Pearce v. Nooth
OPINION AND ORDER: Based on the foregoing, this Court denies Petitioner's Petition for Writ of Habeas Corpus (ECF No. 2 ). This Court grants a Certificate of Appealability on the issue of whether trial counsel was ineffective for failing to object to the State's Notice of Intention to Rely on Child Hearsay. See 28 U.S.C. § 2253(c)(2). Signed on 4/13/2017 by Judge Garr M. King. (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RICKEY LEE PEARCE,
Case No. 2:15-cv-01256-KI
OPINION AND ORDER
Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus
proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, this Court denies
Petitioner's Habeas Corpus Petition (ECF No. 2).
On October 28, 2009, a Grand Jury returned an Indictment charging Petitioner with two
counts of Sexual Abuse in the First Degree. Resp't Exs. (ECF No. 31 ), Ex. 102. The charges were
based on allegations by two young girls (FO, age 7, and MO, age 10) that Petitioner touched them
inappropriately when applying sunscreen to their bodies.
1 - OPINION AND ORDER
Prior to trial, the prosecutor filed a Notice oflntention to Rely on Child Hearsay as required
by Oregon Evidence Code (OEC) 803(18a)(b). 1 Resp 't Ex. 112. Defense counsel did not object to
the Notice. Consequently, the girls' mother (Antoinette O'Keefe), an investigating officer (Deputy
Sheriff John Williams), and a child abuse examiner (Julie Siepmann) were permitted to testify to outof-court statements made by FO and MO concerning the sexual abuse.
O'Keefe testified that in July or August of 2009, her daughters disclosed the sexual abuse
to her. Resp't Ex. 103 at 119-20. She testified that they told her that Petitioner filled two garbage
cans with water for them to swim in, and rubbed sunscreen on their bodies. Id. at 117-18. According
to O'Keefe, the girls told her that Petitioner rubbed the sunscreen on their "private parts" and they
demonstrated how he touched them. Id. at 118-19, 125. O'Keefe did not immediately report the
incident to police. O'Keefe testified that she reported the abuse to Deputy Williams three weeks later
after her daughters repeated the same facts concerning the abuse. Id. at 121, 159; see Resp't Ex. 122.
On September 30, 2009, Deputy Williams was dispatched to O'Keefe's house in response
to her complaint of sexual abuse. Resp't Ex. 103 at 159; Resp't Ex. 122. On that same day, he
interviewed MO at school. Resp't Ex. 103 at 160; see Resp't Ex. 122. According to Williams, MO
stated that she saw Petitioner apply sunscreen to her sister and saw his fingers come from FO's
behind to her front. Resp't Ex. 103 at 162, 171-74. MO told him that Petitioner made FO remove
her underwear when he applied the sunscreen and a second time when he spanked her. Id. at 173-74;
see Resp't Ex. 122. Williams testified that MO told him Petitioner also touched her, but she didn't
"specifically say where." Resp't Ex. 103 at 164; see Resp't Ex. 122.
As discussed infra, OEC 803(18a)(b) permits the admission of hearsay statements
concerning sexual abuse under limited circumstances.
2 - OPINION AND ORDER
On October 6, 2009, Siepmann, a child abuse interviewer with Juliette's House, interviewed
FO and MO. Resp't Ex. 103 at 201. According to Siepmann, MO stated that her sister told her
Petitioner touched her private parts and that she was not wearing underwear. Id. at 205-06. However,
MO said that she did not see Petitioner touch FO. Id. Siepmann testified that during a physical
examination, MO demonstrated how Petitioner touched her above her private area (but below her
underwear waistband) and on her buttocks. Id. at 206-07. Siepmann testified that FO disclosed that
Petitioner pulled down her underwear and put "lotion in her privates." Id. at 210-13. Siepmann
testified that FO also stated that she saw Petitioner put lotion on MO underneath her panties. Id. at
On October 20, 2009, Deputy Williams and Deputy Sheriff Curtis Pitt interviewed Petitioner.
Id. at 185, 193; Resp't Ex. 122. Pitt testified that Petitioner admitted to applying sunscreen to the
girls and that he "pulled their panties down and [put] it on their buttocks, and then up in between
their legs, to where it was by their crotch area." Resp 't Ex. 103 at 190-91, 196; see Resp 't Ex. 122.
According to Pitt, Petitioner stated it was possible he touched their vaginas. Resp 't Ex. 103 at 191.
Petitioner was placed under arrest. Id. at 193.
Both girls testified that Petitioner engaged in inappropriate touching. FO could not identify
Petitioner in the courtroom, but testified that he put sunscreen on her arms, back, bottom, between
her legs, and in her underwear. Id. at 42, 45-48. FO also testified that Petitioner took off her
underwear and spanked her. Id. at 51. FO testified that she saw Petitioner put sunscreen on her
sister's back and arms, but she put her head underwater so she wouldn't see anything else. Id. at 6162, 68. FO testified that her sister told her Petitioner put sunscreen "in her underwear." Id. at 68. FO
testified that she told her mother about the abuse about two weeks after the incident. Id. at 66.
