Opinion
6:19-cv-00259-JE
01-25-2023
ANTHONY BENJAMIN, Petitioner, v. BRANDON KELLY, Respondent.
Megan E. McVicar Hoevet Olson Howes, PC Attorney for Petitioner Ellen F. Rosenblum, Attorney General James M. Aaron, Assistant Attorney General Department of Justice Attorneys for Respondent
Megan E. McVicar Hoevet Olson Howes, PC Attorney for Petitioner
Ellen F. Rosenblum, Attorney General James M. Aaron, Assistant Attorney General Department of Justice Attorneys for Respondent
FINDINGS AND RECOMMENDATION
John Jelderks United States Magistrate Judge
This case is back before this Court on remand from the United States Court of Appeals for the Ninth Circuit. The case was remanded for a review on the merits of the claims for relief raised in Grounds One and Three of Petitioner's Second Amended Petition for Writ of Habeas Corpus (#39). For the reasons that follow, the Second Amended Petition should be granted as to the conviction for Manslaughter in the First Degree and should be denied as to Petitioner's other claims.
As to Grounds One and Three, this Findings and Recommendation withdraws and supersedes the prior F&R filed January 28, 2021.
BACKGROUND
On February 14, 2011, the Multnomah County Grand Jury indicted Petitioner Anthony Benjamin on a charge of Murder following the death of Robert Williams. On March 16, 2012, the Grand Jury returned a second indictment against Benjamin containing eight counts of Attempted Aggravated Murder, two counts of Conspiracy to Commit Aggravated Murder, two counts of Tampering with a Witness, and seven counts of Identity Theft. The second Indictment alleged that Benjamin: (1) attempted to solicit the murder of the State's witnesses regarding Williams' death; and (2) falsely used other inmates' identification information when accessing the telephone system at the Multnomah County Jail.
The Multnomah County Circuit Court consolidated the two cases for trial over the objection of Petitioner. He was represented by two attorneys at trial (hereinafter referred to collectively as “trial counsel,” “defense counsel,” or “counsel”). Benjamin was one of three people involved in a physical altercation with the decedent, Robert Williams. The other two were Benjamin's associate, Jaron Weeks, and Weeks' stepmother, Lynette Harris. The altercation took place in a downtown Portland neighborhood well known for illegal drug activity. Williams felt that he had been cheated in a drug deal, and harassed Benjamin and Weeks. Williams was a big man, and he hit Petitioner, knocking him onto his back in the middle of the street. Benjamin may have been knocked out, as he was lying flat in the street and was not immediately getting up. Trial Transcript, pp. 792-93. Williams then flipped Weeks backwards onto the ground, and had Weeks pinned to the ground. In defense of her stepson, Harris tried striking Williams, but it had no effect on him. According to Weeks and Harris, Benjamin returned to the altercation and stabbed Williams in the cheek. This instantly immobilized Williams and allowed Weeks to get up and immediately leave the area with Benjamin and Harris. The stab wound Williams suffered cut a facial artery, and he died approximately two weeks later.
The Grand Jury returned a third indictment charging Petitioner with tampering with another witness at the beginning of his jury trial. Petitioner waived his right to a jury trial as to the third Indictment and was convicted of Tampering with a Witness following a bench trial.
The prosecution's case largely relied upon the testimony of Harris and Weeks that Benjamin stabbed Williams. Defense counsel's stated strategy was to persuade the jury that it was Harris who had actually stabbed Williams. This was a strong defense for Petitioner because there were three witnesses who testified that they personally heard Harris confess to stabbing Williams. Hannah Miller, who was an acquaintance of Harris, testified that she was visiting Portia Crane's apartment on December 31 (the day Williams was stabbed) when Harris arrived and frantically confessed “over and over” to stabbing Williams. Id at 1610-11, 1614-15. Kevin German was also present at Crane's apartment. He corroborated Miller's testimony and testified that Harris was “bragging basically that she had a fall guy for what she did.” Id at 1854. Approximately two weeks after the stabbing, and after seeing a news report about the incident, Miller even called Crime Stoppers to report that Harris had confessed to the crime. Id at 1616-19.
