United States Supreme Court
Cases
MOTIONS
U.S. Court of
Appeals Cases
2004: United States v.
Hilliard
392 F.3d 981 (8th Cir. 2004).
Counsel ineffective in illegal firearms case for
failing to timely file a post-trial motion. Following the defendant’s
conviction on only one of five charges even though the evidence for all
five overlapped, the court informed counsel of concerns about the
validity of the jury verdict and reminded counsel to file post-trial
motions. Although only allowed seven days to do so under the rules,
counsel did not fil until 41 days after the verdict and the motion was
dismissed as untimely. Counsel’s conduct was deficient and was "a class
dereliction" of duty. Prejudice was found because the district court
found that the motion would have been granted because "a miscarriage of
justice was likely done here."
Owens v. United States
387 F.3d 607 (7th Cir. 2004).
Counsel was ineffective in drug case for failing to adequately move
to suppress evidence seized pursuant to a search of the defendant’s
house. The evidence was seized pursuant to a warrant based on a
barebones affidavit, signed by a detective, that stated that an
informant had bought some crack from the defendant at the house three
months earlier. There was no indication of the quantity of crack or the
reliability of the informant. Counsel moved to suppress the evidence
because the affidavit did not establish probable cause to believe that a
search of the same premises three months later would reveal evidence.
The court held that the affidavit was insufficient and the search could
not be saved by United States v. Leon, 468 U.S. 897 (1984),
because the officers that conducted the search could not have reasonably
believed that the warrant was supported by probable cause. Although
counsel moved to suppress the evidence, counsel’s conduct was deficient
because counsel argued that the house did not belong to the defendant,
which allowed denial of the motion on the grounds that the defendant
had
no standing to contest the search. The evidence that the house was the
defendant’s was overwhelming and the lawyer’s argument otherwise, which "forfeit[ed]
a compelling ground for excluding evidence essential to convict his client
was therefore a blunder of the first magnitude."
Id. at 608. Prejudice was found because if counsel had
acknowledged that it was the defendant’s house, the motion to suppress
would have been granted and the defendant would have been acquitted.
Alternatively, even if the court had denied the motion to suppress,
counsel could have still argued that the house was not the defendant’s
under the rule of Simmons v. United States, 390 U.S. 377 (1968),
which prohibits use of the defendant’s suppression hearing testimony
during the trial.
The "prejudice" essential
to a violation of the Sixth Amendment right to the effective assistance
of counsel is not
being convicted though one is innocent, although that is the worst kind;
it is being convicted when one would have been acquitted, or at least
would have had a good shot at acquittal, had one been competently
represented.
Id. at 610. In reaching this conclusion, the
court overruled its prior holding in Holman v.
Page, 95 F.3d 481 (7th Cir. 1996)
(failure to make a Fourth Amendment objection to the admission of
evidence cannot amount to ineffective assistance of counsel if the
evidence was reliable, so that its admission, even if improper, created
no risk that an innocent person would be convicted).
2004:
Clinkscale v. Carter
375 F.3d 430 (6th Cir. 2004).
Counsel ineffective in murder and robbery case (that
was a capital case but jury gave life) for failing to timely file notice
of an alibi defense, which resulted in the trial court’s exclusion of
the evidence. The defendant had informed counsel immediately of his
alibi and the defense investigator reported that there were at least
three alibi witnesses. Nonetheless, counsel gave only "verbal notice" a
few days before trial of a "possible alibi." Only after the jury was
empaneled did counsel file a written notice of alibi identifying the
witnesses. Counsel’s conduct was deficient because "there is nothing
reasonable about failing to file an alibi notice within the time
prescribed by the applicable rules when such failure risks wholesale
exclusion of the evidence." Prejudice found because the state’s evidence
was weak and the trial amounted to a credility contest between the
alleged victim/witness and the defendant. The exclusion of the alibi
witnesses, who would have corroborated the defendant’s testimony, was
prejudicial in these circumstances. Although only one of the alibi
witnesses provided an affidavit, there is no requirement that a
defendant claiming ineffectiveness of counsel in these circumstances
"produce an affidavit from the potential alibi witnesses documenting the
substance of their anticipated testimony." Here, the investigator’s
notes and affidavit established the facts that the remaining witnesses
could have testified to.
2003: Joshua v. Dewitt,
341 F.3d 430 (6th Cir. 2003)
Trial and appellate counsel
were ineffective in drug case for failing to move to suppress evidence.
The defendant was stopped by a highway patrolman for speeding. The
highway patrolman did a license check on the defendant and learned that
there was an entry in the station’s "read and sign" book, which
contained police intelligence information. The entry in the book
reported that the defendant was a known drug courier who transported
illegal narcotics between several cities. Based on this information, the
defendant was detained for approximately forty-two minutes in order to
allow time for a drug dog to come to the scene. When the dog arrived, it
alerted, and a large quantity of cocaine was found. The defendant’s
girlfriend then told the police that the drugs belonged to the
defendant. Prior to trial, counsel moved to suppress the evidence solely
on the basis that the length of the traffic stop alone required
suppression. The trial court denied the motion, and the defendant
entered a no contest plea. The court found that counsel’s conduct was
deficient in failing to move for suppression under United States v. Hensley, 469 U.S. 221 (1985),
which held that reliance on a flyer or bulletin can justify a brief
detention but can do so only if the officer who issued the flyer or
bulletin had articulable facts supporting reasonable suspicion that the
person wanted had committed an offense. The court found a reasonable
trial attorney would have raised the Hensley
issue at trial. Prejudice was found because the state failed to offer
any evidence from the officer who provided the information from the
"read and sign" book and because the state had never contended that
there was a justifiable basis for the entry. The court likewise found
appellate counsel ineffective for failing to raise the issue on appeal
under the state plain error rule. Prejudice was found because Hensley bars the admissibility of the evidence
seized at the scene of the defendant’s arrest, including both the drugs
and his girlfriend’s statement. Without this evidence, there was a
substantial probability that the defendant would not have been
convicted. Analyzing the case under the AEDPA, the court found that the
state court decision was contrary to clearly established Supreme Court
precedent in Hensley.
2001:
United States v. Recio
258 F.3d 1069 (9th Cir. 2001).
Counsel ineffective in possession with intent to distribute drugs case for failure to move for
acquittal on charge where the evidence was insufficient to establish
pre-drug seizure conspiracy.
2000:
Hernandez v. Cowan
200 F.3d 995 (7th Cir. 2000)
Counsel ineffective
in murder case for failing to move to sever the trial from a codefendant
on the basis of antagonistic defenses, which would require the defendant
to defend against both the state and the codefendant. The victim was
murdered in a street killing. He was shot times in the head and three
times in the trunk. The codefendant was arrested for a separate murder
and police found an arsenal of weapons, including the weapon that fired
the three shots to the head. He confessed and said the defendant shot
the other three shots first and actually killed the victim. During a
pretrial motion to suppress the statement, the codefendant asserted that
he confessed only because of the state's promise to dismiss other
charges if he implicated the defendant. Defense counsel moved to sever
the trials based on Bruton. The trial court denied the motion
but held that the portions of the codefendant's confession implicating
the defendant would be excluded. During the joint trial, the state's
case in chief against the defendant consisted only of testimony from one
witness who said that he had heard shots and saw the defendant and an
unidentified second man running away from the scene. The testimony did
not establish, however, whether the defendant was running because he was
involved or because he was scared and, indeed, the state's witness had
been running from the scene because he was scared. Defense counsel moved
for an acquittal on directed verdict after the state's case and the
court denied the motion. The codefendant then testified consistent with
his pretrial confession and added that the murder was committed because
the defendant believed the victim was a member of a rival gang. The
defendant testified that he was at home in bed at the time of the murder
and that he was not a member of a gang. The court found first that the
state had waived the argument of procedural default based on the
defendant's failure to seek discretionary review of the state supreme
court following affirmance on direct appeal because the state failed to
make the argument in the District Court. The court then found that
counsel's conduct was deficient because counsel failed to attend the
suppression hearing or review a transcript and failed to move for a
severance on the proper basis that the two defenses were antagonistic.
Prejudice found because state law requires a severance if there are
antagonistic defenses and the codefendant's defense will actually
enhance the state's case against the defendant. Prejudice also found
because even if the codefendant chose to testify against the defendant
following his own conviction, he would be subject to damaging
cross-examination that he had confessed to a prior murder for which he
was never charged, the state had dismissed numerous weapons charges
against him despite the arsenal of weapons in his home, and he was
sentenced to only 25 years for this murder.
1998:
United States v. Alvarez-Tautimez
160 F.3d 573 (9th Cir. 1998)
Counsel
ineffective in drug possession and conspiracy case for failing to move
to withdraw guilty plea after co-defendant's motion to suppress the
marijuana was granted. Both co-defendants were arrested by border patrol
in a car with 252 pounds of marijuana and filed motions to suppress the
marijuana due to unlawful search and seizure. Subsequently, Alvarez
appeared before a magistrate on his proposed plea agreement and the
magistrate recommended that the district court accept the plea. Prior to
the district court accepting the plea, however, the co-defendant's
motion to suppress the marijuana was granted and charges were ultimately
dismissed against him. Co-defendant's counsel recommended that the
defendant move to withdraw his plea and renew his motion to suppress.
Counsel did not do so, however, because-without any research--he said he
saw no legal basis for doing so and advised the defendant of this. The
Court held that counsel was clearly deficient in his advice because
"rudimentary research," 160 F.3d at 576, would have revealed that
Alvarez had the absolute right to withdraw his guilty plea because it
had not yet been accepted by the district court. No tactical reason
could justify failure to move to withdraw. Alvarez was also clearly
prejudiced, because if he had withdrawn his plea and renewed his motion
to suppress, it would probably have been granted because it would have
been heard by the same judge on the same set of facts. If the motion had
been granted, the government would have had insufficient evidence to
proceed and would have dismissed charges just as with
co-defendant.
1996:
Huynh v. King
95 F.3d 1052 (11th Cir. 1996), reh'g
denied, 124 F.3d 223 (11th Cir. 1997).
