Wilson v. Premo

Petitioner received inadequate assistance of counsel where Attorney failed to request a Boots instruction and the jury convicted Petitioner of 2 counts, and acquitted Petitioner of 2 counts, of the same crime without identifying the occurrence that formed the basis for each count.

Petitioner in post-conviction case claimed he received inadequate assistance of counsel because of Attorney’s failure to request a Boots instruction.

In the underlying trial, Petitioner was convicted of two counts of rape and acquitted for two counts of rape. Attorney failed to request a Boots instruction, which would have informed the jury that at least 10 jurors must agree on which incidents formed the basis for the counts of conviction.

Juries must be given the Boots instruction in cases where: (1) a statute defines one crime but specifies alternative ways in which it can be committed; and (2) cases “where an indictment ‘charges a single violation of a crime, but the evidence permits the jury to find multiple, separate occurrences of that crime.’”

The Court held that constitutionally adequate counsel would have requested the Boots instruction, and the failure to do so had a tendency to affect the verdict. Reversed and remanded.