Wade v. Brockamp

Failure of counsel to object to a faulty jury instruction may prejudice defendant and suffice to prove ineffective assistance of counsel.

Defendant appealed a judgment vacating petitioner’s convictions and granting her a new trial. Defendant assigns error to the post-conviction court’s determination that petitioner’s criminal trial counsel provided her with constitutionally deficient legal representation by failing to object to a Uniform Criminal Jury Instruction that instructed the jury that a person who aids or abets another in committing a crime is responsible for any other crimes that were a natural and probable consequence of the intended crime. Petitioner purchased drugs from the victim and felt a romantic connection. Petitioner eventually invited victim to “party.” Victim believed the “party” would only be between the two of them. Petitioner arrived with her boyfriend. After a night of methamphetamine use, victim was hit in the head with a hammer like object. While unconscious, petitioner and boyfriend stole victim’s wallet, phone and van. The court did not find the petitioners argument convincing that counsel should have objected because "there was nothing to lose by doing so." The Court found that the petitioner was prejudiced under the state constitution when counsel failed to object to the jury instruction. The Court did not err in granting post-conviction relief based on the failure of petitioner’s trial counsel to object to the giving of that instruction. Affirmed.