United States Supreme Court
Cases
ARGUING INCONSISTENT THEORIES
1990: *Ross v. Kemp,
393 S.E.2d 244 (Ga.
1990)
Trial counsel ineffective where
appointed counsel cross-examined state's witnesses and argued a theory
of mental illness and insufficiency of evidence while retained counsel
presented unprepared testimony of defendant (which appointed counsel
opposed) and argued an inconsistent alibi theory.
INSTRUCTIONS
U.S. Court of Appeals
Cases
2006: United States v. Alferahin
433 F.3d 1148 (9th Cir. 2006).
Counsel ineffective in knowingly procuring naturalization case for failing to obtain jury instructions that addressed materiality as an element of the offense. The defendant failed to disclose that he had previously been married. The trial court prepared instructions that did not include materiality. After the court noted that both sides emphasized materiality in closing arguments, the court raised the question of whether a materiality instruction should be given. The government did not object but defense counsel stated his belief that the instruction would be inappropriate. Counsel’s conduct was deficient because the Ninth Circuit had previously held that materiality was a required element of the offense and should be included in instructions to the jury. Counsel had no strategy but simply misunderstood the law. Prejudice was found because the entire defense strategy was based on downplaying the importance of the defendant’s misrepresentations. Counsel also stated during the discussions with the trial court that he would have called additional witnesses if he had understood that the prosecutor was obliged to prove the materiality of his client’s misrepresentations.
2005: Cox v. Donnelly
432 F.3d 388 (2nd Cir. 2005).
Counsel ineffective in second degree murder case for failing to object to an erroneous jury instruction that impermissibly shifted to the defendant the burden of proving that he did not intend “the ordinary consequences of his voluntary acts.” The failure was due te counsel’s “ignorance of the law on point.” Under AEDPA, the state court holding was an unreasonable application of Strickland.
2004:Reagan v. Norris
365 F.3d 616(8th Cir. 2004)
Counsel ineffective in first-degree murder case for failing to object
to the trial court’s instructions that failed to include an essential
element of the crime – that the defendant "knowingly" caused the death.
Counsel conceded that the failure to object was not strategic. Analyzing
the case under the AEDPA, the court found that counsel’s conduct was
deficient and prejudicial because the jury could have believed every
aspect of the defense case (that the death was accidental) and still
convicted of first-degree murder under the erroneous
instructions.
2002: *Pirtle v. Morgan
313 F.3d 1160
(9th Cir. 2002)
Counsel was ineffective in a capital trial for failing to request a
diminished capacity instruction. Counsel presented substantial evidence
through expert testimony that the defendant lacked the capacity to
premeditate due to right temporal lobe seizures caused by chronic drug
use. Counsel did not, however, request an instruction on capacity and
instead requested only an instruction on voluntary intoxication.
Counsel’s conduct was deficient because the defendant had testified that
he was "coming down" from drugs approximately three hours before the
murders. Prejudice was found because the defense focused primarily on
the defendants mental capacity at the time of the killings. The issue of
premeditation was critical because if the jury had not found
premeditation and had convicted only on second degree murder the
defendant would not have been eligible for the death
penalty.
1996: Luchenburg v. Smith,
79 F.3d 388 (4th Cir. 1996)
Counsel ineffective for failure to
request expanded instruction that more accurately explained to jury
that, under Maryland law, it could not convict defendant of compound
handgun charge unless it first found him guilty of predicate crime of
violence, and that common-law assault was not predicate "crime of
violence."
United States v. Span,
75 F.3d 1383 (9th Cir. 1996)
Counsel ineffective in assault on
federal officer case for: failing to request instruction on affirmative
defense of self-defense in face of excessive force; failing to request
instruction explaining that excessive use of force is not included
within pursuit of official duty; and failing to object to self-defense
instructions which essentially negated excessive force defense by
telling jury that there was no right of self-defense unless the
defendants were unaware of status as federal officer.
1993: Gray v. Lynn,
6 F.3d 265 (5th Cir. 1993)
Trial counsel ineffective for failing
to object to erroneous jury instruction on elements of attempted murder
which allowed jury to convict based on finding of intent to inflict
great bodily harm even if it had a reasonable doubt that defendant had
specific intent to kill.
1992: United States v. Stracener
959 F.2d 31 (5th Cir. 1992)
District court found IAC where
defendant was charged with aiding and abetting armed bank robbery,
kidnapping, and carrying weapon but counsel failed to object to
instructions which allowed convictions for aiding and abetting
aggravated bank robbery without requiring jury to find that defendant
had specifically aided and abetted aggravating element. District court
resentenced on lesser included offense and Fifth Circuit found that
resentencing was proper remedy.
1990: Capps v. Sullivan,
921 F.2d 260 (10th Cir.
1990)
Trial counsel ineffective for failing
to request an entrapment instruction after the defendant testified in
his own behalf and admitted all the elements of the offense when there
was evidence to support an entrapment defense.
1989: Crowe v. Sowders,
864 F.2d 430 (6th Cir. 1989)
Trial counsel ineffective for failing
to seek new trial or mistrial after trial court's improper instructions
about parole consequences.
U.S. District Court Cases
2005: *Baker v. Horn
___ F. Supp. 2d ___, 2005 WL 1949631 (E.D. Pa. Aug. 15, 2003).
Counsel was ineffective in capital trial for failing to object to the trial court’s instructions that permitted the jury to convict the petitioner of first degree murder under an accomplice liability theory without finding that the petitioner himself possessed the specific intent to kill, which was a required element under Pennsylvania law. Counsel’s conduct was deficient because the state law was clearly established at the time of trial. Prejudice was found even though the jury could have convicted the petitioner either as a principal or an accomplice because the verdict sheet did not reveal which theory the jury used and the evidence was contradictory concerning the identity of the shooter. Although AEDPA applied the state court had not addressed the merits of this claim and the court reviewed the issues de novo.
