COA split on impact of jury instruction omission

One Indiana Court of Appeals judge dissented from his colleagues' decision to grant a new trial based on the lack of a jury instruction on robbery because he didn't think the defendant was prejudiced by the omission.

"The question is not whether error occurred, but whether there exists a reasonable probability that he would have been acquitted had it not occurred," wrote Judge Cale Bradford in his dissent in Kevin Taylor v. State of Indiana, No. 20A04-0909-PC-511. "I think (Kevin) Taylor has fallen far short of carrying his burden on this point."

Judge Bradford found the error to be harmless because the conviction was clearly sustained by the evidence and the jury couldn't have properly found otherwise. He also held Taylor failed to show he received ineffective assistance from his appellate counsel.

Taylor and two other defendants were charged with felony murder during a robbery, tried together, and convicted. Taylor appealed, and his conviction was affirmed. Defendant Kelly Scott Thomas had his conviction overturned on direct appeal because the court didn't instruct the jury on the elements of robbery. Taylor then filed for post-conviction relief, claiming ineffective assistance of trial counsel because of his attorney's failure to object to the final instructions, which didn't instruct on the elements of robbery. His petition was denied; the appellate court remanded for a new hearing. The post-conviction court again denied his petition.

The appellate judges concluded that Taylor met his burden of showing the post-conviction court erred by ruling his counsel hadn't performed deficiently. His trial counsel acknowledged his failure to object to the jury instruction was an oversight. But they split when deciding if Taylor was prejudiced by his trial counsel's performance.

"The harmless-error analysis proffered by the post-conviction court, the State, and the dissent presumes too much," wrote Judge Edward Najam for the majority. "It is the province of the jury to decide Taylor's guilt, but, having never been instructed on any of the elements of robbery, it is impossible to say whether the jury would have found Taylor guilty of robbery. A jury cannot be asked to find guilt without an instruction on the elements of the crime."

Harmless-error analysis has no place where an essential instruction on the underlying offense is entirely missing, he continued. The majority reversed the denial of Taylor's petition for post-conviction relief and remanded for a new trial.