A third witness, Hansen Richardson, testified that in January 2011, he was living with a friend, Leland Connell. He had been at Connell's home for a few months when Harris started staying there as well, about a week prior to her arrest. He learned that the police were looking for Harris in conjunction with a murder and, when he asked her about it, Harris “just kind of broke down. She started sobbing and crying. And she grabbed me . . . in a bear hug. And she was telling me, she said, you know, I'm going to the penitentiary for the rest of my life . . . I stabbed somebody and he's dead. It happened so fast.” Id at 1885.
However, the prosecutor moved the trial court to instruct the jury that it could only consider their testimony for impeachment purposes as to Harris, not as substantive evidence. Despite twice informing the trial judge that the defense hinged on identifying Harris as the person who stabbed Williams, defense counsel surprisingly went along with the prosecutor's request for a limiting instruction and the court gave such an instruction. Trial Transcript, pp. 108, 1828-29, 1841, 1874. The instruction, in effect, advised the jury that the testimony regarding the Harris confessions could not be considered as evidence that she stabbed Williams. In addition, for reasons that are not clear, and as will be discussed in more detail below, defense counsel withdrew their request for a lesser-included instruction on Manslaughter in the Second Degree shortly before the case went to the jury.
Despite the inability to consider the confession evidence for substantive purposes, the jury appeared to struggle with whether Petitioner actually stabbed Williams. During the deliberations, it presented the trial judge with the following question: “Referring to Page 10 of instructions and definition of Manslaughter, does recklessly cause specifically mean inflicted fatal wound or could it mean part of contributing event, i.e., part of a group action?” Id at 2248. The jury's question was intended to determine whether it had to find that Petitioner actually committed the stabbing in order to be guilty of Manslaughter in the First Degree, or if it was sufficient for him to be part of the altercation.
The trial court was not helpful, and did not directly address the question. Instead, after consulting with the attorneys, the judge stated, “You should rely on your own reading of the instructions provided. Remember that you should -that you should view the instructions as a whole. The other instructions may provide context for your question.” Id. Defense counsel did not object, and there is no indication in the record that defense counsel attempted to offer a more helpful explanation that might have benefitted their client and helped the jury. As a result, the trial judge's answer effectively left the jury to speculate on the issue where it had no instructions speaking to the matter it found confusing.
Also during closing argument, defense counsel repeatedly and mistakenly described the issue of where the participants were during the altercation that led to Williams' stabbing. For example, on three separate occasions on a single page of the transcript, counsel placed Weeks on top of Williams during the fracas. Trial Transcript, p. 2191. Such errors needlessly created confusion for the jury.
The jury ultimately found Petitioner guilty of the lesser included offense of Manslaughter in the First Degree as to Williams' death, two counts of Tampering with a Witness, and three counts of Identity Theft. It acquitted Petitioner of Murder and the remainder of the charges against him. He received consecutive sentences totaling 272 months in prison.
Petitioner took a direct appeal in which appellate counsel was unable to pursue meritorious claims due to defense counsel's failure to develop an adequate record for direct appellate review. The Oregon Court of Appeals affirmed the trial court's decisions without issuing a written opinion, and the Oregon Supreme Court denied review on January 14, 2016. State v. Benjamin, 272 Or.App. 664, 358 P.3d 1008 (2015), rev. denied, 358 Or. 529, 367 P.3d 529 (2016).
On April 27, 2016, Petitioner filed for post-conviction relief (“PCR”) in Marion County. Although he initiated the case pro se, the Marion County Circuit Court appointed counsel to assist him. Appointed counsel purportedly reviewed the case before determining that the pro se PCR Petition failed to state a cognizable claim for relief and could not be amended to do so. Respondent's Exhibit 110. Pursuant to ORS 138.590(5), counsel provided the PCR court with an Affidavit in which he detailed what he believed to be Petitioner's strongest claims, explained why those claims could not lead to relief, and concluded with the following:
ORS 138.590(5) provides that if an appointed PCR attorney determines that the PCR petition filed by a petitioner is defective and cannot be amended to state a ground for relief, “counsel shall . . . inform the petitioner and notify the circuit court of counsel's belief by filing an affidavit stating the belief and the reasons therefor....”
