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295.3 Cognizability Of Instructional Error On Appeal: Raising Issues That Have Not Been Preserved Below

    295.3.2 Ineffective Assistance Of Counsel At Trial

    295.3.2.1 The Ineffective Assistance Of Counsel Standard
    295.3.2.2 Duty Of Counsel To Investigate All Defenses Of Fact And Law That May Be Available To The Defendant
    295.3.2.3 Failure To Object To Jury Instruction As Ineffective Assistance Of Counsel (IAC)
    295.3.2.4 Failure Of Trial Counsel To Make Instructional Request As Ineffective Assistance Of Counsel
    295.3.2.5 Duty Of Trial Counsel To Request Specific Instructions On The Defense Theory
    295.3.2.6 Failure To Research And Present Nonpattern Jury Instruction As Ineffective Assistance Of Trial Counsel (IAC)
    295.3.2.7 Examples Of Cases Finding Prejudicial/Reversible Error Based On Counsel's Failure To Request Jury Instructions
    295.3.2.8 Duty Of Counsel To Investigate Defendant’s Medical And Psychiatric Conditions In Death Penalty Cases
    295.3.2.9 Duty To Request Instructions: Ineffective Assistance Of Counsel To Make Strategic Decision Without Fully Investigating Alternatives
    295.3.2.10 Ineffective Assistance Of Counsel: Third Party Guilt
    295.3.2.11 Ineffective Assistance Of Counsel: Falling Asleep During Trial
    295.3.2.12 Ineffective Assistance Of Counsel: Failure Of Defense Counsel To Present Evidence Promised In Opening Statement
    295.3.2.13 Ineffective Assistance Of Counsel: Tactical Or Strategic Reasons – Must Apply At The Time Counsel Acted
    295.3.2.14 Ineffective Assistance Of Counsel: Improper To Presume Strategic Or Tactical Reason
    295.3.2.15 Ineffective Assistance Of Counsel: Failure To Investigate Crime Scene

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PRACTICE NOTE: The standard for consideration of IAC (ineffective counsel) claims is Strickland v. Washington (1984) 466 US 668, 687 [104 SCt 2052; 80 LEd2d 674]. The Strickland test requires that the defendant satisfy two prongs -- that counsel's conduct fall below the normal standards of attorney competence and that but for counsel's errors or omissions, the defendant would have obtained a more favorable verdict. It was suggested in In re Avena (CA 1996) 12 C4th 694, 722, fn 5 [49 CR2d 413] that Lockhart v. Fretwell (1993) 506 US 364 [113 SCt 838; 122 LEd2d 180] may have altered or superseded the prejudice prong of the Strickland test.

    On closer analysis, however, Fretwell does not affect the validity of Strickland. (See Fretwell, 506 US at 373-75 [conc. opn. of O'Connor, J.] [Fretwell will have no effect on the Strickland prejudice inquiry "in the vast majority of cases"].) The "reasonable probability" standard of Strickland was based on the express presumption that the judge acted according to law. (Strickland, 466 US at 694.) In a Fretwell scenario, however, it turns out the judge did not act according to law, even if (s)he didn't know that at the time. If unlike Fretwell, there is nothing to disrupt the presumption that the judge acted according to law, then Strickland makes clear that the "reasonable probability" standard is the proper test for whether an error of counsel rendered a trial fundamentally unfair. (See also Williams v. Taylor (2000) 529 US 362 [120 SCt 1495; 146 LEd2d 389] [Lockhart v. Fretwell did not modify or supplant Strickland].)

    See also NCJIC 296.2.2.7 [Standard Of Prejudice: Ineffective Assistance Of Counsel].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: It is of course well settled that before embarking upon any defense, counsel has a "'duty to investigate carefully all defenses of fact and of law that may be available to the defendant . . . ."' (In re Williams (CA 1969) 1 C3d 168 [81 CR 784], 175; People v. Mozingo (CA 1983) 34 C3d 926, 934 [196 CR 212]; see also Williams v. Taylor (2000) 529 US 362 [120 SCt 1495, 1502; 146 LEd2d 389] [tactical decision to rely on defendant's cooperation with the authorities did not excuse the failure to thoroughly investigate the defendant's background for mitigating evidence].) It follows, a fortiori, that if it is decided to rely upon a particular defense to the charges, all potentially relevant avenues of investigation as to that sole defense should be fully and exhaustively investigated. (See People v. Frierson (CA 1979) 25 C3d 142, 164 [158 CR 281].) Indeed, "'investigation and preparation are the keys to effective representation."' (Rummel v. Estelle (5th Cir. 1979) 590 F2d 103, 104 [quoting ABA Projects on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, 224 (App. Draft 1971).) "Failure to investigate evidence that would be helpful to the defense is also an indication of ineffective assistance of counsel.  [Citation.]"  (McCoy v. Newsome (11th Cir. 1992) 953 F2d 1252, 1263; see also Asch v. State (WY 2003) 62 P3d 945, 959 [counsel made tactical decision not to impeach arresting officer’s testimony; court concluded "[n]o reasonable attorney would have allowed this case to go to the jury without having investigated [the officer’s] testimony and without having raised questions about his observations"].)

