Heroff v. Coursey

State v. Parker established that it is improper for counsel to interject personal appraisal of a witness’s 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.

Heroff was convicted of sodomy, sexual abuse and public indecency. On direct appeal, the judgment of conviction was affirmed. Heroff filed a petition for post-conviction relief and alleged that defense counsel failed to properly object to the state’s lead investigator’s testimony and then later, defense counsel failed to ask the court to strike the testimony. The post-conviction court agreed with Heroff and granted post conviction relief. On appeal from the post-conviction court’s judgment, Coursey argued that the court erred in granting relief because Heroff was not prejudiced by trial counsel’s failure to move to strike and obtain a cautionary instruction. Heroff cross-appealed the court’s denial of post-conviction relief and argued that the prosecution’s argument constituted improper vouching and counsel did not object to it. State v. Parker established that it is improper for counsel to interject personal appraisal of a witness’s 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. 235 Or 366, 377-78, 384 P2d 986 (1963). This Court finds that the prosecutor’s argument was not factual assertions purportedly based on counsel’s own knowledge of the facts not introduced into evidence. As such, this Court concludes that the post-conviction relief court did not err in failing to grant relief based on his counsel’s failure to object. Reversed on appeal; affirmed on cross-appeal.