Trial counsel ineffective
in murder case for failing to timely file a potentially meritorious
motion to suppress evidence seized in warrantless pat-down search
because he believed the denial of the motion for untimeliness would
obtain a more favorable federal habeas review than denial on the
merits.
1994:
Tomlin v. Myers
30 F.3d 1235 (9th Cir. 1994).
Trial counsel
ineffective in murder prosecution for failing to seek suppression of
witness' lineup identification, conducted outside of counsel's presence,
and subsequent in-court identification.
1990:
Murphy v. Puckett
893 F.2d 94 (5th Cir. 1990).
Trial counsel
ineffective in prosecution for armed robbery for not raising a valid
double jeopardy claim because defendant had previously been convicted of
capital murder with burglary and the same armed robbery as the
underlying felonies.
*Smith v. Dugger
911 F.2d 494 (11th Cir. 1990).
Counsel ineffective for failing to move to suppress
defendant's confessions made out of presence of counsel where the waiver
of rights form signed by defendant indicated that the defendant had
responded negatively when asked whether he waived his right to have
attorney present and whether no threats or coercion had been used to
make him confess.
1987:
Rice v. Marshall
816 F.2d 1126 (6th Cir. 1987).
IAC where
counsel did not move to suppress evidence that rape defendant was
carrying firearm on ground that defendant had been earlier acquitted of
weapons charge in connection with the same alleged rape, where only
issue presented by weapons charge was whether defendant had possession
of firearm during encounter with complaining witness, jury necessarily
found that he did not have such weapon, & most pervasive &
direct evidence that defendant has used force (or threat of) was
witness' testimony about the presence of gun & manner in which it
was brandished.
U.S. District Court
Cases
2007: United States v. Baker,
___ F. Supp. 2d ___, 2007 WL 1381773 (D. Neb. May 9, 2007).
Counsel ineffective in drug conspiracy and possession of a firearm by a felon case for failing
to file a motion for new trial. Following the jury’s verdict, the trial court granted a judgment
of acquittal on the conspiracy charge and asking for briefing on whether the court should
grant of a motion for new trial. Counsel responded only that no new trial could be granted
because of double jeopardy. The government appealed and the Eighth Circuit reversed the
judgment of acquittal on the conspiracy charge and remanded for sentencing. Counsel’s
conduct was deficient because Fed. R. Crim. P. Rule 29 provides that “if the court enters a
judgment of acquittal after a guilty verdict, the court must also conditionally determine
whether any motion for a new trial should be granted if the judgment of acquittal is later
vacated or reversed.” Here counsel did not move for a new trial, even after the court asked
both parties to brief the new trial issue and instead advised the court that a new trial would
be barred by double jeopardy. Prejudice established because the court would have granted
“a motion for new trial or a conditional motion for new trial under Rule 29,” especially since
the court found that “the evidence at trial was so deficient that it warranted the granting of
the motion for judgment of acquittal.”
2003: Koras v. Robinson
257 F. Supp. 2d 941 (E.D. Mich. 2003).
Trial counsel was ineffectivein second degree murder case for failing to assert that petitioner’s statements were inadmissible
because petitioner’s request for counsel was ignored in violation of Edwards v. Arizona, 451 U.S. 477 (1981), and
appellate counsel’s ineffectiveness in failing to assert this claim on appeal provided the cause and prejudice for petitioner’s failure
to assert this issue in his appeal and procedural default in federal court. Applying the AEDPA standards, but not discussing them
in its analysis, the court held that trial counsel’s conduct was deficient in failing to assert the Edwards violation despite
knowledge that petitioner told a defense expert that he asked for counsel prior to admitting that he stabbed the victim accidentally
while brandishing a knife to scare him in an argument caused by the victim’s refusal to take the petitioner to get more crack cocaine.
Prejudice was found because suppression of the statements may not have resulted in an acquittal, but "may have resulted in a
finding of guilt on a lesser charge." 257 F. Supp. 2d at 952. Appellate counsel’s failure to assert this issue was ineffective because
this was a significant and obvious issue and counsel’s failure to assert it was the result of a misunderstanding of the Supreme Court’s
decision in Edwards. Prejudice was found because the issue would have warranted relief if it had been raised on appeal. In a
weird twist though, the court found that, because the state court was in a better position to address admissibility, the relief
warranted was to order a hearing on admissibility in the state court and an appeal if admissibility was denied.
2000:
Noble v. Kelly
89 F. Supp. 2d 443 (S.D.N.Y. 2000), aff’d, 246
F.3d 93 (2nd Cir. 2001)
Counsel
ineffective in attempted murder case for failing to file timely notice
of alibi, which resulted in exclusion of defense witness. Drug related
shooting outside a bar by three men. Defendant and codefendants defended
on basis of alibi and mistaken identification. Victim testified he had
had altercation before shooting with three other men outside the bar,
while the defendant was still inside the bar, but identified defendant
as shooter. Another state witness from some distance away said defendant
was shooter. Two defense witnesses said they could not identify the
three men but knew the defendant and codefendants and could say they
were not the assailants. Both were impeached with prior statements
identifying the defendant as the shooter though. Defense attempted to
call a third witness who would have testified that he witnessed the
earlier altercation with three other men and was inside the bar when
he heard the shots. This witness would also have said that the defendant
was also inside the bar at the time of the shots and went outside at
the
same time as the witness. The state objected to the testimony due to
lack of notice of alibi. Defense counsel argued that this was not an
alibi because the indictment merely specified the "vicinity" of the bar
without saying inside or outside, but the court noted the discovery
documents specified the crime scene as outside the bar and excluded the
evidence due to the lack of notice. Court held, "Errors caused by
counsel’s ignorance of the law are errors that run afoul of the
objective standard of reasonableness." Id.
at 463. While there was no controlling law in the state at the time
indicating whether the indictment or discovery specification of crime
scene was controlling, a reasonable counsel would have erred on the "side
of caution." Id. Prejudice found
because this witness could not have been discredited with prior
inconsistent statements as the other defense witnesses were. The court
granted relief on this ground as an alternative ground of relief, but
also granted relief based on a denial of due process because the trial
court excluded the defense witness without considering lesser
alternatives even though the defense counsel’s conduct was not
deliberate.
Military Cases
1994: United States v. Gilbert
40 M.J. 652 (N.M.C.M.R. 1994)
In wrongful use
of marijuana case, counsel ineffective for failing to seek immunity for
a defense witness who refused to testify because of fear of
self-incrimination. The witness would have testified that he had
provided defendant with a marijuana laced cigarette the night before
defendant's drug test and that the defendant knew nothing about the
marijuana in the cigarette.
State
Cases
2007: State v. Miner,,
733 N.W.2d 891 (Neb. 2007).
Counsel ineffective in theft by unlawful taking case for failing to assert a double jeopardy
bar to prosecution. The defendant was tried and convicted in Holt County for the theft of 62
steers from a Livestock Market in Holt County. Some of these steers (26 to be precise)
were sold through a livestock market in Nance County where the defendant had been tried
and convicted of theft by receiving stolen property prior to the case in Holt County coming to
trial. Counsel’s conduct was deficient because “counsel was charged with knowledge of the
legal principles with respect to consolidation of theft offenses in Nebraska,” which
precluding two theft charges based on “‘one scheme or course of conduct from one person’
on the same day.” Counsel’s conduct was not explained by strategy. Prejudice found
because the double defense was meritorious.
Spioch v. State,
954 So. 2d 47 (Fla. App. 2007).
Counsel ineffective in case of four counts of sexual activity with a minor in a custodial
relationship, one count of attempt, and 23 counts of lewd and lascivious assault on a
minor for failing to adequately move for a judgment of acquittal on 13 counts of lewd and
lascivious assault. While counsel did move for acquittal, counsel’s conduct was deficient
because “his motion was simply a bare-bones motion” that “did not sufficiently set forth
the grounds upon which relief was requested.” Prejudice established because an adequate
motion would have led to seven counts being dismissed for lack of evidence to support
the conviction, one count being dismissed because the charging document did not allege
sufficient elements to define a crime, and five counts being dismissed on double jeopardy
grounds because these acts occurred when the sexual activity counts occurred. Acquittal
entered on these 13 grounds and remanded for resentencing.
Gant v. State,
211 S.W.3d 655 (Mo. App. 2007).
Counsel ineffective in second-degree trafficking case by eliciting–during cross-
examination of the state’s witness during the suppression hearing–the evidence that
established probable cause for arrest. Drugs and a weapon had been found in a hotel
room registered to another person and officers had that man’s photo ID. Officers waited
nearby and arrested the defendant, who looked nothing like the man in the ID, as he
approached the room with a key in his hand. This was all that the state’s evidence in the
suppression hearing established, which alone was insufficient to establish probable cause.
On cross-examination, however, defense counsel elicited the testimony that established
probable cause for the arrest. Specifically, a motel employee connected a man fitting the
defendant’s description to the room and recognized his car and police informants
described a man fitting the defendant’s description as being connected with drug activity
in the area. “Trial counsel’s elicitation of evidence that supported the State’s case
constitutes conduct falling below that of a reasonably competent and diligent attorney.”
Id. at 660. Prejudice found because the defendant was not charged with the drugs or
weapon in the room but was instead charged with possession of drugs found in his pocket
in a search incident to arrest. This evidence likely would have been suppressed if counsel
had performed adequately. New trial granted.
West v. Director of the Department of Corrections,
639 S.E.2d 190 (Va. 2007).
Counsel ineffective in aggravated involuntary manslaughter, involuntary manslaughter,
and DUI case for failing to assert a double jeopardy objection to convictions both for
statutory offense of aggravated involuntary manslaughter and common law offence of
involuntary manslaughter. While counsel objected to sentencing on both offenses he did
not state that his argument rested on constitutional or double jeopardy grounds.
Counsel’s conduct was deficient because the common law offense does not require proof
of a fact different from those required for conviction of the statutory offense. Even
though the trial court gave concurrent sentences, prejudice was found because the
defendant was convicted of two felonies and given two punishments. The common law
conviction and sentence were set aside.