    As the court in Foster v. Lockhart (8th Cir. 1993) 9 F3d 722, 726 observed:

    "Reasonable performance of counsel includes an adequate investigation of facts, consideration of viable theories, and development of evidence to support those theories. An attorney must make a reasonable investigation in preparing a case or make a reasonable decision not to conduct a particular investigation. [Citation.] Before an attorney can make a reasonable strategic choice against pursuing a certain line of investigation, the attorney must obtain the facts needed to make the decision. [Citation.] An attorney's 'strategic choices' made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.'" [Citations.] Although we generally give great deference to an attorney's informed strategic choices, we closely scrutinize an attorney's preparatory activities. [Citations.]" (9 F3d at 726; see also Milburn v. State (TX 2000) 15 SW3d 267, 270.)

ALERT:  Normally, adequate investigation is required before a strategic decision to not pursue a defense will be deemed a reasonable strategic decision.  See NCJIC 295.3.2.9 [Duty To Request Instructions: Ineffective Assistance Of Counsel To Make Strategic Decision Without Fully Investigating Alternatives].

See Capital Punishment Handbook [1.13.2.2 a. Failure To Investigate And Prepare: General Principles And Authorities].

See also Capital Punishment Handbook [1.13.2.3 a. Failure To Present Mitigating Evidence At Sentencing: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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    See NCJIC 4.2.3 [Failure To Object To Jury Instructions As Ineffective Assistance Of Counsel].

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PRACTICE NOTE: Trial counsel has a duty to request proper jury instructions and the failure to do so may constitute ineffective assistance of counsel. (See People v. Sedeno (CA 1974) 10 C3d 703, 717, fn 7 [112 CR 1] [discussing trial counsel's duty to request proper instructions]; see also In re Cordero (CA 1988) 46 C3d 161, 189-91 [249 CR 342], Mosk, conc.) The failure of counsel to request a jury instruction can render his or her assistance ineffective if, under facts of case, it would have been error for trial court to refuse such an instruction, had one been requested. (See e.g., Vasquez v. State (TX 1992) 830 SW2d 948, 951; see also Young v. State (TX 1997) 957 SW2d 923, 925.)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: Where defense counsel argues a theory of defense but then fails to offer an instruction on that theory of defense, the failure cannot be called trial strategy and is evidence of ineffective assistance of counsel. (People v. Serrano (IL 1997) 676 N.E.2d 1011, 1016; see also People v. Jaffee (IL 1986) 493 NE2d 600, 610-11 [IAC for failure to request self defense instructions]; U.S. v. Span (9th Cir. 1996) 75 F3d 1383, 1387 [trial counsel's failure to request instruction on one of four available defenses violated defendant's right to effective assistance of counsel]; Commonwealth v. Stonehouse (PA 1989) 555 A2d 772, 781 [trial counsel ineffective in failing to request jury instruction in homicide trial which would require jury to consider cumulative effects of psychological and physical abuse when assessing reasonableness of battered person's fear of imminent danger of death or serious bodily injury with respect to claim of self defense]; People v. Marshall UNPUBLISHED (F016198) [failure to request antecedent threat instruction]; NCJIC 253.4.9 [Self Defense: Prior Acts Or Threats].)

    For example, if the defense theory is based on the defendant's good character, it may be ineffective assistance of counsel to fail to request a good character instruction. (See e.g., Commonwealth v. Wood (PA 1994) 637 A2d 1335, 1352 [failure to request good character instruction]; Commonwealth v. Tippens (PA 1991) 598 A2d 553, 556.)