Petitioner's original petition lists eleven claims alleging ineffective assistance of trial counsel, including, but not limited to, failure to investigate, failure to object, and failure to impeach witnesses. Petitioner's original petition also lists four claims alleging ineffective assistance of appellate counsel. I have examined every potential avenue and/or theory which might lead to a claim of ineffective assistance of counsel; however, I have found that none of Petitioner's claims have legal or factual merit. Petitioner has been unable to show prejudice as a result of trial counsel's failures. Assuming arguendo that our office found meritorious claims on behalf of Petitioner, the evidence presented by the State is so overwhelming that the outcome of the case would not have been different.Id.
After reading the entire transcript, it is impossible to agree with PCR counsel's affidavit that the State's evidence was overwhelming. The only significant, unbiased State's eyewitness (Medina McQuakay) had given conflicting statements and was drinking three fifths (76.2 ounces) of whiskey a day at the time of the event. Trial Transcript, p. 1018. If the evidence had been overwhelming, the jury would have presumably convicted Petitioner of all counts. Instead, it acquitted him of Attempted Aggravated Murder with respect to an alleged plot to eliminate Harris and Weeks before they could testify against him, and also acquitted him of Murder as to Williams. Based upon these facts, alone, it is difficult to conclude that the evidence against Petitioner was overwhelming.
Not only does PCR counsel's statement about overwhelming evidence against Petitioner not ring true, but he relied on this belief to decline to litigate any claims on Petitioner's behalf. As a result, Oregon's state courts never adjudicated the vast majority of claims Petitioner now brings with the assistance of very able counsel.
More significantly, there was no clear-cut evidence of who actually stabbed Williams. There were only three possible perpetrators of the stabbing: Weeks, Harris, or Benjamin. It was not likely that Weeks committed the stabbing, as Williams had him pinned to the ground on his back at the time and Weeks was unable to move. Trial Transcript, pp. 794-800, 1119-20. Instead, the facts suggest that either Harris or Petitioner stabbed Williams. While Weeks and Harris testified that Petitioner stabbed Williams, not only did Weeks and Harris have a close family relationship, but Harris confessed to at least three different people that she stabbed Williams.
At one point in closing argument, defense counsel misspoke and erroneously placed Weeks on top of Williams. Trial Transcript, p. 2191.
Four additional points illustrate PCR counsel's lack of diligence in this case:
(1) In his letter to Petitioner dated December 16, 2016, PCR counsel stated that he spoke with trial counsel, but one of Petitioner's trial attorneys advised Benjamin in writing that she never had any direct communications or conversations with PCR counsel (Respondent's Exhibit 114, p. 20);
(2) Petitioner's filing deadline for attempting to present his claims by way of a Church motion was December 19, 2016, three days after PCR counsel mailed him a letter advising him of his need to do so before the deadline because PCR counsel intended to file an affidavit to dismiss the case for lack of merit (Id at 19). Petitioner likely did not receive the letter until December 20th, one day after the filing deadline (id at 21;
(3) PCR counsel erroneously advised Petitioner that even if he prevailed, he would be at risk of being convicted of all of the original charges. Id. This was obviously bad advice as the jury had already found Petitioner not guilty of Murder and Attempted Aggravated Murder; and
(4) PCR counsel said he had not identified any meritorious claims he felt he could raise. After a careful review of the record, habeas corpus counsel has pointed out many issues that are worthy of review.
In Church v. Gladden, 244 Or. 308, 311-21, 417 P.2d 993 (1966), the Oregon Supreme Court held that where a litigant wishes to pursue claims that his attorney refuses to pursue, he must inform the court of an attorney's failure to follow a legitimate request, and he may ask to have counsel replaced or ask the court to require the attorney to comply with the litigant's request.
Returning to the procedural history underlying this case, in light of PCR counsel's Affidavit certifying that the case lacked merit, the State moved to dismiss the action for failure to state a claim. Respondent's Exhibit 112. Petitioner asked the PCR court not to dismiss his case and, instead, appoint a different attorney who would more thoroughly investigate the issues in his case. Respondent's Exhibit 111, pp. 4-5. On April 17, 2017, the PCR court held a hearing wherein it explained to Petitioner that: (1) state law required supporting documentation in order to state a claim; and (2) although Petitioner claimed to have such documentation, he had never submitted it, leaving the PCR court's hands tied. The PCR judge indicated that based on the current record, he was inclined to grant the State's Motion to Dismiss but would reserve ruling and hold the case open to allow Petitioner one final opportunity to submit his documentation. Respondent's Exhibit 116.
