RICHARD MERSHON v. MILLER (2026)

Petitioner appeals from a judgment denying his claims for post-conviction relief from his convictions after a jury trial. Petitioner contends in his first two assignments of error that the post-conviction court erred in concluding that trial counsel was not ineffective in failing to consult with a firearms expert relating to a witness's claim that petitioner fired the pistol at him at “point blank” range. In his third and fourth assignments, petitioner contends that trial counsel was ineffective in failing to seek to obtain and introduce evidence of the blood alcohol content (BAC) of one of his victims in support of his claim of self-defense. In his fifth assignment of error, petitioner contends that trial counsel was ineffective in failing to call an expert witness, and in his sixth assignment, petitioner contends that trial counsel was ineffective in failing to contradict incorrect evidence presented by the state as to the number of shots he fired from his pistol. We conclude that the post-conviction court did not err and therefore affirm.

Petitioner's convictions arose out of an incident that occurred in a restaurant parking lot, as restaurant employees attempted to assist petitioner home after determining that he was too intoxicated to drive. During that incident, petitioner harassed two female restaurant employees as they tried to help him into the passenger seat of his vehicle, punched a bystander who attempted to intervene, punched a restaurant employee, shot at Rollins, a bystander, twice with his pistol (and missed), and shot and injured Trivelpiece, another bystander who tried to intervene, before threatening a third bystander who tried to help the injured man. During the melee, petitioner suffered a self-inflicted gunshot wound to the hand. While being treated for his own injury, petitioner told an EMT worker, “I hope I killed that mother fucker.”

For that conduct, after a jury trial, petitioner was convicted of two counts of attempted murder with a firearm (one count each as to Rollins and Trivelpiece), one count of first-degree assault with a firearm, two counts of unlawful use of a weapon, three counts of menacing, two counts of harassment, and one count of fourth-degree assault. We affirmed petitioner's convictions on appeal, except for the count of attempted murder with Rollins as the victim, which we reversed, because it was based on a nonunanimous jury verdict. See State v. Mershon, 311 Or App 232, 234, 489 P3d 626, rev den, 368 Or 514 (2021). We remanded the case to the trial court where the attempted murder charge was dismissed and not recharged.

Petitioner filed this petition for post-conviction relief, asserting that trial counsel was ineffective, in failing to: (1) consult a firearms expert; (2) introduce evidence or argue at trial that, if, as bystander Rollins testified, petitioner had fired shots at “point blank” range, there would have been gunshot residue present on his clothing; (3) investigate the BAC of bystander Trivelpiece; (4) present evidence of Trivelpiece's BAC; (5) call an expert witness to testify at the hearing on the state's motion to admit defendant's statements; and (6) explain to the jury that the evidence collected by law enforcement corroborated petitioner's version, rather than the state's, of how many shots he had fired.

On appeal, petitioner raises six assignments of error challenging the post-conviction court's ruling on each of those claims. We review the post-conviction court's rulings for errors of law. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). The post-conviction court's findings of historical fact are binding if there is evidence in the record to support them. Id. If the post-conviction court did not make express findings, we will presume that it decided the facts consistently with its conclusions of law. Id.

Petitioner is entitled to post-conviction relief under ORS 138.530(1)(a) if the record establishes

“[a] substantial denial in the proceedings resulting in petitioner's conviction, or in the appellate review thereof, of petitioner's rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.”

To prevail on a claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, the petitioner must show, by a preponderance of the evidence: (1) that trial counsel failed to exercise reasonable professional skill and judgment, and (2) that the petitioner suffered prejudice as a result, or that the error had a tendency to affect the result of the prosecution. Montez v. Czerniak, 355 Or 1, 7, 322 P3d 487, adh'd to as modified on recons, 355 Or 598, 330 P3d 595 (2014). Under the Sixth Amendment to the United States Constitution, the petitioner must show that counsel's performance was deficient and that the deficient performance caused prejudice to the defense. Strickland v. Washington, 466 US 668, 687, 104 S Ct 2052, 80 L Ed 2d 674 (1984). The state and federal standards are “functionally equivalent.” Montez, 355 Or at 6.

