Marion County Circuit Court No. 04C13562 Paul J. Lipscomb, Senior Judge.
On appellant Hale's petition for reconsideration filed April 3, 2013, and respondent Belleque's response to appellant's petition for reconsideration filed April 10, 2013; on respondent's petition for reconsideration filed April 10, 2013, and appellant's response to respondent's petition for reconsideration filed April 11, 2013. Opinion filed March 20, 2013. 255 Or.App. 653, 298 P.3d 596.
Daniel J. Casey for appellant's petition and response.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, for respondent's petition and response.
Before Wollheim, Presiding Judge, and Haselton, Chief Judge, and Nakamoto, Judge.
The state and petitioner have each filed petitions for reconsideration of this court's decision in Hale v. Belleque, 255 Or.App. 653, 298 P.3d 596 (2013), in which we determined that petitioner is entitled to post-conviction relief on two charges of first-degree burglary, but otherwise upheld petitioner's convictions, including convictions for aggravated murder. We write to address each party's contention, but adhere to our opinion.
At the end of the guilt phase of petitioner's trial, the jury was instructed that a person who aids and abets another in committing a crime, "in addition to being a person criminally responsible for the crime that is committed, is also criminally responsible for any act or other crime committed as a natural and probable consequence of the planning, preparation, or commission of the intended crime." Petitioner's trial counsel did not object to that instruction, and petitioner's appellate counsel did not challenge it on direct appeal.
In his petition for post-conviction relief, petitioner did not challenge the "aid and abet" instruction, the "natural and probable consequences" aspect of the "aid and abet" instruction, or his trial or appellate counsel's failure to object to the instruction. However, in his seventh claim for post-conviction relief, petitioner asserted that trial counsel was inadequate in failing to object to jury instructions that "did not specify that Petitioner was being tried as an accomplice, a status which involves a different or additional requirement of proof, such as specific intent to facilitate the commission of the crime by another." The post-conviction court rejected that claim, finding that the jury had been correctly instructed on criminal liability for the conduct of another, pursuant to ORS 161.150 and ORS 161.155.
Petitioner did not challenge the post-conviction court's ruling in his opening brief on appeal, despite the fact that, before the brief was filed, this court had decided State v. Lopez-Minjarez, 236 Or.App. 270, 286-88, 237 P.3d 233, adh'd to on recons, 237 Or.App. 688, 240 P.3d 753 (2010), aff'd in part and rev'd in part, 350 Or 576, 260 P.3d 439 (2011), and had held that giving a "natural and probable consequences" instruction is erroneous. However, in his supplemental pro se brief, petitioner contended that trial counsel was inadequate in failing to object to "the accomplice instructions [that] allowed a confusion of theories and intents." Then, in a memorandum of supplemental authority, post-conviction appellate counsel asserted that petitioner's convictions should be reversed under the Supreme Court's opinion in Lopez-Minjarez, 350 Or 576, 260 P.3d 439 (2011), which had affirmed this court's decision disapproving of a "natural and probable consequences" instruction like the one the trial court gave in this case.
In our original opinion, we gave petitioner the benefit of the doubt and assumed for the purpose of discussion that the seventh claim of the post-conviction petition had raised an inadequacy of counsel claim on the basis of the "natural and probable consequences" instruction, but we rejected the contention that counsel had been inadequate, explaining that, until this court's opinion in 2010 and the Supreme Court's opinion in 2011, the Uniform Criminal Jury Instruction given by the trial court on accomplice liability was a correct statement of the law, and the failure of trial counsel to object to it was a reasonable exercise of professional skill and judgment. 255 Or.App. at 686.
We further concluded that, assuming that trial counsel had been inadequate in failing to object to the instruction, there was no prejudice, "in view of evidence that petitioner was the primary actor, as described in the Supreme Court's opinion affirming the death sentence." Id. at 687.
Petitioner's petition for reconsideration relates only to the "natural and probable consequences" instruction. Petitioner asserts that we erred in failing to address his challenge to the post-conviction court's rejection of his "stand-alone" challenge to the instruction. Petitioner contends that an allegation in his fifth claim for post-conviction relief can be understood to have raised a stand-alone challenge to the instruction. As pertinent, the full allegation of the fifth claim was that
"[c]ourt and Counsel deprived Petitioner of his rights under Article I, Section 11 of the Oregon Constitution and the Fifth, Sixth and Fourteenth Amendments of the United States Constitution, when the ...