1991: Patterson v. Dahm,
769 F. Supp. 1103 (D. Neb. 1991)
Trial counsel ineffective in first
degree murder case for offering an instruction on conspiracy to commit
murder as a lesser included offense, because conspiracy was not a lesser
included offense under state law so trial counsel effectively charged
defendant with a crime not in the information. The evidence before the
jury supported acquittal but because of the conspiracy instruction
offered by trial counsel, defendant was convicted of
conspiracy.
State Cases
2007: Stiers v. State,
___ S.W.3d ___, 2007 WL 1742831 (Mo. App. June 19, 2007).
Counsel ineffective in forcible restraint case for failing to request a self-defense instruction.
The defendant was charged with two counts of forcible sodomy, two counts of armed
criminal action, and felonious restraint following an altercation with his girlfriend. He was
acquitted on all charges other than felonious restraint. Their testimony and evidence of her
injuries was basically the entire case. The defendant’s testimony alleged that the altercation
began when she attempted to steal property from him and he defended with non-deadly force,
which was permitted under state law. The altercation that elevated when she grabbed a knife
and he then defended himself with deadly force. Under state law, he was entitled to a self-
defense finding if he reasonably believed that deadly force was necessary to protect himself
from serious physical injury. Counsel was ineffective in failing to request the self-defense
instruction. Prejudice found because, without the self-defense instruction, the jury was
obligated to convict if the defendant forcibly restrained the alleged victim and, in so doing,
exposed her to risk of serious physical injury, regardless of the reason.
Nickens v. State,
___ So. 2d ___, 2007 WL 624708 (Ala. Crim. App. Mar. 2, 2007).
Counsel ineffective in theft of property case for failing to request an instruction defining
the term “deprive” and failing to object when the trial court failed to give this instruction
when the defense theory was that the defendant used the vehicle to escape from police but
did not intend to permanently deprive the owner of the property, did not damage it, and
merely abandoned it not far from the scene of the theft.
2006: Mathis v. State,
___ So. 2d ___, 2006 WL 3017251 (Fla. App. Oct. 25, 2006).
Counsel ineffective in aggravated battery on a fellow inmate case for failing to request a jury instruction on the justifiable use of non-deadly
force where the defense argued that the victim was the aggressor and the defendant was acting only in self-defense.
Tillman v. Massey,
637 S.E.2d 720 (Ga. 2006).
Counsel ineffective in malice murder case for failing to object to an erroneous instruction on the presumption of innocence in the court’s
final charge. The court instructed the jury that the presumption protects only the innocent, which implies that the jury’s assessment of
guilt is separate and distinct from the prosecution’s burden to prove guilt beyond a reasonable doubt, thereby eviscerating the presumption
of innocence. Prejudice found even though a correct charge on the presumption of innocence was given in preliminary instructions.
State v. Adams,
912 A.2d 16 (Md. App. 2006).
Counsel ineffective in case with multiple counts of first-degree rape and first-degree sexual assault for failing to object to an erroneous instruction
on jurisdiction, which improperly permitted the jury to find jurisdiction for rape and sex offense charges against the defendant based on a venue
statute that had no extra-territorial effect. The crimes involved the kidnapping of a woman in Prince George’s County, Maryland, only a mile or
so from the D.C. line and multiple sexual assaults by the defendant and at least four other men while in a moving vehicle or stopped over a two
hour time period. The victim was ultimately released in Prince George’s County and the defendant was arrested in the vehicle identified in D.C.
shortly after police were called. Counsel’s conduct was deficient because the court had decided two years prior to trial that the venue statute
had no extra-territorial effect. Prejudice found because the facts, including the victim’s belief that she was in D.C. at least during some of the
crime period, reveal a reasonable probability that the jury would not have found unanimously and beyond a reasonable doubt that key elements
of the offenses occurred in Maryland.
People
v. Pollards
854 N.E.2d 705 (Ill. App. 2006).
Counsel ineffective in stolen motor vehicle case for failing to request jury instructions on
definitions of stolen property and theft. Prejudice found because the defendant's intent
was an issue in the case.
Vaughn v. State
202 S.W.3d 106 (Tenn. 2006).
Counsel ineffective in murder and other offenses case for failing to object to the court's
erroneous jury instruction regarding the defendant's release eligibility dates. The trial
court informed the jury that, if convicted of murder, the defendant would not be eligible
for parole for 25 years, but a new statute had been passed so that the defendant actually
would not have been eligible for parole for 51 years. Counsel's conduct was deficient at
trial because he was unaware of the new provision. After trial counsel learned of the new
provision but still did not assert the issue. While there were two conflicting provisions in
the statutes, such that it may not have been clear at the time whether it was 25 or 51 years,
"this conflict in the provisions, far from excusing counsel from raising the issue, should
have brought to their attention the very need to raise the issue." Even after the Attorney
General issued an opinion clarifying that it was 51 years, counsel still did not raise the
issue as plain error in the direct appeal which was still pending. Trial and appellate
counsel's conduct was deficient. Prejudice established because "prejudice occurs when a
defendant receives a sentence greater than the range of punishment contemplated by the
jury." If the jury had been properly instructed, it was reasonably likely the jury would
have convicted the defendants of a lesser offense.
2005: People v. Turner
840 N.E.2d 123 (N.Y. App. 2005)
Trial and appellate counsel ineffective in manslaughter case for failing to assert a statute of limitations defense. The defendant was arrested 16 years after the crime and charged with second degree murder, which has no statute of limitations. During trial, the prosecutor requested an instruction on the lesser included offense of manslaughter. Counsel objected only on the basis of not offering the jury a compromise. The jury convicted only on manslaughter, which had a five year limitations period. Although the statute allows some tolling, the maximum period for tolling is an additional five years. Trial and appellate counsel’s conduct was deficient because there was case law from 1914 supporting the argument, which was old but still valid. In addition, while there was some contrary precedent and the law may not have been definitively settled at the time of trial, “[a] reasonable defense lawyer at the time of defendant’s trial might have doubted that the statute of limitations argument was a clear winner–but no reasonable defense lawyer could have found it so weak as to be not worth raising.” Trial counsel should have asserted the issue. Appellate counsel should have asserted the ineffectiveness of trial counsel on this point.
