Petitioner was convicted of aggravated murder and sentenced to death. He petitioned for post-conviction relief on a number of grounds, all of which were ultimately rejected by the post-conviction court. He appeals. We write to address only petitioners seventh assignment of error. In that assignment, petitioner contends that the post-conviction court, having determined that counsel performed deficiently by failing to interview a witness, should also have determined that their deficient performance prejudiced him, and should have granted relief on that basis. The superintendent responds that the post-conviction court correctly determined that petitioner was not prejudiced by counsels performance and also has cross-assigned error to the post-conviction courts determination that counsel performed deficiently. We agree with petitioner and therefore reverse and remand for the post-conviction court to grant relief on that claim. Because petitioners seventh assignment of error will result in a new trial in the criminal case, we need not address petitioners remaining assignments of error.
We briefly set out background facts here and later add more factual detail in relation to petitioners claim concerning the failure to interview a witness—Patricia Hubbard—as pertinent to our discussion. The Supreme Courts opinion in his direct appeal, State v. Johnson, 342 Or. 596, 157 P.3d 198 (2007), cert. den., 552 U.S. 1113, 128 S.Ct. 906, 169 L.Ed.2d 753 (2008), contains some additional detail.
Harriet Thompson was stabbed to death in her home in Salem in the early morning hours of March 20, 1998. Johnson, 342 Or. at 598, 157 P.3d 198. Thompsons upstairs neighbor heard screaming at around 4:30 a.m. A witness told police that petitioner had been in the victims home on the night of the murder. Id. Another witness described someone whose appearance was similar to petitioners walking away from Thompsons home at about 6:15 a.m. Id.
Police arrested petitioner on a probation violation a week after the murder. Petitioner said that he knew the victim but denied that he had ever been inside her home. Police found fingerprints in the victims home that matched petitioners, and a cigarette butt found inside the home was later matched to petitioners DNA. Other evidence that was more closely associated with the murder, such as the murder weapon and blood, was collected inside the victims home. Of the evidence that was DNA tested, none was matched to petitioner. Petitioner had boots that had similar soles to ones that had left prints in blood at the murder scene, but petitioners boots did not test positive for blood.
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An informant told police that petitioner had shown him some of the victims jewelry and told him that he “offed the bitch to rob her.” An officer said that, when he asked petitioner whether the informant was lying, petitioner had replied, “No, hes not.” The informant later recanted to one of trial counsels investigators, but then at trial testified against petitioner consistently with his statements to police. Petitioner possessed jewelry that was identified by a witness as matching Thompsons.
Petitioner was charged with aggravated murder. Before his criminal trial, he rejected an offer to plead guilty to manslaughter and robbery and receive a 15-year sentence.
Petitioner was represented by two lawyers, to whom we refer collectively as trial counsel, or counsel. Lead trial counsel had previously worked on one or two capital cases. Co-counsel had previously been involved in capital cases but had never represented a defendant in the penalty phase of a capital case. He had also worked on some capital cases in the post-conviction context. Counsel had also attended continuing legal education seminars on the death penalty.
Petitioner was convicted of aggravated murder and sentenced to death.
After his unsuccessful direct appeal, Johnson, 342 Or. 596, 157 P.3d 198, petitioner filed a petition for post-conviction relief. In his Fourth Amended Petition for post-conviction relief, petitioner alleged in his first claim that he was denied the right to adequate and effective assistance of counsel under Article I, section 11, of the Oregon Constitution and under the Sixth Amendment of the United States Constitution due to trial counsels failure to investigate. Within that claim, petitioner alleged more specifically that, among other failures, trial counsel failed to interview Patricia Hubbard, Thompsons neighbor. The parties each addressed that claim in their trial memoranda.
The post-conviction court concluded that trial counsels failure to interview Hubbard had amounted to deficient performance. The court concluded, however, that petitioner had not been prejudiced by that failure:
“The court finds that trial counsel failed to use reasonable skill in not interviewing Ms. Hubbard who live[d] right across the street from the murder scene. However, taking into consideration that the trial produced other evidence that coincided with what she would have testified to and the long period of time between the killing and when she was asked to try [to] identify Petitioner[,] the court is not persuaded that the absence of her testimony would have prejudiced Petitioner.”
As noted, petitioners seventh assignment of error concerns his claim that trial counsels failure to interview Hubbard constituted inadequate and ineffective assistance of counsel. The post-conviction court determined that counsel performed deficiently by not interviewing Hubbard, “who live[d] right across the street from the murder scene.” But it did not grant relief on that claim, because it concluded that the deficient performance did not prejudice petitioner. Petitioner assigns error to that ruling. The superintendent cross-assigns error, arguing that the post-conviction court erred in concluding that counsels performance was deficient. We reverse on petitioners assignment of error and affirm on the cross-assignment.