3 - OPINION AND ORDER
MO refused to look at Petitioner in the courtroom. Id. at 106. MO testified that Petitioner put
sunscreen on her "privates," her bottom, and below the waistband of her underwear. Id. at 83-85, 9293. MO testified that she saw Petitioner put his hands down FO's panties and put sunscreen "inside
her." Id. at 85-86, 91-92. MO testified that Petitioner told her to "clap her knees," and he made FO
remove her underwear and spanked her. Id. at 87-88. MO testified that after lunch, Petitioner made
them both pull down their panties, and he spanked them because they did not eat all their food. Id.
at 89-90. MO first testified that they told their mother about the abuse "a middle time" after the
incident, but on cross examination stated it was the next day. Id. at 90-91, 100-02.
Petitioner's defense focused on his involvement in the community and his church, his
reputation for being truthful, and 0 'Keefe's delay in reporting the alleged abuse to police. Petitioner
sought to prove that O'Keefe made a false report of sexual abuse to police in order to avoid
repayment of a $1,800 loan from Petitioner. At trial, O'Keefe conceded that she owed Petitioner
$1,800. Resp't Ex. 103 at 146. Petitioner testified that he called O'Keefe several times about the
loan, and one of the calls was on the day O'Keefe reported the abuse to police. Resp't. Ex. 104 at
With regard to his application of sunscreen to FO and MO, Petitioner testified that the girls
stripped down to their panties before playing in the water, and that he applied the sunscreen to their
"arms, backs, and legs ... [a]nd then [he] swiped their butt .... " Id. at 20, 60. He denied removing
the girls' underwear or touching them in the front, explaining that he "just pulled the underwear ..
. down a little bit, and ... rubbed their butt." Id. at 21. Petitioner denied telling the investigating
officers that he told FO and MO to pull down their panties, and clarified that he told the officers it
was "highly unlikely" that he touched their vaginas. Id. at 55-56, 59-60. During closing arguments,
4 - OPINION AND ORDER
defense counsel questioned why a mother would delay reporting the abuse to police, and stressed that
everything was fine between Petitioner and O'Keefe until he sought repayment of the debt. Id. at
The trial judge found Petitioner guilty of both charges and sentenced him to a 120-month
term of incarceration. Resp't Ex. 101 at 2-5. The judge explained his ruling as follows:
.... [W]e've had at least questions raised as to Mrs. O'Keefe's credibility
and motives she might have had here. I agree with [Prosecutor] Gaddis, I don't see
that that has anything to do with this case, for a number of reasons.
First, all she really testified to and could testify to is that the girls made a
disclosure to her .... [S] o I suppose if she's a dishonest person maybe that disclosure
didn't take place or maybe ... she's lying about what they disclosed.
But the fact is, the girls made the same disclosure to Deputy Williams, and
they made the same disclosure to the staff at Juliette's House, and they made the
same disclosure here. Certainly some of the details change, as you would expect, and
as they do in every case like this. But that tells me that there's absolutely no doubt
about whether the disclosure was made to Ms. O'Keefe. It was.
There's also some question about how long she delayed .... I think she told
the officer three weeks ....
The bottom line is, she has consistently said, and I do find that she delayed.
That, I think, was unwise .... But the testimony was that after the disclosure, the
children were never around Mr. Pearce.
I don't think there's anything unusual or wrong to helping a child apply sun
But ... first it doesn't even need to be applied in the genital and anal areas.
And secondly, if it needed to be applied, certainly a seven-year-old is capable of
making an application at least as effective as the one Mr. Pearce claims he made,
which is to get a little on his hand and swipe it over their butts .... So his explanation
as to what he was doing down there makes no sense whatsoever.
5 - OPINION AND ORDER
[FO] testified credibly, and also going back a year, reported to the Juliette
House that the application of the suntan lotion included, at the very minimum,
applying over the top of her vaginal area, and perhaps even a slight penetration of
The facts are overwhelming with regard to [FO] that the incident occurred,
and I do find beyond a reasonable doubt that they occurred for a sexual motive and
defendant is guilty of that count.
The case regarding [MO] is a bit weaker because the touch wasn't quite as
intimate. She described him coming down below where the panties -- top of the
panties would normally be, but did not describe as close a contact as [FO] did.
[I] f hers was the only case and if this was the only evidence, it would be a
difficult case for me to decide because, again, the only issue is the intent and purpose
of the contact. But given what clearly happened to [FO], the similar acts with regard
to [MO], I am convinced beyond a reasonable doubt that the intent there was also
sexual arousal or gratification, and that the State has proven beyond a reasonable
doubt that the defendant is guilty of that count as well. So I'll enter findings of guilty
in both counts.
Resp't Ex. 104 at 120-25.
Petitioner subsequently sought state post-conviction relief (PCR) on the basis that his trial
counsel rendered ineffective assistance by, among other things, failing to (1) move in lirnine and
object to the prosecutor's Notice oflntent to Introduce Hearsay on the basis that it lacked sufficient
particularity; and (2) object to testimony by witnesses who vouched for the credibility of FO and
MO. Resp't Exs. 107 at 12, 108 at 7-8. The PCR Court denied relief, the Oregon Court of Appeals
affirmed without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 153, 157, 158.