State v. Dabney
908 So. 2d 60 (La. App. 2005)
Counsel was ineffective in armed robbery case for failing to object to a modified Allen charge to a deadlocked jury. The jury announced a guilty verdict but polling revealed an 8 to 4 vote when at least 10 votes were needed for a conviction. When the jury asked what happened if they could not agree, the court gave a modified Allen charge, without objection. Counsel’s conduct was deficient because Louisiana law prohibited an Allen charge and approved only of following ABA Standards in this situation. Prejudice was found because the charge given was confusing, coerced jurors to reach a verdict, and coerced jurors in the minority to conform their views to the majority. Two jurors changed their votes within 35 minutes, which suggested that they “surrendered their beliefs in order to achieve a verdict.”
State v. Carter
112 P.3d 561 (Wash. Ct. App. 2005).
Counsel ineffective in unlawful possession of firearm case for requesting a defective instruction on unwitting possession that shifted the burden of proving the knowledge element from the state to the defense. Because this was a clear misstatement of the law, prejudice was presumed.
2004: State v. Kougl
97 P.3d 1095 (Mont. 2004)
Counsel ineffective in operation
of unlawful methampthetamine lab case for failing to request jury
instructions on accomplice testimony.
Although the prosecutor and counsel both informed the jury that
accomplice testimony should be viewed with suspicion, counsel did not
request instructions that accomplice testimony should be viewed with
distrust and that it must be corroborated. In direct appeal, counsel’s
conduct was found to be deficient because there was no plausible
reason
not to request the instructions. Prejudice found because the state’s
case was built almost entirely on accomplice testimony with little
corroboration. In addition, although counsel informed the jury to
view
accomplice testimony with suspicion, "hearing this from counsel, . .
. is not the same as hearing it from the court."
Benham v. State
591
S.E.2d 824 (Ga. 2004).
Counsel was ineffective in aggravated assault case for failing to
request an instruction on the use of force in defense of a habitation.
The defendant and the alleged victim had a history of animosity because
the victim’s husband had fathered children with both women. The victim
confronted the defendant while the defendant was sitting in her car with
her three young children talking to friends. Following a heated
conversation, the victim admittedly threw the first blow. The women
fought with the victim standing outside the car reaching in and the
defendant inside her car. The defendant had attempted to drive away but
her path was blocked by onlookers in the street. Ultimately, the
defendant grabbed a box cutter from the car console and slashed the
victim. Counsel argued self defense but did not request an instruction
on defense of habitation. Under state law, deadly force is permitted to
prevent or terminate the unlawful entry into or attack upon a
habitation, including a motor vehicle, if the entry is made or attempted
in a violent and tumultuous manner and there is a reasonable belief that
the entry is made for the purpose of assault or personal violence
therein. The uncontradicted evidence at trial clearly would have
authorized such a charge because the victim threw the first punch and
eyewitnesses testified that it took two attempts for on lookers to
restrain the victim from continuing the attack. Counsel stated that her
strategy was to present self-defense as the best defense because she
wanted the jury to believe that the defendant was in fear for her safety
and the safety of her children and not just that she was protecting her
vehicle. The court held this was not a reasonable strategy because
counsel failed to appreciate that the defense of habitation may have
justified the use of deadly force. "In failing to adequately research
and understand the defenses available to [the] client, defense counsel
rendered assistance that fell below the minimum standard set forth in
Strickland." Prejudice found because it was
reasonably probable that the jury would have accepted the substantial
evidence that the victim unlawfully entered the defendant’s car in a
violent and tumultuous manner for the purpose of offering personal
violence to the occupants.
2003: Moore v. State
2003 WL 22087569 (Iowa Ct. App. Sep.
10, 2003) (unpublished)
.
Counsel was ineffective in a robbery and kidnaping case for
failing to object to an erroneous instruction concerning the definition
of confinement or removal, which should have informed the jury that
confinement or removal requires more than what is included in the
commission of the crime of robbery and must have significance apart from
the crime of robbery. Counsel stated no tactical or strategic reason for
his failure. Prejudice was found because confinement was "clearly a
defining issue in this case" and the evidence of defendant’s guilt was
not overwhelming.
Patterson v. State
110
S.W.3d 896 (Mo. Ct. App. 2003).
Counsel was ineffective in second-degree robbery case for
failing to present the trial court with a properly worded instruction
for the lesser included offense of felony stealing. Under state law,
second degree robbery required the forcible stealing of property,
whereas the lesser included offense of stealing did not include the
element of force. Counsel argued the lack of force and requested an
instruction on the lesser included offense of stealing but proposed a
stealing instruction that improperly included the "forcibly stole"
language, which materially misstated the elements of stealing. Counsel
did not have a reasonable trial strategy for proposing the incorrect
instruction and counsel even argued that the jury could find that there
was no use or threat of use of physical force. "Counsel clearly made a
strategic decision to have the jury instructed on the lesser-included
offense of stealing but then failed to execute that strategy when he
submitted instructions to the court that did not properly track the
language" of the lesser-included offense. Id. at 903. The court
found prejudice because the lesser included offense instruction was
warranted by the evidence, where the witnesses never saw a weapon and a
juror could reasonably find that the defendant did not actually use
physical force or threaten immediate physical harm to anyone during the
theft. Where doubt exists over whether a lesser included offense should
be instructed, the court should give the instruction. Even assuming that
the state’s argument was correct that the defendant must also prove a
reasonable possibility that he would not have been convicted of the
greater offense had the lesser-included instruction been given, the
court found prejudice where "the evidence of either an explicit or an
implicit threat of physical force in the stealing was not overwhelming."
