Harper v. Washburn

The proponent of impeachment evidence must “lay a sufficient foundation for” the evidence’s admission; “reasonable inferences are permissible,” but speculation and guesswork are not. State v. Hubbard, 297 Or 789, 796, 688 P2d 1311 (1984); State v. Bivins, 191 Or App 460, 467, 83 P3d 379 (2004).

Petitioner appealed a judgment denying post-conviction relief based on a claim of inadequate and ineffective counsel.  Petitioner assigned error to the post-conviction court’s decision to allow the Superintendent to cross-examine Petitioner about the omission of certain claims in his initial, pro se petition for post-conviction relief.  On appeal, Petitioner argued that the formal petition, filed by counsel, was operative, the pro se petition was not operative, and therefore the pro se petition was irrelevant.  In response, the Superintendent argued that the contents of the pro se petition were relevant as impeachment evidence.  The proponent of impeachment evidence must “lay a sufficient foundation for” the evidence’s admission; “reasonable inferences are permissible,” but speculation and guesswork are not.  State v. Hubbard, 297 Or 789, 796, 688 P2d 1311 (1984); State v. Bivins, 191 Or App 460, 467, 83 P3d 379 (2004).  The Court found that the Superintendent’s foundational showing was insufficient to “permit a reasonable, nonspeculative inference” that Petitioner’s omission of a claim in the pro se petition was purposeful. Since there was no factual foundation to show the extent of Petitioner’s knowledge of the legal claims available to him, the Court held that the Superintendent’s questioning was irrelevant.  Reversed and Remanded.