In the instant proceeding, Petitioner seeks federal habeas relief on the basis that trial counsel
rendered constitutionally ineffective assistance when she failed to object to (1) the Notice oflntent
to Rely on Child Hearsay; and (2) numerous instances of witness vouching. Habeas Pet. at 6.
6 - OPINION AND ORDER
Respondent moves the Court to deny habeas relief on the basis that the state PCR Court's rejection
of Petitioner's claims is neither contrary to, nor an umeasonable application of clearly established
Pursuant to 28 U.S.C. § 2254(d), a petition for writ of habeas corpus filed by a state prisoner
shall not be granted, with respect to any claim that was adjudicated on the merits in state court,
unless the adjudication resulted in a decision that was "contrary to, or involved an umeasonable
application of, clearly established Federal law;" or "resulted in a decision that was based on an
umeasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(l)
& (2); Harrington v. Richter, 562 U.S. 86, 100 (2011); White v. Woodall, 134 S.Ct. 1697, 1702
(2014). A state court umeasonably applies clearly established federal law, if its decision is "so
lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103; Woodall, 134 S.Ct.
It is clearly established federal law that a claim of ineffective assistance of counsel requires
a habeas petitioner to prove that counsel's performance fell below an objective standard of
reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. Williams v. Taylor, 529 U.S. 362, 39091 (2000); Strickland v. Washington, 466 U.S. 668, 687-88 (1987). To prove deficiency of
performance, a petitioner must show that counsel's representation fell below an objective standard
ofreasonableness. Taylor, 529 U.S. at 390-91; Strickland, 466 U.S. at 688. "A court considering a
claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was
7 - OPINION AND ORDER
within the 'wide range' of reasonable professional assistance." Richter, 562 U.S. at 104, citing
Strickland, 466 U.S. at 689. Every effort must be made to eliminate the distorting effects of hindsight
and to evaluate the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 689.
An attorney possesses wide latitude to make tactical decisions during trial. Strickland, 466
U.S. at 689. An attorney's "strategic decisions made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 689-91; see
Gresser v. Franke, 628 F. App'x 960, 962-63 (9th Cir. 2015) (concluding that defense counsel's
failure to object to vouching testimony was strategic decision). "Once counsel reasonably selects a
defense, it is not deficient performance to fail to pursue alternate defenses." Elmore v. Sinclair, 799
F.3d 1238, 1250 (9th Cir. 2015) (internal quotations omitted).
In order to prevail on a claim of ineffective assistance of counsel for failure to raise an
objection, a habeas petitioner must demonstrate that trial counsel's failure fell below an objective
standard of reasonableness and that, had the objection been made, there is a reasonable probability
that the objection would have been sustained and the outcome of the trial would have been different.
Flournoy v. Small, 681 F.3d 1000, 1005-06 (9th Cir. 2012); Shackleford v. Hubbard, 234 F .3d 1072,
1079-80 (9th Cir. 2000); Gresser, 628 F. App'x at 962. Generally it is not constitutionally required
that a defense attorney accurately predict developments in state law. Sophanthavong v. Palmateer,
378 F.3d 859, 870 (9th Cir.2004); Lowry v. Lewis, 21F.3d344, 346 (9th Cir. 1994); but see Burdge
v. Belleque, 290 F. App'x 73, at *77-78 (9th Cir. 2008) (concluding that counsel was ineffective for
failing to challenge application of ambiguous statute in light of case law from other states and
secondary sources supporting challenge). Proof that defense counsel had "nothing to lose" in raising
8 - OPINION AND ORDER
an objection does not suffice to prove that counsel was ineffective. Knowles v. Mirzayance, 556 U.S.
111, 122-23 (2009).
When a Petitioner's ineffective assistance of counsel claim involves an underlying state law
issue, this Court defers to a state court's determination of state law. Woods v. Sinclair, 764 F3d 1109,
1138-39 (9th Cir. 2014); Romero v. Cal. Dep 't ofCorr. and Rehab., 405 F. App'x 208, 211 (9th Cir.
2010); Lopez v. Campbell, 408 F. App'x 13, 16 (9th Cir. 2010); see also Bradshaw v. Richey, 546
U.S. 74, 76 (2005) ("a state court's interpretation of state law ... binds a federal court sitting in
habeas corpus."). However, a federal habeas court must undertake its own analysis of state law if
certain aspects of the embedded state law question have not been directly addressed either in the
proceedings below or in any published Oregon opinions. Himes v. Thompson, 336 F.3d 848, 854 (9th
Cir. 2003). "In analyzing [an] embedded state law question, [the court must] vigilantly search [for]
an interpretation of the state law question which would avoid attributing constitutional error to the
state court" but "stop short of adopting an implausible or strained interpretation." Id.
Failure to Object to the State's Notice of Intention to Rely on Child Hearsay
Petitioner contends that trial counsel rendered ineffective assistance of counsel when she
failed to object to the State's Notice of Intention to Rely on Child Hearsay that was "facially
deficient because it did not comply with the rule's particularity requirement." Pet'r's Br. in Supp.