Wakefield v. State
583 S.E.2d 155 (Ga. Ct. App. 2003).
Counsel ineffective in fraud and forgery case for failing to object
to the trial court’s failure to charge the jury that a witness may be
impeached by convictions of crimes "involving moral turpitude." The
primary state witness was a co-defendant, who admitted on direct
examination that he had plead guilty to a number of felonies involving
these same charges. Counsel requested the charge in writing, but raised
on objection during the charge conference when the court stated that the
charge would be omitted because no one in the case had been convicted of
crimes of moral turpitude. Counsel admitted that there was no tactical
decision in the failure to object and that it was an oversight.
Prejudice found because this witness presented crucial testimony for the
state.
State v. Kruger
67 P.3d 1147 (Wash. Ct. App. 2003).
Counsel ineffective in third-degree assault case for failing to
request a jury instruction on voluntary intoxication. The defendant was
charged with head-butting a police officer and intent was an element of
the offense. While voluntary intoxication is not a true defense, under
state law, the defendant was entitled to an instruction that the jury
could consider the intoxication in determining whether the defendant
acted with the requisite intent. Here, counsel’s conduct was deficient
in failing to request this instruction because there was ample evidence
that the defendant was intoxicated, including vomiting shortly after his
arrest. Prejudice was found because intent was the only contested
element at trial and the jury asked a question and had to refuse
additional instructions on this element. "Even if the issue of . . .
intoxication was before the jury, without the instruction, the defense
was impotent." Id. at 1151.
2002: Walker v. State
779
N.E.2d 1158 (Ind. Ct. App. 2002)
Counsel ineffective in murder case for failing to object to
instruction that jurors should presume that the defendant had the same
intent as the actual shooter. "[T]he failure to object to an incorrect
instruction cannot be attributed to trial tactics." Prejudice found.
Dawson v. State
572 S.E.2d 445 (S.C. 2002)
Counsel
ineffective for failing to object to a coercive Allen charge.
During deliberations the jury foreman informed the court that the jury
was split 11 to 1 and that he did not know whether the jury could reach
a unanimous verdict. The court asked the foreman to consult with the
other jurors to see if a consensus could be reached and then asked the
foreman if the numerical split was the same. The court then gave an
Allen charge, which could be perceived as being directed toward
the minority juror. The charge was coercive, especially in light of the
judge’s knowledge that there was only one holdout juror. The court also
erred in not instructing the jury not to state its numerical division
and also inquiring as to the jury’s continued numerical division.
Pauling v. State
350 S.C. 278, 565 S.E.2d 769 (2002).
Counsel ineffective in case involving two murder charges and
numerous other charges. The defense contested only the murder charges.
After the jury indicated that it was hung only on the murder charges and
inquired whether failure to agree would require a complete new trial or
only a new trial on the murder charges, the court, without objection,
instructed the jury that failure to agree would require a new trial on
all issues. Counsel ineffective for failing to object because the
court’s instruction was wrong. Failure to reach agreement on the murder
charges would not result in mistrial on charges where the jury did reach
a verdict. Prejudice found because jury, following the erroneous
instruction convicted defendant on one murder and acquitted on the other
when there was no evidence in record distinguishing his conduct such to
convict on one and not the other, where state’s theory was accomplice
liability.
Green v. Young
571 S.E.2d 135 (Va. 2002)
Counsel
ineffective in felony murder case for failing to object to an erroneous
jury charge that allowed the jury to find the defendant guilty even if
the Commonwealth failed to prove guilt beyond a reasonable doubt. The
court held that prejudice was presumed because of a structural defect.
Even assuming prejudice is required, the defendant had shown
prejudice.
2001: Forget v. State,
782 So.2d 410 (Fla. Dist. Ct. App. 2001)
Counsel ineffective in possession of
cocaine and drug paraphernalia case because counsel admitted defendant's
guilt on paraphernalia charge but failed to request an instruction that
the state must establish defendant's knowledge of the presence of
cocaine residue in the pipe since the residue was the essence of the
possession charge. Prejudice found because counsel effectively admitted
guilt on both charges in absence of the knowledge instruction and jury
asked a number of questions indicating a split and some
confusion.
Lee v. State,
779 So.2d 607 (Fla. Dist. Ct. App. 2001)
Counsel ineffective in battery on a
law enforcement officer case because counsel requested and received an
instruction on a "lesser included offense" of resisting arrest without
violence and jury convicted on this charge. This was ineffective because
resisting arrest is not included in battery on officer and is, in fact,
a more severe offense.
Stanford v. Stewart
554 S.E.2d 480 (Ga. 2001)
Trial counsel ineffective in arson case for
failing to object to an erroneous instruction on the elements of the
offense. Appellate counsel ineffective for failing to raise ineffective
assistance of trial counsel. Defendant was indicted for arson for
setting fire to a dwelling house. The evidence at trial showed that he
set fire to an apartment and that other residents of the apartment
building were displaced. At the conclusion of the trial, the court
instructed on the elements of setting fire to a building under
circumstances where "human life might be in danger." Following these
instructions, the prosecutor asked for an additional instruction on the
indicted offense. The defense counsel responded that either was
sufficient. The court brought the jury back in and instructed on the
indicted offense and repeated the erroneous instruction. Following these
instructions, counsel did not object but stated that he reserved his
right to object later. Trial counsel was ineffective because a mistrial
would have been granted if he had objected. Appellate counsel was
ineffective because he raised the substantive issue but did not raise
ineffective assistance of trial counsel because he believed the issue
was properly preserved. The appellate court found error but found that
the issue was not preserved because of trial counsel’s acquiescence in
the error. "No reasonably effective appellate counsel would have failed
to recognize that the charging error was not preserved for
review."
Perez v. State,
748 N.E.2d 853 (Ind. 2001)
Counsel ineffective in murder case for
failing to object to a self-defense instruction that essentially
informed the jury that intentional use of a weapon was murder, which
eliminated the requirement of a "knowing and intentional killing."
Prejudice found because jury might well have found no "knowing and
intentional killing" if it had been properly
instructed.
