United States Supreme Court
Cases
PROSECUTION EVIDENCE OR ARGUMENT
U.S. Court of
Appeals Cases
2005: Hodge v. Hurley
426 F.3d 368 (6th Cir. 2005).
Counsel ineffective in child rape case for failing to object to the prosecutor’s “egregiously improper closing argument, the prosecutor commented on the credibility of witnesses, misrepresented the facts of the case, made derogatory remarks about the defendant, and generally tried to convince the jury to convict on the basis of bad character.” The prosecutor’s arguments, among other things, incorrectly informed the jury that they would have to disbelieve all of the victim’s family members to acquit, which was not true since two family members testified to seeing blood in the child’s underwear and abnormal behavior. The jury could have believed this without convicting the defendant. The prosecutor also implied that disagreement between state and defense experts “(who could very well have legitimate professional disagreements) meant that one of those witnesses must be perjuring him or herself.” Id. at 383. With respect to character, the prosecutor argued that the defendant, who was underage, regularly drank alcohol illegally and wanted to live off his family and not work, which was irrelevant and not based on any evidence before the court. The prosecutor also urged the jury to “put [itself] in the place of someone that might run into [the defendant] at night,” which is “a version of the impermissible ‘golden rule argument.’” Id. at 384. Under AEDPA, the state court’s decision was an unreasonable application of Supreme Court precedent. Prejudice round because the result of the trial depended primarily on the jury’s credibility determination between the defendant and the 3 year old child’s mother, who claimed to have seen the rape. In addition, the trial court’s “generic jury instructions . . . were insufficient to dispel any prejudice from these statements.” Id. at 388 n.27.
Martin v. Grosshans
424 F.3d. 528 (7th Cir. 2005).
Counsel ineffective in sexual assault case for failing to object to improper testimony and argument. The defendant was an ordained Episcopal priest charged with molesting a boy prior to 1988. The boy first raised the allegation in 1993 and the defendant learned about the allegation in 1994. During the state’s evidence, without objection from counsel, the state presented the testimony of a former prosecutor who had worked with the defendant in 1993 to develop a policy for dealing with allegation of sexual misconduct in the parish. She testified that his focus was greatly on protecting the accused clergymen and not the accusers. Counsel also did not object to testimony from a police officer, who met with the defendant in the presence of his counsel, that the defendant refused to answer questions about the allegations. Finally, counsel did not object or move for a mistrial based on the prosecutor’s argument that the jury should not be swayed by the defense’s strong character witnesses because even Jeffrey Dahmer had character witnesses. Counsel’s conduct was deficient because: (1) the former prosecutor’s testimony was irrelevant and prejudicial because the defendant was not even aware of allegations against him when these conversations occurred in a completely different jurisdiction years after the crimes alleged here and the defendant’s beliefs did not necessarily imply a guilty conscience; (2) the officer’s testimony was an improper comment on the defendant’s right to counsel; and (3) the prosecutor’s argument was inflammatory and improper, especially since this trial occurred in 1995 in Wisconsin when Dahmer’s case was fresh in people’s minds. Under AEDPA, the state court’s decision was contrary to Strickland because it placed the burden on the defendant to prove that, but for counsel’s errors, “the result of the proceeding would have different. Prejudice was, therefore, considered de novo. “[E]ven if these errors, in isolation, were not sufficiently prejudicial, their cumulative effect prejudiced . . . [the] defense” where “the prosecution’s evidence was not overwhelming.”
2002: United States v. Hylton
294 F.3d 130 (D.C. Cir. 2002)
Counsel ineffective in conspiracy
to smuggle cocaine case for failing to object to co-conspirator testimony
as
derivative of the defendant’s immunized statements. Following arrest,
on the advice of counsel, the defendant entered into a "debriefing
agreement," which provided that no statements made would be used
directly against the defendant and the government could make derivative
use of leads provided by the defendant. The defendant gave statement
providing information on the importation of drugs and his relationship
with a co-conspirator. Prior to trial, the defense moved to exclude the
evidence derived from this debriefing. Because counsel had been involved
in the debriefing sessions, counsel withdrew and the court appointed
new
counsel. The court determined that the defendant’s waiver of his Fifth
Amendment rights had not been knowing and intelligent. Government did
not appeal that finding. The parties then proceeded on the assumption
that Kastigar v. United States, 406 U.S. 441
(1972), controlled and the defendant would be entitled to a hearing
which the government would have the burden of showing that none of the
evidence to be presented at trial was derived from the defendant’s
debriefing. No hearing was held because government counsel stipulated
that a drug courier and co-conspirator would not be called to testify.