(ECF No. 38) at 11. 2 Petitioner complains that "[r]ather than specify the details of any of the
This Court rejects Respondent's characterization of Petitioner's ineffective assistance
claim as a state law evidentiary challenge that is not cognizable on federal habeas review. See
Resp't Reply (ECF No. 46) at 2.
9 - OPINION AND ORDER
numerous hearsay statements that the two girls made to the four witnesses identified by the State,
the notice instead informed the defense in general and vague terms that the statements it intended
to offer were 'described in the previously provided discovery by the State, and the Juliette's House
reports ordered by the defense."' Id. at 12.
In response, Respondent argues that ( 1) "based on law in existence at the time, trial counsel
could reasonably determine that a motion in limine objecting to the notice would have been
unsuccessful;" (2) it was reasonable strategy not to object "given the fact that she had reviewed all
of the relevant statements and understood what statements the state would seek to introduce"; and
(3) Petitioner suffered no prejudice. Resp't Resp. at 9. Respondent concludes that the PCR Court's
rejection of this claim is neither contrary to, nor an unreasonable application of clearly established
Relevant State Law
Oregon Evidence Code (OEC) 803(18a)(b) provides an exception to the general rule
excluding hearsay for statements made concerning acts of abuse. The rule provides:
A statement made by a person concerning an act of [sexual] abuse ... is not excluded
[by the hearsay rule] ifthe declarant either testifies at the proceeding and is subject
to cross-examination, or is unavailable as a witness but was chronologically or
mentally under 12 years of age when the statement was made .... No statement may
be admitted under this paragraph unless the proponent of the statement makes known
to the adverse party the proponent's intention to offer the statement and the
particulars ofthe statement no later than 15 days before trial, except for good cause
shown. (Emphasis added).
In State v. Chase, 240 Or. App. 541 (2011), a case decided after Petitioner's criminal trial,
the Oregon Court of Appeals addressed the sufficiency of a hearsay notice in which the state
"notified defendant that it intended to offer hearsay statements contained in the discovery, but did
10 - OPINION AND ORDER
not identify specifically which statements it would offer." 240 Or. App. at 546. The Court held that
although OEC 803(18a)(b) does not require that the state "set forth the statements verbatim, simply
providing discovery and notice of an intention to offer at trial hearsay statements contained in its
discovery is not sufficient." Id. The Court explained that "the rule's requirement that the proponent
identify the particulars of the statement requires at a minimum that the state identify in its notice the
substance of the statement sought to be introduced and also identify the witness or the means by
which the statement would be introduced." Id. at 546-47.
Subsequently in Hagbergv. Coursey, 269 Or. App. 377 (2015), a state prisoner sought state
post-conviction relief on the basis that his trial attorney failed to object to the state's hearsay notice
despite the fact that the notice "failed to identify 'the particulars' of the statements that the state
planned to introduce." 269 Or. App. at 381. Because the petitioner's trial took place in 2005, his
ineffective assistance claim required the Court of Appeals to consider whether "based on the law as
it existed at the time of his trial, any reasonably competent defense attorney would have made the
argument that was ultimately deemed meritorious in Chase." Id. at 3 82. The Court reviewed its prior
decisions in State v. Iverson, 185 Or. App. 9 (2002); State v. McKinzie, 186 Or. App. 384 (2003);
State ex rel Juv. Dep't v. Sauer, 189 Or. App. 78 (2003); and State v. Leahy, 190 Or. App. 147
(2003). Id. at 382-384. The Court concluded that, taken together, those cases established the
following propositions that would have been known to reasonably competent criminal defense
attorneys at the time of the petitioner's 2005 trial: (1) strict compliance with the 15-day notice
requirement is required; (2) the state cannot satisfy its duty merely by providing discovery; (3) the
importance of the hearsay evidence is not "good cause" to excuse the state's noncompliance; and (4)
the sole remedy for noncompliance is exclusion of the evidence. Id. at 384-85.
11 - OPINION AND ORDER
Of particular importance to the instant proceeding, however, the Court held that its prior
cases did not address the level of particularity required by the rule:
.... Although our cases in 2002 and 2003 had quoted the requirement of the
rule that notice give "the particulars of the statement," the level of particularity that
is required had not been at issue in any of those cases .... Nothing in those cases,
therefore, would have clearly told petitioner's trial counsel that he could lodge a
successful objection to the state's notice even though it had been provided on time,
and even though he knew exactly what evidence the state intended to offer.
Id. at 385. Further, the Court of Appeals held that its 2011 decision in Chase broke new ground:
.... [P]etitioner argues that the core "principles" of Chase "had been
announced and expounded upon by the Court of Appeals well before trial in
Petitioner's case. Chase broke no new ground." But it did. No prior appellate
decision had addressed . .. whether the state's OEC 803(18a)(b) notice, although
timely, may still be insufficient based on vagueness. Thus, the 2011 holding in Chase
would not have been known to a defense lawyer in 2005.
In short, given the state of the law, his own experience in that trial court, and
the circumstances of the case, petitioner's trial attorney could have reasonably
concluded that a motion or objection under OEC 803(18a)(b) would not only have
failed but would have cost him credibility with the court, to the detriment of his
client. Accordingly, we cannot conclude that every reasonable defense attorney
would have objected to the admission of the hearsay evidence.