State v. Rogers
32
P.3d 724 (Mont. 2001)
Counsel ineffective in felony sexual assault case
for failing to request a failure-to-agree instruction that would have
allowed the jury to consider the lesser included offenses of misdemeanor
sexual assault and misdemeanor assault if it were unable to reach a
verdict on the greater offenses of attempted sexual intercourse without
consent and felony sexual assault. While the court had agreed to give
lesser-included- offense instructions, counsel failed to request this
instruction and offered no strategic reason. Prejudice found even though
the jury convicted only of felony assault, apparently rejecting the
sexual intent element, because hold-out jurors may have reached this
verdict as a compromise rather than voting to acquit. Counsel was also
ineffective in refusing to file the notice of appeal, despite the
defendant’s repeated requests to do so, instead of filing the appeal and
submitting an Anders brief.
Dean v. State
59 S.W.3d 663
(Tenn. 2001)
Trial counsel ineffective in attempted second
degree murder case for failing to object to erroneous instruction on
range of punishment for attempted second-degree murder where the jury
was instructed prior to deliberations on guilt-or-innocence, as then
required under state law, that the punishment was 3-10 years when it was
actually 8-30 years for this offense. The jury was instructed on other
offenses and ranges but convicted on this one. Counsel’s conduct was
deficient because counsel was unaware of the pertinent sentencing range
and unaware of a case finding this same instruction to be error four
years before. Prejudice found because the jury may well have relied on
this instruction in finding the defendant guilty on this offense. The
court also rejected in this case that this issue was not cognizable
because the sentencing range was a matter of state statutory law when
post-conviction relief was limited to state and federal constitutional
law. The court made it clear that ineffective assistance of counsel,
regardless of the underlying issue, is always a federal constitutional
issue.
*Ex Parte Varelas,
45 S.W.2d 627 (Tex. Crim. App. 2001) (en banc)
Counsel ineffective in capital murder
for death of two year old daughter for failing to request proper
instructions to limit consideration of evidence of prior bad acts. The
victim died as a result of a forceful blow to the abdomen. Autopsy also
revealed fractured ribs, bruises all over body, burn on arm, and cut on
face. No eyewitness connected defendant to crimes and defense asserted
that defendant's wife caused the injuries. During trial, the state
presented evidence of defendant's extraneous acts of excessively dunking
daughter in pool, "thumping" her on the back of the head, pushing her
with his foot, making her sit still for over two hours, and hitting her
the night before her death. State argued that because he committed these
acts, he was the killer. Counsel was deficient for failing to request
two instructions that defendant was entitled to under state law: (1)
that jury could not consider extraneous acts unless they believed beyond
a reasonable doubt that the defendant had committed those acts; and (2)
that the jury could consider the extraneous acts only for the limited
purposes of proving state of mind, intent, relationship, and motive.
Prejudice found because the state's burden of proof on extraneous acts
was removed even though extraneous acts were central to the state's case
in that the state produced little other evidence linking the defendant
to the death. This evidence also undermined the defense theory that the
defendant's wife committed the murder.
2000: Reynolds v. State,
18 S.W.3d 331 (Ark. 2000)
Counsel ineffective in murder case for
failing to object to the trial court's erroneous instructions on first
degree murder. Court charged on first and second degree and
manslaughter, but on first degree charged that the jury must find either
a purpose of causing death or serious physical injury. First degree
could be based only on purpose of causing death and this charge
essentially allowed the conviction on first degree murder based on
findings only of second degree murder.
People v. Hoyte,
714 N.Y.S.2d 420 (N.Y. Sup. 2000)
Counsel ineffective in drug possession
case for failing to object to jury charge from which court had omitted
element of defendant's knowledge of weight of contraband, or to request
instruction that mental state of "knowingly" applied to all elements of
offense, and that defendant's possession of contraband therefore must
also include his knowing possession of the weight of the contraband
where weight was an element of the offense. Counsel's conduct was
deficient where counsel was not even aware of cases holding that
knowledge of weight of contraband was an element of crime. Prejudice
found where the lack of instruction relieved jury of obligation to find
that the prosecution proved defendant's knowledge of weight of drugs
possessed.
State v. Krueger,
623 N.W.2d 211 (Wis. Ct. App. 2000)
Counsel ineffective in case of
attempting to have sexual contact with a person under 13 years of age
because counsel failed to object when the trial court provided the jury
with an instruction that did not contain a required element of criminal
intent. Prejudice found because the absence of the required instruction
allowed the jury to convict without making a finding on an essential
element of the crime.
1999: Strickland v. State,
771 So. 2d 1123 (Ala. Crim. App. 1999), cert. denied, 771 So. 2d 1129 (Ala.
2000)
Counsel ineffective in first
degree theft case for failing to request a jury charge on the meaning of
"deprive." The defendant was a prison inmate but on work assignment. He
walked off the job and stole a van. Drove to see his family and after
visiting for a few hours called the police and told them where he was.
Counsel's failure to request the appropriate charge basically denied the
defendant his true defense, which was that he did not intend to
permanently deprive the owner of the vehicle of the
property.
Adams v. State,
727 So. 2d 997 (Fla. Dist. Ct. App. 1999)
Counsel ineffective in manslaughter
case for proposing an erroneous jury instruction that dramatically and
improperly shifted the burden of proving self defense to the defendant
when the state had the burden to prove lack of self defense beyond a
reasonable doubt.
State v. Jackson,
733 So. 2d 736 (La. Ct. App. 1999)
Counsel ineffective in perjury case
for failing to request a charge on justification, i.e. if she lied under
duress to protect her life in a reasonable manner and no acceptably
alternative, she could not be convicted. Defendant had been a witness to
murder. Testified before grand jury that she identified the killer.
Testified at trial that she could not identify killer and murder charge
was dismissed. In her own trial, she said that she told the truth before
grand jury but was told that her identity would remain secret. She and
her family had been threatened by the killer and that's the reason she
changed her testimony. Defense counsel argued that fear justified her
change of testimony, but failed to request charge on justification.
Court found prejudice because the jury asked if the defendant had any
other options to perjury such as invoking Fifth Amendment and ultimately
convicted her only of attempted perjury even though she admitted she
lied.
