Don't confuse premeditation with foreseeability

Michelle Davis won in State v. Overstreet, No. 95,682 (Kan. Jan. 30, 2009), obtaining a new trial in a Sedgwick County attempted first-degree murder conviction. The KSC relied on three separate grounds for reversal: clear error for a giving a foreseeablility instruction in a premeditated murder case, clear error regarding an improper supplemental instruction given to the jury during deliberations after the jury indicated it was split on one count, and ineffective assistance of trial counsel for failure to subpoena key witnesses. With respect to the first issue, the KSC held that a foreseeability instruction improperly diluted the state's burden with regard to proving premeditation:

Despite this premeditation requirement, the district court instructed the jury in this case that "[a] person who intentionally aids another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable." This foreseeability instruction indicated that the jury need not find that Overstreet possessed the specific intent of premeditation if it found that premeditated murder was a reasonably foreseeable consequence of aggravated assault. In other words, giving the aiding and abetting foreseeability instruction negated the State's burden to prove an essential element of the crime charged: premeditation. This diminished burden is precisely the type of error disproved in Engelhardt. The district court erred when it provided the foreseeability instruction in this case.

In addition, the foreseeability instruction is inappropriate in a premeditated murder case on the basis of logic. Premeditation does not require that a murder (or attempted murder) be reasonably foreseeable; the only relevant question is whether the defendant thought about the murder before engaging in the intentional homicidal act. Conversely, the mere fact that an act is foreseeable does not mean that the defendant has premeditated his or her actions. In short, the fact that it may be foreseeable that someone may die as a result of a particular course of action does not give rise to the conclusion that the cause of death was premeditated.

With respect to the IAC claim, the KSC agreed with the COA that trial counsel's performance was deficient, but disagreed that Mr. Overstreet had failed to prove prejudice:

The crux of Overstreet's defense at trial was that he was not the driver during the shooting. Overstreet's defense counsel had reviewed the police reports and had discovered that both Bauder and Mott identified Walker--not Overstreet--as the driver in this case. Both Bauder and Mott were listed as potential witnesses the State might call in the initial complaint and information.

Defense counsel testified at the hearing on remand that he had hired a private investigator to find and question Bauder and Mott; this investigator was apparently able to contact Bauder but was unable to contact Mott. Because counsel "figured [the State] would call [Bauder and Mott] as witnesses," he "didn't need to contact them." Only when the State did not call either man as a witness and the court granted the State's hearsay objections did defense counsel recognize that he needed to subpoena Bauder and Mott. The only personal contact defense counsel ever had with Bauder before the witness testified was in the courtroom library on the day of Bauder's testimony--more than 8 months after the incident occurred. Bauder then incorrectly stated that he had identified Overstreet on the night of the shooting.

If the primary theory of the defense was that Overstreet was not the driver, then it was objectively unreasonable to not interview the two people who had made positive identifications of another person as the driver on the night of the shooting. It was unreasonable not to subpoena the two men as witnesses prior to trial. It was unreasonable to fail to adequately prepare the one man who eventually did testify. These decisions cannot be strategically explained and fall below the constitutionally-guaranteed standards of representation in a criminal case.

Moreover, contrary to the Court of Appeals' conclusion, we conclude that defense counsel's deficient performance prejudiced the defendant's right to a fair trial. On two separate occasions after the case was submitted to the jury for deliberations, the jury asked for a readback of Bauder's testimony regarding whether he saw Overstreet at the scene of the shooting. The jury also asked for a readback of McCall's testimony regarding his identification of Overstreet as the driver. When the jury requested additional summation on the second day of deliberations, one of the questions of clarification requested was whether Overstreet had to be the driver of the Tahoe to be convicted of aiding and abetting the two crimes.

Three issues, three bases for reversal!