Opinion
A180561
08-28-2024
CARLOS ESTEVAN RAMIREZ, Petitioner-Appellant, v. Dave PEDRO, Acting Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.
Jedediah Peterson and O'Connor Weber LLC filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Submitted August 1, 2024
Umatilla County Circuit Court 20CV38456; J. Burdette Pratt, Senior Judge.
Jedediah Peterson and O'Connor Weber LLC filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, Kamins, Judge, and Balmer, Senior Judge.
BALMER, S. J.
Petitioner appeals from a judgment denying him post-conviction relief. After a jury trial, petitioner was convicted of six counts of first-degree unlawful sexual penetration and three counts of first-degree sexual abuse. The victim was his younger stepsister. In a single assignment of error, petitioner argues that a colloquy between the prosecutor and his stepsister constituted improper vouching and that his trial counsel was ineffective and inadequate in failing to object to the exchange. Accepting the post-conviction court's supported implicit and explicit factual findings and reviewing for legal error, Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015), 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, the 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, those standards are "functionally equivalent." Montez v. Czerniak, 355 Or. 1, 6-7, 322 P.3d 487, adh'd to as modified on recons, 355 Or. 598, 330 P.3d 595 (2014).
At the time of trial, petitioner's stepsister was 13 years old, and she testified about abuse that occurred beginning when she was six. During the prosecutor's direct examination of the victim, the following colloquy occurred:
"Q Did you-do you ever recall anything occurring to [petitioner's] penis or-or with his penis when you were pumping it, as you say, up to 20 times?
"A I don't remember.
"Q Okay. So you don't remember anything happening?
"A Like, no, what would happen?
"Q I-I'm just asking you the question that-and your job-what's-what's your job here today? What's I-what did I tell you your job here today is to do?
"A To tell the-
"Q What's your most important job?
"A -to tell the truth and only the truth.
"Q About any questions you're asked by anybody; is that right?
"A Mm-hmm.
"Q So I'm just asking you questions and you just tell the truth about what you remember, okay?
''A Okay"
"Vouching" refers to the expression of one's personal opinion about the credibility of a witness. See State v. Chandler, 360 Or. 323, 330-31, 380 P.3d 932 (2016) (discussing history of vouching prohibition). Because credibility determinations are the exclusive province of the jury, witnesses are categorically prohibited from expressing a view on whether another witness is "telling the truth." State v. Middleton, 294 Or. 427, 438, 657 P.2d 1215 (1983). "[L]awyers are similarly prohibited from giving their personal opinions on the credibility of witnesses." State v. Sperou, 365 Or. 121, 129, 442 P.3d 581 (2019). "It is improper for counsel to interject his personal appraisal of the witnesses' credibility in a way which would suggest to the jury that the appraisal is based upon counsel's own knowledge of facts not introduced into evidence." State v. Parker, 235 Or. 366, 377-78, 384 P.2d 986 (1963). "On the other hand, it is permissible for a prosecutor to argue that the jury should infer that a witness is credible based on the evidence in the record, so long as the prosecutor does not vouch for the witness by interjecting his or her personal opinion of the witness's credibility." Heroff v. Coursey, 280 Or.App. 177, 194, 380 P.3d 1032 (2016), rev den, 360 Or. 851 (2017).
Here, petitioner argues that the above colloquy was "tantamount to a statement that the prosecutor believed the witness's testimony." We are not persuaded that prosecutorial vouching occurred, or that trial counsel was ineffective in failing to object to that line of inquiry. When the 13-year-old witness responded to a question from the prosecutor with a question, the prosecutor reminded the witness that her role was to answer questions truthfully. The prosecutor did not offer a personal opinion regarding the witness's credibility, so there was no vouching.
Furthermore, although a prosecutor's statements in opening or closing arguments may cross the line into vouching, see, e.g., Davis v. Cain, 304 Or.App. 356, 364, 467 P.3d 816 (2020), petitioner cites no case in which we have held that a prosecutor's direct examination of a witness amounted to prosecutorial vouching. To the extent that the witness's answers could be construed as proclaiming that she was telling the truth, "a witness does not impermissibly 'vouch for' or 'bolster' * * * her own testimony by proclaiming truthfulness." State v. Sanchez-Jacobo, 250 Or.App. 621, 630, 282 P.3d 880 (2012), rev den, 353 Or. 280 (2013) (emphasis in original). The colloquy did not constitute vouching, so it was reasonable for trial counsel not to object to that line of inquiry. See Grant v. Coursey, 277 Or.App. 165, 182-83, 370 P.3d 892, rev den, 360 Or. 235 (2016) (applying reasonableness standard to trial counsel's strategic decisions, including his conscious choice not to object to certain statements by the prosecutor in closing). In addition, petitioner failed to show that objecting to the colloquy could have tended to affect the result of the trial. Green, 357 Or at 323.
Affirmed.