2006: Morris v. State
639 S.E.2d 53 (S.C. 2006).
Counsel ineffective in assault and battery with intent to kill trial for failing to request a continuance, which resulted in
the defendant being tried in absentia. The defendant showed up on the scheduled trial date, signed a sentencing
sheet in anticipation of entering a guilty plea to the lesser-included charge of assault and battery of a high and aggravated
nature, and then left the courthouse. He could not be located when his case was called so he was tried in absentia.
Counsel’s conduct was deficient because she objected to trial in absentia, but failed to move for a continuance in order
to enter the guilty plea agreed to with the State. Prejudice found because the refusal of a continuance would have
amounted to an abuse of discretion where ABHAN, the crime the defendant agreed to plead guilty too, is a common
law misdemeanor punishable by up to ten years in prison, while ABIK, for which he was tried and convicted, is a violent
crime felony punishable by up to twenty years in prison.
State v. Horton
146 P.3d 1227 (Wash. App. 2006).
Counsel ineffective in possession with intent to manufacture and possession of drugs case for failing to move to
suppress evidence from a pat-down search. The officer stopped a vehicle for traffic violations and observed materials in the back seat,
which led to a valid search warrant for the car. Prior to obtaining the warrant, the officer performed a pat-down search of the defendant,
who was a passenger in the car, and found a cigarette pack with a small baggie of methamphetamine inside. Counsel’s conduct was deficient
because counsel moved to suppress the evidence due to a pretextual stop but failed to move to suppress on the basis that the pat-down
was an illegal search. A valid pat-down search is limited to objects that might be used as weapons, which would not include the cigarette
pack or its contents or items subsequently found in the defendants pockets, which included a pill bottle containing ephedrine and a digital scale.
Prejudice found.
Compton v. State
202 S.W.3d 416 (Tex. App. 2006)
Counsel ineffective in aggravated perjury case for failing to move to dismiss the
indictment even though the indictment was filed 75 days after the expiration of the two
year statute of limitations period. Counsel's conduct was deficient because he assumed
the three year period for all other felonies applied and "[a] modest amount of research . . .
would have disclosed an uncontradicted line of recent cases holding that aggravated
perjury has a two year limitation period." "Without a firm command of the law
governing the case, a lawyer cannot render effective assistance to the defendant."
Prejudice found because "undeniable" since the motion to dismiss had merit.
State v. Meckelson
135 P.3d 991 (Wash. App. 2006)
Counsel ineffective in drug case for failing to move to suppress evidence on the basis that the
officer's traffic stop was pretextual. While the officer stopped the defendant after the defendant
made a right turn without signaling, the officer had begun following the defendant's car for the
legally insufficient reason that the defendant had given the officer a "deer-in-the-headlight" look.
Counsel's conduct was deficient because it is not enough for the state to show that there was a traffic
violation, but rather the question is whether the traffic violation was the real reason for the stop.
Prejudice found because there was a reasonable probability the motion to suppress would have been
granted.
People v. Boyd
845 N.E.2d 921 (Ill. App. 2006)
Counsel ineffective in multiple charge case for failing to invoke the defendant’s statutory speedy-trial rights with respect to home invasion charges. The defendant was entitled to trial within 120 days from the date he was taken into custody unless his own acts occasioned delay. Here, although all of the charges arose from a single incident, the state filed charges against the defendant on three different dates. While the defendant had agreed to a continuance on initial charges, the home invasion charges were filed after the defendant agreed to continue the initial charges. The speedy-trial clock expired on the home invasion charges prior to trial, but counsel failed to request the discharge.
State v. Perez-Avila
131 P.3d 864 (Utah App. 2006)
Counsel ineffective in DUI and felony automobile homicide case for failing to move to consolidate the charges because under state law the DUI was a lesser included offense of the felony automobile homicide.
2005:
Thompson v. Commissioner of Correction
880 A.2d 965 (Conn. Ct. App. 2005).
Counsel ineffective for failing to file a motion to dismiss a count of failure to appear because of the delay between the issuance and the execution of the warrant such that the statute of limitations had expired. The defendant was charged with various sexual assault charges in addition to two charges of failure to appear for earlier scheduled court dates. Prejudice found because there is a reasonable probability that the charge would have been dismissed by the trial court because the defendant lived in state the whole time and had been arrested 15 times since the warrant for failure to appear had issued and each time provided his correct address and driver’s license number.
People v. Hernandez
840 N.E.2d 1254 (Ill. App. 2005)
Counsel ineffective in murder case for failing to move to suppress the defendants videotaped statement to an assistant prosecutor, which clearly revealed that the defendant had invoked his right to silence in a clear and unequivocal fashion. Nonetheless, the prosecutor continued the interrogation. Counsel moved to suppress the statement on other grounds, but not this ground and this failure was not explained by strategy. Prejudice found because the statement would have been excluded and the state’s case was largely based just on this statement because there was no eyewitness testimony or physical evidence.
Commonwealth v. McClellan
887 A.2d 291 (Pa. Super. 2005)
Counsel ineffective in third degree murder and conspiracy case for failing to provide, in a timely manner, the identity and opinion of the defense expert, which resulted in the exclusion of the expert’s testimony. The defendant’s child died only about 15 minutes after the defendant returned from a convenience store where she was caught on the surveillance tape. When she returned home, she and her boyfriend were alone with baby for a few minutes before a friend entered and found the defendant with the child saying something was wrong with him. Paramedics were called, but the child died from extensive, recently inflicted injuries. Appellant and her boyfriend were charged. From the beginning, counsel discussed the need to secure an expert witness is forensic pathology to understand the scientific principles involved and present testimony concerning the timing of the injuries. Counsel initially retained a different expert and fought the court’s orders for disclosure before ultimately disclosing this expert’s report and allowing a deposition. Even prior to his deposition, counsel had retained a second expert, however, but counsel never disclosed this information until shortly before the conclusion of the trial. The trial court excluded this expert’s testimony because of the untimely disclosure. Counsel expressed no strategy for the untimely disclosure. Counsel simply did not expect that the court would exclude the testimony. Counsel’s conduct was deficient because “counsel were or should have been aware the trial court required disclosure of their experts’ opinions and reports, based in particular on their previous experience” with their first expert. “[C]ounsel’s actions exhibited either a lack of knowledge of the Rules of Criminal Procedure, constituting incomplete investigation into the law, or a deliberate attempt to frustrate the Commonwealth’s right to learn of the witness, constituting a violation of both the Rules of Professional Conduct and the ABA Standards.” Prejudice found because this expert would have testified that, in his opinion, the child’s injuries were inflicted during the time period when the defendant was clearly away from home.
Concepcion v. State
903 So. 2d 247 (Fla. App. 2005)
Counsel was ineffective in armed robbery case for failing to move for a new trial based on the inaccuracies in translation of the testimony of the state’s only eyewitness. The defense theory was misidentification. During jury deliberations, the defendant and his family informed counsel that there were significant inaccuracies in the court interpreter’s translations of the identification testimony, but counsel did nothing because he hoped for an acquittal. Even assuming that this hope was justified, counsel’s conduct was deficient in failing to file a motion for new trial after the jury’s verdict. Counsel’s conduct was deficient and prejudicial.
People v. Brown
831 N.E.2d 1113 (Ill. App. 2005).
Counsel ineffective in murder case for failing to object to the testimony of a jailhouse snitch, who testified that the defendant had confessed to him in jail and that the defendant solicited his assistance in a plot to kill the state’s primary witness and to threaten and intimidate other prosecution witnesses. This testimony was bolstered by taped conversations collected when the snitch was secretly working for the state and documents containing a coded list of witnesses and maps created by the defendant. Counsel’s conduct was deficient in failing to move to suppress the testimony, tape recordings, and documents because they were taken by “an arm of the prosecution” in violation of the defendant’s right to counsel under Massiah v. United States, 377 U.S. 201 (1964), after he was “indicted, arraigned, and represented by counsel.” While counsel objected, he did so only on the basis that the evidence was more prejudicial than probative. Counsel’s conduct was not excused by strategy in that counsel objected on the wrong basis solely because “counsel lacked the legal knowledge to raise a challenge that would have clearly provided that help.” Prejudice was found because there was a reasonable likelihood that the taped statements, the maps, and the list of witnesses might have been excluded, along with significant portions of the witness’ testimony. Without this evidence, the defendant might not have testified, which would have excluded his long criminal history and the rebuttal testimony of his alleged co-conspirator, who admitted guilt but identified the defendant as the actual killer. The tape recordings and documents alone were prejudicial because they transformed “an inherently suspect witness into an entirely believable one” by corroborating his testimony. The witness, who had a long criminal history and a “remarkable ability to escape punishment for his evil ways,” had a striking history of being a snitch for the same prosecutor’s office in six murder cases in eight years where he shared a cell with the defendants.
State v. Becker
110 P.3d 1 (Mont. 2005).
Counsel ineffective in drug possession and drug manufacture case for failing to move to dismiss the possession charge as a violation of double jeopardy under the state constitution and statutes. Because the state could not prove manufacture of drugs without first proving possession, state law prohibited conviction on both because the possession was a lesser included offense of the manufacturing charge. Possession charge dismissed and case remanded for resentencing.
2004:
United States v. Little
851 A.2d 1280 (D.C. 2004).
Counsel ineffective in murder case for failing to
timely move to suppress the defendant’s unwarned custodial statement.
Counsel’s conduct was deficient and prejudicial because the defendant
was in custody at the time of his written confession, but he had not
been given the Miranda warnings. Thus, the
statement should have been suppressed. Although counsel asserted a weak
strategic reason and that there was no merit to the motion, counsel had
made a motion, during the trial, to suppress the statement, which was
denied as untimely. If counsel had adequately investigated, counsel
would have also been aware that the issue had merit. There was also a
reasonable probability of a different outcome at trial if the statement
had been suppressed.
