372 P.3d 1
Or. Ct. App.2016Background
- Petitioner (was 14 at the time) was tried as an adult for an armed robbery and killing in 2000; jury convicted him of one aggravated murder (after merger) and one felony murder among other counts; sentenced to a 30-year minimum.
- Trial theory: State primarily prosecuted on accomplice (aiding-and-abetting) liability for most counts and argued the jury could convict without finding the defendant intended the killing; prosecutor emphasized that if defendant intended the robbery, it “didn’t matter if anyone intended for [the victim] to die.”
- Trial court gave the Uniform Criminal Jury Instruction (UCJI) 1052, the “natural and probable consequences” instruction; defense counsel did not object.
- Petitioner later sought post-conviction relief claiming trial counsel was constitutionally inadequate for failing to object to that instruction; the post-conviction court denied relief, finding counsel’s performance reasonable and that the instruction was not outcome-determinative.
- After Lopez-Minjarez (Supreme Court invalidating the natural-and-probable-consequences theory under ORS 161.155) and the Court of Appeals’ decision in Wade (finding counsel unreasonable for failing to object post-Anlauf), petitioner moved for reconsideration of the post-conviction appeal.
- The Court of Appeals (on reconsideration) held counsel was constitutionally inadequate for failing to object to the instruction as to petitioner’s aggravated murder and intentional murder convictions (Counts 1, 2, 5), but the error was not prejudicial as to the felony-murder conviction (Count 4); remanded for relief on Counts 1, 2, and 5.
Issues
| Issue | Walraven's Argument | State's Argument | Held |
|---|---|---|---|
| Whether trial counsel was constitutionally inadequate for failing to object to the "natural and probable consequences" instruction | Failure to object was unreasonable given Anlauf and the importance of accomplice-liability law; counsel should have compared UCJI 1052 to the statute/case law | Counsel reasonably relied on existing practice; Anlauf did not definitively invalidate the instruction; local practice and judge reactions made objection uncertain | Counsel’s failure to object was unreasonable under Article I, §11 (trial counsel failed to exercise reasonable professional skill) for Counts 1, 2, 5 (following Wade analysis) |
| Whether petitioner was prejudiced by counsel’s failure to object (i.e., relief required) | The erroneous instruction could have tended to affect the outcome because the state’s theory allowed conviction without finding intent to kill | Evidence (Haynes’s statements, petitioner’s police statements) was strong enough that the verdict likely would have been the same; admission at later second-look hearing moots relief | Prejudice shown as to aggravated murder and intentional murder (Counts 1, 2, 5); not shown as to felony murder (Count 4) because felony-murder liability establishes mens rea via the predicate felony |
| Whether petitioner is judicially estopped or his post-trial admission renders relief moot | Petitioner’s later admission at a second-look hearing does not preclude challenge to counsel’s adequacy; a criminal defendant retains presumption of innocence and due-process protections at retrial | State argued judicial estoppel and mootness because petitioner admitted guilt at second-look hearing, so a new trial would have no practical effect | Rejected: admission does not automatically estop petitioner nor render a retrial necessarily ineffective; case not moot |
| Whether Wade requires reversal of post-conviction denial here (change in law/procedure) | Wade controls because Anlauf preceded petitioner’s trial and counsel should have identified the instruction’s conflict with accomplice-liability law | Wade differs on factual details; post-conviction court credibility findings support denial | Wade is controlling in analysis: counsel’s failure was unreasonable; petition for reconsideration granted in part and relief ordered for certain counts |
Key Cases Cited
- State v. Lopez-Minjarez, 350 Or 576 (2011) (Supreme Court held the natural-and-probable-consequences instruction inconsistent with ORS 161.155 and invalidated that theory of accomplice liability)
- Wade v. Brockamp, 268 Or App 373 (2015) (Court of Appeals held counsel unreasonable for failing to object to the natural-and-probable-consequences instruction post-Anlauf)
- State v. Anlauf, 164 Or App 672 (2000) (earlier Court of Appeals decision raising doubt about accomplice-liability extensions and relevant to assessing UCJI 1052)
- Green v. Franke, 357 Or 301 (2015) (explains Oregon standard for prejudice in ineffective-assistance claims under Article I, §11)
- Lichau v. Baldwin, 333 Or 350 (2002) (describes hindsight rule and prejudice standard: whether counsel’s acts or omissions "could have tended to affect" outcome)