Wade v. Brockamp

• Decision Date: 07 January 2015
• Docket Number: A151622.,C096022CV
• Parties: Ashley Rachelle WADE, Petitioner–Respondent, v. Kim BROCKAMP, Superintendent, Coffee Creek Correctional Facility, Defendant–Appellant.
• Court: Oregon Court of Appeals

268 Or.App. 373

342 P.3d 142

Ashley Rachelle WADE, Petitioner–Respondent

v. Kim BROCKAMP, SuperintendentCoffee Creek Correctional Facility, Defendant–Appellant.

C096022CV

A151622.

Court of Appeals of Oregon.

Argued and Submitted Sept. 6, 2013.

Decided Jan. 7, 2015.

Inge D. Wells, Senior Assistant Attorney General, argued the cause for appellant. With her on the brief were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General.

Lawrence Taylor, Portland, argued the cause for respondent. On the brief were Erin Galli and Chilton & Galli, LLC.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and EGAN, Judge.

Opinion

ORTEGA, P.J.

Defendant appeals a judgment vacating petitioner's convictions and granting her a new trial. Defendant assigns error to the post-conviction court's determination that petitioner's criminal trial counsel provided her with constitutionally deficient legal representation by failing to object to a Uniform Criminal Jury Instruction that instructed the jury that a person who aids or abets another in committing a crime is responsible for any other crimes that were a natural and probable consequence of the intended crime. Before petitioner's post-conviction trial but after her criminal trial, the Oregon Supreme Court held in State v. Lopez–Minjarez, 350 Or. 576, 260 P.3d 439 (2011), that the “natural and probable consequences” jury instruction was an incorrect statement of the law. We conclude that the court did not err in granting post-conviction relief based on the failure of petitioner's trial counsel to object to the giving of that instruction. Accordingly, we affirm.

I. BACKGROUND

At petitioner's criminal trial, the state adduced the following evidence. Petitioner and the victim had known each other for about two months. During that time, the victim sold petitioner drugs and they used drugs together. The victim had a romantic interest in petitioner, which he believed she leveraged to her advantage to obtain “drugs and money.” One night, petitioner called the victim to invite him to “a party,” which the victim understood only he and petitioner would be attending. In anticipation of the “party,” and desiring a romantic encounter with petitioner, the victim obtained a motel room. However, petitioner arrived at the motel room with her boyfriend, Pray, and another woman. Petitioner informed the victim that she “didn't have any money” and asked him if he had any drugs. The victim did not but agreed that he would go and buy some methamphetamine. Before leaving, the victim checked his wallet to see how much money he had and as he did so, noticed petitioner looking at the cash in his wallet, about $445. The victim managed to purchase $50 worth of methamphetamine and returned to the motel room, where the group proceeded to smoke some of it. Petitioner told the victim that she could sell the remainder of the methamphetamine for a profit and bring back the proceeds to him. Petitioner left the motel room with her friends.

Later, at about 3:00 a.m., petitioner returned to the motel room with Pray and two unidentified women. Petitioner asked the victim if he wanted to “continue partying,” and the victim invited her inside. Petitioner asked if her friends could also come inside, and the victim said that would be “fine.” Petitioner sat down on the bed and began to rub the victim's feet. One of the unidentified women threw a hammer-like object in Pray's direction, and he picked it up off the floor and went to use the bathroom. Pray came out of the bathroom and then hit the victim in the nose and eye with the object, knocking him unconscious. When the victim regained consciousness, he saw that his phone and his wallet, which had contained about $395, were missing. He discovered that his van was missing as well.

Petitioner and Pray were arrested the following day. The state charged both with two counts of first-degree robbery, ORS 164.415 (robbery involving the use of a dangerous weapon and robbery involving infliction of serious injury), two counts of second-degree robbery, ORS 164.405 (robbery based on representation that a person is armed with a dangerous weapon and robbery aided by another person present), and one count of first-degree assault, ORS 163.185 (causing serious injury with a dangerous weapon). Petitioner appeared with Pray as codefendants in a trial that occurred in 2006. The state prosecuted its case on a theory that Pray was directly liable for the charged offenses—that he personally inflicted the blow to the victim's face—and that petitioner was liable on an aid-and-abet theory because she set up the victim for the robbery and assault.