First and second assignments of error. Petitioner's first two assignments relate to trial counsel's failure to consult with a firearms expert relating to Rollins's statement that petitioner shot him at “point blank” range. The post-conviction court concluded that the claims were moot as to the charge of attempted murder of Rollins, because that charge had been dismissed, and that the only possible relevance of the evidence as to the other charges would be for impeachment of Rollins's credibility. In light of other corroborating evidence, the post-conviction court concluded that

“[t]rial counsel made a reasonable strategic decision not to pursue this issue. The primary issue was that petitioner fired a firearm near Rollins. Whether it was ‘point blank,’ one foot or some other distance was not a significant issue.”

Petitioner argues that effective trial counsel would have at least inquired of a firearms expert as to the likelihood of Rollins's claim of “point blank” range, in light of the absence of evidence relating to the presence of gunpowder residue on Rollins's clothing and would have argued that gunpowder residue would be present if the shot had been fired at point blank range.

The superintendent responds that trial counsel was not ineffective in failing to consult with an expert and introduce evidence of the absence of gunfire residue. Further, the superintendent argues, petitioner failed to establish prejudice as a result of any ineffectiveness of counsel, because the proposed evidence related to the charge of attempted murder of Rollins that was dismissed after we reversed petitioner's conviction on that count. Mershon, 311 Or App 232 at 234.

We agree with the superintendent that, in light of the dismissal of the charge to which the asserted ineffective assistance of counsel claim related, there could be no prejudice as to that claim. The proposed expert testimony would not have impeached evidence that petitioner shot Rollins; nor has petitioner shown how the evidence would have affected the jury's assessment of Rollins's credibility as to the other charges. We conclude that petitioner failed to establish prejudice as a result of any asserted deficiency of counsel and therefore reject petitioner's first and second assignments of error.

Third and fourth assignments of error. At trial, the state established that petitioner shot Trivelpiece in the neck as Trivelpiece approached petitioner. That petitioner shot Trivelpiece was not disputed.¹ Petitioner testified that Trivelpiece appeared to be intoxicated and that he shot Trivelpiece because he believed Trivelpiece was approaching to take his gun and feared that Trivelpiece might turn the gun on him. In his third and fourth assignments of error, petitioner contends that trial counsel was ineffective in failing to seek and to introduce evidence of Trivelpiece's BAC at the time of the incident, contending that the evidence would have corroborated petitioner's testimony that Trivelpiece appeared to be intoxicated and could have supported petitioner's claim that he shot Trivelpiece in self-defense.

The superintendent responds that petitioner's trial counsel was not ineffective, because trial counsel determined after consulting an expert that evidence of Trivelpiece's intoxication would not have helped petitioner's claim of self-defense. The superintendent further argues that petitioner has not shown prejudice as the result of any ineffectiveness of counsel.

We agree with the superintendent that counsel was not ineffective in failing to seek and to offer evidence of Trivelpiece's intoxication. A claim of self-defense involving the use of deadly physical force is established by evidence that the person reasonably thought that the other person was using or was about to use deadly physical force. ORS 161.219(3). There was an absence of evidence to support a belief that Trivelpiece was about to use deadly physical force. Additionally, in deciding not to seek evidence of Trivelpiece's BAC, trial counsel relied on the advice of an expert in self-defense, who advised that the defense of self-defense would likely be rejected under Oregon law, because there was no evidence that Trivelpiece had threatened petitioner with injury or death. We agree with the superintendent that trial counsel made a reasonable tactical decision in concluding that evidence of Trivelpiece's BAC would not aid in petitioner's defense and in deciding for that reason not to seek it. Thus, we conclude that trial counsel was not ineffective. See Pereida-Alba v. Coursey, 356 Or 654, 662, 342 P3d 70 (2015) (“We have been careful not to second-guess a lawyer's tactical decisions with the benefit of hindsight; rather, we have asked whether those decisions reflected, at the time they were made, a reasonable exercise of professional skill and judgment.”). We therefore reject petitioner's third and fourth assignments of error.

Fifth assignment of error. Petitioner was brought to the hospital after the incident for treatment of his self-inflicted hand wound. A detective came to petitioner's hospital room to take a photograph of petitioner's hand. The detective was aware that petitioner had received Miranda warnings and that he had asked for an attorney. After taking the photograph, the detective left petitioner's room; but petitioner called him back, saying that he wanted to tell him some things about some people he was having trouble with. The detective reminded petitioner that he had requested counsel; petitioner acknowledged the request but explained that that was for the limited purpose of a blood draw. Petitioner then told the detective about the people.

