was the case in Berg, the childrens’ credibility
was critically important in petitioner’s criminal trial. The
officer’s testimony that she “knew” that “certain things
occurred with M” because of V’s statements and that she
“knew that things had occurred” because of M’s demeanor
and answers to CARES Northwest was inadmissible vouch-
ing for the childrens’ credibility. Counsel’s elicitation of the
testimony and failure to take corrective steps after the offi-
cer gave that inadmissible testimony was a failure of pro-
fessional skill and judgment. That failure allowed the inad-
missible testimony to be part of the jury’s consideration.
Counsel’s deficient performance therefore had a tendency to
affect the verdict. See Berg,
258 Or App at 302
. Accordingly,
petitioner is entitled to post-conviction relief.
        Reversed and remanded.