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Abraham v. State

Court of Appeals of Oregon
Feb 22, 2024
331 Or. App. 153 (Or. Ct. App. 2024)

Opinion

A177448

02-22-2024

DWAYNE EDWARD ABRAHAM, Petitioner-Appellant, v. STATE OF OREGON, Defendant-Respondent.

Jedediah Peterson and O'Connor Weber, LLC, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.


This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted January 30, 2024

Multnomah County Circuit Court 19CV45037 Patricia A. Sullivan, Judge.

Jedediah Peterson and O'Connor Weber, LLC, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Chief Judge, Hellman, Judge, and DeVore, Senior Judge.

Affirmed.

HELLMAN, J.

Petitioner appeals from a judgment that denied his petition for post-conviction relief. In his sole assignment of error, he claims that the post-conviction court erred when it denied relief on his claim that counsel provided inadequate and ineffective assistance of counsel under both the Oregon and United States Constitutions when counsel failed to challenge the admissibility of recorded testimony from a prior trial on the basis that it was not reliable. For the reasons below, we affirm.

A petitioner claiming inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution has the burden "to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result." Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991). Under the federal standard, a petitioner is required to "show that counsel's representation fell below an objective standard of reasonableness" and that as a result, petitioner was prejudiced. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As the Oregon Supreme Court has recognized, these standards are "functionally equivalent." Montez v. Czerniak, 355 Or. 1, 6-7, 322 P.3d 487 (2014).

We review the post-conviction court's decision for legal error. Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015). "A post-conviction court's findings of historical fact are binding on this court if there is evidence in the record to support them." Id.

Petitioner's claim fails because he failed to show that there was any basis for counsel to challenge the witness's prior testimony as unreliable. "Neither the state nor federal constitution requires counsel to advance a futile objection." Davis v. Kelly, 303 Or.App. 253, 267, 461 P.3d 1043, rev den, 366 Or. 826 (2020). The admission of prior testimony is a firmly rooted hearsay exception codified in OEC 804(3)(a). State v. Montgomery, 88 Or.App. 163, 165, 744 P.2d 592, rev den, 304 Or. 548 (1987). As such, prior testimony is deemed reliable under Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). See State v. Starr, 269 Or.App. 97, 102-03, 344 P.3d 100, rev den, 357 Or. 415 (2015) (explaining that a statement that falls within a "firmly rooted hearsay exception" is deemed reliable). Petitioner's only argument against the application of OEC 804(3)(a) rests on speculation. According to petitioner, because the statute of limitations had not run on any charges that the witness could have faced at the time of the first trial, but had run by the second trial, she could have had a different motive for testifying at that second trial. But the mere possibility that the witness may have had a motive to testify differently in a second trial does not demonstrate that the witness's testimony, under oath, in the first trial is unreliable for purposes of Ohio v. Roberts. With the evidence that it had, the postconviction court did not err in rejecting petitioner's claim of inadequate and ineffective assistance of counsel.

Petitioner argues that the post-conviction court failed to apply the Ohio v. Roberts analysis, which the Oregon Supreme Court has held applies under Article I, section 11. Assuming that is true, the record is sufficiently developed to permit us to analyze petitioner's claim by reference to that standard.

Affirmed.


Summaries of

Abraham v. State

Court of Appeals of Oregon
Feb 22, 2024
331 Or. App. 153 (Or. Ct. App. 2024)
Case details for

Abraham v. State

Case Details

Full title:DWAYNE EDWARD ABRAHAM, Petitioner-Appellant, v. STATE OF OREGON…

Court:Court of Appeals of Oregon

Date published: Feb 22, 2024

Citations

331 Or. App. 153 (Or. Ct. App. 2024)

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