Bruton v. State
875 So. 2d 1255 (Fla. Dist. Ct. App. 2004)
Counsel ineffective in exploitation
of an elderly
person and third degree grand theft case for failing to move to dismiss
the grand theft charge as a lesser included offense. The basic facts
were that the defendant wore a nurse’s uniform in a hospital, pretending
to be a caregiver, and stole the victim’s diamond ring. Because the
two
crimes involved one act of taking the same property, convictions on both
counts violated double jeopardy. Even though the precedent for this
ruling had not been decided at the time of trial, "this is an issue
that trial counsel should have recognized."
Collier v. State
598 S.E.2d 373 (Ga. Ct. App. 2004).
Counsel ineffective in homicide by vehicle case for
failing to move to suppress blood and urine samples taken from the
defendant. The defendant ran a red light and collided with another car,
killing two people. The defendant refused to consent to blood and urine
tests, but police threatened to obtain a search warrant and to forcibly
use a catheter to obtain the samples if he did not consent. In the face
of the threat, the defendant consented. Counsel’s conduct was deficient
because the consequences of refusing under state law did not include the possibility of a search warrant
and forcible testing. The police, thus, misled the defendant and his
consent was coerced and invalid. Prejudice found because the admission
of the blood and urine results showing methamphetamine and amphetamine
unquestionably harmed the defense.
People v. Miller
806 N.E.2d 759 (Ill. App. Ct. 2004).
Counsel ineffective in drug possession
with intent to
deliver plea case for failing to challenge third-party consent to search
the defendant’s zipped duffle bag where the drugs were found. Counsel
moved to suppress the evidence, which was located in a home shared
with
the third-party in a locked storage cabinet containing some of the
third-party’s property but for which only the defendant had keys. The
third-party consented to police opening the cabinet with a crowbar
and
drugs were found inside. The motion was denied, without any evidence
that the drugs were actually in a zipped duffle bag, which the
third-party informed police belonged to the defendant, but the police
searched it anyway and found the drugs. Following the denial of the
suppression motion, the defendant plead guilty. Counsel’s conduct
was
deficient in failing to present evidence of the zipped duffle bag.
Counsel did not do so only because counsel’s "mistake of law" in
believing it was immaterial since the police had consent to open the
storage cabinet. Prejudice found because, but for counsel’s errors,
the
defendant would not have pleaded guilty and would have insisted on going
to trial.
Vann v. State
596 S.E.2d 722 (Ga. Ct. App. 2004)
Counsel ineffective in robbery and
assault case for failing
to move to sever the charge of possession of a firearm by a convicted
felon. The evidence against the defendant for robbery and assault
was
based on shaky eyewitness testimony and a codefendant's statement.
Because of the weapons charge, the defendant's prior
conviction for receiving stolen property was admitted in evidence.
Counsel did not move for severance because counsel wanted the jury to
know about the prior conviction rather that wondering whether the
defendant had prior convictions. Counsel's conduct was
deficient because "counsel misunderstood the law concerning
admission of bad character evidence." When the State introduced the prior
conviction, the defendant's character was undoubtedly placed in
evidence, even though the prior conviction was unrelated to the charges
for which he was being tried. Prejudice found because even though the
prior conviction was admitted only through certified documents referred
to only once in the state's closing argument, trial counsel did not
request a charge that the jury limit its consideration of the prior
conviction to the charges of possession of a firearm by a convicted
felon. Thus, the jurors were free to consider this evidence with respect
to character and credibility when the evidence against the defendant was
otherwise "far from overwhelming."
State v. Reichenbach
101 P.3d 80 (Wash. 2004).
Trial counsel was ineffective in possession
of methamphetamine case for failing to move to suppress the methamphetamine
that was involuntarily abandoned in the course of an illegal seizure
of
the defendant. An informant notified the police on several occasions
that the defendant was forcing him to drive to Canada so that the
defendant could purchase drugs. On the last of these occasions, the
police obtained a search warrant for the informant’s car and the
defendant’s person. After the warrant was obtained, however, the
informant notified the police that the defendant had been unable to
purchase drugs and that he was not sure whether he would be able to do
so. The police then staged an accident to stop the informant’s car.
With
weapons drawn and pointed at the defendant, officers ordered the
defendant to raise his hands. Before doing so, the defendant dropped
a bag of methamphetamine on the floor next to the passenger seat.
The
defendant was removed from the car and the drugs were discovered during
the search of the car. Counsel’s conduct was deficient in failing
to
move to suppress the drugs because the search warrant was invalid
because the information supplied by the informant after the warrant was
obtained negated probable cause. Failure to object could not be
explained by any legitimate tactic. Moreover, although the informant
consented to search of the car, the informant could not consent
to
seizure of the defendant’s person. The defendant was "seized" at
gunpoint, however, and his abandonment of the bag of drugs was in
response to the unlawful seizure and, thus, involuntary. The seizure of
the bag of drugs thus violated the state constitution. Prejudice was
found because the conviction was dependent on admission of the bag of
drugs.
Firestone v. State
83
P.3d 279 (Nev. 2004).
Trial and appellate counsel ineffective in
leaving
the scene of an accident case for failing to challenge multiple
convictions arising from one accident involving three victims. State
statutes were clear that, "Since there was only accident, and one
‘leaving,’ the statute allows only one charge of leaving the scene of an
accident, regardless of the number of people involved." Counsel’s
conduct was deficient and prejudicial in failing to raise this
meritorious issue. Two of the three convictions were vacated and the
case was remanded for further proceedings.
2003: State v. Johnson
837
A. 2d 1131 (N.J. Super. Ct. App. Div. 2003).
Counsel ineffective
in weapons case for
failing to move to suppress a handgun seized from the defendant. The
police obtained warrant to arrest the defendant’s half-brother on
domestic violence charges. When the police arrived at the defendant’s
stepfather’s home, they asked for permission to enter after advising
him
they had multiple arrest warrants and they were concerned about the
presence of a handgun. The stepfather allowed the police to enter the
home to arrest his son. Following the arrest, the police frisked
the son
and then took him outside to the squad car. The officer’s went back into
the home to begin searching for the gun. The defendant was on the
phone
in the kitchen and stated that he was just visiting. The police officer
frisked him and then asked him to leave until the police finished
with
their search. The defendant agreed to leave but said he needed to gather
his things. He took a DVD box and another small box from a closet
and
proceeded to leave. The police officer stopped him and questioned him
about the contents of the box. After receiving conflicting answers,
the
officer searched the box and found a loaded handgun inside. Counsel did
not move to suppress the handgun because he believed the motion would
have lacked merit because the owner of the home had consented to
police
entry. Counsel’s conduct was deficient because it was based on a
fundamental misunderstanding of the law. The homeowner’s consent may
well not have been knowingly and voluntarily given in that the homeowner
was confronted with multiple warrants for his son’s arrest and may
not
have been advised of his right to refuse consent. Moreover, the
homeowner’s permission appeared to be limited to entry for purposes of
affecting his son’s arrest on the second floor. The police officer’s
far
exceeded the scope of this invitation because, by their own admission,
they re-entered the premises once the son had been safely secured
in the
squad car in order to search the home. The search was also outside the
scope of the limited area included in a search incident to arrest.
A
search warrant was, therefore, required. Prejudice found due to the
critical significance of the handgun to the prosecution’s case. The
court ordered that a suppression hearing be conducted. If the court
granted suppression, the convictions would be set aside. If the court
denied suppression, the judgment of conviction will
stand.
Evans v. State
827
A.2d 157 (Md. Ct. App. 2003).
Counsel ineffective in drug case for
failing to move to
suppress based on an unreasonable search of the defendant’s rectal area
while in an exposed area of a public street. During a drug task force,
an officer purchased one vial of cocaine from the defendant. After
this
officer left, a search team moved in and conducted a rectal search of
the defendant. They seized an additional nine vials of drugs, gave
the
defendant evidence receipts, and released him. At trial, counsel moved
to suppress based on an argument that the defendant had not been
arrested and, thus, this was not a lawful search incident to arrest.
This argument was rejected. Counsel’s conduct was deficient in failing
to make the additional argument that the rectal search conducted
on a
public street was unreasonable under the Fourth Amendment. No strategy
could explain counsel’s failure because this argument would not have
been inconsistent with the argument already made by counsel. Prejudice
found because the nine extra vials likely impacted the determination
of
guilt with respect to the drug buy by the officer. Without additional
drugs being found on the defendant, the jury may have viewed credibility
in a different light. Prejudice also found because the nine extra
vials
enhanced the defendant’s sentence by at least five years.
Hiligh v. State
825
A.2d 1108 (Md. Ct. App. 2003).
Counsel ineffective in armed robbery
case for failing to
argue that confession was involuntary due to failure to present
defendant to judicial officer without unnecessary delay. Defendant was
arrested around 11:00 .m. for an armed robbery in Prince George’s
County. He was then handcuffed to a one-foot cable connected to the
wall
in the interrogation room while the charging documents were completed.
Even though the documents were ready at 3:30 a.m. and a commissioner
was
on duty in the building, the defendant was left there until the next
morning when a series of questioning occurred concerning the Prince
George’s charge, as well as robberies in several other Maryland
Counties, including Howard County. Following a number of statements,
the defendant was finally taken to the commissioner 23 and ½ hours
after his arrest. Counsel moved to suppress his statements as involuntary
but did
not assert as a ground the Maryland court rule and statute requiring,
in combination, that defendants be taken before a judicial officer
without
unnecessary delay and that delay for the purpose of obtaining
confessions is a violation of this rule and should be considered as a
factor in determining voluntariness of any resulting confession.
Counsel’s conduct was deficient in failing to assert this clear rule.
Prejudice found because there is a reasonable probability that the
court
– as it did following convictions in another county – would have found
the confession to be involuntary. Even if the trial court had allowed
admission, the court would have been required to instruct the jury
accordingly, and the jury could have determined that the statement
was
involuntary.
State v. Shaver
65 P.3d 688 (Wash.
Ct. App. 2003).
Counsel was ineffective in drug case for failing to make
a pre-trial motion to suppress the defendants prior escape and drug
convictions. During direct examination of the defendant, counsel
elicited testimony about two prior burglary convictions and an escape
conviction. During cross examination, the state elicited testimony about
a prior drug conviction from another state. The court held that the
prior drug convictions and the escape conviction may well have been
excluded if a hearing had taken place outside the presence of the jury.
