McMillan v. Kelly

304 Or.App. 299

467 P.3d 791

Patrick Allen MCMILLAN, Petitioner-Appellant,

v.Brandon KELLY, Superintendent, Oregon State Penitentiary, Defendant-Respondent.

A163801

Court of Appeals of Oregon.

Argued and submitted March 8, 2019.

May 20, 2020

Jason Weber argued the cause for appellant. Also on the brief was O'Connor Weber LLC.

Greg Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

In 2007, a woman, C, who had stolen a necklace belonging to petitioner's wife was, among other things, kidnapped, assaulted, and strangled. For petitioner's role in the crimes committed against C, he was charged with 13 offenses. During petitioner's criminal trial, the prosecutor put to the jury a theory of criminal liability in which petitioner turned C's domestic partner, Kenny McKee, "into a weapon."¹ The prosecutor argued, among other points, that, even if petitioner did not intend for many of the crimes committed against C to happen, he was nevertheless criminally responsible for them, as he put criminal conduct committed by Kenny into motion.

A jury ultimately convicted petitioner of 12 offenses. Petitioner sought post-conviction relief and now appeals a judgment denying him that relief, raising three assignments of error. All three assignments concern a theory of accomplice liability and the "natural and probable consequence" jury instruction given during his 2009 criminal trial, which have since been declared by the Supreme Court to be a misstatement of Oregon law. State v. Lopez-Minjarez , 350 Or. 576, 582, 260 P.3d 439 (2011).

In his first assignment of error, petitioner contends that his trial counsel was inadequate and ineffective for failing to object to the natural-and-probable-consequence instruction and, in his second assignment of error, he contends that his trial counsel was inadequate and ineffective for failing to object to the prosecutor's closing argument that misstated Oregon law as to accomplice liability. In petitioner's third assignment of error, he contends that his appellate counsel was inadequate and ineffective during petitioner's direct appeal for failing to assign plain error to the trial court giving the natural-and-probable-consequence jury instruction.

For the reasons that follow, we conclude that petitioner's trial counsel's performance was deficient when he failed to object to the natural-and-probable-consequence instruction and failed to object to the prosecutor's closing argument regarding accomplice liability, and that that deficient performance prejudiced petitioner as to some, but not all, of his convictions. We reverse and remand with instructions to grant relief on Counts 2 to 10 and Count 12. We reject petitioner's third assignment of error.

I. BACKGROUND

In 2007, a necklace was stolen from petitioner's house by the victim, C. C lived with Kenny, her domestic partner, in a trailer on Schaffer Road. On December 7, 2007, C was injured when petitioner and Kenny undertook to retrieve the necklace from C. Both Kenny and petitioner were arrested and charged for conduct that the state believed that they engaged in when attempting to retrieve the stolen necklace.² More specifically, an amended indictment charged petitioner with thirteen crimes: attempted murder with a firearm, ORS 161.405 and ORS 163.115 (Count 1); first-degree kidnapping with a firearm, ORS 163.235 (Count 2); second-degree assault with a firearm, ORS 163.175 (Count 3); third-degree assault with a firearm, ORS 163.165 (Count 4); fourth-degree assault, 163.160 (Count 5); strangulation, ORS 163.187 (Count 6); two counts of coercion with a firearm, ORS 163.275 (Count 7 and 8); menacing, ORS 163.190 (Count 9); recklessly endangering another person, ORS 163.195 (Count 10); felon in possession of a firearm, ORS 166.270 (Count 11); unlawful use of a weapon, ORS 166.220 (Count 12); and first-degree burglary with a firearm, ORS 164.225 (Count 13).

Petitioner pleaded not guilty to the charges against him and proceeded to trial.

A. C's Trial Testimony

During petitioner's trial, the state relied principally on C's testimony. She testified to the following version of events:

C was at petitioner's house and, while there, she took a necklace from the bathroom counter. Later, upon learning petitioner was looking for the necklace, C hid the necklace in someone else's house. Shortly thereafter, C and Kenny were staying at the trailer on Schaffer Road, which was located on property owned by J. At approximately 3:00 a.m. on December 7, 2007, C woke up to someone banging on the trailer door. C opened the door and saw petitioner and Kenny's cousin, Gary McKee, standing outside. Petitioner and Gary entered the trailer, and C sat on her bed. Petitioner grabbed C by her shirt, dragged her over to a bench in the trailer, and asked her "where the fuck his necklace was."