We begin by expanding on the facts pertinent to this claim. In her deposition, taken in 2013 in the context of this post-conviction case, Hubbard explained that she lived across the street and two houses down from the victim. She had a view of part of the victims property. She worked long hours, and regularly was up late at night or in the early morning. On the night that the victim was murdered, Hubbard was awake and was sitting on her porch at about 3:45 a.m. She saw a white man drive up and park his van in the victims driveway. She recognized the white man as someone she had noticed at the victims home before, “[m]any, many times.”
After the man went inside, within seconds, Hubbard heard shouting and screaming coming from the house. There was a male and a female voice. Hubbard recognized the male voice as belonging to the white man she had noticed numerous times before at the property. She heard sounds like pots and pans crashing and loud voices and screaming. The screaming “got higher pitched and louder and more intense on the volume the longer it went on.” She heard screaming, then a thud, and then total silence.
The white man was in the victims house “[u]ntil after the screaming stopped, and he [came] out the back door and—didnt even hit the steps. Just flew off the steps and took off running at a northwest—flying northwest * * *.” He had been in the house for about 30 minutes.
About 10 to 15 minutes after that, Hubbard testified, she saw a Black man walking down the driveway. She could not say whether he had come from inside the house. Hubbard thought it might be a man to whom she previously had been introduced. Petitioner is Black, and the victim had introduced Hubbard to him. When petitioners post-conviction team showed her petitioners photograph approximately 12 years after the murder, Hubbard said that he did not look like the person whom she had seen that night.
The Black man was not running. “He was just * * * kind of strolling out.” He rubbed his forehead “like he had a headache or, you know, disbelief of something or, you know, just kind of like—something wasnt quite right.”
Hubbard received a call that she needed to go back in to work, so she went inside. Later, at 11:00 a.m., she received a call at work telling her that she had “better come home.” There was a “commotion” in the neighborhood—“[p]olice and the caution tape and the gawkers walking around the neighborhood.”
Hubbard approached a uniformed police officer that day. Hubbard told him that she had “some information that might help with the problem youve got.” The officer told her that he didnt need her help and told her to go back home.
On another occasion, Hubbard testified, Shalonda Washington, a neighbor who lived in a house only yards away from the victims home, brought a Salem police detective to Hubbards house. According to Hubbard, “I started telling him what I saw, and he stopped me, and he said, ‘that wont be necessary.’ ” Moreover, Hubbard recounted, the detective said, “A nigger got murdered, and a niggers going to pay for it.”
Hubbard was never interviewed by trial counsels investigators. Trial counsels investigators spent a total of roughly six hours canvassing the neighborhood and speaking to witnesses. They did not speak to Hubbard. She was later contacted and interviewed by investigators in this post-conviction case.
The trial court found the following facts: Had she been located, Hubbard would have testified that she had heard screaming and arguing at the victims house and saw two people leave—a Black man and a white man. She could identify the white man because she had seen him at the victims house before. “She did not recognize the Black man, but when she was shown Petitioners photograph by Petitioners post-conviction team approximately 12 years after the incident she said he did not look like the [man] she saw that night.”
The post-conviction court determined that trial counsel failed to use reasonable skill by not interviewing Hubbard, considering that she lived “right across the street” from the murder scene. The court also concluded, however, that petitioner was not prejudiced by that deficient performance: “[T]aking into account that the trial produced other evidence that coincided with what she would have testified to and the long period of time between the killing and when she was asked to try [to] identify Petitioner the court is not persuaded that the absence of her testimony would have prejudiced Petitioner.”
As pertinent here, we review the denial of a claim for post-conviction relief for legal error.
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For petitioner to prevail on a claim of inadequate assistance of counsel based on Article I, section 11, he “must demonstrate two things: that * * * counsel failed to exercise reasonable professional skill and judgment and that he suffered prejudice as a result.” Gable v. State of Oregon, 353 Or. 750, 758, 305 P.3d 85, cert. den., 571 U.S. 1030, 134 S.Ct. 651, 187 L.Ed.2d 430 (2013). To prevail on a claim based on the federal constitutional right to counsel, petitioner likewise must establish that “counsels performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “[T]he 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 P.3d 487, adhd to as modified on recons., 355 Or. 598, 330 P.3d 595 (2014). When a court considers whether a lawyers conduct failed to meet constitutional standards, it must “make every effort to evaluate [the] lawyers conduct from the lawyers perspective at the time, without the distorting effects of hindsight.” Lichau v. Baldwin, 333 Or. 350, 360, 39 P.3d 851 (2002).