Petitioner did not timely respond with any supporting documentation. As a result, on July 3, 2017, the PCR judge issued an Order in which he explained, “At the conclusion of the [April 17] hearing, the Court allowed Petitioner an additional 30 days to provide further written materials. No further materials were received.” Respondent's Exhibit 117. Consequently, the PCR court denied Petitioner's pending Motion for Substitute Counsel and granted the State's Motion to Dismiss while adopting the State's arguments that Petitioner failed to: (1) state a claim as required by ORCP 21 A(8); and (2) provide documentation to support his claims as required by ORS 138.580. Respondent's Exhibits 112, 113 & 118. The resulting PCR Judgment which was issued on August 8, 2017 dismissed the action with prejudice. Respondent's Exhibit 118. The nature of this dismissal was significant because, pursuant to ORS 138.525, dismissals for failure to state a PCR claim are not appealable. See Young v. Hill, 347 Or 165, 170-71, 218 P.3d 125 (2009) (dismissals pursuant to ORCP 21 A(8) deprive the Oregon Court of Appeals of jurisdiction over any appeal taken from such a dismissal). Accordingly, Petitioner never received a merits review of his PCR claims from any Oregon state court.
On February 20, 2019, Petitioner filed a pro se Petition for Writ of Habeas Corpus raising eight grounds for relief. Once I was able to conduct a preliminary review of the record, I appointed counsel to represent him. Appointed counsel proceeded to file an Amended Petition on January 6, 2020 followed by a Second Amended Petition on June 5, 2020 which presents the following claims for consideration on remand:
Ground One: Petitioner's trial attorneys were constitutionally ineffective when they failed to:
(A) raise an alternative perpetrator defense;
(B) raise a justification defense;
(C) request a jury instruction to limit the prejudice resulting from the joint trial on the first and second Indictments;
(D) request jury instructions on the lesser included offenses of Manslaughter in the
Second Degree with regard to the Murder charge associated with Williams' death;
(E) request that the trial court instruct the jury on the meaning of “circumstances manifesting extreme indifference to the value of human life” when instructing the jury on the elements of Manslaughter in the First Degree, and that the State was required to prove both that Petitioner acted recklessly and that his conduct was sufficient to prove the increased element of extreme indifference to the value of human life;
(F) object to the trial court's misleading response to a question of law brought forth by the jury during deliberations, and request that the trial court instruct the jury in accordance with the law on accomplice liability and aiding and abetting;
(G) argue that the two guilty verdicts returned on Counts 13 and 14 for witness tampering in case number 1203-31033 merged into a single conviction under ORS 161.067;
(H) raise a motion for judgment of acquittal on the Identity Theft counts where the prosecution failed to present sufficient evidence establishing that Petitioner “uttered” or “converted” to his own use the personal identification of another, a required element of Identity Theft.
Ground Three: To the extent the Court concludes that the deprivations listed above when viewed individually do not entitle Petitioner to relief, the cumulative effect rendered his trial unfair and requires relief from his convictions and sentences.
Respondent asks the Court to deny relief on the Second Amended Petition because: (1) Petitioner failed to fairly present the claims within Ground I, leaving them procedurally defaulted; and (2) Grounds One and Three lack merit. For the reasons set forth below, I recommend that the Second Amended Petition be granted as to Grounds 1(A) and 1(D).
DISCUSSION
As the Ninth Circuit Court of Appeals remanded this case for a review on the merits of Grounds I and III of Petitioner's Second Amended Petition, Section I (below) might be considered unnecessary surplusage. However, where no court has addressed Respondent's affirmative defense of procedural default as to Petitioner's Ground I claims, Section I is included to make it clear that there are no procedural barriers to a full de novo review of these claims.
Respondent does not assert the procedural default defense as to Ground III. Even if he did, it does not appear that claims of cumulative error can be raised in Oregon's state PCR courts such that there was no available state corrective process for Petitioner to present such a claim. See Pagniano v. Laney, No. 6:20-00468-HZ, 2022 WL 1505710, *6 n.4 (D. Or. May 12, 2022); see also 28 U.S.C. § 2254(b)(1)(B). Because Petitioner prevails upon the merits of claims individually, the Court need not specifically address the cumulative error issue other than to say that where there were multiple, independent constitutional violations, each of which resulted in prejudice, the cumulative error standard is obviously met.
