As Amended February 18, 2014.
Review of the judgment of the Court of Appeals in an unpublished opinion filed February 3, 2012.
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Appeal from Douglas District Court; PAULA B. MARTIN, judge.
BY THE COURT
1. The Sixth Amendment to the United States Constitution guarantees in all criminal prosecutions that the accused shall enjoy the right to have the assistance of counsel for his or her defense. To be meaningful, the right to counsel guaranteed by this provision necessarily includes the right to effective assistance of counsel. This right is made applicable to state proceedings by the Fourteenth Amendment to the United States Constitution.
2. To support a claim of ineffective assistance of counsel based upon deficient performance, a criminal defendant must prove: (a) Counsel's performance was deficient and (b) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. The benchmark for judging any claim of ineffectiveness must be whether the attorney's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.
3. The first prong of the test for ineffective assistance of counsel based upon allegations of deficient performance requires a defendant to show counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. Courts must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.
4. Once a criminal defendant establishes counsel's deficient performance, the defendant must also establish prejudice by showing there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability in this context is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness of counsel claim based on deficient performance must consider the totality of the evidence before the judge or jury.
5. In Kansas criminal proceedings, the State has the burden to prove the accused's guilt beyond a reasonable doubt. To satisfy that burden, the State must prove each required element of the charged crime beyond a reasonable doubt.
6. A district court errs in a criminal case by instructing the jury: " If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty." Use of the word " each" in the first sentence of such instruction effectively tells the jury it may acquit the defendant only if it has a reasonable doubt as to all of the elements the State is required to prove--rather than acquitting if it has a reasonable doubt as to any single element.
7. Errors are structural when they defy analysis by harmless error standards because they affect the framework within which the trial proceeds. Error is structural only in a very limited class of cases.
8. Structural error analysis is appropriate when a district court in a criminal case instructs the jury: " If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty."
Jessica R. Kunen, of Lawrence, argued the cause and was on the brief for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
[298 Kan. 922] BILES, J.
In this K.S.A. 60-1507 habeas corpus action alleging ineffective assistance of appellate counsel, we review the Court of Appeals decision reversing Martin Miller's first-degree murder conviction because counsel failed to challenge on appeal an incorrect [298 Kan. 923] written jury instruction that diluted the State's burden to prove guilt beyond a reasonable doubt. Miller v. State, 268 P.3d 506, 2012 WL 401601, at *9 (Kan. App. 2012) (unpublished opinion). The State concedes the written instruction was wrong but argues appellate counsel's failure to catch the mistake and raise it as an issue in Miller's direct appeal was neither deficient performance by the attorney nor prejudicial to the appeal. We reject these contentions, reverse Miller's conviction, and remand his case for a new trial.
The incorrect written jury instruction at issue read: " If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty." (Emphasis added.) The word " each" was substituted for " any" in what was the standard PIK jury instruction at that time. See PIK Crim. 3d 52.02 (2004 Supp.). This substitution effectively told the jury it could acquit Miller only if it had a reasonable doubt as to all of the elements the State was required to prove--rather than acquitting him if it had a reasonable doubt as to any single element. As admitted by the State, the written instruction was plainly wrong. " [T]he jury verdict required by the Sixth Amendment [to the United States Constitution] is a jury verdict of guilt beyond a reasonable doubt." Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) and harmless error analysis does not apply to a constitutionally deficient reasonable doubt instruction. 508 U.S. at 281.
We hold that appellate counsel's failure to challenge the written instruction was objectively unreasonable and prejudicial. The incorrect jury instruction constituted structural error rendering Miller's criminal trial fundamentally unfair to the point that its result is an unreliable indicator of his guilt or innocence. See Rivera v. Illinois, 556 U.S. 148, 160, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009) (defining structural error); Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (same).
In so holding, we also must note our disagreement with a remark by the Court of Appeals that a reasonable doubt instruction orally given in Miller's case, which differed from the written instruction, was erroneous as well. Miller, 268 P.3d 506, 2012 WL 401601, at *6. The oral instruction correctly followed PIK Crim. 3d 52.02 (1995 Supp.), [298 Kan. 924] which this court had previously approved. See State v. Clark, 261 Kan. 460, 475, 931 P.2d 664 (1997). The Miller panel's comment about the oral instruction was contrary to controlling law and unnecessarily resulted in multiple other appeals regarding PIK Crim. 3d 52.02 (1995 Supp.). See, e.g., State v. Smyser, 297 Kan. 199, 203-06, 299 P.3d 309 (2013); State v. Waggoner, 297 Kan. 94, 97-98, 298 P.3d 333 (2013).
Factual and Procedural Background
We discuss only those facts necessary to resolve the ineffective assistance of counsel claim raised in Miller's motion for relief under K.S.A. 60-1507. Our outcome renders moot other issues advanced in Miller's cross-petition for review.
The State charged Miller with the 2004 premeditated first-degree murder of his wife, Mary. To convict him, the State had to prove: (1) Miller intentionally killed his wife; (2) the killing was done with premeditation; and (3) the death occurred on or about July 28, 2004, in Douglas County. See K.S.A. 21-3401(a); see also State v. Miller, 284 Kan. 682, 163 P.3d 267 (2007) (Miller's direct appeal detailing the allegations and affirming his conviction based on the issues raised).
After the close of evidence, the district court conducted a jury instructions conference with Miller's trial counsel and the prosecutor. The court indicated it had reviewed instructions proposed by Miller's attorney and intended to use them with alterations not relevant here. It is clear from the conference transcript that the court and counsel were referring to a written copy of the proposed instructions, but the transcript does not identify the actual document being discussed, and the only written jury instructions in the record are those given to the jury. We are unable to ascertain if the proposed instructions were the source of the error that is the basis for this review.
When the trial reconvened, the court orally delivered the instructions. This typically consists of reading the actual written instructions that are later physically given to the jurors and taken into the jury deliberation room. But the oral instructions differed from the written instructions regarding the State's burden to prove the [298 Kan. 925] elements of the crime charged beyond a reasonable doubt. The trial court orally gave these instructions:
" The State has the burden to prove the defendant is guilty. The defendant is not required to prove that he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
" The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims ...