Cole v. Cupp

475 P.2d 428 (1970)

Steven COLE, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

Court of Appeals of Oregon, Department 1.

Submitted on Briefs September 15, 1970.

Decided October 15, 1970.

Rehearing Denied November 12, 1970.

Review Denied December 15, 1970.

*429 Gary D. Babcock, Public Defender, and Ken C. Hadley, Deputy Public Defender, Salem, for appellant.

Lee Johnson, Atty. Gen., Jacob B. Tanzer, Sol. Gen., and Jim G. Russell, Asst. Atty. Gen., Salem, for respondent.

Before SCHWAB, C.J., and FOLEY and FORT[*], JJ.

FOLEY, Judge.

Petitioner, a Negro, was convicted of statutory rape on a 15-year-old white girl and sentenced to 15 years' imprisonment. He appealed to the Supreme Court and the conviction was affirmed, 244 Or. 455, 418 P.2d 844 (1966). Petitioner, who was represented at the trial of conviction by a court-appointed Negro attorney, now applies for post-conviction relief.

Petitioner's claims are not properly before this court because the petition sets forth no reason why the points were not raised on direct appeal. Bias v. Cupp, Or. App., 89 Adv.Sh. 967, 462 P.2d 684 (1969), reh. den. 90 Adv.Sh. 195, 464 P.2d 721 (1970). However, in the interests of time and judicial economy, we have elected to discuss the claims rather than consider whether remand for possible amendment would be appropriate.

First, petitioner claims that he reasonably believed that the victim of the rape was over 16 years of age and, therefore, the intent to commit rape was absent. It is well settled law in Oregon that the only elements of statutory rape are sexual intercourse and the girl's age in fact. ORS 163.210.[1] State v. Gauthier, 113 Or. 297, 231 P. 141 (1924).

Second, the petitioner claims the prosecution suppressed evidence of prior sexual misconduct of the complaining witness and one other witness. Petitioner does not claim he made any request to the prosecutor for the information but merely that the prosecution suppressed the evidence by not voluntarily informing petitioner of its existence. State v. Simms, Or. App., 90 Adv.Sh. 1725, 471 P.2d 821 (1970), citing Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), sets forth the rule that a defendant must request information before he may complain that the prosecution suppressed evidence.

Petitioner's third claim is that his "court appointed counsel was a Negro and therefore incompetent to effectively represent petitioner against serious crime involving heated racial tension." Understandably petitioner cites no cases in support of this proposition. But, more important, he failed to sustain the burden which is upon him to produce evidence supporting his claim of counsel's incompetence.

Petitioner's fourth claim is that he was denied effective assistance of counsel at trial in that his counsel, when a juror apparently asserted he knew petitioner, failed to inquire into the nature of this knowledge and failed to challenge the juror. There is no indication that petitioner was in any particular way harmed by the presence of this juror on the jury. Retrospective suspicion furnishes no basis for a charge of disservice of counsel. For all that appears, the reason for not questioning the juror further or not challenging him may have been part of defendant and his counsel's trial strategy. Wheeler v. *430 Cupp, Or. App., 90 Adv.Sh. 1503, 470 P.2d 957 (1970). In any case there was nothing alleged or shown in connection with this claim which constitutes incompetent performance by counsel.

Affirmed.

[*] FORT, J., did not participate in this decision.

[1] ORS 163.210:

"(1) Any person over the age of 16 years who carnally knows any female child under the age of 16 years * * * is guilty of rape * * *."

"* * *."