Counsel apparently was even unaware of the prior drug conviction from
Oregon even though the state had this information.
Page v. State
63 P.3d 904 (Wyo. 2003).
Counsel was ineffective in possession of
marijuana case for
failing to move to suppress evidence obtained pursuant to a search
warrant. The defendant’s home was being inspected by a sheriff’s deputy
conducting a welfare check on a child. During the inspection the deputy
noticed two pipes with duct-taped handles with burnt residue in them.
The defendant claimed they were used for smoking tobacco. After the
officer’s statement that the pipes did not smell like tobacco, the
defendant admitted that he had smoked marijuana from one of the pipes.
The deputy then went and secured a search warrant and seized drug
paraphernalia and marijuana. The defendant then gave a statement
admitting the marijuana was his. Counsel’s conduct was deficient
because, unlike the Fourth Amendment, the Wyoming Constitution requires
an affidavit that contains all of the information necessary to support
probable cause for a search. The affidavit submitted in this case was
patently deficient, because there was primarily only boilerplate
allegations in the affidavit and the only relevant facts were that two
pipes with burnt residue were found. There was no indication in the
affidavit that the pipes were used to ingest marijuana or any other
controlled substance. The owner claimed that he used the pipes to smoke
tobacco, and the affidavit did not contradict these statements.
Prejudice was found because a motion to suppress the evidence in this
case would have been granted and the state would have been left with
no
evidence with which to prosecute the defendant. Although the state
argued that the court should accept a good faith exception to the
exclusionary rule under the Wyoming Constitution, the court found that
this was not the proper case to address this issue because it had
not been separately briefed by either side.
2002:
People v. Callahan
778 N.E.2d
737 (Ill. App. Ct. 2002)
Counsel
ineffective in murder and armed violence case for failing to move for
dismissal of armed violence counts on speedy trial grounds. The
defendant was arrested in December 1997 and indicted for murder in
January 1998. Following his arrest, the defendant moved for a speedy
trial within 120 days. After numerous continuances, the trial was set
for May 1999. On the eve of trial, however, the state indicted the
defendant on 20 new charges that arose out of the same conduct as the
initial murder charge. The defendant was ultimately tried in July 1999
on the murder charge and four counts of armed violence. Counsel failed
to object to the filing of the additional charges and did not move to
dismiss the new charges on speedy trial grounds even though under state
law the new charges related back to the date the original charges were
filed and would have been dismissed on speedy trial grounds had counsel
made the motion. Counsel’s conduct was deficient and prejudicial and
the armed violence convictions were reversed.
State v. Bishop
639 N.W.2d 409 (Neb.
2002)
Trial counsel ineffective in possession with intent to distribute
case for failing to assert double jeopardy prior to a no contest plea
and appellate counsel was ineffective for failing to assert trial IAC.
Prior to the plea the state brought a separate successful forfeiture
action for the money seized from the defendant. Following the forfeiture
but before the criminal plea, the Nebraska court held that double
jeopardy was violated by criminal charges following a forfeiture action.
Trial counsel failed to investigate and discover the forfeiture action
despite knowledge that money was seized. Appellate counsel failed to
communicate with the defendant or to discover the forfeiture action and
raise the issue the appropriate remedy was a new trial rather than a new
direct appeal despite the state’s argument that the trial IAC claim was
barred because no bar applied where the defendant raised the issue at
the earliest opportunity given appellate counsel’s ineffective
representation.
State v. Allah
787 A.2d 887 (N.J. 2002)
Counsel ineffective in drug case for
failing to file a
double jeopardy motion prior to retrial. Following the defendant’s
arrest, his co-defendant entered a plea agreement in which he agreed
to testify against the defendant. The state did not call him and defense
counsel did. On direct, the co-defendant essentially testified that
the
defendant was innocent. The co-defendant’s attorney then entered the
courtroom on an unrelated matter and advised the witness to invoke
his
right against self-incrimination because he had not yet been sentenced.
On cross, he did invoke and the state moved for a mistrial. Defense
counsel objected, but the court granted the motion. Defense counsel
failed to file a double jeopardy motion prior to retrial though and
the defendant was convicted. On appeal, the parties conceded defendant
conduct and that counsel had no strategy. Prejudice found because the
double jeopardy motion was meritorious. Indictment dismissed.
Hofman v. Weber
639 N.W.2d 523 (S.D.
2002)
Counsel ineffective in first degree murder case for failing to
move to suppress tainted confessions in a timely manner. The defendant,
who had a history of mental illness, made several confessions without
advice of rights. He also made several confessions following the advice
of rights, but all of this was in a short time period. Prior to trial,
the court suppressed the initial statement. Counsel did not move to
suppress the other statements until after the jury was selected. The
court denied the motion as untimely. Counsel’s conduct was deficient
and
prejudice was shown because the tainted statements constituted a great
bulk of the state’s evidence, as the state argued in closing. Moreover,
the remainder of the evidence was mostly circumstantial.
2001: People v.
Little
750
N.E.2d 745 (Ill. App. Ct. 2001)
Counsel ineffective in possession with
intent to deliver cocaine case for
failing to move to quash warrantless arrest and search incident to
arrest that revealed drugs in pocket. Police officer testified that he
observed defendant near street after midnight. He watched while two
people approached defendant separately. Each time the defendant received
money and handed over an "object" out of his pocket. Defendant was
arrested and then searched. Drugs in pocket. Court held that counsel
was ineffective because there was a reasonable probability that the motion
to suppress would have been successful. Convictions reversed and
remanded.
Commonwealth v. Segovia
757 N.E.2d 752 (Mass. Ct. App. 2001)
Counsel ineffective in vehicular
hit and run
causing death case for failing to move to suppress a videotaped
statement. Prior to the statement, the defendant, who was a Brazilian
national, requested a translator and paralegal and told the police
officer he did not understand everything the police officer told
him
regarding his Miranda rights. Nonetheless, the police officer continued
to question the defendant, under the guise of asking "routine booking
questions" after he requested legal assistance. Prejudice found because
the defendant’s statements were contradictory to his prior statements to
police and because, during the statement, the defendant had revealed the
name of a witness that testified to incriminating statements by the
defendant. This witness was viewed as "fruit of the poisonous tree" by
the court.
People
v. Gil
729 N.Y.S.2d 121 (N.Y. App. Div. 2001)
Counsel ineffective in robbery case for
waiving
pretrial motions and discovery in order to call the government’s "bluff"
as to readiness for trial and accrue speedy trial time if the government
was not ready. Counsel only met his client at arraignment and proceeded
to trial the same day. Counsel’s "strategy" was not reasonable because
there were colorable issues for a motion to suppress evidence seized
in
warrantless search, a motion to suppress the defendant’s statements
because not Mirandized, and a motion to
suppress eyewitness identifications based on suggestive procedures.
There was "everything to gain and nothing to lose by moving for
suppression "and very little to gain by accruing speedy trial time. The
defendant’s on the record waiver did not negate the issue because
counsel’s inducements were not reasonable.
Patterson
v. LeMaster
21 P.3d 1032 (N.M. 2001)
Counsel ineffective
in armed robbery case for failing to move to suppress suggestive
show-up
identifications by two key eyewitnesses. Most of perpetrator's face and
head were covered throughout robbery, pre-identification descriptions
were very sketchy, one witness described perpetrator as Hispanic, even
though defendant was African-American. Witnesses made "identification" of
defendant though when police officers had defendant spotlighted with
headlights of car. One witness hesitated and was unable to make
identification until police made defendant put on an
additional piece of clothing. Counsel did not challenge this evidence
and advised defendant to plead no contest even though defendant
maintained innocence. Prejudice found and plea set aside.
State v. Lopez
27 P.3d 237 (Wash. Ct. App. 2001), review granted , 41 P.3d 383 (Wash. 2002)
Counsel ineffective in assault and possession of a firearm case for
failing to move for dismissal of the firearm charge where one element of
the offense was a constitutionally valid predicate conviction and the
state had not proven this element. Defense counsel later elicited
testimony about a prior conviction for burglary from the defendant,
which allowed the jury to convict.
2000: State v. Bodden
756 So. 2d 1111 (Fla. Dist. Ct. App. 2000)
Counsel ineffective in
second degree murder case for failing to timely file a motion for new
trial because the conviction was against the greater weight of the
evidence. State law allows trial judge to grant a new trial after
weighing evidence and determining credibility essentially as an
additional juror, but requires that motion for new trial be filed within
10 days after trial. Counsel filed weeks late and trial court granted
motion. Appellate court found that trial court lacked jurisdiction to
grant new trial but found the record sufficient to review IAC claim and
construed the issue as such.
*
Turpin v. Bennett
525 S.E.2d 354 (Ga. 2000)
Counsel ineffective in capital murder trial for
failing to seek a continuance to get another
expert or seek some other remedy when the defense psychiatrist was
suffering from AIDS-related dementia. Witness had previously supported
insanity defense, but during his testimony, the witness abandoned his
former diagnosis without explanation, appeared "deathly ill," made
"cartoonish" facial expressions, volunteered testimony that whoever
committed the murder was a "vicious maniac," and stated that appropriate
psychiatric treatment for the defendant would have been nothing more
than Tylenol for his headache, Zantac for his stomach ailment, and
follow-up care. The jury laughed out loud at his testimony. The expert's
conduct and the radical change in his testimony was due solely to the
expert's impaired mental condition.
Wilkerson v. State
728 N.E.2d 239 (Ind. Ct. App. 2000)
Counsel ineffective in rape case for
failing to move to sever charges of two
rapes that occurred three weeks apart. State statute required severance
if crimes were not shown to be part of a common scheme and the two
alleged rapes here were similar only in that they occurred in the same
city and the assailant entered through a window late at night. The
defendant was convicted of both rapes and sentenced to 40 years on each
to be served consecutively. If the trials had been severed, however,
the
court could not have made the sentences consecutive under state law at
the time, which allowed consecutive sentences only when sentencing was
contemporaneous. [Statutory amendments in 1994 now allow consecutive
sentences even when not contemporaneous.] Thus, prejudice in sentencing
is clear. Counsel's conduct was deficient because counsel conceded no
strategy and that he was not aware of the sentencing ramifications of
the failure to sever. Court ordered that sentences be altered to run
concurrently.
