United States Supreme Court Cases

 

FAILURE TO PRESERVE THE RECORD FOR APPEAL

 

 U.S. Court of Appeals Cases

 

2003: Davis v. Secretary For the Department of Corrections
341 F.3d 1310 (11^th Cir. 2003).

Counsel was ineffective in murder case in failing to adequately preserve a Batson claim for appellate review. While counsel did object, counsel failed to renew the motion before accepting the jury, which was required in order to preserve the issue for appeal. Because counsel’s negligence affected only the appeal, the relevant focus in assessing prejudice was the appeal. Because the state court had already recognized that the Batson claim was meritorious, the court found that there was a reasonable probability that the state court would have granted reversal on appeal. This claim had been raised in state post-conviction, but the state court failed to resolve the merits of the claim. Thus, the court found that this case fell outside of § 2254(d)(1) requirement of deference to the state court decision.

2000: Flores v. Demskie
215 F.3d 293 (2^nd Cir.), cert. denied, 531 U.S. 1029 (2000)

Trial counsel ineffective in child sodomy case for waiving reversible error. Under New York Rosario rule, automatic reversal is required if the state fails to provide the defense with all prior statements of testifying witnesses. Following the state’s case, defense counsel, who discovered the issue during jury selection, informed the court that the state failed to disclose a prior inconsistent statement of the victim’s mother, who testified at trial. The court allowed the case to continue while the state located the statement. Following conviction but before sentencing, the statement was located. Before the court ruled on the issue, however, defense counsel, who was not aware of the automatic reversal rule and believed he had to prove prejudice, waived the issue by stating that he would not have acted any differently during trial if the statement had been disclosed to him. Defendant was sentenced.

 

 

State Cases

 

2007: Morales v. State,
217 S.W.3d 731 (Tex. App. - El Paso 2007).

Counsel ineffective in aggravated sexual assault of a child and indecency with a child case for failing to preserve the error when the trial court erroneously denied a challenge for cause. Counsel’s conduct was deficient because counsel challenged for cause a juror, who was employed as a prosecutor in the same office that was prosecuting the defendant, but then did not use a peremptory challenge to remove the juror when the trial court denied the causal challenge. Use of the peremptory and other steps were necessary in order to preserve the issue for appeal. Although it does not seem to be part of the court’s analysis of deficient conduct or lack of strategy, it also appears that counsel had not bothered to read the juror’s questionnaire because they assumed she would be stricken. If they had, they would have discovered that she was also a victim of indecent exposure, her father had been a police officer for 33 years, and many of her friends and associates were in law enforcement. This was an “extreme” situation warranting a “finding of implied bias to avoid a miscarriage of justice.” While the juror may well have believed she could set aside her status as an employee of the prosecutor’s office, “even a well-meaning person would find it difficult to remain impartial under such circumstances and most likely would be unconsciously blinded by otherwise good intentions. . . . [S]he should have been disqualified in the interest of justice.” Prejudice found because “counsel’s deficient performance resulted in a trial before a partial jury.”

2006: State v. Rieger
708 N.W.2d 630 (Neb. 2006)

Counsel ineffective in robbery case for failing to include in record an inmate status certificate, which was required under the Interstate Agreement on Detainers Act to trigger the 180-day period within which the defendant had to be brought to trial. While the defendant was confined in a federal prison, Nebraska charged him with robbery and he submitted the appropriate request for disposition. Counsel litigated the timeliness of the trial before the trial court but failed to include the inmate status certificate, which is a necessary component of a proper request. Counsel’s conduct was deficient and prejudicial.

2004: Heckelsmiller v. State
687 N.W.2d 454 (N.D. 2004 )

Counsel ineffective in criminal trespass case for failing to preserve the record for appeal after two potential defense corroborating witnesses were excluded during the trial because counsel failed to ensure that they were sequestered as all other witnesses were. The defense was that the defendant had permission to be on the premises, but counsel considered this unsubstantiated and decided not to present the corroborating witnesses due to credibility concerns because they were family members. (Alleged victim was also a family member.) During the trial, counsel changed his mind and decided to present the testimony. Counsel’s conduct was deficient because, when the court excluded the evidence, counsel did not make a proffer or preserve the record for appeal. Prejudice found because the excluded witnesses would have corroborated the only defense presented. Although the court was unaware of the substance of the witnesses’ statements, the court held that "the significant point is that counsel’s failure to make an offer of proof prevented a meaningful appeal on the issue."

1993: Vaz v. State, 626 So. 2d 1022 (Fla. Dist. Ct. App. 1993). Trial counsel ineffective for failing to join in co-defendant’s counsel’s objection to time limitation on closing argument which resulted in reversal on direct appeal for co-defendant.

1992: People v. Brocksmith, 604 N.E.2d 1059 (Ill. App. Ct. 1992), aff’d, 642 N.E.2d 1230 (Ill. 1994). Counsel ineffective for failing to ascertain applicable statute of limitations period for lesser included offense and failing to advise defendant that, since limitations period had expired for lesser included offense, by submitting instruction on that offense, defendant waived limitations period objection.

1989: Commonwealth v. Butler, 566 A.2d 1209 (Pa. Super. Ct. 1989). Counsel ineffective for failing to object to trial court’s order granting motion for reconsideration of dismissal of charges where court did not act within 30 days of the dismissal order and therefore lacked jurisdiction under state law to act.

1988: Gilchrist v. State, 534 So. 2d 1120 (Ala. Crim. App. 1988). Trial counsel ineffective for failing to object in murder trial to district attorney’s participation as counsel after D.A. had already appeared in proceeding as a witness when if objection had been made properly (counsel objected but on wrong basis), the case would have been reversed on appeal.

1988: Commonwealth v. Groff, 548 A.2d 1237 (Pa. Super. Ct. 1988). Counsel ineffective for failing to preserve the issue of whether the statute of limitations defense presented a question of fact for the jury where the defendant was charged with statutory rape, indecent assault, and corruption of minors but there was a factual dispute concerning when the alleged crimes occurred.

1987: Salkil v. State, 736 S.W.2d 428 (Mo. Ct. App. 1987). Counsel ineffective in failing to object to ambiguous jury verdict form that contained a provision for a finding of either guilt or innocence on same sheet of paper with only one signature line for the foreman which was applicable to either finding. When jury returned entries had been made for punishment but no portions of verdict form had been stricken.