| On April 25, 2015, police in Medford, Oregon, were called to a house on Grand Avenue to investigate a possible burglary and assault.
Officer Brandon Amaya would later write in his report that 17-year-old Jesse Howe told him that Howe’s uncle, 34-year-old Dale Wilson, came to the house, punched Howe in the face, and then stole money and jewelry from Howe’s bedroom.
Wilson’s mother, 70-year-old Madeline Churruca, also lived in the house. According to Amaya, Churruca said that she saw Wilson pick up Howe’s wallet and remove some cash. She also said that Wilson had taken a necklace and a watch from Howe’s room, using a butter knife to open the lock.
Police arrested Wilson a few hours later at a different house and charged him with first-degree burglary, third-degree robbery, misdemeanor assault, and possession of methamphetamine.
According to the arresting officers, Wilson said that Howe had attacked him and that Wilson had the missing items but wouldn’t tell the officers where they were. The officers obtained a search warrant, but the items were not found.
Wilson’s trial in Marion County Circuit Court began in February 2016. He was represented by Mark Hendershott.
Churruca testified that Wilson had been in the process of moving out of her house but still had some boxes in his old room, which was now being used by Howe, her grandson.
She said that Howe had rummaged through those boxes and found a bottle of whiskey, which Churruca then poured out. When Wilson learned about this, Churruca said, he became upset and wanted her to pay for the liquor. Churruca said she told Wilson over the phone that she wouldn’t pay for the whiskey. She said Wilson responded that he was coming over to the house to talk to her. She said Wilson told her to keep Howe away from him.
After Wilson arrived, Churruca testified, he and Churruca spoke. Then Howe entered the house and came up to Wilson. They fought, hitting each other and breaking things in the house. Howe left, and Wilson used a butter knife to jimmy the lock on his old bedroom. Churruca said this was also how she got into the room when it was locked. She testified that she saw Wilson rifle through Howe’s dresser and take some jewelry. She did not see him take Howe’s wallet.
At the time of the trial, Howe was in jail on his own charges. He had also said prior to the trial that he was mistaken and had found the items he thought were missing. During direct examination, the prosecutor asked Howe a series of questions about the statement he gave to Officer Amaya. Each time, Howe answered that he didn’t remember.
Amaya testified about his response to the 911 call and the statements he took from Howe and Churruca. Amaya testified that he was told that the dispute started over a $15 bottle of liquor. He said that Howe told him that Wilson punched him in the face, whipped him with a lanyard that had keys attached to the end, and then took $42 from Howe’s wallet. He contradicted Churruca’s testimony and said that she told him that she saw Wilson remove cash from Howe’s wallet. Amaya also testified that Howe and Churruca each said that Wilson had damaged the door when he opened it with the butter knife.
During his opening statement, the prosecutor had told jurors that it was quite possible that Howe and Churruca would testify falsely to protect Wilson. In his closing argument, he returned to this theme. He said that Howe was in a difficult spot because he was in jail.
“He’s got to be able to go back and say, ‘I didn’t—I didn’t testify,’” the prosecutor said. “And so that’s what he did. But look what we know. The officer went out there, he spoke to Madeline separately and spoke to Jesse separately and he gets exactly the same facts, exactly the same facts. And he says they were—they were emotional, they were—they were worked up. So, I don’t know what Mr. Hendershott would have you believe, that they concocted this whole story and for what purpose and then to only retract it later?”
The jury convicted Wilson on the burglary, robbery, and assault charges on February 10, 2016, and acquitted him of the drug charge.
Prior to sentencing, Wilson filed a pro se motion to set aside the verdict. The judge denied the motion and sentenced Wilson to four years in prison.
Wilson’s conviction was affirmed on appeal a year later.
On November 21, 2018, Wilson filed a pro se motion for post-conviction relief, asserting that Hendershott had provided ineffective representation. The motion said Hendershott fell short in a number of ways: he had failed to object to the prosecutor’s opening statement, where he said the state’s witnesses might be lying; he had failed to move for acquittal on the burglary charge and challenge the trial judge’s jury instructions on this charge; and he had failed to object to the admission of Amaya’s testimony on Howe’s and Churruca’s statements as hearsay evidence.
Attorney Scott Howell was appointed to represent Wilson, and he filed an amended motion on July 2, 2019. This motion included a declaration from Churruca, which said that Hendershott didn’t interview her prior to the trial. Churruca said in the declaration that at the time of the incident, Wilson was in the process of moving but was still regularly visiting the house.
“On the day in question, he still had a right to be at the home,” Churruca said. “He had paid his rent for the month and was not expected to be totally out of the home until the end of the month. During trial, [Wilson’s attorney] did not ask me any questions about [Wilson] paying rent and did not inquire as to whether he had full access to the home as a tenant until the end of the month.”
The petition was further amended to include a declaration from Howe, dated December 18, 2019. Howe said he was the aggressor in the fight with Wilson and that Hendershott did not interview him before the trial nor ask him any questions on cross-examination. If he had, Howe said he would have answered that he started the fight and that Wilson did not steal any items.
Wilson was released from prison on December 30, 2019.
Judge Patricia Sullivan of Marion County Circuit Court denied the motion on January 28, 2020. She wrote: “Mr. Howe and Ms. Churruca, Petitioner's nephew and mother, have repeatedly changed their statements. Mr. Howe was uncooperative at trial, repeatedly answering that he failed to remember what happened or what he told police. His present recantation and statements as to what he would have said at trial are not credible. His statement now that Petitioner did not take his belongings is not credible, particularly in light of Petitioner's admission to the investigating officer that he had taken the items.”
Wilson appealed. On February 2, 2022, a three-judge panel of the Oregon Court of Appeals granted him a new trial, based on Hendershott’s failure to object to the admission of Amaya’s testimony about statements he said were made by Howe and Churruca. It did not address the other issues in the appeal.
The appellate court agreed that these statements were hearsay and inadmissible. The state, in its filings, had argued that these statements fell under exceptions to the hearsay rule, either as “excited utterances” or as statements concerning domestic violence. But the appellate court said these exceptions didn’t apply. The ruling said that although there was evidence that Howe and Churruca were upset, “Evidence of someone being generally ‘upset’ or ‘emotional’ is slim proof of the type of emotional state necessary for a statement to qualify as an excited utterance.”
The court also said that the relationship between Howe and Wilson didn’t meet the statutory definitions covered under the domestic violence exception.
On a motion by prosecutors, a judge dismissed the charges against Wilson on August 11, 2022.
– Ken Otterbourg
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