Jones v. Baldwin,
990 P.2d 345 (Or. Ct. App. 1999)
Counsel ineffective in conspiracy to
commit murder case for failing to object to the trial court's ambiguous
instructions that allowed the jury to convict even if it found that the
defendant did not actually intend to carry out the murder that was the
subject of the conspiracy. Defendant admitted that he engaged in
discussions of murder, but said that it was just "bar talk" and he did
not actually intend to carry it out. During deliberations the jury asked
the court if intent to actually carry out the plan had to be proven. The
court gave ambiguous instructions. An interesting side note is that in
finding prejudice, the court relied in part on evidence of a news
videotape interview of jurors after the trial in which several jurors
said that if they had been properly instructed that the defendant must
have intended to carry out the plan, the verdict would have been
different.
Brightman v. State,
336 S.C. 348, 520 S.E.2d 614 (1999)
Counsel ineffective for failing to
request a specific charge required by state law (but not any longer
after this opinion) that informs the jury that any reasonable doubt
between lesser and greater offenses must be resolved in the defendant's
favor.
1998: State v. Rose,
972 P.2d 321 (Mont. 1998)
Counsel ineffective in burglary case
for failing to request an accomplice testimony instruction when an
accomplice testified that the defendant planned and carried out the
burglary.
Howard v. State,
972 S.W.2d 121 (Tex. Ct. App. 1998)
Counsel ineffective in drug possession
case for failing to request to accomplice-witness testimony instruction.
Under state law, accomplice testimony must be corroborated by other
evidence connecting the defendant with the offense before a conviction
is warranted. In this case, there was only weak inferential
corroboration evidence. The court states, "a single error of omission
can constitute impermissibly ineffective assistance." 972 S.W.2d at
129.
1997: State v. Cole,
702 So. 2d 832 (La. Ct. App. 1997)
Counsel ineffective in drug
distribution case for failing to object to instructions which failed to
instruct on the lesser included offense of attempted distribution and
failed to object to the verdict form which failed to include attempted
distribution and jury even returned with a question about attempts
during deliberations.
State v. Henderson,
689 A.2d 1336 (N.H. 1997)
Counsel ineffective in robbery case
for requesting instruction which allowed conviction if defendant
"attempted to" cause injury which expanded the offense indicted which
required a showing that the defendant actually caused serious
injury.
1996: State v. Gittins,
921 P.2d 754 (Idaho Ct. App. 1996)
Counsel ineffective in rape case for
acquiescing in jury instruction which stated that question of
penetration was not in dispute even though penetration was an essential
element of the offense and was obviously in dispute as evidenced by jury
request for additional instructions only as to penetration. Direct
appeal case, but court found that ineffectiveness was apparent from the
record.
Sharkey v. State,
672 N.E.2d 937 (Ind. Ct. App. 1996)
Counsel ineffective in murder case for
failing to request instruction on lesser included offenses of
involuntary manslaughter and reckless homicide which were supported by
the evidence.
Brunson v. State,
324 S.C. 117, 477 S.E.2d 711
(1996)
Counsel ineffective in possession with
intent to distribute crack case for failing to request a mere presence
charge when the evidence revealed that the drugs seized were not found
on either of the two co-defendants who were tried
jointly.
Sanchez v. State,
931 S.W.2d 331 (Tex. Ct. App. 1996), overruled on other grounds,
Woods v. State, 956 S.W.2d 33 (Tex.
Crim. App. 1997) (en banc)
Counsel ineffective in drug possession
case where the border patrol stopped defendant's car without reasonable
suspicion. Counsel challenged the admissibility of the evidence but
failed to request an instruction that if jury had a reasonable doubt of
whether the evidence was obtained in violation of the constitution or
laws of Texas or the United States then the jury must disregard the
evidence.
Waddell v. State,
918 S.W.2d 91 (Tex. Ct. App. 1996)
Counsel ineffective in burglary case
for failing to request an instruction on the lesser included offense of
criminal trespass when the evidence warranted such an instruction but
trial counsel did not request it because he misunderstood elements of
criminal trespass.
State v. Doogan,
917 P.2d 155 (Wash. Ct. App. 1996)
Counsel ineffective in promotion of
prostitution case where state law allowed conviction if defendant
profited from prostitution (which was charged by state) or if defendant
advanced prostitution (which was not charged). Counsel requested and
received an instruction on the uncharged means of advancing prostitution
which raised reasonable probability that defendant was convicted on a
theory not charged by the state.
1995: Pearson v. State,
454 S.E.2d 205 (Ga. Ct. App. 1995)
Counsel ineffective in robbery case
for failing to request lesser included offense instructions when the
whole theory of the defense was that the defendant was not armed at the
time of the offense.
People v. Campbell,
657 N.E.2d 87 (Ill. App. Ct.), appeal denied, 660 N.E.2d 1273 (Ill.
1995)
Counsel ineffective for failing to
request an accomplice testimony instruction where defendant was
convicted on the basis of the testimony of two accomplices, when one had
the charges dismissed in exchange for testimony and the other entered
into an agreement and got a reduced sentence in exchange for
testimony.
State v. Williams,
531 N.W.2d 222 (Neb.), cert. denied, 516 U.S. 1008
(1995)
Counsel ineffective in murder case for
failing to object to instruction which omitted the element of
malice.
State v. Wilson,
530 N.W.2d 925 (Neb. 1995)
Counsel ineffective in murder case for
failing to object to instruction which omitted the element of
malice.
Commonwealth v. Buksa,
655 A.2d 576 (Pa. Super. Ct.), appeal denied, 664 A.2d 972
(Pa. 1995)
Counsel ineffective in aggravated
assault case for failing to request a self-defense instruction because
of erroneous belief that defendant's claim of accidental stabbing was
inconsistent with self-defense when it was actually consistent because
defendant testified he accidentally stabbed the victim while trying to
defend himself from victim's assault.