I. Exhaustion and Procedural Default
A petitioner seeking habeas relief must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519 (1982). The exhaustion doctrine is designed "to avoid the unnecessary friction between the federal and state court systems that would result if a lower federal court upset a state court conviction without first giving the state court system an opportunity to correct its own constitutional errors." Preiser v. Rodriguez, 411 U.S. 475, 490 (1973). Where a habeas petitioner has not fairly presented his claims in state court, and may no longer due so due to procedural barriers, the claims are said to be procedurally defaulted and are ineligible for federal habeas corpus review. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Benjamin does not assert that he fairly presented his claims in Ground One, but argues that the Court should excuse his procedural default due to the poor performance of his PCR attorney. In Martinez v. Ryan, 566, U.S. 1 (2012), the Supreme Court set forth the procedure by which a habeas corpus petitioner can excuse the procedural default associated with a claim of ineffective assistance of trial counsel. First, Petitioner must show that his attorney in his initial-level PCR proceeding was ineffective under the standards the Supreme Court announced in Strickland v. Washington, 466 U.S. 668 (1984). Id. at 14. “[T]o fulfill this requirement, a petitioner must not only show that PCR counsel performed deficiently, but also that this prejudiced petitioner, i.e., that there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different.” Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2017) (quotation omitted). Next, Petitioner must show that the defaulted claim of ineffective assistance of trial counsel is substantial insofar as it has some merit. Martinez, 566 U.S. at 14.
As described in the Background of this Findings and Recommendation, PCR counsel's representation of Benjamin was virtually non-existent. In fact, it was worse than non-existent. PCR counsel failed to raise meritorious claims of ineffective assistance of trial counsel identified in Grounds 1(A) and 1(D), of the Second Amended Petition, which will be discussed below. Beyond that, however, PCR counsel affirmatively misled Benjamin about the strength of the record in his case. He also prevented Benjamin from raising any claims during his PCR action by notifying Benjamin, after the filing deadline had already passed, that he would need to file any claims he wished to raise pro se.
Due to PCR counsel's exceedingly deficient performance as well as the strength of Benjamin's Grounds 1(A) and 1(D), Martinez excuses his procedural default as to these claims rendering them eligible for review on their merits. Because there is no state-court decision to which to defer, the Court's review is de novo. Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014). Petitioner's remaining Ground One claims are procedurally defaulted, and the default is not excused because they are not substantial.
II. The Merits
A. Failure to Raise Alternative Perpetrator Defense (Ground 1(A))
Petitioner asserts that defense counsel failed to develop an alternative perpetrator defense where Harris had confessed to the crime, and Weeks was motivated to lie on her behalf because she was his stepmother. The Court uses the general two-part test established by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Benjamin must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689.
Second, Benjamin must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether Petitioner can show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id at 696.
Early on, trial counsel made the defense strategy clear to the trial court:
As the Court is aware from hearing our motion hearings and discussions on this
case, we're going to be claiming that Miss Harris is responsible.Id at 108 (bold added).
Much later in the trial, counsel reiterated that this was their strategy:
And for the record, in this case, the defense is that Mr. Benjamin is not the person who stabbed the victim and that Lynette Harris is the person who stabbed this individual.Id at 1874 (bold added).
Despite this stated strategy, when the prosecution asked the trial judge to give the jury a limiting instruction that the statements regarding Harris' confessions could only be considered for impeachment purposes, trial counsel completely yielded on the issue and acceded to the limiting instruction that eviscerated the defense. “We don't see any problem with that limiting instruction. That's the whole purpose of the witnesses' testimony, was for impeachment purposes.” Trial Transcript, pp. 1828-29 (bold added). Without objection, the jury was later instructed that the testimony of Miller, German, and Richardson could not be considered for any purpose except impeachment. Id at 1841.
