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By Andrew Delaney
This is a “Yeah, but . . .” appeal.
Attempted second-degree murder is one of those charges that requires the State to prove that there wasn’t any passion or provocation. And attempted voluntary manslaughter is generally a lesser-included offense. Mr. Sharrow’s trial counsel failed to object to jury instructions that didn’t have these elements, and Mr. Sharrow was convicted of second-degree murder.
So Mr. Sharrow filed a post-conviction-relief (PCR) complaint. The PCR court said, “Yeah, that’s not good. We’re going to vacate your conviction because trial counsel was ineffective.” The State appeals, arguing “Yeah, counsel was ineffective, but it wasn’t prejudicial, so the conviction shouldn’t be vacated.” SCOV disagrees with the State and affirms the PCR court.
Let’s start with the underlying facts. In the criminal division trial, Mr. Sharrow and the complainant had very different stories. According to complainant, Mr. Sharrow was abusive and they had an on-again-off-again relationship. The final time, there was a fight followed by neighborly intervention and a call to the police. Later that same night, according to complainant, Mr. Sharrow busted in the window of complainant’s place and assaulted her, eventually attacking her with a knife. Most of the wounds were superficial, but at least one was potentially life threatening.
Mr. Sharrow, in contrast, said complainant was a nasty drunk and regularly attacked him once she got in her cups. She whacked him on the head with a cutting board before. Mr. Sharrow said on the night in question, he did enter through the window, but complainant was acting crazy and attacked him with a knife. After he got her to drop the knife, he went into the kitchen to grab his keys and leave, saw a butterfly knife on the counter, and grabbed it because he didn’t want her using it. He testified that he didn’t touch her with that knife. The police busted him as he was leaving the apartment. “He had the butterfly knife hidden in his sleeve and a small cut between the fingers of his right hand.”
The State argued for attempted first-degree murder. The defense argued self-defense.
The trial court instructed on attempted first-degree murder, attempted second-degree murder, and aggravated assault, as well as self-defense. Though earlier drafts had a voluntary manslaughter instruction, they didn’t make the final cut (I’m going to hell). The instructions also didn’t include an absence-of-passion-or-provocation instruction. The trial court explained that the evidence didn’t support those instructions. Defense counsel didn’t object. “The jury acquitted petitioner of attempted first-degree murder and convicted him of attempted second-degree murder.” He’s doing a 20-to-life bid.
Based on the above and other findings, the PCR court concluded that Mr. Sharrow’s trial counsel was ineffective and that there was sufficient evidence at trial to support the omitted instructions. The PCR court found no good reason not to minimize the potential damage by requesting the omitted instructions just in case the jury didn’t buy the self-defense argument.
The PCR court also concluded that Mr. Sharrow was prejudiced because if the jury been given proper instructions, there was a fair chance it might have acquitted him of attempted second-degree murder and returned a verdict for attempted voluntary manslaughter.
Mr. Sharrow’s expert opined that the jury accepted parts of the State’s theory—that Mr. Sharrow had a knife and intended to kill complainant—but didn’t buy premeditation. The State argued that no matter which way the jury sliced it (sorry), neither the State’s narrative nor Mr. Sharrow’s narrative supported a voluntary manslaughter conviction. The PCR court rejected that argument, finding that Mr. Sharrow had ineffective assistance and was prejudiced. Accordingly, the PCR court vacated Mr. Sharrow’s conviction.
The State appeals, arguing that the PCR court got it wrong on the prejudice prong. First, the State argues that the standard to determine prejudice is nearly indistinguishable from a more-probable-than-not standard. Second, the State argues that the trial court didn’t weight the evidence properly. SCOV doesn’t buy either pitch.
As to the proper standard for determining prejudice, SCOV says that “the touchstone is whether the error undermined confidence in the outcome of the criminal trial.” In other words, the defendant has to show that the ineffective assistance had more than just some conceivable effect on the judgment, but not that it more likely than not altered the outcome of the case. How’s that for vague? Basically, the standard is that there’s a reasonable probably that but for counsel’s errors there might have been a different outcome. This standard could be called the should’ve-might’ve-could’ve test. I just made that up but it works.
SCOV isn’t interested in adopting the State’s “more probabilistic” view. While the current standard might place a little less of a burden on the convict, SCOV doesn’t want to switch to an outcome-determinative standard and run afoul of the SCOTUS’s reasoning in this case.
SCOV also rejects the State’s evidentiary arguments. The State has to prove the absence of passion or provocation—when it’s possible presence is indicated—to prove second degree murder. SCOV concludes that the PCR court didn’t mess up by concluding “that if defense counsel had sought proper jury instructions in this case there is a reasonable probability of a different outcome.” SCOV acknowledges that some of the physical evidence from the trial tends to support the complainant’s story and contradict Mr. Sharrow’s, and that this means the jury could have rejected the provocation argument.
But SCOV concludes that the findings of fact were okay and that the legal conclusions were supported by the evidence for three reasons: (1) an essential element—absence of passion or provocation—was removed from the jury’s consideration; (2) there was enough evidence on that point; and (3) the State’s burden of proof on that element was high.
When passion or provocation are indicated, in order to prove murder, the “State must prove beyond a reasonable doubt that the accused did not kill under the influence of passion or provocation.” (See this case for further discussion on the point.) Without that instruction, the jury doesn’t have the whole framework for a second-degree-murder conviction.
In this case, SCOV opines, there was sufficient evidence about provocation to warrant an instruction. Mr. Sharrow testified about being attacked by complainant and their tumultuous mutual history (that last phrase, “tumultuous mutual history,” sounds insufferably lawerly to me, but I’m going to leave it). It’s entirely possible “that the jury would have concluded that the attempted killing was provoked, occurring in the midst of a struggle.” And Mr. Sharrow did have a defensive wound on his hand. So, at the least, the jury might’ve had a reasonable doubt as to whether there was a lack of provocation.
The State had to prove every element of the crime—as always—beyond a reasonable doubt. The lack of the essential element gives the State no burden on that element. And SCOV is not about to say, “Well, the jury probably would’ve said ‘no provocation’—so no harm, no foul.”
SCOV isn’t swayed “by the State’s argument that a finding of prejudice is unreasonable because an acquittal on the charge of attempted second-degree murder and conviction for voluntary manslaughter would have required the jury to credit some of petitioner’s trial testimony, while rejecting most of it.” That kind of thing happens all the time at trial.
So, SCOV affirms “the PCR court's conclusion that petitioner’s conviction should be vacated because petitioner was prejudiced by counsel’s ineffective assistance.”
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