Turnidge v. Fhuere

• Court: Court of Appeals of Oregon
• Decided: July 8, 2026
• Docket: A184550
• Status: Unpublished

Opinion

No. 646 July 8, 2026 381

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

BRUCE ALDON TURNIDGE, Petitioner-Appellant, v. Corey FHUERE, Superintendent, Oregon State Penitentiary, Defendant-Respondent. Marion County Circuit Court 17CV05442; A184550

Roxanne B. Osborne, Senior Judge. Argued and submitted June 2, 2026. W. Edward Neusteter argued the cause and filed the reply brief for appellant. On the opening brief was Daniel J. Casey. Adam Holbrook, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, Paul L. Smith, Interim Solicitor General, and Robert Hansler, Assistant Attorney General. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge. KAMINS, J. Affirmed. 382 Turnidge v. Fhuere

KAMINS, J. Petitioner seeks reversal of a judgment denying him post-conviction relief from his convictions for 10 counts of aggravated murder and other felonies stemming from a bomb discovered at a bank in Woodburn. Following a joint trial, petitioner and his son were found criminally respon- sible for the bomb detonating, killing two law-enforcement officers and injuring two others. Petitioner raises ten assign- ments of error alleging inadequate and ineffective assis- tance of trial and appellate counsel and various due process violations. We affirm. We review a post-conviction court’s grant or denial of relief for legal error, accepting the court’s implicit and explicit factual findings if there is evidence to support them. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). To be entitled to post-conviction relief for an ineffective or inade- quate assistance of counsel claim under the state and fed- eral constitutions, petitioner must demonstrate both that counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result. See McMullin v. Amsberry, 310 Or App 542, 551, 485 P3d 278 (2021) (explaining that the state and federal tests for review- ing inadequate/ineffective assistance of counsel claims are “functionally equivalent”). First Assignment of Error. In his first assignment of error, petitioner argues that his Sixth Amendment right to choose the objective of his defense was violated because his “fundamental objective at trial was for his lawyers to prove his innocence” and instead trial counsel focused on petitioner’s mental state, and thus “essentially conceded” that petitioner and his son had constructed and placed the bomb. Assuming without deciding that petitioner’s claim is not procedurally barred, we reject it on the merits because we disagree with petitioner’s characterization of the record. As the post-conviction court found, petitioner’s expressed goal to trial counsel was to “put the state to its burden of proof,” not establish actual innocence, and trial counsel did, in fact, argue multiple times that the evidence in the case did not show that petitioner built or placed a bomb. Nonprecedential Memo Op: 351 Or App 381 (2026) 383

Second Assignment of Error. Second, petitioner argues that his trial counsel was ineffective for pursuing a “legally incorrect defense” because the defense that coun- sel pursued—that one of the victim’s own recklessness was the actual cause of his death—was foreclosed by State v. Murray, 343 Or 48, 56, 162 P3d 255 (2007). We disagree. Murray involved causation—not intent—and an attorney exercising reasonable professional skill could argue, as peti- tioner’s trial counsel did, that petitioner lacked the requisite intent for aggravated murder. See Antoine v. Taylor, 368 Or 760, 778-79, 499 P3d 48 (2021) (petitioner’s reading of then- existing case law was not “so obvious” that all reasonable attorneys would have read it the same way). Third Assignment of Error. Third, petitioner argues that trial counsel was deficient for failing to investigate and present certain types of evidence that could have challenged the state’s case, including evidence of his political views, the connection between petitioner and a second property (Potts Road) where the state alleged that the bomb was built, and evidence about how the bomb was constructed. Assuming without deciding that such a failure was unreasonable, the post-conviction court correctly found that petitioner failed to establish prejudice. In several instances, the evidence peti- tioner believes his trial counsel should have obtained would have been cumulative of then-existing evidence or too minor to have made a difference. See Richardson v. Belleque, 362 Or 236, 255, 406 P3d 1074 (2017) (counsel can suspend further “fruitless” investigation (internal quotation marks omitted)). Additionally, petitioner offers no evidence to challenge two of the most damaging pieces of forensic evidence connect- ing Potts Road to the blast site: (1) the consistent roller pat- tern on pieces of metal recovered from Potts Road and the blast site and (2) the visually, chemically, and elementally consistent green paint from the plywood at Potts Road with the bomb fragments. Without being able to challenge that incriminating evidence, petitioner cannot prove that chal- lenging some other aspect of the state’s forensic case con- cerning Potts Road could have tended to affect the verdict. Fourth and Fifth Assignments of Error. Petitioner next contends that his trial counsel was ineffective for 384 Turnidge v. Fhuere