Even though such testimony is considered hearsay, courts do not automatically exclude evidence so highly relevant to a defendant's guilt, and Petitioner's attorneys should have vigorously argued for the admission of Harris' repeated confessions for use as substantive evidence. See Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973) (exclusion of probative evidence that another perpetrator committed the crime violates due process); see also Green v. Georgia, 442 U.S. 95, 97 (1979) (omission of hearsay evidence violates due process where it pertains to a critical issue in the case); Holmes v South Carolina, 547 U.S. 319, 324 (2006) (the Due Process Clause and the Compulsory Process Clause guarantee a criminal defendant the right to present a complete defense); see also Gable v. Williams, No. 3:07-CV-00413-AC, 2019 WL 1756468, at *35-37 (D. Or. Apr. 18, 2019) (Judge Acosta's analysis of confessions as they relate to the alternative perpetrator defense), appeal pending, No. 19-35436 (9th Cir.); Cazares-Mendez/Reyes-Sanchez, 350 Or. 491, 516, 256 P.3d 104 (2011) (trial court violated defendants' federal due process rights when it refused to allow them to present hearsay evidence from four separate and available witnesses that another person had confessed to the stabbing resulting in the victim's death).
Had counsel attempted to introduce Harris' out-of-court statements as substantive evidence in order to vindicate Petitioner's right to due process, it is likely the trial judge would have permitted the introduction of that evidence. This is especially true in light of the Oregon Supreme Court's decision in Cazares-Mendez, supra, issued only one year prior to Petitioner's trial. It is difficult to understand why defense counsel made many of the decisions and lengthy arguments that they did on relatively minor points, and little or no argument on the major issues in this case such as the limiting instruction pertaining to the testimony of Miller, German, and Richardson. Perhaps defense counsel's own explanation is the best indicator. At one point, counsel expressed frustration that the joinder of too many criminal episodes prevented their ability to mount a vigorous defense to the murder charge:
And I guess this is one of the - the problems with joinder of this case. It's like . . . we should be defending a murder case which is very arguably a manslaughter case; and instead, what we're doing at the tenth hour is we're dealing with these recordings and trying to sort out what purpose is the State offering these for.Trial Transcript, pp. 1549.
Nowhere does the record show that defense counsel advocated to the jury that Harris was the stabber. In fact, twice during closing argument defense counsel stated that Harris was an accomplice. Id at 2126, 2131. If Harris was an accomplice, and where only Harris or Benjamin could have stabbed Williams, defense counsel's argument left the jury to conclude that Benjamin was the perpetrator.
It is reasonably probable that if the defense had presented three separate witnesses who testified substantively that Harris had confessed to stabbing Williams, the jury would not have convicted Petitioner of Manslaughter in the First Degree. Habeas corpus relief is therefore appropriate on this claim.
B. Failure to Request Jury Instruction on Manslaughter in the Second Degree (Ground 1(D))
In Oregon, Manslaughter in the Second Degree is defined as the reckless commission of a criminal homicide. ORS 163.125. A criminal homicide that is committed recklessly but also “under circumstances manifesting extreme indifference to the value of human life” rises to the level of Manslaughter in the First Degree. ORS 163.118(1)(a). Neither the trial attorneys nor the trial judge attempted to define what extreme indifference to the value of human life meant, and the attorneys did not address it during closing argument. This is a very subjective standard, and the jury had a great deal of latitude to consider it.
Trial counsel initially requested instructions on Manslaughter I, Manslaughter II, and Negligent Homicide as lesser-included offenses of the Murder charge Benjamin faced with respect to Williams. The State did not object to the giving of a Manslaughter II instruction, and the trial judge was planning to give that instruction:
The State did object to the Negligent Homicide instruction, but the judge overruled the objection. Trial Transcript, p. 2035.
Then I give Count 1, lesser included offense, Manslaughter in the First Degree. Count 1, lesser included offense, Manslaughter in the Second Degree, reckless conduct.Trial Transcript, pp. 2033-34.
For reasons that are inexplicable, trial counsel later asked to withdraw the Manslaughter II instruction:
Defense: And the lesser included to Murder, we're still asking for Manslaughter in the First Degree. We're withdrawing our request for Manslaughter in the Second Degree and Crim Negligence Homicide and asking then for the Murder, Man I, and Assault in the Third Degree.
