Farmer v. Premo

427 P.3d 170, 363 Or. 679
CourtOregon Supreme Court
DecidedOctober 4, 2018
DocketCC 07C16834(SC S065259)
StatusPublished
Cited by20 cases

This text of 427 P.3d 170 (Farmer v. Premo) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmer v. Premo, 427 P.3d 170, 363 Or. 679 (Or. 2018).

Opinion

WALTERS, C.J.

*172**681Petitioner was convicted of murder with a firearm. He sought post-conviction relief, arguing that his defense counsel was constitutionally inadequate for, among other things, deciding not to call a defense expert who would have testified that a gun seized from another suspect's residence was "likely" the murder weapon. The post-conviction court agreed with petitioner and ordered a new trial. We reverse the contrary decision of the Court of Appeals and affirm the post-conviction court's judgment.

I. HISTORY AND GENERAL BACKGROUND

Monterroso was shot and killed one January evening in 2001 while he was walking down the street with his two friends, Muldrew and McCauley.1 Two men had approached the group from behind, and one of them demanded, "Give us your money." Monterroso was then grabbed, turned around, and shot in the chest. The two men then ran off. Muldrew hurried to a payphone at a nearby store to call 9-1-1. A second person, Thompson, also witnessed the shooting and reported it to 9-1-1.2 Police soon arrived and, about two weeks later, arrested petitioner for the murder.

**682The primary evidence against petitioner was in the form of witness testimony: He was placed in the area before the murder and looking for Monterroso; he was identified as the shooter; and he made several admissions that he had killed Monterroso. Petitioner contested the credibility and reliability of those witnesses and proffered evidence that his admissions differed from the forensic evidence. He focused his defense, however, on evidence that Baines, a man who resembled petitioner, had committed the murder. He adduced evidence that the police had information that "word on the street" was that Baines was involved in the murder and had been seen on the night of the murder riding a bicycle away from the crime scene. He also adduced evidence that Baines had access to a gun that could have been the weapon used in *173the shooting. That gun, a Rohm .38 special (the Rohm), was recovered during the execution of a search warrant in an unrelated matter at a house at which Baines resided.3 The Rohm, along with the bullets discovered with it, was test-fired by a forensic firearms examiner with the Oregon State Police-Grover.4 Grover prepared a report about his findings, as did the defense's expert, Wong. Grover opined that it could not be determined whether the Rohm had fired the fatal bullet; Wong, however, concluded that the Rohm was "likely" the murder weapon. At a pretrial hearing, defense counsel explained the Rohm's importance to petitioner's case and her intent to call Wong to testify:

"[The Rohm], in our position, is exculpatory evidence in this case that [petitioner] is not the perpetrator of this homicide. We expect to put on ballistics evidence of that firearm. We expect to talk about the likelihood that that firearm was the firearm used in the homicide."

At trial, the state called Grover, who testified that he had been with the Oregon State Police for a little more than three years, beginning as an analyst who entered data from firearms into a database.5 Grover had served in **683that capacity for about a year and a half before becoming a forensic firearms examiner. In that role, he had completed a year-long curriculum at the Bureau of Alcohol and Firearms Examiners Academy, the details of which he recounted to the jury. Explaining his process in this case, Grover testified that he had used the characteristics and measurements of the bullet that killed Monterroso and entered them into a database, which produced a nine-page report of firearms that could have fired the fatal bullet. That list included both a Rohm .38 special, the kind of gun recovered at Baines' residence, and a .357 revolver, the kind of gun the state contended that petitioner had used to kill Monterroso.6

Grover then thoroughly discussed forensic bullet examination analysis, which he summed up as follows:

"[I]n order for a bullet to be considered a positive identification or a match, the amount of agreement that we see between the test-fired bullet and the bullet in question has to exceed the amount of agreement known to have been observed between two bullets test-fired from different firearms, and at least be consistent with the amount of agreement that we had seen between two bullets that we know were fired from the same firearm."

Grover testified that the bullets from the Rohm shared all discernible class characteristics with the fatal bullet-like caliber and twist direction of the lands and grooves-and agreement on some individual characteristics-like striations. Grover testified that those results, however, were insufficient to say with certainty that the fatal bullet had been fired from the Rohm. Grover testified that there are 30 to 40 different types of firearms that could have produced similar results and, when asked how many of those kinds of firearms are in the Portland area, stated,

"Probably talking millions of guns out there. It's hard to say. With this particular small subset there's probably thousands, hundreds of thousands, of these particular types of guns."

**684Ultimately, when asked what he could say with scientific certainty about the issue, Grover stated that "it could not be determined whether or not [the fatal bullet] was fired from" the Rohm. Grover explained that his results were peer reviewed by an equally *174trained analyst, who came to the same conclusion. To close out his testimony, Grover opined that evidence that someone had used a .357 revolver to kill Monterroso would be consistent with his findings. Grover said that he would expect a bullet fired from a .357 revolver to have agreement with the fatal bullet on all class characteristics and that it was possible that it also would have "some agreement of individual characteristics."

After the state wrapped up its case-in-chief, the defense presented its case. Defense counsel called officer Santos. Santos testified that he had requested and served a search warrant at a residence where Baines resided. Santos explained that the warrant was not related to Monterroso's murder and instead related to a report that Baines, a felon, had been seen with a semi-automatic firearm at the residence. Santos testified that Baines was on a first-floor couch when the warrant was served and that the Rohm was in a black case in an upstairs bedroom belonging to Waller, the owner of the Rohm. On cross-examination, the prosecutor asked about the Rohm's operability. Santos testified that, based on his experience with firearms, it looked as if the Rohm had not been fired "in quite a long time." Santos further testified that Baines had not been charged with being a felon in possession of a firearm and indicated that part of the reason was that the Rohm was not functional when the police seized it.

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Bluebook (online)
427 P.3d 170, 363 Or. 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmer-v-premo-or-2018.