Aaron v. Kelly

To establish that trial counsel rendered inadequate assistance under Article I, section 11 of the Oregon Constitution, one must prove that 1) counsel “‘failed to exercise reasonable professional skill and judgment,’” and 2) that Defendant “‘suffered prejudice as a result of counsel’s inadequacy.’” Johnson v. Premo, 360 Or 688, 699, 399 P3d 431 (2017). Similarly, under a Sixth Amendment argument, one must to prove that 1) “‘trial counsel’s performance fell below an objective standard of reasonableness,’” and 2) but for counsel’s errors, there was a reasonable probability that the result would have been different. Strickland v. Washington, 466 US 668, 694, 104 S Ct 2052, 80 L Ed 2d 674 (1984)

Defendant was convicted of three drug offenses: unlawful delivery of heroin, unlawful possession of heroin, and unlawful possession of methamphetamine. On appeal, Defendant asserted three assignments of error. As a whole, Defendant argued that his legal counsel performed deficiently in respect to his rights under Article I, section 11 of the Oregon Constitution, and the Sixth and Fourteenth Amendments of the United States Constitution. Firstly, Defendant argued that counsel failed to suppress evidence obtained from his garbage which was used as probable cause for his arrest. Secondly, Defendant argued that counsel failed to object to the court’s instruction for conviction by a nonunanimous verdict. Lastly, Defendant argued that counsel failed to request a jury poll so that Defendant could prove prejudice. The Court rejected all three arguments, affirming the court’s holding that warrantless searches of garbage and nonunanimous verdicts were constitutional. Under Defendant’s Article I, section 11 argument, Defendant had to prove that 1) counsel “‘failed to exercise reasonable professional skill and judgment,’” and 2) that Defendant “‘suffered prejudice as a result of counsel’s inadequacy.’” Johnson v. Premo, 360 Or 688, 699, 399 P3d 431 (2017). Similarly, under Defendant’s Sixth Amendment argument, Defendant had to prove that 1) “‘trial counsel’s performance fell below an objective standard of reasonableness,’” and 2) but for counsel’s errors, there was a reasonable probability that the result would have been different. Strickland v. Washington, 466 US 668, 694, 104 S Ct 2052, 80 L Ed 2d 674 (1984). The Court argued that Defendant’s claims failed because Defendant’s counsel reasonably followed long standing precedent which allowed garbage as a legal method of gathering evidence as well as the use of a non unanimous jury. See State v. Lien, 283 Or App 334, 343, 387 P3d 489 (2017); Smith v. Kelly, Or App 567, 508 P3d 77 (2022). Affirmed.