In its closing argument, the state explained to the jury its theory of the case:

“What really happened is * * * this offer [petitioner] made to, quote, unquote, ‘party’ with [the victim] was nothing more than a ploy or trick to get him alone and get—put him in a vulnerable position.

“Now when she first made that call, she may or may not have had this Robbery and Assault planned in her mind.

* * * I don't have to prove that she—beyond a reasonable doubt that that was the moment that she cooked up this plan. It very well could have been that this was the plan set up from the beginning. It also could have been, and I admit, that [petitioner] simply wanted a meth fix. * * *

“ * * * * *

“[The victim]'s all alone in the [motel room], it's 3 o'clock in the morning, he's basically a sitting duck. Later on in the evening they're out, they're cooking this up, they need more money * * * because they're using meth continuously. * * * And they plan this. They cook this scheme up, they're going to go over there and relieve [the victim] of his money.

“It wasn't enough, though, to just go in and * * * have [petitioner] say, you know, ‘Hey, [victim], how are you doing,’ and—and soften him up and then grab his wallet and run out the door. It would've been, you know, potentially doable. Instead, it turned violent. * * * ”

(Emphases added.) Petitioner's trial counsel and the state requested the following jury instruction:

“A person who aids or abets another in committing a crime, in addition to being criminally responsible for the crime that is committed, is also criminally responsible for any acts or other crimes that were committed as a natural and probable consequence of the planning, preparation, or commission of the intended crime.”¹

At the time, that instruction was Uniform Criminal Jury Instruction 1052. Petitioner's trial counsel did not object to the instruction. The jury found petitioner guilty of all charges against her.²

Petitioner appealed her judgment of conviction. After we affirmed her convictions without opinion, she petitioned for review by the Oregon Supreme Court, which was denied. Petitioner timely filed her petition for post-conviction relief, and her post-conviction trial was held in July 2011. By then, we had decided State v. Lopez–Minjarez, 236 Or.App. 270, 286, 237 P.3d 223 (2010), aff'd in part, rev'd in part on other grounds. 350 Or. 576, 260 P.3d 439 (2011), where we concluded that a “natural and probable consequences” instruction that was identical to the one given at petitioner's criminal trial was “not an accurate statement of the law and that it probably created an erroneous impression of the law in the minds of the jurors.” By the time the post-conviction court issued its judgment granting post-conviction relief to petitioner, the Supreme Court had likewise concluded that the instruction was “wrong” and “incorrectly states the principles of accomplice liability under Oregon law.” Lopez–Minjarez, 350 Or. at 582, 260 P.3d 439. The post-conviction court found that, under Article I, section 11, “reasonably diligent” counsel would have objected to the instruction and that there was a “significant possibility” that petitioner's counsel's failure to do so prejudiced her. The post-conviction court also found that “[t]here was nothing to lose” by objecting to the instruction. The court, however, concluded that petitioner was not prejudiced under the federal constitution because it could not say “that a reasonable trier of fact probably would have drawn” a conclusion that she was prejudiced under the standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (Emphasis in original.) The post-conviction court added, “Such a finding that the error is likely to have affected the outcome is the standard for granting relief under federal law.”

In assigning error to the court's grant of post-conviction relief, defendant raises three arguments: (1) it was not objectively unreasonable for petitioner's trial counsel to fail to “anticipate” Lopez–Minjarez; (2) the post-conviction court incorrectly stated the law when it found that petitioner had “nothing to lose” by challenging the incorrect instruction; and (3) the post-conviction court applied an incorrect standard when it determined that counsel was inadequate under the state constitution but not the federal constitution.

II. DISCUSSION

ORS 138.530(1) provides for post-conviction relief when there has been a “substantial denial in the proceedings resulting in petitioner's conviction, or in the appellate review thereof, of petitioner's rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.” Article I, section 11, of the Oregon Constitution and the Sixth and the Fourteenth Amendments to the United States Constitution provide a criminal defendant with a constitutional right to counsel. “Under both constitutions, ‘the defendant's right is not just to a lawyer in name only, but to a lawyer who provides adequate assistance.’ ” Montez v. Czerniak, 355 Or. 1, 6, 322 P.3d 487 (2014) (quoting State v. Smith, 339 Or. 515, 526, 123 P.3d 261 (2005) ). “Those constitutional provisions require ‘adequate performance by counsel’ concerning the ‘functions of professional assistance...