    Or, it the defense is based on intoxication, it may be ineffective assistance of counsel to not request an instruction relating intoxication to the required mental elements of the charge. (People v. Webb DEPUBLISHED (CA 1994) 27 CA4th 242, 256 [32 CR2d 582] [murder conviction reversed based on ineffective assistance of counsel for failure to request defense theory instruction requiring the jury to consider intoxication in determining whether the defendant formed the mental state of premeditation and deliberation]; but see People v. Castillo (CA 1997) 16 C4th 1009, 1014 [68 CR2d 648] [no IAC for failure to relate voluntary intoxication instruction to mental state].) Or, if the defense is provocation it may be ineffective assistance of counsel to not request an instruction that a series of related acts may constitute adequate provocation. (Commonwealth v. Stonehouse (PA 1989) 555 A2d 772, 781 [IAC for failure to request instruction that series of related events may be sufficient provocation]; see also NCJIC 4.2.3 [Failure To Object To Jury Instructions As Ineffective Assistance Of Counsel]; see also NCJIC 4.2.3.1 [Failure To Object As Ineffective Counsel: General Principles]; see also NCJIC 4.2.3.2 [Failure To Object To Acquittal First Instruction As Ineffective Assistance Of Counsel]; see also NCJIC 4.2.3.3 [Failure To Cross-Examine Codefendant Or Object To Codefendant’s Testimony As Ineffective Assistance Of Counsel]; see also NCJIC 19.6.2 [Failure To Conduct Adequate Discovery And/Or Investigation Regarding Codefendant As Ineffective Assistance Of Counsel]; see also NCJIC 27.3.2.4 [Impeachment Of Defendant By Prior Conviction -- Ineffective Counsel For Failure To Request Cautionary Instruction]; see also NCJIC 92.9.4.8 [Felony Murder: Failure To Request Lesser Misdemeanor As Ineffective Assistance Of Counsel]; see also NCJIC 251.2.2.8 [Alibi: Ineffective Counsel For Failure To Investigate Alibi Defense].)

OPINION AVAILABLE: To read the Marshall, click here. [Opinion Bank # O-131].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: In People v. Murtishaw (CA 1989) 48 C3d 1001, 1014 [258 CR 821] trial counsel waived the instructional error by failing to request an instruction on imperfect self defense which, at that time, was not sufficiently recognized to be a standard pattern instruction. (See People v. Flannel (CA 1979) 25 C3d 668, 681 [160 CR 84].) On federal habeas in Murtishaw the district court held that trial counsel was not ineffective for failing to discover People v. Wells (CA 1949) 33 C2d 330 [202 P2d 53], which supported the imperfect self defense theory but was "not annotated in West's or McKinney's Digests and did not attain headnote status in either the California Reports or the Pacific Reporter." Accordingly, the district court held that counsel's unawareness of Wells was not ineffective assistance of counsel because at the time of trial headnote, shepardizing and digest research were the primary research methods and these "did not yield the results claimed by Murtishaw."

    In light of this rationale, modern research techniques and capabilities, as well as specialized publications such as NCJIC, put trial counsel on notice as to potential nonpattern instructions and the failure to request those instructions may result in an ineffective assistance of counsel claim. (See e.g., Kerrigan v. State (SC 1991) 406 SE2d 160, 161 [counsel ineffective for failing to distinguish the permanency element of larceny from the temporary deprivation element of joyriding]; People v. Marshall UNPUBLISHED (CA 1992, F016198) [5th District Court of Appeal held counsel ineffective for not requesting an antecedent threat instruction].)

OPINIONS AVAILABLE: To read the Marshall opinion, click here. [Opinion Bank # 0-131]. To read the memorandum of decision and order denying writ of habeas corpus in Murtishaw by Judge Wagner issued on 3/23/98, click here. [Opinion Bank # O-237].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: Luchenburg v. Smith (4th Cir. 1996) 79 F3d 388, 392 [counsel ineffective for failure to request instruction accurately explaining state law precluding conviction on compound gun charge unless jury first found defendant guilty of predicate crime of violence]; Arthur v. Bordenkircher (4th Cir. 1983) 715 F2d 118, 120; Arrowood v. Clusen (7th Cir. 1984) 732 F2d 1364, 1371-72; Freeman v. Class (8th Cir. 1996) 95 F3d 639, 644 [counsel ineffective for failing to request "cautionary instructions to which defendant was entitled under state law"]; Woodard v. Sargent (8th Cir. 1986) 806 F2d 153, 157; U.S. v. Span (9th Cir. 1996) 75 F3d 1383, 1387 [trial counsel's failure to request instruction on one of four available defenses violated defendant's right to effective assistance of counsel]; People v. Olano UNPUBLISHED (A076812) [failure to request cautionary instruction regarding prior conviction offered to impeach defendant held as IAC]; People v. Webb DEPUBLISHED (CA 1994) 27 CA4th 242, 256 [32 CR2d 582] [murder conviction reversed based on ineffective assistance of counsel for failure to request defense theory instruction requiring the jury to consider intoxication in determining whether the defendant formed the mental state of premeditation and deliberation]; People v. Marshall UNPUBLISHED (F016198) [failure to request antecedent threat instruction (NCJIC 253.4.9 [Self Defense: Prior Acts Or Threats]) held to be IAC]; People v. Gonzales (CO 1975) 543 P2d 72, 73-74; Kennedy v. State (FL 1994) 637 So2d 987, 988 [failure to request lesser included cognizable on collateral attack]; Bateson v. State (FL 1987) 516 So2d 280, 282; People v. Jaffee (IL 1986) 493 NE2d 600, 610-11 [IAC for failure to request self defense instructions]; People v. Butler (IL 1974) 318 NE2d 680, 683 [IAC for requesting erroneous definition of the standard of proof and failure to request accomplice instructions]; Patterson v. Dahm (NE 1991) 769 FSupp 1103, 1108-13 [IAC for requesting instruction on uncharged lesser related offense]; Commonwealth v. J.S.Wood (PA 1994) 637 A2d 1335, 1352 [failure to request good character instruction]; Commonwealth v. Simmons (PA 1994) 647 A2d 568, 570 [failure to request instruction that identification testimony must be received with caution was IAC]; Commonwealth v. Tippens (PA 1991) 598 A2d 553, 556; Commonwealth v. Stonehouse (PA 1989) 555 A2d 772, 781 [trial counsel ineffective in failing to request jury instruction in homicide trial which would require jury to consider cumulative effects of psychological and physical abuse when assessing reasonableness of battered person's fear of imminent danger of death or serious bodily injury with respect to claim of self defense]; Commonwealth v. Fisher (PA 1985) 493 A2d 719, 723 [prejudicial ineffective counsel for failure to request instruction on victim's prior acts of violence against defendant because jury did not know that victim's prior violent acts could serve as basis for defendant's belief that serious bodily injury was imminent]; Lankford v. Foster (VA 1982) 546 FSupp 241, 249-53.)