Id. at 386-87 (emphasis added).
The State's Pretrial Hearsay Notice
Approximately three months before Petitioner's trial, the prosecution filed its Notice of
Intention to Rely on Child Hearsay which provided:
Comes now Jennifer Gaddis, Deputy District Attorney and hereby gives
notice of the State's intention to rely on the following hearsay statements of a child
concerning an act of abuse, as permitted by OEC 803(18a)(b).
The State intends to use the statements made by [MO] ... to
12- OPINION AND ORDER
• John Williams
•Julie Siepmann (Juliette's House)
•Mary Montesano (Juliette's House)
as described in the previously provided discovery by the State, and the Juliette's
House reports ordered by the defense.
The State also intends to use the statements made by [FO] ... to
• Antoinette 0' Keefe
• John Williams
•Julie Siepmann (Juliette's House)
•Mary Montesano (Juliette's House)
as described in the previously provided discovery by the State, and the Juliette's
House reports ordered by the defense.
Resp't Ex. 112. Petitioner's counsel made no objection to the particularity of the Notice, and the trial
court subsequently permitted the prosecution to offer testimony concerning MO's and FO's out-ofcourt statements.
At Petitioner's subsequent PCR proceeding, he argued that the State's Notice "was clearly
in violation of State v. Chase, 240 Or. App. 541, 546-47 (2011), and subject to exclusion." Resp't
Ex. 108 at 3. Petitioner argued that had counsel objected prior to trial, the hearsay testimony would
have been excluded and "only the two alleged victims would have testified and their testimony alone
would not have risen to the level of proof beyond a reasonable doubt." Id. at 7.
In opposition, the State offered the affidavits of Petitioner's defense attorney and the
prosecutor. Petitioner's defense attorney explained her decision not to object to the Notice:
... [Petitioner] and I were not confused about the particular statements that the State
intended to offer and the manner in which the statements would be introduced. The
defense had obtained and reviewed all of the referenced reports, and was familiar
with the statements that the State would seek to introduce. DDA Jennifer Gaddis and
I had a good, professional working relationship, and she was available to answer any
13 - OPINION AND ORDER
questions I had about the State's intent. There were no surprises at trial in that regard.
My experience has shown that the trial court would not have sustained my objection
and excluded the statements. A general statement seemed adequate to me, as detailed
in the discovery provided.
Resp't Ex. 150 at 11. Similarly, the prosecutor attested that the form and content of the Notice was
"consistent with the State's practice at the time of [Petitioner's] trial" and "the trial court would not
have sustained the objection to the notice and excluded statements." Resp't Ex. 149 at 2.
Petitioner, in contrast, offered the Declaration of an experienced defense attorney who opined
that at the time of Petitioner's trial, "criminal defense attorneys involved in defending clients charged
with sex crimes were aware of the objections an attorney must make to the OEC 803(18a)(b) notices,
including ... objections based upon the generalized statements in the notices." Resp't Ex. 133 at 3.
The attorney also opined that given the knowledge of the defense bar at the time of trial, "there was
absolutely no reason" for Petitioner's attorney not to object. Id. at 4. 3 Additionally, Petitioner offered
the testimony of attorney Frank E. Stoller, who opined that at the time of Petitioner's trial, a defense
attorney exercising reasonable professional judgment would have objected to the State's Notice.
Resp't Ex. 152 at 173-76, 198, 200-01, 204-05.
The PCR Court held that trial counsel was not deficient in failing to object to the State's
Notice given the applicable state law existing at the time of trial and defense counsel's knowledge
of the hearsay statements at issue:
In support of his opinion, the defense attorney relied on a 2009 criminal case in which
he objected to the state's hearsay notice for lack of specificity. Resp't Ex. 133 at 3; State v.
Bradley, 253 Or. App. 277, 280 (2012). The trial court overruled the objection, but the Oregon
Court of Appeals reversed on appeal in 2012. Resp't Ex. 133 at 4. In concluding that the notice
was deficient, the Oregon Court of Appeals referenced several decisions rendered before the
defendant's trial, but ultimately relied on its 2011 decision in Chase. Bradley, 253 Or. App. at
14- OPINION AND ORDER
.... The notice only referred to discovery without specifying specific statements or
witnesses. Attorney testified that she was not surprised by any of the statements or
witnesses who were called. After the time of this trial, State vs. Chase and State vs.
Woods were decided. Before those cases it was not likely that a court would exclude
[witness] testimony based on the lack of specificity of the notice without engaging
in the type ofanalysis the court uses for discovery violations - is there a less drastic
remedy, is the defense surprised, prejudice, in need of additional time or witnesses
to rebut or investigate etc. If the defense was not surprised, if it knew all of the
statements, knew what witnesses would be called, it is not likely that the court would
have barred the testimony. Attorney was not inadequate for not predicting the recent
Resp't Ex. 153 at 2 (emphasis added).
