Kleng v. Reyes

Summary

The Oregon Court of Appeals affirmed the denial of Brett George Kleng’s petition for post-conviction relief. The court rejected claims concerning counsel’s failure to seek a judgment of acquittal, suppress a police interview, object to alleged vouching and improper closing argument, request a unanimity instruction and jury poll, and ensure that an Alford plea was knowing and voluntary. The court also held that cumulative error is not an independent ground for post-conviction relief.

Holdings

1. A post-conviction petitioner alleging ineffective assistance based on counsel's failure to file a motion must show that counsel unreasonably assessed the motion's strategic value or failed to understand existing law supporting it, and must establish that the motion would have succeeded and affected the outcome. Kleng failed to show a reasonable likelihood that a judgment of acquittal would have been granted because the evidence supported a finding of forcible compulsion.
2. Counsel was not constitutionally ineffective for declining to suppress the police interview when the decision was an informed strategic choice designed to place Kleng's repeated denials before the jury without requiring him to testify.
3. Counsel was not constitutionally ineffective for allowing statements concerning the victim's truthfulness and detectives' statements in the police interview because counsel pursued an objectively reasonable trial strategy with potential benefits to the defense.
4. Kleng failed to establish ineffective assistance based on counsel's failure to object to the prosecutor's closing argument because the prosecutor did not comment on Kleng's decision not to testify and the challenged other-acts argument was proper for a nonpropensity purpose.
5. The post-conviction court correctly denied relief on Kleng's claim that counsel was ineffective for failing to request a unanimity instruction and jury poll.
6. Kleng failed to establish ineffective assistance concerning his Alford plea because the post-conviction court's credibility findings regarding counsel and Kleng were supported by the record and established that he could not prove counsel's ineffectiveness.
7. Cumulative error is not an independent ground for post-conviction relief.

Questions Presented

1. Whether trial counsel provided constitutionally inadequate and ineffective assistance by failing to move for a judgment of acquittal on the forcible-compulsion element of first-degree unlawful sexual penetration and first-degree sexual abuse.
2. Whether trial counsel was ineffective for failing to move to suppress the entirety of Kleng's police interview.
3. Whether trial counsel was ineffective for failing to object to alleged vouching testimony concerning the victim's truthfulness and police statements during the interview.
4. Whether trial counsel was ineffective for failing to object to the prosecutor's closing argument as an improper comment on Kleng's decision not to testify and as an improper propensity argument.
5. Whether trial counsel was ineffective for failing to request a unanimity instruction and a jury poll.
6. Whether trial counsel was ineffective for failing to ensure that Kleng's Alford plea was knowing, voluntary, and intelligent.
7. Whether the cumulative effect of alleged trial errors provided an independent basis for post-conviction relief.

Disposition

affirmed