State v. Galloway
| Decision Date | 10 October 2018 |
| Docket Number | A159696 |
| Citation | 431 P.3d 432,294 Or.App. 345 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Nathan Wayne GALLOWAY, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Bear Wilner-Nugent, Portland, argued the cause and filed the brief for appellant.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
We consider this criminal case for the fourth time following our prior decisions in State v. Galloway , 202 Or. App. 613, 123 P.3d 352 (2005) ( Galloway I ), vac’d and rem’d , 345 Or. 315, 195 P.3d 62 (2008), State v. Galloway , 225 Or. App. 67, 200 P.3d 175 (2009)( Galloway II ), and Galloway v. Nooth , 247 Or. App. 164, 268 P.3d 736 (2011) ( Galloway III ). Defendant appeals the supplemental judgment of conviction that was entered following his limited retrial on several counts, raising six assignments of error. We reject defendant’s third through sixth assignments of error without further discussion. We write only to address defendant’s first and second assignments of error, in which he argues that the trial and instructing the jury "that defendant was guilty of arson and recklessly endangering another person [as a matter of law,] and that those issues were removed from the jury’s consideration." For the reasons that follow, we affirm.
The pertinent facts are mostly procedural and undisputed. To minimize confusion about the parties when describing several proceedings, we refer to defendant throughout this opinion as "defendant" even when he was the petitioner for post-conviction relief in Galloway III . We refer to the responding party in Galloway III as the superintendent.
In May 2002, defendant was charged by Crook County’s Chief Deputy District Attorney, Ron Brown, with two counts of third-degree theft, one count of fourth-degree assault, three counts of resisting arrest, one count of disorderly conduct, one count of furnishing alcohol to a minor, and one count of minor in possession of alcohol. Galloway I , 202 Or. App. at 615, 123 P.3d 352. In August 2002, two fires occurred. Id. at 616, 123 P.3d 352. The first fire occurred in the Brown family home at approximately 3:30 a.m. Id. As Brown’s home was filling with smoke, Brown woke up and was able to evacuate with his wife and three children. Galloway III , 247 Or. App. at 167, 268 P.3d 736.
The second fire occurred at Ochoco Creek Park, a few blocks from Brown’s home. Galloway I , 202 Or. App. at 616, 123 P.3d 352.
Defendant was subsequently arrested and indicted on 27 charges stemming from the two fires. Id. at 615-16, 123 P.3d 352. At defendant’s first trial, he was found guilty of all 27 charges—nine counts of attempted aggravated murder, ORS 161.405 ; ORS 163.095 (Counts 1-9), five counts of attempted murder, ORS 161.405 ; ORS 163.115 (Counts 10-14), six counts of first-degree arson, ORS 164.325 (Counts 15-20), two counts of first-degree burglary, ORS 164.225 (Counts 21 and 22), four counts of recklessly endangering another person, ORS 163.195 (Counts 23-26), and one count of arson in the second degree, ORS 164.315 (Count 27). Id. at 615 n. 1, 123 P.3d 352. "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." Galloway III , 247 Or. App. at 166, 268 P.3d 736.
Defendant appealed and, in Galloway I , we exercised our discretion to "vacate[ ] defendant’s sentences and remanded for resentencing because the trial court had [plainly erred when it] imposed a departure sentence based on a judicial finding that defendant’s crime had created a serious risk to human life." Galloway II , 225 Or. App. at 69, 200 P.3d 175. The Supreme Court vacated our decision in Galloway I and remanded the case to us to determine whether we had properly exercised our discretion to correct the plain error. Id. On remand from the Supreme Court, in Galloway II , we "conclude[d] that, under Ramirez , our exercise of discretion in Galloway I was erroneous," and we affirmed defendant’s convictions. Id.
Defendant then brought an action for post-conviction relief, and the post-conviction court granted a new trial on all of defendant’s convictions on the ground that defendant’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 [defendant’s] codefendant." Galloway III , 247 Or. App. at 166, 268 P.3d 736. The superintendent of the Snake River Correctional Institution appealed, arguing that the post-conviction court had erred in concluding that defendant’s counsel provided inadequate assistance and, alternatively, that, if defendant was entitled to relief, "it should extend only to the attempted murder and attempted aggravated murder convictions." Id. at 181, 268 P.3d 736.
We concluded that the post-conviction court did not err in concluding that defendant’s trial counsel provided inadequate assistance by failing to investigate and discover evidence that the threat posed by the fire was serious because "[t]he state’s case as to intent to kill rested to a significant degree on the evidence of the threat posed by the fire." Id. at 183, 268 P.3d 736. We further concluded that, "with respect to the charges that contained, as an element, intention to kill, [defendant] was prejudiced by [trial counsel’s] failure to provide adequate assistance of counsel, and furthermore, that [defendant] is entitled to post-conviction relief on those charges." Id. at 184-85, 268 P.3d 736. With respect to trial counsel’s failure to discredit defendant’s codefendant, we concluded, however, that "[t]rial counsel’s treatment of [the codefendant’s] testimony was not constitutionally inadequate." Id. at 185, 268 P.3d 736.
Id. at 186, 268 P.3d 736 (). Our disposition of the case stated, "Judgment vacated and remanded for entry of judgment granting petition for post-conviction relief with respect to convictions for attempted aggravated murder, attempted murder, and burglary in the first degree, and denying such relief on all other convictions." Id.
On remand, the post-conviction court entered a judgment that granted post-conviction relief according to our disposition. That judgment provided, in pertinent part:
That judgment also provided that it "shall constitute a final judgment for purposes of appellate review and for purposes of res judicata ."
On remand to the trial court, defendant was retried on nine counts of attempted aggravated murder (Counts 1-9), five counts of attempted murder (Counts 10-14), and two counts of first-degree burglary (Counts 21 and 22). The state filed a pretrial "motion for issue preclusion as to defendant’s being guilty of [the] crimes of arson and recklessly endangering another." The state relied on State v. Boots , 315 Or. 572, 848 P.2d 76, cert. den. , 510 U.S. 1013, 114 S.Ct. 606, 126 L.Ed.2d 571 (1993) ( Boots II ), to argue that defendant should be precluded from "relitigating the issues giving rise to his conviction for arson in the first degree" and that it should be allowed "to use the defendant’s prior conviction as proof of an element of the crime[s]" of attempted aggravated murder, attempted murder, and first-degree burglary. Defendant relied on State v. Davis , 265 Or. App. 179, 335 P.3d 1266 (2014), arguing that " Davis clearly holds that the offensive use of issue preclusion against a defendant is constitutionally inappropriate."
The trial court agreed with the state that Boots II is the controlling authority. The court reasoned that, in Davis , "the original jury found defendant guilty...
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