Yann v. Bowser , 301 Or. App. 720 ( 2020 )

720
Submitted December 23, 2019; reversed and remanded on second claim for
relief, otherwise affirmed January 15, 2020
MICHAEL WILSON YANN,
Petitioner-Appellant,
v.
Troy BOWSER,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
16CV28334; A168272
459 P3d 272
Petitioner was convicted of attempted aggravated murder and unlawful use
of a weapon (two counts each) for shooting at two police officers while intoxicated.
His defense theory at trial, that he was too intoxicated to form criminal intent,
was undercut when his expert witness admitted that the analysis of petitioner’s
intoxication level assumed that petitioner consumed no alcohol after the shoot-
ing. In his second claim for relief in this post-conviction proceeding, petitioner
alleges that trial counsel was ineffective for not calling his wife to testify that
petitioner had not consumed alcohol after the time of the shooting. The super-
intendent moved for summary judgment on that claim on the ground that peti-
tioner would not be able to come forward with admissible evidence on that point,
and that any evidence brought by petitioner would be cumulative because other
witnesses testified that petitioner was intoxicated when he shot at the officers.
Petitioner responded by submitting an affidavit from his wife, explaining that
she could have testified that petitioner did not drink alcohol after his encounter
with the police. The post-conviction court granted the superintendent’s motion
nonetheless, concluding that petitioner had not supported the claim with rele-
vant, admissible evidence and that, to the extent that he had, the evidence was
cumulative. Petitioner appeals, assigning error to the court’s grant of the motion
and arguing that the affidavit is relevant, admissible, and noncumulative evi-
dence. Held: The post-conviction court erred in granting the superintendent’s
motion for summary judgment because petitioner’s affidavit was relevant, admis-
sible, and not cumulative.
Reversed and remanded on second claim for relief; otherwise affirmed.
J. Burdette Pratt, Senior Judge.
Lindsey Burrows and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Cite as 301 Or App 720 (2020) 721
Before Lagesen, Presiding Judge, and Powers, Judge, and
Brewer, Senior Judge.
LAGESEN, P. J.
Reversed and remanded on second claim for relief; other-
wise affirmed.
722 Yann v. Bowser
LAGESEN, P. J.
Petitioner appeals a judgment denying his peti-
tion for post-conviction relief, assigning error to the post-
conviction court’s grant of summary judgment to the super-
intendent on petitioner’s second claim for relief. We conclude
that the court’s grant of summary judgment was erroneous
and reverse the judgment as to the second claim for relief.
We review the trial court’s grant of summary judg-
ment for legal error “to determine whether there is no gen-
uine issue of material fact and the moving party is entitled
to judgment as a matter of law.” Evans v. City of Warrenton,
283 Or App 256, 258, 388 P3d 1167 (2016); ORCP 47 C. In
so doing, we view the facts in the light most favorable to the
nonmoving party, in this case, petitioner. Woodroffe v. State
of Oregon, 292 Or App 21, 24, 422 P3d 381 (2018).
While intoxicated, petitioner shot at two police offi-
cers. He then barricaded himself in his house for several
hours before surrendering to police. For that conduct, he
was charged with, and convicted of, two counts of attempted
aggravated murder and two counts of unlawful use of a
weapon. At trial, petitioner’s defense was that he was so
intoxicated that he was not capable of forming criminal
intent with respect to any of the charges against him. In sup-
port of that defense, petitioner called an expert, Dr. Julien.
Julien opined, based on a retrograde extrapolation analysis
of petitioner’s blood alcohol content (BAC) following arrest,
that petitioner’s BAC at the time of the shooting was around
.25 percent. Julien opined further that petitioner was suf-
fering from alcohol dementia, impairing his ability to form
intent. On cross-examination of Julien, the prosecutor
impeached him by eliciting the fact that his BAC analysis
was predicated on the assumption that petitioner had not
consumed any more alcohol during the time in which he was
barricaded in his home following the shooting.
Following an unsuccessful appeal, petitioner initi-
ated this post-conviction proceeding. Pertinent to the issue
before us, petitioner alleged in his second claim for relief
that trial counsel was inadequate and ineffective, in viola-
tion of Article I, section 11, of the Oregon Constitution and
the Sixth Amendment to the United States Constitution, for
Cite as 301 Or App 720 (2020) 723
not eliciting from his wife testimony to support a finding
that petitioner did not drink during the time he was barri-
caded in his house. Such testimony, petitioner alleged, would
have undercut the prosecution’s impeachment of Julien.
