Galloway v. Nooth

• Decision Date: 14 December 2011
• Docket Number: 09037239P; A143119.
• Citation: 268 P.3d 736,247 Or.App. 164
• Parties: Nathan GALLOWAY, Petitioner–Respondent, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant–Appellant.
• Court: Oregon Court of Appeals

247 Or.App. 164

268 P.3d 736

Nathan GALLOWAY, Petitioner–Respondent,

v.Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant–Appellant.

09037239P; A143119.

Court of Appeals of Oregon.

Argued and Submitted Oct. 6, 2010.Decided Dec. 14, 2011.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for appellant. With him on the briefs were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Dennis Balske, Portland, argued the cause and filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and BREWER, Chief Judge, and WOLLHEIM, Judge.^*SCHUMAN, P.J.

Petitioner brought this action for post-conviction relief after having been convicted of arson, first-degree burglary, reckless endangerment, attempted murder, and attempted aggravated murder. The post-conviction court granted a new trial on the ground that petitioner's trial counsel provided inadequate assistance (1) by failing to investigate and discover evidence that would have undermined the state's case that the threat posed by the fire was serious and (2) by failing to discredit petitioner's codefendant, who made statements to the police implicating petitioner in the charged crimes. Defendant appeals, arguing that petitioner's counsel was not constitutionally deficient; that, even if she was, petitioner was not prejudiced as a result; and that, in all events, the post-conviction court's grant of a new trial on all counts is an error apparent on the face of the record. We conclude that petitioner's defense was prejudicially affected by counsel's constitutionally deficient performance with respect to petitioner's convictions for attempted aggravated murder, attempted murder, and first-degree burglary, but not with respect to his other convictions. Accordingly, we vacate the judgment and remand for entry of a judgment granting post-conviction relief on the charges of attempted aggravated murder, attempted murder, and first-degree burglary, and denying such relief on all other charges.

The charges against petitioner in the underlying criminal case stemmed from the allegation that he set a fire in the basement garage of the home of Crook County Deputy District Attorney Ron Brown in the early morning hours on August 14, 2002, and another fire in a nearby park the following night. A grand jury indicted petitioner on nine counts of attempted aggravated murder, five counts of attempted murder, six counts of first-degree arson, two counts of first-degree burglary, four counts of recklessly endangering another person, and one count of second-degree arson. The second-degree arson charge was based on the fire at the park; all of the other counts were based on the fire at Brown's home. Two of petitioner's friends, Buker and Walsh, were also convicted of a number of offenses based on the fires. Buker went to trial after petitioner; Walsh entered into a plea agreement after Buker's trial.

Evidence of the following facts was presented at petitioner's criminal trial. On two occasions in May 2002, before the fires at issue in this case, petitioner was arrested, and Brown filed informations charging petitioner with fourth-degree assault and second-degree theft. When petitioner was lodged in the Crook County jail following his second arrest, he was intoxicated, and he made boisterous statements and threats, including, “I'm going to kill those fucking cops,” “[F]uck you and the government,” “Fuck the DA, I don't like the DA,” “Crook County Circuit Court, you make no fucking sense,” and, “I've killed hundreds of thousands of people.” Petitioner was later released.

Petitioner had a court appearance on August 8, 2002. Although Brown had filed the charges in that case, he was not the prosecutor appearing for the state. Later that day, petitioner told Buker that he was being prosecuted for something he did not do. He stated that he was “going to fix it” and was going to set something on fire or blow something up. Petitioner's statements were overheard by Prewitt, a friend of Buker's.

A few days later, Buker borrowed a bottle of rubbing alcohol from a neighbor.

On August 14, 2002, at around 1 a.m., petitioner was with Buker and Prewitt and again said that he was going to “fix somebody that was prosecuting him” by “blowing somebody up and blowing up a DA's house.” Prewitt testified at petitioner's criminal trial that she did not take him seriously at the time.

