Saturday, March 08, 2014

Appellate counsel should have raised issue on improper burden of proof instruction

Jessica R. Kunen won in Miller v. State, No. 103,915 (Kan. Feb. 14, 2014), obtaining a new trial in a Douglas County first-degree murder prosecution.  After his conviction was affirmed on direct appeal, Mr. Martin filed a motion pursuant to K.S.A. 60-1507 claiming ineffective assistance of counsel.  In particular, he claimed that appellate counsel was ineffective for failing to raise an issue regarding a misstatement of law in the burden of proof instruction.  The state conceded that the instruction was wrong, but held that the appellate counsel was not deficient nor did the error prejudice Mr. Miller.

The KSC held that appellate counsel's performance was constitutionally deficient:
But Miller's appellate counsel did not testify that she declined to raise the instructional error to focus attention on other challenges in the direct appeal or after carefully considering it along with all other potential issues. Rather, the uncontroverted evidence shows she simply did not notice the error. And although she admitted a belief that the prosecutorial misconduct argument she did raise was stronger than the jury instruction issue that she missed, nothing in the record suggests the decision to raise one issue but not the other was the product of strategy. In other words, there was simply no professional judgment exercised in failing to bring this admitted instruction error before an appellate court.
The KSC also held that, if appellate counsel had raised the issue, it would have resulted in a finding of structural error and, therefore, the error was prejudicial.

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