Curry v. Highberger

Counsel is inadequate when a petitioner establishes by a preponderance of the evidence that “counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suf-fered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).

Defendant, the superintendent of the Oregon State Correctional Institution, appealed a judgment that granted Petitioner post-conviction relief. Defendant assigned error to the trial courts determination that Petitioner’s counsel was inadequate and ineffective. On appeal, Defendant argued that Petitioner’s counsel was not inadequate and ineffective when he did not object to the use of the term “victim” by the prosecutor at the trial. In response, Petitioner asserted that under State v. Sperou, 365 Or 121, 442 P3d 581 (2019) (holding that the use of the word “victim” by the state’s witness was impermissible vouching), his counsel should have filed a pretrial order prohibiting the prosecutor from using the word “victim” at the trial. Counsel is inadequate when a petitioner establishes by a preponderance of the evidence that “counsel failed to exercise reasonable professional skill and judgment, and that the petitioner suf­fered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017). The Court found that under the existing caselaw in 2015, Petitioner’s counsel had no indication that arguing that the prosecutor's use of the term “victim” was impermissible vouching would be successful. Thus, the Court held that his counsel exercised reasonable professional skill and judgment. On appeal, judgment on claims 13D and 13E reversed and remanded; otherwise affirmed. On cross-appeal, affirmed.