Trial Counsel's Failure to Object
In the instant proceeding, Petitioner argues that reasonably competent counsel would have
objected to the State's Notice because it "wholly failed to identify any hearsay statement with
particularity." Pet'r's Br. in Supp. at 12. Petitioner argues that the Notice contained "general and
vague terms that the statements it intended to offer were 'described in the previously provided
discovery by the State, and the Juliette's House reports ordered by the defense."' Id., quoting Resp't
Ex. 112. With respect to the relevance of state law at the time of trial, Petitioner argues that the
meaning of OEC 803(18a)(b) is apparent on its face and did not require judicial interpretation.
Pet'r's Sur-Reply (ECF No. 47) at 5; Pet'r's Br. in Supp. at 13. Further, Petitioner contends that the
holding in Hagberg is "plainly distinguishable" and does not define what a reasonable attorney
would have known at the time of his 2010 trial in light of the significant intervening decision in State
v. Olsen, 220 Or. App. 85 (2008), as well as the Oregon Court of Appeals' prior decisions in Leahy,
Sauer, McKinzie, and Iverson. Pet'r's Sur-Reply at 6.
This Court concludes that, in light of state law at the time of Petitioner's 2010 trial, the PCR
Court's rejection of Petitioner's ineffective assistance claim is neither contrary to, nor an
15 - OPINION AND ORDER
unreasonable application of clearly established federal law. First, this Court rejects Petitioner's
assertion that the level of particularity or detail required by OEC 803(18a)(b) is plain on its face and
did not require judicial interpretation. On the contrary, as implicitly recognized by the Oregon Court
of Appeals in Hagberg, whether the rule required the State to set forth the statements verbatim or
provide some lesser detail is not apparent on the face of the rule. See Hagberg, 269 Or. App. at 3 8586 (concluding that Chase was ground breaking, and its 2002-03 cases did not address the level of
Further, this Court rejects Petitioner's assertion that Olsen is a significant intervening
decision rendering Hagberg inapplicable to the question of whether trial counsel's failure to object
fell below an objective standard of reasonableness. In Olsen, the State provided a hearsay notice
containing no detail and simply provided that the state intended "to offer child hearsay evidence
pursuant to OEC 803(18a) and (24) at the trial." 220 Or. App. at 89. On appeal, the State conceded
that its notice did not comply with OEC 803( 18a)(b). Id The Oregon Court of Appeals agreed with
the State's concession, quoted the language of OEC 803(18a)(b), and held that the notice "did not
provide any details about the evidence the state sought to admit." Id The Oregon Court of Appeals
did not expound on the detail or particularity required by OEC 803(18a)(b), and did not discuss the
rule's application when defense counsel is aware of the hearsay statements at issue.
Consequently, Olsen does not have the import Petitioner accords to it, and its cursory holding
does not undermine the Oregon Court of Appeals ruling in Hagberg that prior to 2011 no "appellate
decision had addressed the situation posed by petitioner's case, viz., whether the state's OEC
803(18a)(b) notice, although timely, may still be insufficient based on vagueness." Hagberg, 269
Or. App. at 386. This Court defers to the Oregon Court of Appeals' construction of state law and its
16- OPINION AND ORDER
conclusion that prior to its decision in Chase it had not addressed the level of detail required by the
rule. See Woods, 764 F3d at 1138-39; Romero, 405 F. App'x at211; Lopez, 408 F. App'x at 16. This
Court reaches the same result based on its independent review of state law. See Himes, 336 F.3d at
In sum, in light of the applicable state law at the time of Petitioner's 2010 trial and defense
counsel's knowledge of the hearsay statements the State intended to offer, trial counsel's decision
not to object to the Notice did not fall below an objective standard ofreasonableness, and there is
no reasonable probability that, had trial counsel made an objection, it would have been sustained and
the outcome of the trial would have been different. See Flournoy, 681 F .3d at 1005-06; Shackleford,
234 F.3d at 1079-80. Trial counsel was not constitutionally deficient for failing to anticipate the
Oregon Court of Appeals' 2011 decision in Chase. See Sophanthavong, 378 F.3d at 870; Lowry, 21
F.3d at 346. The fact that trial counsel may have had "nothing to lose" in making an objection does
not dictate a contrary result. See Knowles, 556 U.S. at 122-23. The PCR Court's rejection of
Petitioner's ineffective assistance of counsel claim is therefore not contrary to, nor an unreasonable
application of, clearly established federal law.
Failure to Object to Witness Vouching
Under Oregon law, a witness is prohibited from commenting directly on whether another
witness is testifying truthfully or whether another witness's prior statement was truthful. State v.
Beauvais, 357 Or. 524, 543 (2015); State v. Middleton, 294 Or. 427, 435-38 (1983). Petitioner
contends that trial counsel was ineffective for failing to object to improper vouching testimony.
17 - OPINION AND ORDER
Pet'r's Pet. at 6. 4 Petitioner argues that defense counsel's failure to object was not strategic and
"[t]here was no valid reason whatsoever for counsel not to object to the repeated vouching." Pet'r's
Br. in Supp. at 24, 26-28. Petitioner contends that he suffered prejudice because the vouching
testimony would have been excluded and the testimony of the victims would have been insufficient
to support his conviction on the charge involving MO. Id. at 29-31. Respondent argues that habeas
relief is not warranted because defense counsel's failure to object was a valid strategic decision and
did not prejudice Petitioner because it is presumed that the trial court disregarded any inadmissible
evidence. Resp't Resp. at 11.