We first address the superintendents cross-assignment of error challenging the post-conviction courts determination that trial counsel performed deficiently by not interviewing Hubbard. The superintendent argues that the approximately six hours that defense investigators spent canvassing the victims neighborhood was sufficient, that police reports did not indicate that anyone at Hubbards address had useful information, and that Hubbard was not mentioned in any police report. In the superintendents view, trial counsels investigation was reasonable, because police officers had canvassed the neighborhood. According to their reports, police had attempted to interview residents but “no one was home” at four nearby residences. In addition, according to the reports, “[t]he residents”—none of whom were identified—of four other homes “said they did not know anything about the deceased or her residence.”
Petitioner argues to the contrary that the post-conviction court correctly determined that any reasonable defense attorney would have recognized the importance of interviewing the residents of the homes immediately surrounding the victims home, and that it was not reasonable to stop attempting to contact those residents after only six hours of canvassing the area and speaking to residents.
We agree with petitioner and the post-conviction court. Adequate trial counsel would have recognized the importance in a capital murder case of contacting the people nearby who were likely to have information about the victim, people associated with the residence, and the events of the night in question, when a violent murder occurred in a nearby home in the early morning hours when many residents would likely have been at home. The post-conviction court found that trial counsels investigators spent approximately six total hours of combined time canvassing and interviewing witnesses in the neighborhood. According to Hubbard, in addition to trial counsels investigators failing to contact her directly, had they contacted another neighbor, Shalonda Washington, Washington would have brought the investigators to Hubbard or otherwise helped to put them in touch with each other. That is a reasonable inference, considering that Washington brought a police detective to talk to Hubbard just after the murder, and over a decade later Washington also helped to put petitioners post-conviction investigator in touch with Hubbard, telling the investigator that Hubbard had information about what happened.
Further, the post-conviction investigator explained that Washingtons house was the first one he visited in his investigation, because it is so close to the victims house. Although he spent many hours attempting to contact nearby people in nearly 70 residences, the investigator explained that Hubbards home was the second one he contacted. Washington was a witness named in police reports, and she pointed the investigator to Hubbard, whom the investigator was able to contact and interview “with minimal persistence and effort,” despite the fact that she had moved by the time he contacted her. It was not a reasonable exercise of professional judgment to stop investigating after only six hours of canvassing and interviews under these circumstances.
Having concluded that the post-conviction court did not err in determining that trial counsel performed deficiently, we turn to petitioners argument that the court erred when it concluded that petitioner suffered no prejudice as a result of that deficient performance. Petitioner first argues that the post-conviction court erred by applying the wrong legal standard for determining whether trial counsels deficient performance prejudiced him. He next argues that, if the court did apply the correct standard, it misapplied that standard to the facts and should have come to the opposite conclusion. Specifically, he argues that, had counsel had the information Hubbard could have provided, that could have tended to affect the result, because it could have affected counsels strategy and could have raised doubts that would have had a tendency to affect the jurys verdict.
We begin with petitioners first argument, that the post-conviction court applied the wrong standard for determining prejudice. Petitioner points to the post-conviction courts statement that it was “not persuaded that the absence of [Hubbards] testimony would have prejudiced Petitioner.” He argues that the courts use of “would have” rather than “could have tended to” implies that the court applied the incorrect standard for determining prejudice. Putting its statement in context, however, we are not persuaded that the post-conviction court applied an incorrect standard. The post-conviction court wrote a thorough memorandum of its opinion. It correctly laid out the applicable legal standards for claims under the Oregon and federal constitutions. That it later used shorthand for the applicable standard does not establish that the court used an incorrect standard, after having correctly stated the standard. Specifically, the post-conviction courts statement was not that it was not persuaded that Hubbards testimony would have affected the outcome. Rather, it stated that it was not persuaded that the testimony would have prejudiced petitioner. The reference to prejudice implies that the court was applying the standard for prejudice—which it had earlier correctly set out—and not that it was stating the standard itself. Accordingly, we reject petitioners argument that the post-conviction court applied the wrong standard.
We agree, however, that, applying the correct standard, the post-conviction court reached an erroneous conclusion. As we will explain, we conclude that the deficient performance by petitioners trial counsel did result in prejudice. We therefore reverse the post-conviction courts denial of that claim and remand for the court to grant relief.