At about 3 a.m. the same day, Brown and his family awoke to a smoke detector sounding. Brown could smell smoke as he went down the stairs to the main floor of the house. He did not see any smoke on that floor, so he opened the door leading to the basement garage. The stairwell was full of smoke. He slammed the door shut and called 9–1–1 while his wife got their three children out of the house. Two police officers, McMurrian and Bottoms, responded to the call. McMurrian, who arrived first, found the garage door open and a fire burning inside. The garage was filling with smoke. According to McMurrian, when he first went into the garage, the fire was six to seven feet across and the flames were six to seven feet high and were hitting the exposed joists above. He attempted to put it out with a fire extinguisher, but the fire continued to burn after the extinguisher was exhausted. He and Bottoms then retrieved a garden hose that Brown had pulled around from the side of the house. According to Brown, the flames were five to six feet high at that point. The officers put the fire out with the hose. The fire department arrived shortly thereafter.

The fire had burned some clothing and a scarecrow that were piled on an area rug on the concrete floor, in front of the washer and dryer. Various small plastic items were found in the pile, melted and burned, including some toothbrushes and two spare wheels from a stroller. The Browns used their garage as a storage room. Items in the garage included children's and adults' bicycles, a baby crib, a high chair, and toys. A gasoline can was within 10 feet of the fire. Brown checked the can and found that it contained the same amount of gasoline that it had before the fire. Other than the items in the pile and the rug, nothing was burned. However, a section of the heating duct along the ceiling in the garage had been removed and was lying on the floor. Brown said that the duct had been intact the day before.

Petitioner was seen by the police two blocks from the Browns' house shortly after the fire there was extinguished. He told them that he had seen the fire trucks go by and was trying to see what was going on.

The firefighters concluded that the fire resulted from spontaneous combustion caused by compression of bleach and laundry detergent. They began to clean up the fire scene. Later in the day, Brown put some of the burned items in the garbage, which was picked up the same day.

The next night, at about 1:30 a.m., a fire was set at Ochoco Creek Park. Several items, including cups from a nearby convenience store and the top half of a package of chewing gum, were found at the scene. McMurrian and Bottoms, who both responded to that fire as well, went to the convenience store and learned that petitioner, Buker, Walsh, and a woman, Close, had been there earlier in the night, and that Close had purchased the same kind of gum as the package found in the park. The officers went to Buker and Walsh's apartment, which was within two blocks of the park and three blocks of Brown's house. As they were arriving, they saw petitioner and Buker walking toward the apartment from the direction of the park. Bottoms told petitioner that it was suspicious that he had been seen near both fires, to which petitioner replied that Bottoms “couldn't prove anything.” The officers went into the apartment, where they found Close. Bottoms found the other half of the chewing gum package in Buker's bedroom.

Later that morning, at about 8:30, an Oregon State Police arson detective, Kollen, went to the park to investigate. He found that there were actually two separate fires started there. A partially burned piece of notebook paper was found at the starting point of one of them. Kollen concluded that the fires had been intentionally set. The paper was later matched to a notebook belonging to Buker.

After investigating the park fire, Kollen went to the Browns' house. He had been told that the fire department had concluded that the fire there was caused by spontaneous combustion. When he arrived, he immediately saw the disconnected heating duct and became suspicious. The remains of the burned clothing had been rolled up in a piece of carpet and were sitting outside the house. Kollen picked through the remains and found a burned book of matches. The Browns did not keep matches in the house. Kollen concluded that the fire there was also an arson.

At petitioner's criminal trial, Kollen testified that he had not smelled any accelerant at the Browns' house but that he believed one had likely been used to start the fire, because clothing generally does not readily burn, and it appeared to him that the items in the pile had “burned pretty good.” He testified that petroleum-based accelerants often leave a “sheen” that is visible when water is poured on the area where the fire started. He said he had poured water on the garage floor and that there was no sheen. He therefore suspected that alcohol, which does not leave any sheen, had been used. Kollen acknowledged that a crime lab report indicated that no flammable liquid was found on items from the fire that were tested, but he testified that the crime lab cleans its equipment with alcohol, so items are not tested for alcohol unless that test is specifically requested, in which case the equipment is first cleaned with another substance. Testing for alcohol was not requested in this case, he said, so it was to be expected that the report would show that no alcohol was found. Kollen did not explain why the test was...