At the state PCR proceeding, Petitioner alleged that trial counsel was ineffective for failing
to object to the following testimony because it commented upon the credibility of FO, MO, and
• Antoinette O'Keefe's testimony that (1) she delayed calling the police to
report the incident until she was sure FO and MO were being honest; (2) the
investigating officer told her that he was convinced the abuse happened; (3) she did
not confront Petitioner because she knew he would lie; (4) she did not report
anything to the police until she was sure FO and MO were not stretching the truth;
(5) she waited to call the police until she knew FO and MO were telling the truth; and
(6) she waited to call authorities until FO and MO told her the same story and she
watched FO go into a quiet state after she told her what happened. Resp 't Ex. 107 at
~ 14(E)(i)-(v) & (xi).
• Officer Williams' testimony that (1) O'Keefe told him that she delayed
reporting the abuse until she was 100 percent sure FO and MO were telling the truth;
(2) MO's demeanor was consistent during his interview and she cried; (3) Petitioner
tried to downplay the extreme nature of the incident; (4) he interviewed MO to see
if there was enough credibility to her story to refer her to Juliette's House; (5) that
This Court rejects Respondent's assertion that Petitioner violated Rule 2(c) of the Rules
Governing Section 2254 Cases in the United States District Courts by failing to list all of the
statements he contends trial counsel should have objected to as improper vouching.
18 - OPINION AND ORDER
O'Keefe told him she wanted to wait until she was 100 percent sure FO and MO
were telling the truth before reporting it. Id. at~ 14(E)(vi)-(x).
• Julie Siepmann's testimony that (1) MO's demeanor was consistent
throughout her interview; (2) her interview with FO was a "best case scenario"
because she was able to specify on her body where she was touched; (3) another
examiner reported that FO pointed to where she was touched; (4) she told FO and
MO that it was important to tell the truth; (5) O'Keefe told her what MO and FO said
about Petitioner; and (6) MO was missing details in her interview because of anxiety,
her demeanor during the interview, and cognitive deficits. Id. at~ 14(E)(xii)-(xvii).
• Jason Slade's testimony that FO and MO revealed the abuse to him first.
The PCR Court held that trial counsel was not ineffective because many of the alleged
instances were not improper vouching, and "[s]ome of the other instances were vouching, but were
so insignificant that they would not have affected the outcome." Resp't Ex. 153 at 2 (emphasis
added). The PCR Court held that the following testimony was not improper vouching: "that the child
cried, that [Petitioner] downplayed the seriousness of the report, that the girls' demeanors were
consistent throughout the interviews, that evaluators told girls to tell the truth, what [the] mother
reported to the evaluators, that mother has cognitive deficits." Id. Petitioner does not challenge the
PCR Court's conclusion that these statements are not vouching . Pet'r's Sur-Reply at 11.
Accordingly, this Court addresses the remaining testimony.
Trial Counsel's Failure to Object to O'Keefe's and Williams' Testimony was
Reasonable Trial Strategy
For the reasons set forth below, this Court concludes that Petitioner has failed to demonstrate
that trial counsel was deficient in failing to object to the following testimony because it was
reasonable trial strategy.
19 - OPINION AND ORDER
• Antoinette O'Keefe
The majority of the challenged testimony by O'Keefe pertains to her daughters' disclosure
of the sexual abuse and her delay in reporting the abuse to police. See Resp't Ex. 107 at ii 14(E)(i),
(iv), (v) & (xi); Pet'r's Br. in Supp. at 23. In her affidavit to the PCR Court, defense'counsel
explained that she did not object to O'Keefe's testimony as improper vouching because the
testimony supported Petitioner's defense that O'Keefe falsely accused him of sexual abuse after he
sought repayment of a debt:
Regarding ii 14(E)(i) .... Mr. Pearce's summary of Ms. O'Keefe's statement
is a manipulation of what she actually said in testimony .... She did not testify that
she waited until she was sure the girls were being honest, she instead said she did not
report right away because she felt initially they were lying. Three weeks later,
according to her, which was the time of the debt issue, she suddenly believed them
and cut off contact. I did not want this information excluded. It was helpful and
complemented Mr. Pearce's testimony that she had launched these allegations to
avoid her debt to Mr. Pearce. Also it was helpful that she testified that after the first
allegation she invited Mr. Pearce to dinner with the family and allowed contact to
continue, until three weeks later, debt issue arises, then she believes the allegations,
then all of a sudden stops contact.
Regarding ii 14(E)(iv) [and] ii l 4(E)(v) ... I would provide the same response
as I did to ii 14(E)(i) .... Her testimony supported Mr. Pearce's testimony that she
contacted police immediately after he called regarding repayment of the loan ....
Regarding ... ii 14(E)(xi), the testimony was not objectionable. It was not a
comment on credibility, but was the explanation reported by Ms. O'Keefe for her
delay in bringing the allegations to law enforcement.
Resp't Ex. 150 at 4-6.