C denied knowing where the necklace was, and petitioner told her that he was going to "hit [her] like a man if [she] didn't give it up." After C repeatedly denied knowing where the necklace was, petitioner started hitting her. Gary then left the trailer. C did not want petitioner to remain in the trailer at that point. Additionally, after petitioner started hitting C, C saw that petitioner had a gun and that petitioner had set the gun on the table next to C.

Petitioner then told Kenny to "check his bitch," that petitioner wanted his necklace back, and that petitioner was going to kill both Kenny and C. Kenny then started hitting C. At that point, both petitioner and Kenny were yelling at C about the necklace.

Petitioner then rubbed the gun against C's face. Petitioner and Kenny then made threats to hurt C's son if C did not return the necklace, and took turns beating her. Additionally, Kenny said to petitioner, "let's just kill [C]." Eventually, Kenny choked C and she lost consciousness. At some point prior to Kenny choking C, both petitioner and Kenny hit C in the face with the gun.

When C awoke, Kenny, again, beat C. Petitioner said, "We're just going to kill her," and shot the gun at C from approximately two feet away. The bullet went within a foot of the left side of her face. At that point, C told petitioner and Kenny where the necklace was.

Petitioner told C that she could not leave the trailer until her wounds had healed and that, if she tried to leave, petitioner would find her. Gary entered the trailer, and Kenny and petitioner told Gary to watch C and help her get cleaned up. C did not leave the trailer because Gary was watching her. In any event, C could not have left because she did not have a car and the trailer was in the "middle of nowhere."

Petitioner and Kenny left the trailer. C then fell asleep. Later, Kenny returned to the trailer, and also fell asleep.

Approximately four days after the crimes against C, C went to the hospital. The hospital called the police.

C told the police a version of the events that she testified to during petitioner's trial.

B. Gary's Trial Testimony

The prosecutor also called Gary as a witness. Gary testified to the following version of events:

Gary telephoned petitioner to get a ride to J's property. They drove to the property and arrived there "sometime midmorning" when it was "still dark." When they arrived, Gary and petitioner went to the trailer, Gary knocked, and C answered the door. Gary asked if C or Kenny had a pipe to smoke methamphetamine with, and neither of them did, so he left to go find out if anyone else who was staying at J's property had a pipe.

Subsequently—after procuring a pipe from someone else on J's property and using it to smoke methamphetamine—Gary heard a gunshot and walked back toward the trailer. Gary saw petitioner outside and "a ways away" from the trailer. Gary then walked past petitioner and into the trailer. Once inside, he saw C covered in blood, slumped over and unconscious. Gary thought C was dead. Gary also saw Kenny. Kenny had blood on him and was "pretty filthy." Kenny said "she got what she had coming" and "I broke my hand on that bitch"; and Kenny was generally throwing "a fit." Additionally, Kenny's hand was swollen and his "knuckle was pushed pretty far back in his hand." By contrast, petitioner looked "clean," but "a little disturbed." Kenny and Gary were in the trailer when C regained consciousness, and subsequently, Kenny was in and out of the trailer, yelling at C. Gary observed Kenny with a gun later that morning.

Gary told C—of his own volition—that, "for [her] own safety," she should stay at the trailer because there was "no way to make it back to town." During the trial, Gary explained that, because there was snow outside, C would "leave a trail" if she tried "to run" and Kenny was "liable to do anything." Gary testified that he viewed this advice to C as "common sense."

Later, petitioner asked Gary to retrieve a motor home that belonged to Kenny from petitioner's house, because petitioner did not want Kenny to return to petitioner's house, and petitioner "really couldn't believe what[ was] going on." Gary did so.

Gary also testified that Kenny always had a gun on him and that he had never seen petitioner touch a gun. Additionally, Gary testified that Kenny "did this" to his first wife as well, and that both Kenny and Gary had been charged with crimes and pled guilty in relation to what happened to C the morning of December 7, 2007.

C. Petitioner's Trial Counsel's Efforts to Impugn C's Credibility

Given C's testimony about petitioner's conduct, petitioner's trial counsel attempted to impugn C's credibility regarding what occurred in the early morning hours of December 7, 2007. To that end, he elicited testimony concerning her relationship with Kenny and her knowledge of various aspects of Kenny's conduct. For example, he elicited testimony that (1) even after Kenny's conduct toward C on December 7, 2007, C lived with Kenny...