1999:
Turpin v. Helmeci
518 S.E.2d 887 (Ga. 1999)
Counsel ineffective in vehicular homicide, driving under
the influence, and possession of amphetamines and methamphetamines
case for
failing to move to suppress results of urine test with respect to
possession charge. Defendant had consented to urine test under implied
consent law related to traffic offenses. The urine test was used,
however, for a different purpose for which the defendant had not
consented when used as the only evidence supported the possession charge
for which he was sentenced to 12 years. Counsel had vigorously argued
motion to suppress on a different basis. State argued that this basis
was not clear under state law at the time of trial. On conduct, the
court held that "reasonable professional judgment requires proper
investigation. Here, counsel did not adequately research the law.
The
right to reasonably effective counsel is violated when 'the omissions
charged to trial counsel resulted from inadequate preparation rather
than from unwise choices of trial tactics and strategy.'" Id.
at *2 (citations omitted). On prejudice, the court held: "Contrary
to the State's contention, the result in this case does not require
trial
counsel to predict what decisions will be issued in the future. Rather,
it affirms that counsel must adequately research the law when choosing
trial strategy." Id. at *3.
People v. Moore
716
N.E.2d 851 (Ill. App. Ct. 1999)
Counsel ineffective in felon in possession
of gun case for failing to move to
quash arrest and to suppress evidence and statements. Cop went to house
looking for someone else. Defendant was pulling car out of driveway when
cop blocked him in. When defendant got out of car, cop knew who he was
and that he was not the man the cop was looking for. Defendant took off
running. Cop thought he threw a gun while running. None ever found
though. Defendant eventually stopped and handcuffed 150 feet from the
car. Cop went back to car and saw a green zippered case in the
floorboard of the car. He opened the case and found a gun. After arrest,
defendant said he ran because he saw the case in the floorboard of the
car. The court held that there was no probable cause for the arrest
because flight alone is insufficient and cop had no reason to suspect
that defendant had committed or was committing a crime. The search of
the car was not incident to the arrest since the defendant was 150 feet
away and cuffed. Nor was the search a plain view search because the gun
was contained in a zippered bag. The defendant's statements would also
be suppressed if the arrest was quashed. While the court could not "determine what the outcome of a hearing on motions to quash arrest and
to suppress evidence and statements would have been," the court found
prejudice because "without the motions, confidence in the result of
defendant's trial is greatly undermined." Slip op. at *5. Post-trial
counsel also ineffective for failing to move for new trial on basis
of
trial counsel's IAC.
Collier v. State
715 N.E.2d 940 (Ind. Ct. App. 1999)
Counsel
ineffective in murder, criminal recklessness, and misdemeanor carrying a
handgun without a license case for failing to object to trial on both
recklessness and carrying handgun charges where they were based on a
single act and the handgun charge is a lesser included offense of
recklessness charge. Court found that trial on both violated double
jeopardy and vacated the conviction and sentence on the misdemeanor
charge.
State v. Klinger
980
P.2d 282 (Wash. Ct. App. 1999)
Counsel ineffective in drug possession
case for failing to move to suppress
drugs seized in a storage shed behind the defendant's house. Cops went
to the house to serve an outstanding warrant. Observed defendant through
window smoking a hand-rolled cigarette and smelled marijuana when he
opened the door. Defendant was arrested on the outstanding warrant. The
next day, the cops obtained a search warrant for the house and "outbuildings." Drug
paraphernalia found in house and 154 grams of marijuana found in shed.
The court found counsel ineffective for failing
to move to suppress because the affidavit in support of the warrant did
not support a search of the shed. Warrant listed only the facts above,
the defendant's prior for simple possession of marijuana, and the cop's
general statement that in his experience, drug manufacturers and dealers
often hide drugs in outbuildings. This case was only a possession case.
No nexus or probable cause for outbuilding search.
*
Perry v. State
741 A.2d 1162 (Md. 1999)
Counsel ineffective in
capital murder case for failing to make a timely and appropriate
objection to a tape made in violation of the Maryland wiretapping laws.
State's theory was that defendant was paid by a man in California to
kill his ex-wife, son, and son's nurse so man could get son's trust
fund. All evidence connecting the defendant with the man was
circumstantial, with the exception of testimony from a witness granted
immunity who testified that he acted as a go between. Tape was seized
from man's answering machine in California and included 22 second call.
22 second call had been made from pay phone near the crime scene shortly
after the murder. Although nothing directly incriminating on tape it
could be interpreted as incriminating. Defense counsel moved prior to
trial in a generic motion to exclude all taped evidence. When they
received tape in discovery, counsel did nothing more although they
realized the significance of the tape. During trial, counsel objected to
admission of the tape because of the quality of the recording. When
several witnesses testified that they recognized the voice of the
defendant, counsel objected to basis of their opinion. Only after the
tape was admitted and played for several witnesses to identify the
defendant's voice did counsel object to admissibility on the basis of
the Maryland wiretap statute. The trial court and appellate court held
that the objection was not timely. Counsel's conduct was deficient in
failing to recognize the wiretap issue. Prejudice established because
the tape was inadmissible. Maryland wiretap statute requires exclusion
unless both parties consent to taping. There is no co-conspirator
exception and it does not matter with the taping was wilful or not.
People v. Langlois
697 N.Y.S.2d 360 (N.Y. App. Div. 1999)
Counsel ineffective in sexual abuse case for failing to request
information in the state's possession and failing to move to suppress
evidence of prior uncharged sexual acts or comments and failing
to
request a limiting instruction. Defendant was charged with sexual
assault of employee under his supervision. During his testimony, the
state cross-examined the defendant about lewd remarks and sexual
assaults on eight women that worked under his supervision. The defendant
admitted some of the lewd remarks but denied the assaults. Prejudice
found because the evidence related to the other eight women should have
been suppressed because these acts were sufficiently similar to the
crime charged or remote in time.
1998: People v. Denison
79 Cal. Rptr. 2d 524 (Cal. Ct. App. 1998)
Counsel ineffective in drug case for failing
to challenge defendant's arrest for simple possession of Valium at
suppression hearing. Officers went to the defendant's home to conduct
a
probation search of defendant's roommate. Defendant drove up in his car
with the probationer as a passenger. An officer recognized the car
as "associated" with the house and the car was stopped. The probationer
was searched. During the stop, a paper bag with 50 dosages of Valium
was
observed in the floor board of the passenger side. The defendant was
then arrested for simple possession of Valium and his car and home
were
searched incident to the arrest. Cocaine and drug paraphernalia were
found. Defendant was charged with cocaine offenses, but not charged
based on Valium. Counsel moved to suppress due to unlawful stop and
detention and unlawful seizure of the paper bag, but did not move
to
suppress based on arrest without probable cause. Court held that stop,
detention, and seizure of bag were all justified by valid probation
search, but that defendant's arrest was unlawful because possession
of
Valium without a prescription is not a crime under California law, as
is evidenced by the Health and Safety Code and the legislative history.
While possession without a prescription is a crime under federal
law,
only possession with intent to sell is unlawful in California. The Court
found that the arrest could not be justified on the basis of the
federal
law, however, because there were no federal officers involved, no
federal charges brought, and the California legislative history
indicated that the Legislature intended that California law enforcement
officers not make arrests for simple possession of Valium. In addition,
there was no evidence to support a finding that the Valium was possessed
with the specific intent to sell it. Counsel was ineffective for
failing
to challenge the unlawful arrest, because his failure was not based on
any tactic, but instead was simply the result of ignorance or an
erroneous interpretation of California law. The defendant was prejudiced
because all of the cocaine and paraphernalia evidence would have
been
suppressed as fruit of the poisonous tree following the unlawful arrest.
Thus, if counsel had challenged the arrest, the defendant could not
have
been convicted of any of the offenses to which he ultimately pled
guilty.
Goines v. State
708 So. 2d 656 (Fla. Dist. Ct. App. 1998)
Counsel ineffective in drug case
for failing to move for recusal of the
trial judge who had previously prosecuted the defendant on a prior drug
case used to enhance punishment to habitual felony offender. The court
held that the judge would have been disqualified if the motion had been
filed. Based on trial counsel's testimony that the failure to file the
motion was not a strategic decision, the court found deficient conduct.
Prejudice was found, even though Judge sentenced only to 15 years when
he could have sentenced to 30 years, based on "that part of Lockhart defining
prejudice as a showing that counsel's error rendered the trial fundamentally
unfair-in this case because of the risk of judicial bias."
708 So. 2d at 661.
In re A.R.
693 N.E.2d 869 (Ill. App. Ct.), appeal denied, 705 N.E.2d 437 (Ill. 1998)
Counsel ineffective in
juvenile adjudication as delinquent for aggravated battery and
aggravated discharge of firearm because counsel failed to challenge the
legality of the juvenile's arrest and the voluntariness of his
subsequent statements. Juvenile was arrested, read rights, and
questioned before a juvenile officer was notified and possibly before
the juvenile's parents were notified. State statute requires arresting
officer to immediately make a reasonable attempt to notify parents and
juvenile officer. Purpose of statute is to allow parent and juvenile
officer to consult in order to ensure that confessions are voluntary.
Court ordered trial court to hold hearing on motion to quash arrest and
suppress statements and either grant new trial or affirm adjudication
as appropriate.