During the trial the jury found the defendant not guilty on several
counts and hung on the remainder of the charges. During the second
trial, the government proceeded with the same evidence but also called
the co-conspirator to testify. The co-conspirator had plead guilty and
entered into a cooperation agreement with the government. Following
conviction a newly appointed counsel moved for a new trial on the basis
of ineffective assistance of counsel and proffered a witness who would
testify that the co-conspirator had agreed to cooperate only after he
was confronted with the defendant’s debriefing statements. Counsel’s
failure to raise Kastigar was "simply
inexcusable." Id. at 134. The court found
that defense had nothing to lose in putting government to its burden
and the possible benefit in excluding the co-conspirator testimony was
significant. Prejudice found because the co-conspirator testimony
greatly strengthened the government’s case.
2001: Burns v. Gammon
260 F.3d 892 (8th Cir. 2001)
Counsel ineffective in pre-AEDPA attempted rape
case for failing to object to the prosecutor’s improper comment in the
rebuttal closing argument that asked the jury to consider that the
defendant, by exercising his constitutional right to a jury trial and to
confront witnesses, forced the victim to attend trial, take the stand,
and relive the attack. The defendant was prejudiced due to the lack of
objection because the defense had no opportunity to respond to the
rebuttal argument and the defendant was denied an appropriate cautionary
instruction. Cause for failure to raise on direct appeal established
since the appellate counsel was conflicted because he was employed by
the same public defender office as the trial counsel and prejudice
established by the prejudice at trial, as opposed to the lack of
prejudice on appeal since the ineffective assistance claim could have
been brought in post-conviction proceedings.
1996: Gravley v.
Mills,
87 F.3d 779 (6th Cir.
1996)
Ineffective
assistance of counsel constituted "cause and prejudice" sufficient to
allow federal court to review claim that was not preserved in state
court. Trial counsel was ineffective for repeatedly failing to object to
prosecution's improper comments concerning defendant's postarrest
silence and for failing to preserve these issues by way of the post-
trial motion for new trial.
Crotts v. Smith,
73 F.3d 861 (9th Cir.
1996)
Counsel
ineffective in assault on police officer case for failure to object to
prosecution's cross-examination of defendant concerning a boastful
statement made to a third party that he had previously "killed a cop"
where the jury was aware that defendant was on parole for an undisclosed
felony and there was no evidence that statement was true.
1994: Mason v.
Scully,
16 F.3d 38 (2nd Cir.
1994)
Counsel
ineffective for failure to object to testimony by police detective about
hearsay statement of non-testifying co-defendant.
1991: Atkins v. Atty.
Gen. of Alabama
932 F.2d 1430
(11th Cir. 1991)
Counsel
ineffective for failing to object to fingerprint card with notation
regarding previous arrest being admitted into evidence.
Chatom v. White,
858 F.2d 1479 (11th Cir.
1988), cert. denied, 489 U.S. 1054
(1989)
Defense counsel's
failure to object to admission of atomic absorption tests results was
IAC, in murder prosecution; conditions under which the test was
administered were questionable at best, & the question of D's guilt
beyond a reasonable doubt was a close one.
1985: Lyons v.
McCotter,
770 F.2d 529 (5th Cir. 1985) cert.
denied, 474 U.S. 1073 (1986)
In a state
prosecution for aggravated robbery with a deadly weapon, failure of
defense counsel to exclude or in any way limit cross-examination
testimony indicating that defendant had been previously convicted of a
similar offense was IAC where prior conviction would have almost
certainly been excluded under Texas law, similar conviction was highly
prejudicial, & lack of any limiting instruction enabled prosecutor
to refer to defendant's prior conviction in his closing argument.
U.S. District Court
Cases
2006: Wynters v. Poole
464 F. Supp. 2d 167 (W.D.N.Y. 2006).
Under AEDPA review for pro se petitioner, counsel ineffective in first degree rape case for failing to
object to the prosecutor’s cross-examination of the investigator who interrogated the petitioner.
The investigator testified that he requested that the petitioner take a polygraph after he denied guilt
and the petitioner terminated the interview and requested counsel. The alleged victim had made numerous
inconsistent statements and did not report the rape for more than a year. Appellate counsel asserted that
the prosecutor committed misconduct and that trial counsel had been ineffective in failing to object. The
District Court construed the pro se pleadings to assert trial counsel’s ineffectiveness as “cause” and “prejudice”
to overcome the procedural default of the state misconduct issue and found that counsel was ineffective.
