Wednesday, December 6, 2017

Concession Of Premeditation Was Ineffective Assistance

The Minnesota Supreme Court has reversed a first-degree murder conviction on a finding of ineffective assistance of counsel

Appellant Thomas Michael Luby was convicted of first-degree premeditated murder, Minn. Stat. § 609.185(a)(l) (2016), and second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2016), in connection with the stabbing death of his girlfriend, K.A. Luby appeals, arguing that he is entitled to a new trial because his defense counsel provided ineffective assistance by conceding the only disputed elements of the charged offenses—premeditation and intent—without his consent. We reverse both of Luby’s convictions and remand this case to the district court for a new trial.

 The case

At trial, Luby admitted to stabbing K.A. to death with a knife while intoxicated. According to Luby, he and K.A. both suffered from alcoholism. On August 6, 2015, they had been drinking for 8 days straight. That evening, they drank nearly all of a 1.75-liter bottle of vodka without eating. Luby claimed that he consumed the majority of the bottle— approximately 40 ounces—but that K.A. was more intoxicated than he was because “she couldn’t drink very much without losing control” due to gastric bypass surgery. Luby took the vodka away from K.A., but she kept begging him for more alcohol.

Luby claimed that he went in and out of consciousness during the remainder of the evening, and that he had an incomplete memory of what happened. At some point, he awoke to K.A. holding a butcher knife to his throat. Luby took the knife from K.A. and cut her stomach. Later that night, Luby again awoke to K.A. holding the knife to his throat. He disarmed her and eventually stabbed her with the knife, which caused her death.

After some time, Luby called 911 and reported to police that he had killed K.A. Police found empty vodka bottles throughout the apartment and smelled alcohol on Luby. Officers did not test Luby’s blood-alcohol-content level, but determined that K.A.’s blood had an alcohol-content level of .45.

Luby’s strategy at trial was to concede that he had caused K.A.’s death, but to argue that his intoxication prevented him from forming the intent to kill her. In his opening statement, defense counsel told the jury that “we really don’t have much dispute as to what the evidence will show.” But he asked the jury to “consider the most serious of the elements” of the charged offenses, and to specifically focus on the word “intent,” which he said “is what really will be in dispute here.” Luby testified at trial that he “never had an intent to kill” K.A.

Prior to closing arguments, the district court instructed the jury on premeditation, stating that “some amount of time must pass between the formation of the intent and the carrying out of the act,” and that “an unconsidered or rash impulse, even though it includes an intent to kill, is not premeditated.”

Defense counsel in closing argument said

First degree murder requires premeditation and the intent to kill. The instruction will be given to you in writing so you can go over it. We’re not really disputing the premeditation part. I would submit to you that intent  element is the one that’s in question here. For the second degree, same as first degree, but without premeditation.

The prosecutor underscored the concession on rebuttal.

The court

Here, Luby argues that defense counsel expressly conceded his guilt when, during his closing argument, he told the jury that he was “not really disputing the premeditation part” of first-degree murder, but that the “intent element [was] the one” in question.  Luby argues that this statement expressly conceded premeditation, which necessarily conceded intent. We agree...

Because Luby’s counsel conceded guilt, Luby is entitled to a new trial unless he consented to the concession. Id. When, as here, there is no evidence of express consent, we “look at the entire record to determine if the defendant acquiesced in his counsel’s strategy.” Id. Acquiescence may be implied in certain circumstances, such as (1) when defense counsel uses the concession strategy throughout trial without objection from the defendant, or (2) when the concession was an “understandable” strategy and the defendant was present, understood a concession was being made, but failed to object. State v. Jorgensen, 660 N.W.2d 127, 132–33 (Minn. 2003). “When the record is unclear as to whether the defendant acquiesced in his counsel’s concession,” we have remanded the issue for an evidentiary hearing. Prtine, 784 N.W.2d at 318.

Luby argues that the record clearly establishes that he did not acquiesce in defense counsel’s concession because counsel did not concede Luby’s guilt until closing arguments, and conceding guilt was not an understandable strategy in this case. The State agrees that the record is devoid of evidence of Luby’s consent or acquiescence, but requests that we remand this issue for an evidentiary hearing.

We agree with Luby that the record clearly establishes that he did not acquiesce in defense counsel’s concession. First, defense counsel did not concede the element of premeditation until closing arguments, as Luby observes, after defense counsel had been consistently silent on this element, making it difficult to conclude that Luby somehow acquiesced in a strategy that manifested itself only at the end of trial. See Torres, 688 N.W.2d at 573 (stating that “silence on a particular element of a crime is not the same as a concession”). Second, because intent is a prerequisite to premeditation, Moore, 481 N.W.2d at 360, counsel’s concession was inconsistent with the trial strategy of arguing that Luby was unable to form the requisite intent to kill due to voluntary intoxication. Indeed, counsel’s concession was not an understandable trial strategy because it admitted Luby’s guilt to the only disputed elements of both of the charged offenses, the greater of which carried a mandatory life sentence. Accordingly, we conclude that Luby did not acquiesce in his counsel’s concession.

Justice Chutish dissented

Because the record shows that defense counsel did not concede every element of the charged offenses, leaving nothing left in dispute, the majority’s reliance on the per se rule of ineffective assistance of counsel is misplaced.  Accordingly, I respectfully dissent.

...because defense counsel’s isolated comment about premeditation during his 28-page closing argument did not concede every element of the charged offenses, leaving nothing left in dispute, and because Luby has failed to establish a reasonable probability that, but for defense counsel’s single statement about premeditation, the result of the proceeding would have been different, I would affirm Luby’s convictions for first- and second-degree murder.

Chief Justice Gildea joined the dissent. (Mike Frisch)

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