Roseboro v. State,
317 S.C. 292, 454 S.E.2d 312 (1995)
Counsel ineffective for failing to
request alibi charge in criminal sexual conduct case when state's case
was circumstantial, alibi witnesses testified, and prosecutor disparaged
alibi during closing argument. Strategic decision was
unreasonable.
1994: Commonwealth v. Horton,
644 A.2d 181 (Pa. Super. Ct. 1994)
Counsel ineffective in robbery case
for failing to request an instruction on the definition of "recklessly"
in regards to the defense of duress, where eyewitness testified
defendant took money from victim's pocket only after told to do so by
person pointing gun in his direction and defense of duress was not
available if the defendant had "recklessly" placed himself in position
where it was probable that he would be subjected to
duress.
Chalk v. State,
313 S.C. 25, 437 S.E.2d 19 (1994)
Trial counsel ineffective for failing
to request an instruction to resolve any reasonable doubt as to whether
defendant was guilty of murder or manslaughter in favor of the lesser
included offense.
1993: Commonwealth v. Allison,
622 A.2d 950 (Pa. Super. Ct. 1993)
Counsel ineffective for failing to
object to generalized alibi instruction instead of specific instruction
based on facts of case and state's burden of proof.
Commonwealth v. Hutchinson,
621 A.2d 681 (Pa. Super. Ct.), appeal denied, 634
A.2d 1114 (Pa. 1993)
Counsel ineffective in homicide by
vehicle case for failing to request an instruction on the lighting
requirement where there was evidence that tractor operator's violation
of lighting requirement of motor vehicle code may have been a
substantial cause of fatal accident.
Taylor v. State,
312 S.C. 179, 439 S.E.2d 820 (1993)
Trial counsel ineffective for failing
to object to burden shifting instruction on issue of intent to
distribute controlled substances.
1992: Kuk v. State,
602 So. 2d 1213 (Ala. Crim. App. 1992)
Trial counsel ineffective for failing
to object to instruction on reckless murder when defendant had been
indicted only for intentional murder and instruction could have
permitted jury to convict defendant without finding that he had intent
to kill.
State v. Laraby,
842 P.2d 1275 (Alaska Ct. App. 1992)
Counsel ineffective for failing due to
oversight to object to omission of lesser included offense instruction
on one charge where the instruction was given on a second
charge.
State v. Wright,
598 So. 2d 493 (La. Ct. App. 1992)
Counsel failed to object to omission
of lesser included offense in responsive verdicts despite a state law
requiring submission of all charged and lesser included offenses to
jury.
Commonwealth v. Roxberry,
602 A.2d 826 (Pa. 1992)
Counsel ineffective for failing to
request an alibi instruction where defendant's testimony supported
one.
Riddle v. State,
308 S.C. 361, 418 S.E.2d 308 (1992)
Trial counsel ineffective for failing
to request an alibi instruction when the sole theory of defense was
alibi.
Gallman v. State,
307 S.C. 273, 414 S.E.2d 780 (1992)
Trial counsel ineffective for failing
to object to judge's comment, prior to closing arguments and
instructions, that jurors were free to talk about the case among
themselves.
Watrous v. State,
842 S.W.2d 792 (Tex. Ct. App. 1992)
Trial counsel in aggravated sexual
assault on child case ineffective for failing to request a jury
instruction on the statutory defense of medical care which was the sole
theory of defense. Defendant testified that he touched child's genitals
to apply salve after the child complained of painful urination and
admitted conduct which was sufficient to find penetration. Thus,
counsel's failure to request instruction left jury with no alternative
but to convict.
Vasquez v. State,
830 S.W.2d 948 (Tex. Crim. App. 1992)
Trial counsel in possession of firearm
by felon case was ineffective for failing to request an instruction on
the statutory defense of necessity where the evidence showed that the
defendant had been a "building tender" (duties like a guard) while in
prison and was therefore hated by prison gang members; defendant had
been hospitalized after he was kicked in the back by a former inmate;
defendant testified he had been kidnapped from hospital and held hostage
by ex-gang members but grabbed gun and escaped when his guard was
distracted and was arrested shortly afterwards. Defendant told police
officer that someone was out to get him and there were men close by with
machine-guns who would shoot him if they saw him.
State v. Marcum,
480 N.W.2d 545 (Wis. Ct. App.), review denied, 485 N.W.2d 412 (Wis.
1992)
Trial counsel ineffective in multiple
count child sexual assault case for failing to object to standard
unanimity instruction combined with failure to object to verdict form
which lacked specificity about which act of sexual contact related to
which count of sexually molesting stepdaughter. Defendant acquitted on 2
of the 3 charges, but because of counsel's failure, the jury could have
convicted on the one count even though they disagreed about which
incident he was guilty of. Charges dismissed because no way to
tell.
1991: Palmer v. State,
573 N.E.2d 1256 (Ind. 1991) (affirming 553 N.E.2d 1256 (Ind. Ct. App. 1990))
Counsel ineffective for failing to
object to voluntary manslaughter charge which misstated elements of the
offense.
People v. Gridiron,
475 N.W.2d 879 (Mich. Ct. App.), amended on appeal, 475 N.W.2d 879 (Mich.
1991)
Trial counsel ineffective for
requesting instruction on lesser included offense of simple possession
in prosecution for possession with intent to deliver, because penalty
for either was the same, conviction for the lesser required proof of
fewer elements, and state law prohibited instruction on the lesser
offense. Retrial prohibited where defendant acquitted of greater offense
and convicted on lesser.
Battle v. State,
305 S.C. 460, 409 S.E.2d 400
(1991)
Trial counsel ineffective for failing
to request specific instructions on appearances to defendant and retreat
as it related to self-defense.
Ex parte Zepeda,
819 S.W.2d 874 (Tex. Crim. App. 1991)
Trial counsel neffective in murder
case for failing to request an instruction on accomplice witness
testimony when witnesses indicted for the lesser included offense of
voluntary manslaughter testified for the state and the only state
evidence connecting the defendant to the commission of the murder was
these witnesses.