State v. Gallegos
967 P.2d 973 (Utah Ct. App. 1998)
Counsel ineffective in drug and drug paraphernalia
case for failing to renew
pretrial motion to suppress evidence once it became apparent from trial
testimony that evidence had been erroneously admitted under plain view
exception. Officers learned that defendant was staying in his
girlfriend's apartment and went to serve an outstanding burglary
warrant. Defendant was found in a hole in the floor of the bedroom. As
he was crawling out, he reached right hand between mattresses on bed,
but then surrendered. A syringe was found in his pocket and a gun
between the mattresses. Defendant was handcuffed and taken to the living
room, but officers continued to look in the bedroom. An officer noticed
a lidless purple tin on a shelf in the closet containing drugs and
paraphernalia. During pretrial suppression motion, the only evidence
was from preliminary hearing tape. Court admitted tin as plain view evidence
and search incident to arrest. During trial, however, the detective
testified that when he observed the tin he could not see the contents
and had no reason to suspect that it contained a gun or evidence until
he removed the tin from the closet shelf. Trial counsel was ineffective
for failing to renew the motion to suppress because this evidence was
clearly not in plain view. Likewise, the evidence was not admissible
as
a search incident to arrest because there was insufficient evidence in
the record to support this finding. The defendant was prejudiced because
the evidence in the tin was the sole evidence of drugs and the primary
evidence of paraphernalia, because the syringe in the defendant's pocket
was not tested for drugs and the state conceded that syringes may be
possessed for lawful purposes. The Court remanded for a hearing to
determine whether the defendant had standing to challenge the unlawful
search (which the trial court had not ruled on previously due to finding
the search lawful).
1996: Grace v. State
683 So. 2d 17 (Ala. Crim. App. 1996)
Counsel ineffective in cocaine possession case for
failing to file a written motion for discovery to discover oral
statements made by defendant. Damaging statement made known to
prosecutor by state trooper the night before trial would have been
excluded for failure to disclose if counsel had filed a discovery
motion.
*People v. Birdsall
670 N.E.2d 700 (Ill. 1996)
Counsel
ineffective for failing to request fitness hearing to which the
defendant was statutorily entitled because of psychotropic medications
prescribed and taken at time of trial. [Note: the statute was
subsequently changed so that hearing is not automatically required.
See
People v.
Gibson, 687 N.E.2d 1076 (Ill. App. Ct. 1997).
Tidwell v. State
922 S.W.2d 497 (Tenn. Crim. App. 1996)
Counsel
ineffective in multi-charge child sexual abuse case for failing to move
to require the state to elect the particular offenses upon which
conviction would be sought where defendant was convicted of 14 counts of
rape, 14 counts of incest, and 14 counts of contributing to the
delinquency of a minor based on evidence that defendant committed acts
over a 14 month period but victim could only testify about two acts in a
single month with particularity.
1995: Jefferson v. State
459 S.E.2d 173 (Ga. Ct. App. 1995)
Counsel ineffective in rape case for failing to
move to suppress evidence seized after defendant's unlawful arrest.
Without probable cause or reasonable suspicion, police stopped
defendant's car with "blue lights" and then asked him to accompany them
to police station to help with investigation. Defendant was not read
Miranda warnings. During the conversation with police, the alleged
victim identified the defendant's voice as that of the rapist and then
the defendant was formally arrested. The police then seized other
incriminating evidence, including defendant's shoes, samples of his head
and pubic hair, and a photograph which was included in a photographic
lineup.
People v. Steels
660 N.E.2d 24 (Ill. App. Ct. 1995), appeal denied, 667 N.E.2d 1061 (Ill. 1996)
Counsel ineffective in
cannabis possession case for failing to move to suppress based on
illegal detention which was defendant's only possible chance. Observed
in train station and questioned because he met profile, defendant
refused consent to search suitcase, and officers detained suitcase and
defendant left. Ultimately drug dog sniffed and search warrant obtained.
Drugs found.
People v. Guttierez
648 N.E.2d 928 (Ill. App. Ct.), appeal denied, 652 N.E.2d 346 (Ill. 1995)
Counsel ineffective per se
for failing to seek hearing on fitness to stand trial pursuant to state
statute which grants automatic hearing whenever defendant is under the
influence of psychotropic medication and asks for hearing.
Commonwealth v. Digeronimo
652 N.E.2d 148 (Mass. App. Ct. 1995)
Trial counsel ineffective for failing to move to suppress evidence (including
defendant's statements, police testimony about observations of
defendant, and Breathalyzer) seized after a warrantless police entry
into private residence of suspected drunk driver who had recently been
in an accident.
1994: People v. Brandon
643 N.E.2d 712 (Ill. 1994)
Counsel ineffective for failing to seek hearing on fitness
to stand trial on grounds that the defendant was under the influence of
psychotropic medication.
People v. Stanley
641 N.E.2d 1224 (Ill. App. Ct.), appeal denied, 645 N.E.2d 1366 (Ill. 1994)
Trial counsel ineffective
for failing to move for dismissal of charges on statutory speedy trial
grounds.
People v. Karraker
633 N.E.2d 1250 (Ill. App. Ct. 1994)
Trial
counsel ineffective for failing to move for severance of charges or to
move for editing of taped conversations between defendant and informant
which were played before charged. The charged offenses were completely
unrelated to each other and not part of same transaction; there were
completely separate defenses; and large portions of the tapes contained
irrelevant and prejudicial material.
People v. Pitts
629 N.E.2d 770 (Ill. App. Ct. 1994)
Counsel
ineffective for failing to seek continuance in order to subpoena alibi
witnesses.
People v. Gwinn
627 N.E.2d 699 (Ill. App. Ct. 1994)
Counsel ineffective for failing to raise
statute of limitations as a bar to
prosecution.
People v. Clamuextle
626 N.E.2d 741 (Ill. App. Ct.), appeal denied, 633 N.E.2d 8 (Ill. 1994)
Counsel ineffective for failing
to seek continuance in order to locate alibi witnesses.
Sikes v. State
323 S.C. 28, 448 S.E.2d 560 (1994)
Trial counsel
ineffective for failing to raise a meritorious Fourth Amendment claim
that defendant was improperly detained where the only evidence of
defendant's guilt was discovered as a result of the unlawful detention.
1993: *In re Neely
864 P.2d 474 (Cal. 1993)
Trial Counsel ineffective for failing to adequately investigate
and move to suppress a tape recording of defendant's conversation with
co-defendant which was taken in violation of Massiah during a van ride on the way to the preliminary hearing. Counsel was
aware of the pre-existing relationship of the co-defendant as an
informant for the police, the co-defendant's bitterness toward defendant
and offer to help police apprehend him, the police's conditioning
assistance to co-defendant on his cooperation with police, and the
co-defendant's meeting with police after van ride to report statements
and inquire what the police wanted him to do. Rather than investigate
and raise the Massiah motion, counsel simply asked the
co-defendant's father and attorney and asked a police officer if the
co-defendant was acting as a state agent. When they denied that he was,
counsel declined to investigate or raise the motion. Adequate
investigation would have revealed that the co-defendant was acting as a
state agent and pre-arrangements were made by the prosecutor and police
to have defendant and co-defendant ride together and to have the
conversation recorded. In addition, both men had been provided with
newspaper which contained articles relating to the case (although
inmates were not normally given papers) so that the co- defendant would
have a basis to start a conversation so he could elicit incriminating
statements, including the location of the murder weapon.
Pitts v. State
432 S.E.2d 643 (Ga. Ct. App. 1993)
Trial counsel
ineffective for failing to make minimal inquiries which would have
revealed that defendant's arrest was predicated on warrants issued
without showing of probable cause. If counsel had discovered this fact,
defendant's post- arrest statement could have been successfully
suppressed.
People v. McPhee
628 N.E.2d 523 (Ill. App. Ct. 1993)
Counsel
ineffective for failing to file a pretrial motion to quash defendant's
arrest and suppress evidence seized as a result of unconstitutional
entry into his wife's house.
People v. Sifford
617 N.E.2d 499 (Ill. App. Ct. 1993), appeal denied, 645 N.E.2d 1366 (Ill. 1994)
Counsel ineffective for
failing to raise statute of limitations instead of allowing defendant
to plead guilty to an offense for which the statute of limitations had
already run.
Ex parte Menchaca
854 S.W.2d 128 (Tex. Crim. App. 1993)
Counsel
ineffective in delivery of controlled substances case for failing to
file a motion in limine to prevent cross-examination of the defendant
based on a rape prior which was inadmissible for impeachment purposes
under state rules because probation on the rape charge had been
completed.
State v. Snyder
860 P.2d 351 (Utah Ct. App. 1993)
Counsel
ineffective for failing to file within the deadline set by state
criminal procedure rules a motion to suppress a videotaped confession
due to noncompliance with Miranda. Counsel knew of issue more than two
months ahead of time but missed deadline.
In Interest of LDO
858 P.2d 553 (Wyo. 1993)
Counsel ineffective in
juvenile proceedings for larceny where counsel failed to interview
defendant or investigate circumstances of confession prior to
adjudicatory hearing and thus failed to move to suppress confession
because juvenile had not been given Miranda warnings. Prejudicial even
though juvenile testified because he probably would not have if
confession had been suppressed.
1992:* In re Wilson
838 P.2d 1222 (Cal.1992), cert. denied, 507 U.S. 1006 (1993)
Trial
counsel ineffective for failing to move to suppress incriminating tape
recording of phone conversation and testimony of two state agents
pursuant to Massiah. While in custody and after
appointment of counsel, defendant approached an inmate and said that
he needed a "hit man" to get rid of a witness. The inmate contacted the
prosecutor and then telephone conversations were arranged (and recorded)
in which another snitch/state agent posed as a "hit man" and elicited
incriminating responses. Defense counsel did not object to the testimony
of the two witnesses because he believed it was merely foundational and
because he believed tape recordings were admissible.
Morgan v. State
847 S.W.2d 538 (Tenn. Crim. App. 1992)
Counsel
ineffective in aggravated sexual battery case for failing to move to
dismiss based on fact that prosecution was barred by statute of
limitations.
Wickline v. House
424 S.E.2d 579 (W. Va. 1992)
Trial counsel
ineffective in murder case for failing to investigate and adequately
attack admission of defendant's confession based on the defendant's lack
of capacity to waive Miranda rights where counsel was aware of
defendant's long- standing neurological problems and that defendant was
borderline mentally retarded. If counsel had had expert to evaluate,
expert would have concluded that defendant did not knowingly waive
rights.
