284 P.3d 1280
Or. Ct. App.2012Background
- Petitioner was charged with first-degree robbery under ORS 164.415(1).
- The charge alleged use of a dangerous weapon to prevent or overcome resistance during theft in a store.
- Trial evidence conflicted on whether petitioner pulled a gun inside or outside the store; one witness said the gun was pulled inside, another that it was shown then not used.
- Petitioner testified he opened the backpack only after insistence by store personnel and claimed no intent to threaten anyone.
- Trial court and post-conviction court discussed lesser-included offense third-degree robbery, with the post-conviction court concluding defense counsel failed to consider requesting that instruction.
- Post-conviction relief was granted; court found trial counsel’s failure to request a third-degree robbery instruction prejudiced petitioner.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did trial counsel's failure to request third-degree robbery instruction constitute deficient performance? | Petitioner argues counsel failed to consider a valid lesser-included offense. | Armstrong argues a deliberate strategic choice could justify not requesting. | Yes; record supports failure to consider, indicating deficient performance. |
| Was petitioner prejudiced by lack of third-degree instruction despite firearm finding? | Prejudice shown because jury was not instructed on lesser offense and verdict could have differed. | Jury found firearm use; prejudice purportedly not possible. | Yes; absence of third-degree instruction prejudiced petitioner; relief awarded. |
Key Cases Cited
- Trotter v. Santos, 212 Or App 473 (Or. App. 2007) (inadequate assistance requires prejudice showing; lesser-included failure can be prejudicial)
- State v. Moses, 165 Or App 317 (Or. App. 2000) (lack of complete statutory instruction complicates prejudice analysis)
- State v. Leckenby, 200 Or App 684 (Or. App. 2005) (jury unaware of lesser offense may affect evaluation of greater offense)
- Moroney, 289 Or 597 (Or. 1980) (third-degree robbery is a lesser-included offense of first-degree robbery)