The detective then asked petitioner if he could ask him some questions, and petitioner consented, replying, “go ahead.” The detective then gave petitioner a second Miranda warning, which petitioner said he understood. In response to the detective's questions, petitioner made several statements. At trial, the state filed a motion to admit the statements.

At a pre-trial hearing on the state's motion, petitioner's trial counsel argued that the statements should be excluded from evidence as involuntary because of petitioner's alcohol consumption and pain medication. But trial counsel had consulted with an expert about whether the pain medication that petitioner had received at the hospital would have affected his ability to waive Miranda, and the expert advised that the pain medication “would not have altered his ability to waive.” Additionally, trial counsel's review of the discovery led him to conclude that petitioner was lucid at the time he made his statements to the detective. Thus, although trial counsel argued that the statements were involuntary, because they had been made while petitioner was under the effects of alcohol and pain medication, counsel decided not to call an expert at the pre-trial hearing on the state's motion.

The trial court allowed the state's motion to admit the statements, finding that they were voluntary. The trial court cited the detective's testimony that petitioner “was alert and responded appropriately when he spoke with him.” We affirmed that ruling on appeal. Mershon, 311 Or App at 234 (“We agree with the state that defendant reinitiated the conversation with the detective and, after Miranda warnings were re-administered, waived his right to counsel before any interrogation.”).

At the post-conviction hearing, petitioner provided the opinion of an expert that the combination of petitioner's alcohol intoxication and pain medication made petitioner “unable to give any kind of consent.” The post-conviction court rejected petitioner's claim that counsel was ineffective in failing to call an expert as to the voluntariness of petitioner's statements, finding that the evidence supported the trial court's finding that petitioner's statements to the detective were voluntary.

Petitioner contends in his fifth assignment of error that trial counsel was ineffective in not supporting his argument at the pretrial hearing with the testimony of an expert, who would have addressed whether petitioner's intoxication along with the pain medication would have impaired his ability to voluntarily waive his Miranda rights. Petitioner asserts that an expert could have supported counsel's argument that petitioner did not voluntarily waive his Miranda rights and that petitioner's statements to the detective should be excluded from evidence.²

We conclude that, in light of counsel having consulted with an expert concerning the effect of pain medication on petitioner's ability to voluntarily make statements, the decision not to offer an expert at the hearing reflected a reasonable strategic decision. Counsel was not required to look for a different expert for a different opinion. This was not one of those circumstances in which the inconclusive nature of the expert's opinion and the evidence would have called for defense counsel to consult with a different expert. Cf. Johnson v. Premo, 361 Or 688, 708, 399 P3d 431 (2017) (“[T]he information that the defense team had at hand should have prompted adequate counsel to seek additional information about the effects of the drugs found in the victim's body.”). We conclude that the post-conviction court did not err in determining that counsel was not ineffective.

Sixth assignment of error. In his sixth assignment of error, petitioner contends that the post-conviction court erred in denying petitioner's claim that counsel was inadequate in not explaining to the jury that evidence collected by law enforcement corroborated petitioner's testimony that he only fired two or three shots and not four, as the state asserted. We have reviewed the record and conclude that petitioner's trial counsel in fact made the argument that petitioner claims he should have made. At closing argument, trial counsel argued that two bullets were fired: “One is in the door and unfortunately one is in Mr. Trivelpiece's neck.” Additionally, as the post-conviction court correctly concluded, petitioner failed to demonstrate prejudice as a result of counsel's actions, as the charges against defendant did not depend on the number of shots that were fired.³

Affirmed.

FOOTNOTES

1.   During closing arguments, petitioner's trial counsel argued that petitioner fired two bullets: “One is in the door [of petitioner's vehicle] and unfortunately one is in Mr. Trivelpiece's neck.”

2.   The superintendent argues that petitioner broadens the arguments made below to include statements petitioner made to witnesses at the scene. We do not think that petitioner makes that argument.

3.   The post-conviction court found:“Petitioner did not prove that further argument about the shell casings would have tended to affect the outcome of the trial. There was no dispute that petitioner fired a gun, that victim Trivelpiece was shot, that one bullet was found in petitioner's car, and that Rollins was near petitioner's car when petitioner fired the gun. Petitioner testified he told police he did not hear anyone else fire a gun, and he believed he fired two to three shots. Whether 3 shots were fired or 4 was not a significant issue in the trial. Petitioner has failed to prove prejudice.”

TOOKEY, P. J.