After unsuccessfully moving to dismiss, the super-
intendent moved for partial summary judgment, assert-
ing that summary judgment was warranted on the second
claim for relief for two different reasons. First, incorporat-
ing by reference arguments made in the motion to dismiss,
the superintendent argued that petitioner’s second ground
for relief was “moot” because there was other evidence
introduced at trial showing that petitioner was very intox-
icated at the time of the shooting. Second, the superinten-
dent argued that summary judgment would be required
if petitioner failed to produce an affidavit from his wife to
support the claim. Noting that, up to that point, petitioner
had supported his claim with his own sworn testimony, the
superintendent argued that ORCP 47 required him to sub-
mit that testimony from his wife rather than from himself:
“Accordingly, to overcome summary judgment, petitioner
must attach the sworn testimony of his wife (Claim II) * * *
in order to meet the admissible evidence requirement of
ORCP 47D.”
In response to the superintendent’s motion, peti-
tioner submitted an affidavit from his wife. In it, she
explained that she would have been able to testify at trial,
based on her knowledge of the alcohol that she and peti-
tioner had in their home both before and after the incident,
that “it did not appear [petitioner] had consumed further
alcohol in our home after he returned.” She further averred
that she had told counsel that she would be able to testify in
that manner.
The post-conviction court granted the superinten-
dent’s motion, ruling that “[p]etitioner has failed to support
claim II with any relevant and admissible evidence, and
such proposed evidence itself would be cumulative since
the same evidence came in through scientific and other wit-
nesses.” Following a trial on the claims for relief not resolved
by summary judgment, the post-conviction court entered a
judgment denying relief. Petitioner appealed. On appeal,
724 Yann v. Bowser
petitioner contends that the post-conviction court erred
in granting summary judgment on the second ground for
relief. The superintendent contends otherwise.
Petitioner is correct that on this record the super-
intendent was not entitled to summary judgment on the
grounds on which it was sought.
First, to the extent the superintendent sought sum-
mary judgment on the ground that petitioner would not
be able to produce an affidavit from his wife, petitioner
did exactly that. Perhaps more importantly, that affidavit
demonstrates that, had petitioner’s wife been asked about
the alcohol in the couple’s household, she could have testi-
fied, based on her personal knowledge of the alcohol sup-
ply, that it did not appear that petitioner had consumed any
while barricaded in the house—testimony that could have
undercut the state’s impeachment of Julien, as petitioner
alleges. In other words, petitioner came forward with evi-
dence that was relevant and admissible with respect to the
second claim for relief.
Second, as for the superintendent’s other stated
basis for summary judgment—that the claim was “moot”
because other evidence of defendant’s intoxication was
presented at trial, making defendant’s wife’s testimony
cumulative—it is not entirely clear why that would be a basis
for summary judgment. That argument does not engage
with the elements of an ineffective-assistance-of-counsel
claim at all, leaving us at somewhat of a loss as to how
the argument is germane to whether summary judgment
is warranted. Regardless, the testimony that petitioner
claims trial counsel should have elicited from his wife about
whether the household alcohol supply diminished while peti-
tioner was barricaded in the house was not cumulative of the
other evidence presented at trial. More to the point, the evi-
dence would have served a purpose not served by the other
evidence at trial: undermining the state’s impeachment of
Julien. The post-conviction court erred in concluding other-
wise that the evidence was cumulative.
The superintendent argues that we should affirm
the grant of summary judgment nonetheless. He does so by
recasting the legal issue presented as “whether petitioner,
Cite as 301 Or App 720 (2020) 725
in response to the superintendent’s motion for summary
judgment on his second claim for relief, sufficiently estab-
lished that if his trial counsel failed to provide constitution-
ally adequate assistance in the respect alleged he, in fact,
suffered prejudice as a result that would warrant granting
him post-conviction relief.” (Emphasis in original.) But the
superintendent’s motion did not put at issue in any clear
way the sufficiency of the evidence showing prejudice. As a
result, the superintendent’s argument on appeal about prej-
udice does not supply a basis for affirming the grant of sum-
mary judgment. Eklof v. Steward, 360 Or 717, 736, 385 P3d
1074 (2016).
Reversed and remanded on second claim for relief;
otherwise affirmed.