Be patient with me today, because this post is a long one. I'm sure you see PCR and immediately hear the teacher on the Peanuts doing the "wah, wah, wah, wah wah," thing, but in this case, there are possibly more lessons to be learned for trial lawyers than post-conviction.
On Wednesday, the Tennessee Supreme Court issued an opinion in Moore v. State, a post-conviction case out of Memphis. The Opinion tightened the basis for relief based on ineffective assistance of counsel with respect to failure to get lesser-includeds in the jury instructions. Let’s talk facts.
The Supreme Court found that the CCA erred in concluding that the petitioner was prejudiced by his attorney’s failure to request jury instruction of the lesser-included offenses – thereby meaning that it was all (especially aggravated kidnapping) or nothing (not guilty). The CCA found that the attorney should have requested the instructions, while the Supreme Court found that it didn’t prejudice the defendant because there was “no reasonable probability” that a properly-instructed jury would have convicted the petitioner of any of the lesser-includeds – such as aggravated kidnapping. Having just wrapped up a jury trial where the jury reached a verdict of compromise and only convicted on two of the five counts – and the two counts of conviction were lesser-includeds – I wonder if the Supreme Court’s assessment in a fair one. “No reasonable probability?” I mean, who knows why juries do what they do?!
In Moore, the Defendant and Co-Defendant Genore Dancy were convicted of committing a home invasion-kidnapping of Mr. Smith, a female friend, and Mr. Smith’s eight-year-old son. This incident occurred in 1999, was a horrible, horrible crime. Two more women arrived at the Smith house and were also held at gunpoint, while the house was ransacked. All the occupants were forced to strip to their underwear and lay down on the floor. Dancy took one woman in another room and forced her to perform oral sex at gunpoint, while Moore guarded the others at gunpoint. Then Dancy and Moore switched positions. After taking all six victims into the kitchen, making them lie down, binding their hands and feet, Dancy took a different woman into another room and raped her. Another visitor arrived at the house and they were robbed, bound and put on the kitchen floor. “Additional intruders entered the house” each of whom raped Mr. Smith’s friend. Finally, all the intruders left, taking the victims’ property with them. Four of the victims identified Defendant Moore at trial.
Moore presented an alibi defense that he was not present for any attack, but was at a club with his girlfriend. Trial counsel requested lesser-includeds be charged, but the Court denied that request, stating that an all-or-nothing defense had been presented; therefore additional jury instructions need not be given. At the PCR hearing, trial counsel testified that he didn’t think the trial was about lesser-includeds, and that “in reality the jury was going to believe Mr. Moore was there and participated in these things, or they weren’t.”
The Supreme Court opinion mentions this tidbit, which I’m not sure I was aware of, but a 2002 statutory amendment provides that, “unless a defendant makes a written request for lesser-included offense instructions, a trial judge’s failure to instruct the jury on lesser-included offenses cannot be present as a ground for relief on appeal.” (Tenn. Code Ann. 40-18-110(c)). While the CCA granted relief to Moore in the form of a new trial, one judge in the panel found that failure to instruct on lesser-includeds would not have resulted in a different conviction, and therefore, the failure to make that written request was harmless error.
“The State conceded that trial counsel’s lack of knowledge regarding the necessity of making a written request for lesser-included offense instructions was deficient.” Moore, 2014 WL 8772276. However, the Supreme Court looked at that elusive term “trial strategy,” and found that trial counsel had a two-part strategy. Defendants have a constitutional right to have all jury instructions given that are supported by the evidence pursuant to Tennessee article I, section 6 of the Tennessee Constitution. Citing State v. Richmond, a 2002 Tennessee Supreme Court case, the question to be answered was “whether a reasonable jury would have convicted the defendant of the lesser-included offense instead of the charged offense.”
So, if you’re appealing the lack of jury instructions given in a trial – how do you know if you’ve actually got some teeth to your argument or if you’re dead in the water? The Tennessee Supreme Court elaborates on page 10 of the Opinion:
“Under the Williams analysis, where the jury convicts the defendant of a greater charged offense rather than an immediately lesser offense standing between lesser-included offenses and the offense for which the Defendant was convicted, any error from the omission of jury instructions on these other asserted lesser-included offenses is harmless beyond a reasonable doubt because the jury, by finding the defendant guilty of the greater offense to the exclusion of the immediately lesser offense, necessarily rejected all other lesser-included offenses.”
For post-conviction cases, the Supreme Court adopted the Allen analysis, which requires an examination of the evidence presented at trial, the defendant’s theory of defense, and the verdict returned by the jury.” However, if, on direct appeal, the CCA determines that (pursuant to Williams or Allen) the failure to instruct on lesser-includeds was harmless error then “any asserted deficiency of trial counsel based on failure to request that particular lesser-included offense instruction can never be prejudicial in a post-conviction proceeding.”
Y’all, this is some seriously disturbing law. NEVER? That means if some poor soul gets a crappy trial attorney AND a crappy appellate attorney (usually they are one and the same), and they do a terrible job raising the issue, but raise it nonetheless, that the post-conviction attorney must prove two layers of ineffective assistance of counsel. Post-conviction counsel must prove 1. Appellate counsel was ineffective for failing to effectively raise the issue of jury instructions, AND 2. That trial counsel was ineffective for failing to show why lesser-includeds were needed in the first place.
Needless to say, the facts of this case are terrible, and the Supreme Court found that a reasonable jury would not have convicted of any lesser-includeds. I’m not saying the Tennessee Supreme Court is wrong (I me but I can barely wrap my head around the notion of “what the reasonable jury would find.” Not because jurors are unreasonable – but because they are so damn unpredictable.
You can read the full opinion here: http://www.tncourts.gov/courts/supreme-court/opinions/2016/03/16/rashe-moore-v-state-tennessee
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