Failure to Object to Erroneous Jury Instruction Can be Ineffective Assistance of Counsel

The Supreme Court reversed a summary dismissal of a post-conviction petition and remanded the case for further proceedings. The Court held that the petitioner made out a prima facie case of Ineffective Assistance of Counsel. McKay v. State, http://www.isc.idaho.gov/opinions/McKay%20v%20State.%20Opinion.pdf


Mr. McKay was involved in an automobile/motorcycle accident where the driver of the motorcycle died. He was charged with vehicular manslaughter while driving under the influence of alcohol, "which is defined as a death ―in which the operation of a motor vehicle is a significant cause contributing to the death because of the defendant‘s operation of a vehicle while intoxicated. I.C. § 18-4006(3)(b)." He was convicted at trial.


On post-conviction, Mr. McKay alleged that trial counsel's performance was deficient because he failed to object to an erroneous jury instruction regarding the elements of the offense. The Court agreed.

"There are two deficiencies in the district court‘s instructions. First, the elements instruction omitted the statutory language requiring the defendant‘s intoxicated driving to be a 'significant' cause of the death, rather than simply the cause or a cause. Second, the instruction omitted the I.C.J.I.‘s phrase 'in such unlawful manner,' thereby not requiring the State to prove that McKay‘s culpable conduct in driving under the influence contributed to the death. By failing to account for the phrase "because of" in the statute, the district court‘s jury instructions ignored the required link between the death and the cause of the death, in this case, the defendant‘s operation of a motor vehicle under the influence of alcohol, rendering subparagraphs (a)–(c) meaningless."


The Court also found that there could not be a strategic purpose for counsel's omission because the defense at trial was that it was difficult to see the motorcycle in the dark. "Since the only disputed element in McKay‘s case—whether his driving under the influence of alcohol contributed to the death—was omitted from the instructions, there is no conceivable tactical justification for trial counsel's failure to object."


Finally, the Court found that there was a prima facie showing that counsel's omission was prejudicial.