Concerning prejudice, the post-conviction court concluded that “the trial produced other evidence that coincided with what [Hubbard] would have testified to,” and it determined that, considering the long period of time between the murder and her viewing of petitioners photograph, her response to the question of whether petitioner was the Black man that she saw that morning did not persuade the court that there was prejudice. That is, the court determined that it could not say that Hubbards testimony could have tended to affect the outcome of the trial.
Petitioner argues that Hubbards testimony would not have merely “coincided” with other testimony. He argues that, instead, Hubbards testimony would have tended to influence the jury, and also could have influenced counsels trial strategy in relation to other evidence and trial decisions.
The superintendent responds that the trial court correctly concluded that the evidence would not have been helpful to petitioner at trial, because “nothing about Hubbards testimony would have rebutted the states theory of the case.” The superintendent summarized the states theory of the case at the criminal trial: At “around 4:30 a.m. on March 20, 1998,” petitioner stabbed the victim to death, “and left the area at around 6:15 a.m., when John Shaw saw him walking in the area.” The superintendent argues that Hubbards testimony would have corroborated the states evidence.
Petitioner had a cellmate after his arrest, Schellong, who testified in the guilt phase of petitioners trial that petitioner had told him that petitioner had been at the victims home when a white man and a Black man, Sampson, had also been there. Schellong testified that petitioner had said that the victim was supposed to introduce him to her drug dealer. When petitioner came out of a room, acting like he was drunk, the white man left, but Sampson stayed. Schellong said that petitioner told him that he and Sampson talked, and, before leaving, Sampson told petitioner to go through the victim to get his drugs. In the superintendents view, “Schellongs testimony is consistent with Hubbards testimony that she saw a ‘white guy’ run from the victims house, and then, five to fifteen minutes later, saw an African American man walking down the alley.”
The superintendent also argues that Hubbards testimony would have corroborated the testimony of another witness, Swafford. Swafford said that he saw petitioner at the victims home the night of the murder. The superintendent asserts that Hubbards observation of a Black man walking down the alley was consistent with Swaffords observations. Finally, the superintendent argues that Hubbards statement would not have been inconsistent with another witnesss testimony. John Shaw testified that, sometime between 6:10 and 6:30 a.m., he saw a man walking near the victims home. Shaw did not identify petitioner as the man he saw, but Schellong testified that petitioner had acknowledged that he was the person Shaw had seen.
We agree with petitioner that, had trial counsel interviewed Hubbard, her testimony at trial could have had a tendency to affect the outcome. Although there was other evidence that “coincided with” Hubbards evidence, that could have made her testimony more persuasive, not less important. That is, corroboration works both ways. Hubbards narrative—a white man arrived, after which there was loud shouting, sounds like pots and pans crashing, and screaming, then the screaming stopped, and the white man fled the house at great speed—was not duplicative of the states narrative, even if parts of it matched or did not conflict with testimony by some of the states witnesses. The states evidence was that a petitioners former cellmate had testified that petitioner told him that a white man and a Black man named Sampson had been at the house before the murder, and that the white man had left first. That narrative is different in important respects from Hubbards. Hubbard described sounds that could be inferred to have been the murder, after which she saw the white man, whom she recognized as a frequent visitor, “flying” from the victims home. In addition, Hubbards testimony included evidence of racial bias in the police investigation of the murder, and a failure to properly investigate. Finally, trial counsel had strategic choices to make about the defense theory of the case. Counsel ultimately made choices that allowed evidence that had previously been suppressed to be introduced at trial in support of a defense theory that petitioner was present for the murder, but less culpable than the person who had left a distinct set of shoeprints. See Johnson, 342 Or. at 617-23, 157 P.3d 198. Hubbards information could have helped counsel to settle on a defense theory that was not partially inculpatory.
The post-conviction court erred in concluding that the failure to reasonably investigate did not prejudice petitioners case. A reasonable investigation would likely have led to finding and interviewing Hubbard, which in turn would have led to evidence and testimony that could have tended to affect the outcome of the trial. Accordingly, we reverse and remand for the trial court to grant relief on petitioners first claim for relief.
Reversed and remanded.
FOOTNOTES
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. Petitioner has raised a claim of error concerning his claim that trial counsel performed inadequately and ineffectively in their handling of the boot evidence. We need not resolve that claim, but suffice to say that, at trial, there was conflicting evidence available about petitioners boots and whether they connected petitioner to the crime scene, and petitioners trial counsel took conflicting positions during the criminal trial concerning the boot evidence.
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. Petitioner also raises assignments of error in relation to claims on which the post-conviction court granted summary judgment in favor of the superintendent. As noted above, in light of our disposition on petitioners seventh assignment of error, we do not reach petitioners other assignments of error.
ARMSTRONG, P. J.