Court: Okay. Those remain.Id at 2062-63 (bold added). Where defense counsel also had not attempted to introduce substantive evidence of Harris' out-ofcourt confessions, this left Benjamin in the unenviable position of: (1) not identifying an alternate perpetrator; (2) not providing the jury with the opportunity to conclude that, while the crime may have amounted to a criminal homicide, it did NOT occur under circumstances manifesting extreme indifference to the value of human life; and (3) not asking the judge for a jury instruction on the defense of another where Williams, after knocking Benjamin flat on his back, had Weeks pinned to the ground and refused to let him up. See id at 2032 (declining to ask for previously prepared defense of person instruction).
At first glance, it might appear that a defense of others theory is inconsistent with an alternative perpetrator theory. However, as outlined by habeas counsel, it would have been very possible in this case to have presented both theories in a way that one was not inconsistent with the other. For example, counsel could argue the stabbing was in defense of another regardless of which person did the actual stabbing.
Given the evidence adduced at trial, it was particularly important to request a Manslaughter II instruction. Specifically, the evidence developed at trial showed that: (1) Williams was largely responsible for instigating the violent confrontation with Benjamin and Weeks; (2) Williams initially knocked Benjamin flat on his back and, possibly, knocked him out; (3) Williams had Weeks pinned down on the ground and would not let him up; and (4) someone stabbed Williams once or, at most, twice, with a knife no larger than a dollar bill in a matter of seconds. Trial Transcript, pp. 789-90, 792-93, 794-99, 1110, 1113, 1117, 1119, 1124, 1154, 2097.
The jury obviously accepted defense counsel's final argument that the stabbing constituted “manslaughter” not murder. Unfortunately for Benjamin, the only “manslaughter” option the jury had at that point was Manslaughter I. There is a reasonable probability that had the jury been instructed on Manslaughter II, and having already acquitted Benjamin of Murder, it would have concluded that Petitioner's actions failed to rise to the level of extreme indifference to human life. The result of such a determination would have been significant for Benjamin, resulting in the reduction in his mandatory minimum sentencing exposure from 120 months to 75 months. Compare ORS 137.700(a)(D) & (a)(E). For all of these reasons, habeas corpus relief is appropriate as to Ground 1(D) as well.
III. Final Thoughts
This case troubled me when I issued my first Findings and Recommendation (#58). Even in the face of what appeared to be an insurmountable procedural obstacle to merits review, I believed that Benjamin was entitled to a review of the merits of his claims because no court had undertaken such a review to that point. Although I previously spent a significant amount of time with this case I welcomed the opportunity to revisit the merits. Upon remand from the Ninth Circuit, I read all 2,503 pages of the trial transcript. This endeavor left me even more disturbed than before.
In the wake of Williams' death, and with no apparent evidence to support his stance, the investigating detective told Harris that he knew she had not stabbed Williams. Trial Transcript, p. 84. Despite this representation, the detective also threatened that if she did not provide him with a name for the responsible party, she would spend the rest of her life in prison. Id. This questionable investigative technique preceded Harris and her stepson Weeks identifying Benjamin as the stabber. Benjamin then proceeded to a trial with two attorneys who were constitutionally ineffective for the reasons described above, and a trial judge who was not helpful to the jury when it had questions and was quick to gloss over the critical evidentiary value that the testimony of Miller, German, and Richardson could have substantively provided to afford Benjamin a fair trial.
Petitioner then moved to his PCR action where, as described above, the State provided him with an attorney who completely abdicated his role as the protector of his client's rights. The ineffective attorneys at Benjamin's criminal trial and his PCR proceedings precluded any meaningful appellate review of his case. In short, at each step of the proceedings, the system let Benjamin down. “A defendant is entitled to a fair trial but not a perfect one.” Lutwak v. U.S., 344 U.S. 604, 619 (1953). I can firmly say after my lengthy review of this case that Benjamin received neither.
RECOMMENDATION
For the reasons identified above, the Second Amended Petition for Writ of Habeas Corpus (#39) should be granted as to Petitioner's conviction for Manslaughter in the First Degree. The Court should direct Respondent to recalculate Benjamin's sentence without the Manslaughter conviction and, if appropriate, release Petitioner if the State does not elect to retry him on that charge within 90 days from the adoption of this Findings and Recommendation by a U.S. District Judge. Petitioner's remaining convictions should remain unaltered as the claims pertaining to them do not warrant habeas corpus relief.
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.