1990: People v. Newbolds,
562 N.E.2d 1051 (Ill. App. Ct. 1990)
Counsel ineffective in unlawful use of
weapons by felon case for failing to request an instruction on the
defense of necessity where one version of facts was that defendant's
girlfriend pulled a gun on him and the weapon discharged while he was
taking the weapon away from her.
State v. Rubin,
559 So. 2d 550 (La. Ct. App. 1990)
Counsel in attempted murder case
ineffective for failing to object to state argument and judge's
erroneous instructions which told jury that intent to inflict bodily
harm would support the conviction because an attempted murder requires a
specific intent to kill.
State v. Carter,
559 So. 2d 539 (La. Ct. App. 1990)
Counsel in attempted murder case
ineffective for failing to object to state argument and judge's
erroneous instructions which told jury that intent to inflict bodily
harm would support the conviction because an attempted murder requires a
specific intent to kill.
Commonwealth v. Gainer,
580 A.2d 333 (Pa. Super. Ct. 1990), appeal denied, 602
A.2d 856 (Pa. 1992)
Counsel ineffective for failing to
request an alibi instruction after presenting alibi evidence and arguing
alibi to jury.
Carter v. State,
301 S.C. 396, 392 S.E.2d 184 (1990)
Trial counsel ineffective in
murder/manslaughter case for failing to object to instruction which
created a mandatory presumption of malice (rather than allowing a
permissive inference) and precluded a finding of manslaughter. Trial
counsel also ineffective for failing to request the required instruction
that the jury had a duty to resolve doubt as to level of guilt in
defendant's favor and find him guilty only of the lesser
offense.
Dandy v. State,
301 S.C. 303, 391 S.E.2d 581 (1990)
Counsel ineffective for failing to
object to a self-defense charge which erroneously stated that defendant
must prove self-defense by a preponderance of the
evidence.
1989: State v. Ball,
554 So. 2d 114 (La. Ct. App. 1989)
Counsel in attempted murder case
ineffective for failing to object to state argument and judge's
erroneous instructions which told jury that intent to inflict bodily
harm would support the conviction because an attempted murder requires a
specific intent to kill.
*Commonwealth v. Billa,
555 A.2d 835 (Pa. 1989)
Counsel ineffective for failing to
request a limiting instruction to inform jury that the evidence that the
defendant raped and attempted to murder a prior victim was admissible
only to prove motive and intent in rebuttal to defendant's claim of
accidental death.
High v. State,
300 S.C. 88, 386 S.E.2d 463 (1989)
Counsel ineffective for failing to
object when judge instructed during manslaughter charge that the law
"presumes" intent from the doing of an unlawful act.
State v. Moritzsky,
771 P.2d 688 (Utah Ct. App. 1989)
Counsel in aggravated assault case was
ineffective for requesting a defense of habitation instruction in
accordance with a prior version of the applicable statute which failed
to incorporate the current statute's presumption that the defendant was
acting reasonably assuming the jury found the defense otherwise
applicable.
1988: Spaziano v. State,
522 So. 2d 525 (Fla. Dist. Ct. App. 1988)
Trial counsel ineffective for failing
to object to incomplete and misleading instruction of excusable homicide
and manslaughter. Appellate counsel also ineffective for failing to
raise issue on direct appeal.
People v. Pegram,
529 N.E.2d 506 (Ill. 1988) (affirming 504 N.E.2d 958 (Ill. App. Ct. 1987))
Counsel ineffective in robbery case
for failing to request an instruction on defense of compulsion and
prosecution's burden of proof on that issue where defendant testified
that he participated in robbery because he was being forced at gun
point.
Tarwater v. Cupp,
748 P.2d 125 (Or. 1988)
Counsel ineffective for failing to
object to erroneous instruction that the jurors should consider lesser
included offenses only if they did not find the defendant guilty of the
greater offenses beyond a reasonable doubt.
Stone v. State,
294 S.C. 286, 363 S.E.2d 903 (1988)
Trial counsel ineffective for failing
to request a self-defense instruction when the facts of the case clearly
supported such an instruction.
Conaty v. Solem,
422 N.W.2d 102 (S.D. 1988)
Counsel ineffective for failing to
request a self- defense instruction where the issue was raised by the
evidence.
1987: Perkins v. Keeney,
731 P.2d 1047 (Or. Ct. App.), review denied, 738 P.2d 199 (Or.
1987)
Counsel ineffective for failing to
object to instruction requiring jury to find defendant not guilty of
greater offense of murder before considering lesser included offense of
manslaughter because instruction was contrary to state
law.
Peaslee v. Keeney,
726 P.2d 398 (Or. Ct. App.), review denied, 731 P.2d 1046 (Or.
1987)
Counsel ineffective for failing to
object to instruction requiring jury to find defendant not guilty of
greater offense of murder before considering lesser included offense of
manslaughter because instruction was contrary to state
law.
Commonwealth v. Gass,
523 A.2d 741 (Pa. 1987)
Counsel ineffective in murder case for
failing to request an instruction on verdict of not guilty by reason of
insanity when sanity was clearly in issue.
Sosebee v. Leeke,
293 S.C. 531, 362 S.E.2d 22 (1987)
Trial counsel in criminal sexual
conduct case ineffective for failing to object to judge's improper
comments in the presence of the jury which clearly reflected that the
judge believed the victim's testimony.
1986: People v. Jaffe,
493 N.E.2d 600 (Ill. App. Ct. 1986)
Counsel ineffective in attempted
murder case for failing to request a self-defense instruction when
defendant admitted fight so self-defense was the only viable defense
theory.
Commonwealth v. Whiting,
517 A.2d 1327 (Pa. Super. Ct. 1986), appeal denied, 529
A.2d 1080 (Pa. 1987)
Trial counsel ineffective, when
defendant raised an alibi defense and named his wife as his alibi but
did not call her as a witness, for failing to object to "missing
witness" instruction that allowed jury to draw inference that her
testimony would have been unfavorable to the defense. Instruction
generally allowed but improper in this case because of spousal
privilege.