467 P.3d 791
Or. Ct. App.2020Background
- In December 2007 petitioner McMillan and others assaulted, strangled, and threatened a victim (C) while attempting to recover a stolen necklace; an amended indictment charged McMillan with 13 offenses (jury convicted on 12 counts; not guilty on attempted murder).
- At trial the court gave two accomplice instructions: a correct aiding-or-abet instruction and a separate "natural-and-probable-consequence" instruction (the latter later held to misstate Oregon law in State v. Lopez‑Minjarez).
- The prosecutor urged an accomplice theory in closing: McMillan "put Kenny McKee into a weapon," so McMillan could be convicted of crimes Kenny actually committed, even if McMillan did not intend those specific crimes.
- Trial counsel did not object to the natural‑and‑probable‑consequence instruction or to the prosecutor's accomplice liability argument; appellate counsel did not raise plain error on direct appeal; post‑conviction court denied relief.
- On post‑conviction appeal the court held trial counsel was constitutionally deficient for failing to object and that that deficiency prejudiced McMillan as to Counts 2–10 and Count 12; relief was ordered for those counts and other convictions were affirmed.
Issues
| Issue | Plaintiff's Argument (McMillan) | Defendant's Argument (Kelly) | Held |
|---|---|---|---|
| 1. Whether trial counsel was inadequate for failing to object to the natural‑and‑probable‑consequence jury instruction | Counsel was deficient for not objecting to an instruction later declared legally incorrect (Lopez‑Minjarez) | Instruction was good law in 2009; no prejudice shown | Court: Performance deficient; prejudice shown as to Counts 2–10 and 12 (reversed/remanded for relief on those counts) |
| 2. Whether trial counsel was inadequate for failing to object to prosecutor’s closing argument misstating accomplice law | Counsel should have objected to argument that allowed conviction without required specific intent | Argument reflected then‑available law/was harmless for some counts | Court: Failure to object was deficient and, coupled with the erroneous instruction, could have tended to affect verdicts on many counts (prejudice on Counts 2–10 and 12) |
| 3. Which convictions, if any, were prejudiced by counsel’s failures | McMillan argued the erroneous instruction and argument infected most convictions because prosecutor relied on the instruction to attribute Kenny’s acts to McMillan | Superintendent conceded several counts and argued some convictions (burglary, felon‑in‑possession) required principal liability and were unaffected | Court: Prejudice found for Counts 2–10 and 12; no prejudice for Count 11 (felon‑in‑possession) and Count 13 (burglary) |
| 4. Whether appellate counsel was ineffective for failing to assign plain error on direct appeal to the erroneous instruction | McMillan argued appellate counsel should have preserved the Lopez‑Minjarez issue | Superintendent argued no prejudice shown for two counts and thus any appellate error would not change outcome | Court: Rejected this claim as moot for counts already found prejudiced; no additional prejudice shown for Counts 11 and 13 |
Key Cases Cited
- State v. Lopez‑Minjarez, 350 Or. 576 (2011) (natural‑and‑probable‑consequence instruction misstates Oregon accomplice law)
- Wade v. Brockamp, 268 Or. App. 373 (2015) (failure to object to the erroneous instruction can prejudice the defendant)
- Drown v. Persson, 294 Or. App. 754 (2018) (framework for identifying first‑in‑time predicate offenses when assessing prejudice from the instruction)
- Edwards v. Taylor, 295 Or. App. 476 (2018) (applies Drown framework to evaluate prejudice from instruction and counsel errors)
- Green v. Franke, 357 Or. 301 (2015) (standard for whether counsel’s acts or omissions could have tended to affect outcome under Article I, §11)
- Johnson v. Premo, 361 Or. 688 (2017) (performance and prejudice elements for Article I, §11 inadequate‑assistance claims)