Dickeson v. State
843 P.2d 606 (Wyo. 1992)
Counsel ineffective for
failing to seek to suppress statements made by arson defendant following
the seizure of her diary where there was a strong argument that the
warrantless seizure of the diary was illegal.
1991: People v. Stewart
577 N.E.2d 175 (Ill. App. Ct. 1991)
Counsel ineffective for failing to move to
suppress cocaine found on defendant following his arrest where the
probable cause to arrest was a close call.
People v. Hawkins
571 N.E.2d 1049 (Ill. App. Ct.), appeal denied, 580 N.E.2d 124 (Ill. 1991)
Trial counsel ineffective for
failing to move for dismissal of charges on statutory speedy trial
grounds.
People v. Winans
466 N.W.2d 731 (Mich. Ct. App. 1991)
Counsel
ineffective in murder case where identification was allowed when counsel
knew that there was a prior proceeding against the defendant arising
from the same conduct which was dismissed and yet counsel did not review
prior proceedings and learn that previous court had suppressed
identification testimony.
People v. Jackson
568 N.Y.S.2d 177 (N.Y. App. Div.), appeal denied, 577 N.E.2d 177 (N.Y. 1991)
Counsel ineffective for
failing to move to dismiss non-felony indictments based on state's
noncompliance with statutory speedy trial requirement.
State v. Garrett
600 N.E.2d 1130 (Ohio Ct. App. 1991)
Counsel
ineffective for failing to move to suppress a telephonic warrant when no
state law permits a telephonic warrant.
Dupree v. State
305 S.C. 285, 408 S.E.2d 215 (1991)
Trial
counsel ineffective for failing to pursue at suppression hearing the
issue of whether police sergeant's alleged threats rendered the
defendant's statement involuntary when there is a reasonable probability
that the judge would have suppressed the statement which contained the
only evidence of guilty knowledge in the trial for receiving goods.
State v. Smith
410 S.E.2d 269 (W. Va. 1991)
Trial counsel ineffective in murder case
for failing to move to suppress the
defendant's blood-stained pants seized only after seven hours of "processing" during
which defendant was beaten by officers and suffered cuts, bruises, and
a perforated eardrum.
1990: People v. Egge
551 N.E.2d 372 (Ill. App. Ct. 1990)
Counsel ineffective for failing to move to
withdraw guilty plea where trial court failed to admonish the defendant
regarding the rights waived by a guilty plea.
People v. Thomas
459 N.W.2d 65 (Mich. Ct. App. 1990)
Counsel in
drug case ineffective for failing to move to suppress evidence based on
illegal arrest because no probable cause.
State v. Fennell
578 A.2d 329 (N.H. 1990)
Counsel ineffective
for failing to move to dismiss the indictment where one victim's
testimony at best established sexual contact but did not establish
penetration required for aggravated felonious sexual assault of seven
year old.
Commonwealth v. Lester
572 A.2d 694 (Pa. Super. Ct. 1990), appeal denied, 590 A.2d 296 (Pa. 1991)
Counsel ineffective for failing
during suppression hearing to elicit the testimony of the defendant who
claimed that his confession was involuntary because based on police
promised of sexual services.
State v. Tarica
798 P.2d 296 (Wash. Ct. App. 1990)
Trial counsel ineffective in theft
of car case for failing to move to suppress
evidence seized from the defendant's wallet after he was arrested for
a "traffic crime", handcuffed, and placed in the police vehicle.
State v. Glover
396 S.E.2d 198 (W. Va. 1990)
Trial counsel ineffective for failing to file a timely notice of
alibi defense where alibi was the only available defense and because of
lack of notice the defense was precluded from presenting evidence to
corroborate the defendant’s alibi testimony.
1989: Arencibia v. State
539 So. 2d 531 (Fla. Dist. Ct. App. 1989)
Trial counsel ineffective for failing to
raise issue of competency of 7 year old child to testify for state in
prosecution for sexual battery of child.
People v. Brown
535 N.E.2d 66 (Ill. App. Ct. 1989).
Counsel
ineffective for failing to file a motion to withdraw the defendant's
guilty plea after the trial court misinterpreted the sentencing limits.
People v. Vauss
540 N.Y.S.2d 56 (N.Y. App. Div. 1989)
Counsel
ineffective for failing to challenge the admissibility of statement to
police made after probable cause arrest in motel room without warrant
after breaking the lock on the door. (Note: same result is doubtful
after New
York v. Harris, 495 U.S. 14 (1990).)
Perkins v. State
771 S.W.2d 195 (Tex. Ct. App. 1989), aff'd, 812 S.W.2d 326 (Tex. Crim. App. 1991).
Counsel failed to object to
unlawful DWI arrest by police officer who had no authority to arrest
because outside his jurisdiction.
State v. Carter
783 P.2d 589 (Wash. Ct. App. 1989).
Trial
counsel ineffective for failing to move to dismiss after the amendment
of the original charge of robbery to assault following a hung jury on
the robbery charge because of state rule requiring dismissal of charge
if the defendant has already been tried on a related charge.
1988: People v. Alcazar
527 N.E.2d 325 (Ill. App. Ct.), appeal denied, 535 N.E.2d 404 (Ill. 1988).
Trial counsel ineffective for failing to move for dismissal of charges
on statutory speedy trial grounds.
Peeler v. State
750 S.W.2d 687 (Mo. Ct. App. 1988).
Counsel
ineffective in murder case for failing to request an interpreter for
defendant who suffered from severe hearing loss and was unable to
understand what was being said during trial.
People v. Morgan
530 N.Y.S.2d 609 (N.Y. App. Div. 1988).
Counsel
failed to request a hearing to challenge the voluntariness of
defendant's confessions when one confession was uttered in response to a
direct question without benefit of Miranda warnings and the second
confession came in as hearsay.
City of Fairhorn v. Douglas
550 N.E.2d 201 (Ohio Ct. App. 1988)
Counsel
ineffective in disorderly conduct case for failing to move to dismiss
the charges on the ground that the police had entered the defendant's
apartment without a warrant and the alleged disorderly conduct occurred
inside the apartment.
Commonwealth v. March
551 A.2d 232 (Pa. Super. Ct. 1988), appeal denied, 568 A.2d 1246 (Pa. 1989).
Counsel ineffective in failing
to move for a bill of particulars where the defendant was charged with
rape and nonconsensual acts and the information included a new charge
of
corruption of a minor but the defendant did not know whether corruption
based on consensual or nonconsensual acts and thus could not make
knowing decision whether to testify. Defendant testified to consensual
acts and was convicted only of corruption.
In re Bruyette
556 A.2d 568 (Vt. 1988)
Trial counsel ineffective for failing to file
a motion to suppress defendant's
statements made after custodial interrogation in which police refused
the defendant's request to call an attorney. Counsel never advised
defendant of issue, so defendant plead guilty where the state's evidence
would have been insignificant without statements.
1987: People v. Fernandez
516 N.E.2d 366 (Ill. App. Ct. 1987), appeal denied, 522 N.E.2d 1249 (Ill. 1988).
Trial counsel ineffective in rape case for failing to move for
suppression of two retarded defendants' confessions until three days
into trial because of mistaken belief that oral statements could not be
admitted at trial.
People v. Ellsworth
520 N.Y.S.2d 386 (N.Y. App. Div. 1987)
Counsel ineffective for failing to request a hearing to determine the
admissibility of evidence seized from search of defendant where evidence
preceding search showed only that the police received a call about an
individual who was apparently lost and the defendant fled when police
attempted to question him.
Cooke v. State
735 S.W.2d 928 (Tex. Ct. App. 1987)
Counsel
ineffective for failing to move to suppress based on warrantless arrest
in apartment and tainted out of court identification where the defendant
was taken to the victim's apartment.
State v. Haskins
407 N.W.2d 309 (Wis. Ct. App. 1987)
Trial
counsel ineffective for failing to raise issue concerning deaf
defendant's competency where counsel had represented between 6 and 9
times before, defendant had been found incompetent at least once before,
and counsel doubted competency. Counsel did not raise because when
defendant was found incompetent he spentone year in hospital and
counsel felt if incompetent he would do time and then be tried so
counsel decided to roll dice with jury. Court held there can be no
strategic reason not to raise competency.
1986: *State v. Fisher
730 P.2d 825 (Ariz. 1986)
Counsel ineffective in motion for new trial
for failing to prepare and present available evidence to support a
post-trial unsworn confession of guilt by the defendant’s wife. Physical
evidence at trial showed that it was equally as likely that it was
defendant or his wife, wife refused to testify based on 5th amendment
right, and the state’s strongest evidence was the defendant’s confession
made after the police read his wife’s statement to him. At the motion
for new trial, counsel did not secure thepresence of witness to whom
wife confessed prior to defendant’s trial and other witnesses who could
verify that she had consistently confessed her own guilt.
Sanders v. State
715 S.W.2d 771 (Tex. Ct. App. 1986)
Counsel
ineffective for failing to discuss written statement with defendant or
challenge its admissibility when the defendant could not read or write.
State v. Johnson
395 N.W.2d 176 (Wis. 1986) (affirming 374 N.W.2d 637 (Wis. Ct. App. 1985))
Counsel ineffective in first degree
murder case for failing to raise competency to stand trial issue where
defense experts expressed doubt about competency and recommended that
issue be raised to court and trial court even asked counsel about
competency issue. Counsel's reasons (that he did notwant to subject
defendant to state experts prior to mental health defense and that
counsel did not personally believe defendant was incompetent) were
insufficient.
1985: Carter v. State
702 P.2d 826 (Idaho 1985)
Counsel ineffective in manslaughter prosecution for
failing to move to suppress testimony of deputy sheriff to effect that
defendant made statement during custodial interrogation that victim was
unarmed when final shots were fired. This testimony was inadmissible
because defendant had made at least one equivocal request for counsel
prior to statements being made.
People v. Carroll
475 N.E.2d 982 (Ill. App. Ct. 1985).
Trial
counsel ineffective for failing to apprise trial court of pretrial
motion to suppress statements which had been sustained in a previous
proceeding when state offered statements into evidence.