Defense counsel's decision to not object to O'Keefe's testimony, because it supported
Petitioner's defense that she did not report the alleged sexual abuse until after he sought repayment
20 - OPINION AND ORDER
of a debt, was reasonable trial strategy. Accordingly, defense cou~sel's failure to object does not fall
below an objective standard of reasonableness.
• Officer Williams
Petitioner contends that defense counsel should have objected to Williams' testimony
recounting O'Keefe's explanation for her delayed reporting. Resp't Ex. 107
14(E)(vi) & (x);
Pet'r' s Br. in Supp. at 24-25. At the PCR proceeding, defense counsel reiterated her strategy to allow
testimony concerning 0' Keefe's delayed reporting because "[i]t was helpful and complemented Mr.
Pearce's testimony that she had launched these allegations to avoid her debt to Mr. Pearce," and
"contacted police immediately after he called regarding repayment of the loan. Resp't Ex. 150 at 4-5.
As noted above, this was a reasonable trial strategy. Accordingly, defense counsel's failure to object
to the testimony does not fall below an objective standard ofreasonable.
Petitioner alleges that defense counsel should have objected to the testimony of the victims'
uncle, Jason Slade, that FO and MO first disclosed the alleged abuse to him and that it was so
disturbing that he told O'Keefe and a retired Oregon Patrol Officer. Resp't Ex. 107 at~ l 4(E)(xviii);
Pet'r's Br. in Supp. at 26. Petitioner argues Slade's testimony was improper vouching because it
suggested that the girls' disclosure was so convincing that he felt compelled to report them. Pet'r's
Br. in Supp. at 26. Defense counsel explained her decision not to raise an objection to Slade's
testimony as follows:
.... [T]he brother of the mother of the alleged victims provided testimony
that the girls reported the abuse to him at the time of the pizza party and that, when
he relayed their disclosures to his sister (Ms. O'Keefe) it seemed to him that she was
hearing of the allegations for the first time, which contradicted Ms. O'Keefe's
testimony that she heard the allegations three weeks earlier from her daughters, did
21 - OPINION AND ORDER
not believe it and waited to see if they changed their story. The pizza party was the
last time, if memory is correct, that Mr. Pearce saw the girls, and the mom did then
report it to police a couple days later, which went along with Mr. Pearce's theory that
she made allegations to avoid repaying the debt to Mr. Pearce, and in fact had not
been sitting on the info for 3 weeks, all of which is consistent with Mr. Pearce's
theory of the case.
Resp't Ex. 150 at 8.
Assuming that Slade's testimony can be construed as improper vouching, Defense counsel's
strategy not to object to the testimony because it supported the defense's timeline of events was a
reasonable strategy. Accordingly, counsel's failure to object to the testimony does not fall below an
objective standard ofreasonableness.
Trial Counsel's Failure to Object to Remaining Testimony did not Result in
For the reasons set forth below, this Court concludes that Petitioner has failed to demonstrate
that, had trial counsel objected to the following testimony by O'Keefe, Williams, and Siepmann,
there is a reasonable probability that the objections would have been sustained and the result of the
trial would have been different.
The remaining testimony which Petitioner characterizes as improper vouching is Williams'
and O'Keefe's testimony that Williams referred MO to Juliette's House after determining there was
sufficient credibility to her story; and Siepmann' s testimony that FO was able to demonstrate where
she was touched, and whyMO's interview lacked some details. See Resp. Ex. 107atiJ14(E)(ii), (ix),
(xiii), (xiv), & (xvii). 5
Petitioner does not argue how O'Keefe's testimony that she did not confront Petitioner
about the abuse because she knew he would lie (see Resp't Ex. 107 at iJ E(iii), constitutes
improper vouching. See Pet'r's Br. in Supp. at 24 (arguing testimony was inadmissible because it
(continued ... )
22 - OPINION AND ORDER
This Court assumes, without deciding, that the foregoing testimony was improper vouching
to the credibility ofFO and MO. However, Petitioner has failed to demonstrate that, had trial counsel
objected to the testimony, there is a reasonable probability that the result of the proceeding would
have been different. As outlined by the trial judge when rendering his decision, the victims'
testimony was credible and their pretrial disclosures of the abuse were reasonably consistent. In
contrast, the trial court concluded that Petitioner's "explanation as to what he was doing down there
makes no sense whatsoever." Resp't Ex. 104 at 123. Accordingly, and in light of all the admissible
evidence presented at trial, Petitioner has failed to demonstrate that, had counsel objected to the
testimony, there is a reasonable probability that the objection would have been sustained and the
result of the trial would have been different. The PCR Court's rejection of Petitioner's ineffective
assistance of counsel claim is neither contrary to, nor an unreasonable application of, clearly
established federal law.
( ••• continued)
was improper character evidence under OEC 608(1)). In any event, defense counsel's failure to
object to the testimony did not result in prejudice for the reasons set forth above.
23 - OPINION AND ORDER
Based on the foregoing, this Court denies Petitioner's Petition for Writ of Habeas Corpus
(ECF No. 2). This Court grants a Certificate of Appealability on the issue of whether trial counsel
was ineffective for failing to object to the State's Notice oflntention to Rely on Child Hearsay. See
28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
/s/ Garr M. King
Garr M. King
United States District Judge
24 - OPINION AND ORDER
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