Ineffective assistance of counsel; Failure to request a voluntary-manslaughter jury instruction; Whether the evidence supported the instruction; People v Yeager; Failure to explain voluntary manslaughter to defendant; Deficient advice as to sentencing exposure; Prejudice; Whether the lack of the instruction was harmless; People v Joesel

Holding that defendant-Terry’s trial counsel’s performance was deficient and prejudiced him, the court concluded that he was entitled to a new trial. He was convicted of second-degree murder, FIP, and two counts of felony-firearm arising from “a proverbial ‘love triangle’” involving Terry, the victim (G), and a woman (H). Terry was charged with first-degree murder. His trial counsel (B) “testified at the evidentiary hearing that his primary trial strategy was self-defense” and a lack of deliberation and premeditation. “Because the jury was instructed on second-degree murder, as a lesser included offense of first-degree murder, self-defense was not an ‘all-or-nothing’ strategy. [B] testified he believed a second-degree murder instruction was required whenever a defendant is charged with first-degree murder. [B’s] belief was legally erroneous.” And under the circumstances, his “failure to request a voluntary-manslaughter instruction was not objectively reasonable.” The evidence supported the instruction. “The trial court’s determination that the evidence was not indicative of a ‘love triangle’ was clearly erroneous.” The court found that a jury could reasonably find, based on the “circumstances, that Terry shot [G] in the heat of passion caused by adequate provocation. The tension between [them] culminated in an encounter in which [G] walked in on Terry and [H], neither of whom was fully dressed.” The fact that G left his child in his truck indicated G “was aware that something might occur that he did not want the child to witness. [G] was also aware that someone was in the home with [H] because Terry’s vehicle was parked in” the driveway. The shooting occurred within “seconds, and the jury could reasonably determine that there was not ‘a lapse of time during which a reasonable person could control their passions.’” Further, given “the substantial difference in Terry’s possible sentence, [B’s] representation fell below an objective standard of reasonableness to the extent that he failed to investigate and convey to Terry his sentencing exposure if” he was convicted of voluntary manslaughter. As to prejudice, as in “Joesel, the fact that the jury convicted Terry of second-degree murder sheds little light on what it would have decided if it was given a voluntary-manslaughter option.” The court reversed Terry’s second-degree murder and related felony-firearm conviction, and remanded.