failing to adequately address his hearing impairment at trial, and his due process rights were violated by being sub- jected to a trial in which his disability was not accommo- dated. Petitioner’s due process claim is barred by Palmer v. State of Oregon, 318 Or 352, 355-62, 867 P2d 1368 (1994) and ORS 138.550(2), because petitioner could have reason- ably objected at trial and on appeal if he believed his hear- ing impairment was depriving him of a fair trial, or, in the alternative, meritless. Petitioner was able to raise concerns related to his hearing impairment to the trial court—and, in fact, did raise such concerns, and received devices to assist his hearing. Indeed, at numerous times throughout petitioner’s proceedings, the trial court asked petitioner if he was able to hear, and petitioner responded that he could. Petitioner’s ineffective-assistance claim was cor- rectly rejected by the post-conviction court because peti- tioner failed to demonstrate that his attorney performed deficiently. The post-conviction court found that trial coun- sel knew of petitioner’s hearing impairment, had petitioner evaluated, accommodated his impairment with a listening device, and assigned a dedicated defense team member to handle any issues petitioner had with his hearing aids during trial. The court further found that, based on peti- tioner’s participation in the trial, trial counsel had no rea- son to believe that additional assistance was needed. Those findings are supported by evidence in the record and are therefore binding. Sixth Assignment of Error. In his sixth assignment of error, petitioner argues that the post-conviction court erred in denying him relief on his due process claim under Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963). Petitioner argues that the prosecution delayed dis- closure of notes taken by a law enforcement official during joint meetings of law enforcement, and ultimately failed to disclose full, unredacted copies of the notes that contained exculpatory and impeachment information. The superinten- dent argues that petitioner failed to prove any Brady viola- tion. We agree. To prove a Brady violation, petitioner needed to show that the state suppressed material, favorable evidence Nonprecedential Memo Op: 351 Or App 381 (2026) 385

and that prejudice resulted. State v. Deloretto, 221 Or App 309, 321, 189 P3d 1243 (2008), rev den, 346 Or 66 (2009) (citing Brady, 373 US at 87). Here, the state did not suppress any evidence—material or otherwise—in a manner that would amount to a Brady claim because it submitted the notes at issue to the court for in camera inspection and let the court ultimately determine the extent of the redaction. See Strickler v. Greene, 527 US 263, 281-82, 119 S Ct 1936, 144 L Ed 2d 286 (1999) (a “true Brady violation” occurs only if the state suppressed evidence, “either willfully or inadvertently”). Seventh and Eighth Assignments of Error. In his seventh assignment of error, petitioner argues that the post-conviction court erred in denying him relief on his due process claim that the prosecution “leveraged its delayed disclosures and nondisclosures by presenting evidence, and asking the jury to reach conclusions or draw inferences, that the prosecution knew were false.” See Napue v. Illinois, 360 US 264, 269, 79 S Ct 1173, 3 L Ed 2d 1217 (1959) (holding that the state violates a criminal defendant’s due process rights when it knowingly relies on materially false evidence). In his eighth assignment of error, petitioner contends that his trial counsel was deficient for failing to object to closing argument to preserve that Napue claim. The post-conviction court expressly found that peti- tioner “failed to offer sufficiently persuasive evidence to prove that the state elicited any false testimony or testimony the prosecutor or prosecution team knew was false.” The record supports a finding that the state did not elicit false testimony or testimony the prosecution knew was false, and that finding is binding on appeal. Ninth Assignment of Error. In his ninth assignment of error, petitioner argues that the post-conviction court erred in denying his standalone due process claim based on juror misconduct. Petitioner’s argument is reliant on the post-conviction testimony of a juror from his criminal trial, in which the juror testified that she abused prescrip- tion medication and, as a result, was impaired during peti- tioner’s trial. The post-conviction court, however, expressly found that juror to not be credible, and we are unwilling 386 Turnidge v. Fhuere

and unable to disturb the post-conviction court’s credibility finding. Zyst v. Kelly, 338 Or App 597, 639, 566 P3d 1121, rev den, 374 Or 188 (2025) (supported credibility findings by the post-conviction court are binding on this court). Tenth Assignment of Error. Lastly, petitioner argues that his appellate counsel, on direct appeal, was ineffective for failing to assign error to the trial court’s denial of his motion to suppress evidence found at Potts Road. We dis- agree. Given the unchallenged evidence connecting the bomb to petitioner and petitioner to Potts Road, appellate counsel acting competently could decide that assigning error to that denial would weaken the force of defendant’s stronger arguments on appeal. See Mesta v. Franke, 261 Or App 759, 783 n 7, 322 P3d 1136 (2014) (noting that “win- nowing out weaker arguments on appeal” is “the hallmark of effective appellate advocacy” (internal quotation marks omitted)); see also State v. Lovaina-Burmudez, 257 Or App 1, 12-19, 303 P3d 988, rev den, 354 Or 148 (2013) (explaining inevitable discovery doctrine). Affirmed.