GODIN v. HILL (2002)

Petitioner appeals from a judgment dismissing his petition for post-conviction relief from his convictions for attempted aggravated murder, ORS 163.095, and first-degree assault, ORS 163.185.   Although he raises several arguments, we reject all but one without discussion.   We address petitioner's argument that he received inadequate assistance of counsel because his trial counsel failed to object to the jury's guilty verdict on the attempted aggravated murder charge as inconsistent with its not guilty verdict on the predicate charge of first-degree robbery.   We affirm.

Petitioner was charged with multiple offenses arising out of a single incident, including two counts of attempted aggravated murder, one count of first-degree assault, and one count of first-degree robbery.   The amended indictment alleged that defendant committed one count of attempted aggravated murder in the course of committing robbery.   The jury unanimously found defendant guilty of that count of attempted aggravated murder and of the first-degree assault charge, and it found him not guilty of the first-degree robbery charge.

Petitioner's trial counsel did not object to the verdict on the attempted aggravated murder charge.   After the jury was discharged, however, petitioner moved for a new trial, arguing that his conviction on the attempted aggravated murder charge was inconsistent with his acquittal on the robbery charge.   The trial court denied the motion on three grounds:  (1) it was untimely made;  (2) the court was “not sure that [the verdict] isn't a consistent verdict”;  and (3) inconsistency of verdicts is not a basis on which to grant a new trial.   Petitioner's convictions were affirmed without opinion on direct appeal.   State v. Godin, 155 Or.App. 488, 967 P.2d 530 (1998), rev. den., 328 Or. 275, 977 P.2d 1173 (1999).   Petitioner then brought this action for post-conviction relief asserting, as pertinent here, that his trial counsel was inadequate in failing to make a timely objection to the allegedly inconsistent verdicts.   He appeals from the judgment dismissing his petition.

To prevail on his claim for post-conviction relief, petitioner must establish that his counsel failed to exercise  reasonable professional skill and judgment and that he was prejudiced as a result of that failure.  Davis v. Armenakis, 151 Or.App. 66, 69, 948 P.2d 327 (1997), rev. den., 327 Or. 83, 961 P.2d 217 (1998).   In this case, petitioner has not demonstrated that his counsel failed to exercise reasonable professional skill and judgment.   We need not consider the parties' arguments concerning whether the verdicts can be harmonized.   See State v. Mendez, 308 Or. 9, 14, 774 P.2d 1082 (1989) (if questioned verdicts can be harmonized, they are not legally inconsistent).   Even if the verdicts were inconsistent, we have followed the rule that jury verdicts in criminal cases need not be consistent.   See, e.g., State v. Bryan, 140 Or.App. 446, 447, 915 P.2d 482, rev. den., 324 Or. 464, 930 P.2d 851 (1996);  State v. Watkins, 67 Or.App. 657, 660, 679 P.2d 882, rev. den., 297 Or. 272, 683 P.2d 92 (1984).¹  We continue to adhere to that rule.

Petitioner's trial counsel was not inadequate in failing to object to the attempted aggravated murder verdict on the ground that it was inconsistent with the acquittal on the robbery charge.

Affirmed.

FOOTNOTES

1.   In Mendez, the Supreme Court was able to harmonize the questioned verdicts and, therefore, after noting this court's decisions, declined to consider its “authority to overturn criminal convictions on the ground of inconsistent verdicts.”  308 Or. at 14 n. 7, 774 P.2d 1082.

 BREWER, J.