    While there may be a question as to whether the trial court has a sua sponte duty to give a cautionary/limiting instruction regarding a prior conviction offered to impeach the testimony of a defendant (see NCJIC 27.3.2.4 [Impeachment Of Defendant By Prior Conviction -- Ineffective Counsel For Failure To Request Cautionary Instruction]), it is the duty of trial counsel to consider the necessity of such an instruction and request it if necessary. The failure of counsel to make such a request has been held to be ineffective assistance of counsel requiring reversal of the defendant's conviction. (See People v. Olano UNPUBLISHED (A076812); see also NCJIC 295.3.2.7 [Examples Of Cases Finding Prejudicial/Reversible Error Based On Counsel’s Failure To Request Jury Instructions].)

OPINION AVAILABLE: For the opinion in Olano, click here. [Opinion Bank # O-243]. For the Marshall opinion, click here. [Opinion Bank # O-131]

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE:  "To perform effectively in the penalty phase of a capital case, counsel must conduct sufficient investigation and engage in sufficient preparation to be able to 'present[] and explain [] the significance of all the available [mitigating] evidence.'" (Mayfield v. Woodword (9th Cir. 2001) 270 F3d 915, 927 [quoting Williams v. Taylor (2000) 529 US 362, 393, 399 [146 LEd2d 389; 120 SCt 1495].) Counsel may render ineffective assistance if he or she is on notice that the defendant may be mentally impaired, yet fails to investigate his client's mental condition as a mitigating factor in a penalty phase hearing. (Hendricks v. Calderon (9th Cir. 1995) 70 F3d 1032, 1043; accord Smith v. Stewart(9th Cir. 2001) 241 F3d 1191, 1199; see also Williams v. Taylor, 529 US at 362 [counsel's failure to investigate and present evidence of a defendant's mental defect and social history constitutes deficient performance under Strickland].)

    Counsel also has an affirmative duty to provide mental health experts with information needed to develop an accurate profile of the defendant's mental health. (Wallace v. Stewart (9th Cir. 1999) 184 F3d 1112, 1116 [counsel has professional responsibility to investigate and bring to the attention of mental health experts who are examining his client facts that the experts do not request]; Clabourne v. Lewis (9th Cir. 1995) 64 F3d 1373, 1385.) Providing the appropriate experts with pertinent information about the defendant is key to developing an effective penalty phase presentation. (Bean v. Calderon (9th Cir. 1998) 163 F3d 1073, 1079-80; see also Caro v. Woodford (9th Cir. 2002) 280 F3d 1247, 1255 [brain-damaged defendant's death sentence properly vacated; counsel ineffective for failing to either investigate neurological effects of known exposure to neurotoxins or to provide strategic or tactical justification for that failure]; Turner v. Calderon (9th Cir. 2002) 281 F3d 851, 890-95 [counsel ineffective for failure to investigate and present evidence of long-term drug use and abusive childhood which could have altered result of penalty phase]; Ainsworth v. Woodford (9th Cir. 2001) 268 F3d 868, 875 [counsel deficient for failing to present mitigating evidence of defendant's troubled childhood and substance abuse].)

    See NCJIC 16.1.7 [Failure Of Defense Counsel To Present Evidence Promised In Opening Statement].

    295.3.2.14     Ineffective Assistance Of Counsel: Improper To Presume Strategic Or Tactical Reason