Counsel’s conduct was deficient in failing to object to the prosecutor’s misconduct, which “effectively decimated”
the petitioner’s credibility in a case where his credibility and the alleged victim’s credibility was the only real issue.
The prosecutor’s conduct rendered the trial “fundamentally unfair.” The state court’s holding to the contrary
(on the merits, despite finding a procedural default) was an unreasonable application of clearly established Supreme
Court precedent. Id. at ___ (citing Darden v. Wainwright, 477 U.S. 168, 181-82 (1986)). In addressing this issue,
the state court “approved of the way defense counsel handled the situation” and, therefore, summarily dismissed the
ineffective assistance claim as “without merit.” Because this was an adjudication on the merits, the District Court applied
the AEDPA standards to this claim also. Counsel’s conduct was deficient and prejudicial because the prosecutor deliberately
implicated the petitioner’s Fifth Amendment right to remain silent, his Sixth Amendment right to counsel, and conveyed to
the jury that it could infer guilt due to the petitioner’s failure to submit to the polygraph. Although counsel attempted to
mitigate the damage, “there is no evidence that he made an intelligent, tactical decision not to object.” Instead, trial counsel
“only reinforced the negative evidence elicited on direct examination” by having it repeated rather than objecting and moving
for a mistrial or a curative instruction. “While the instance in which a single error will rise to the level of Sixth Amendment
ineffectiveness is clearly the exception and not the rule, this case is one of those exceptions.”
Id. at ___ (quoting Chatom v. White, 858 F.2d 1479, 1486 (11th Cir. 1988)). The state court’s summary denial was an
unreasonable application of Strickland.
2005:
Wade v. White
368 F. Supp. 2d 695 (E.D. Mich. 2005)
Counsel ineffective in manslaughter case for failing to object to evidence regarding the shooting of a key prosecution witness and the state’s closing argument concerning this evidence. The victim was killed when he was hit by a stolen car being pursued by police. The witness was a passenger in the car, who, at the scene of the accident, initially identified his friend as the driver, but changed his statement the next day to identify the defendant as the driver. He was later shot numerous times and testified about this, but he did not know of any connection between the shooter and the defendant and no evidence connecting the defendant to the shooting was presented. Nonetheless, the prosecutor focused on this incident in sentencing and strongly implied that there was some connection between the defendant and the shooting. Although this issue had been raised in state court, the state court failed to address this issue so the court’s review, under the AEDPA, was de novo. Counsel’s conduct was deficient because the evidence of the shooting of the witness was clearly inadmissible and the prosecutor’s argument was improper. There could be no reasonable strategy not to object to this testimony and argument. The court found that the state court’s finding that the testimony was properly admitted was irrelevant because it was wrong in that no evidence established any connection between the defendant and the shooting of the witness. Prejudice was found because the witness was the key witness identifying the defendant as the driver.
2004:
Leonard v. Michigan
256 F.Supp.2d 723 (W.D. Mich. 2003)
Counsel was ineffective in rape case for failing to
adequately prepare and to challenge the state’s DNA evidence. The crime
was committed in 1986 by two assailants. In February 1991 the police
identified all but one of the unknown fingerprints at the crime scene to
a suspect. That suspect agreed to plead guilty in exchange for dismissal
of several charges, recommendation of a lower sentence, and
identification of his accomplice. The suspect identified the defendant
as his accomplice. The one remaining fingerprint from the crime scene
did not match the defendant. The defendant was tried in a bench trial in
1994 and convicted on all charges. Despite his knowledge that the only
evidence aside from the suspect’s testimony was an alleged DNA match
from the crime scene, the defense counsel waited until just prior to
trial to request an expert and failed to file a formal motion for an
expert. During the pretrial suppression hearing, "Defense counsel’s
cross-examination of the State’s experts was minimal and failed to
address any area of controversy, such as methodology, human error,
contamination, lack of expertise, or bias." Then, following the
suppression hearing, defense counsel agreed to stipulate to admission of
the expert’s testimony during the trial, which relieved the prosecutor
of the burden to recall these experts, "even though the issue at trial,
weight of the DNA evidence, was different from the issue at the
suppression hearing, which was admission of the DNA evidence." Counsel
never challenged the validity of the DNA analysis even though a
different procedure was used to identify the defendant’s DNA and the DNA
from the samples from the crime scene and the co-defendant’s DNA. While
the court recognized that there is no requirement that the defense
counsel be an expert in DNA analysis to satisfy Sixth Amendment
standards, the court held that "[r]eading an academic article is not
sufficient in a case where the critical evidence is complicated
biological evidence requiring expert understanding to challenge."
Counsel’s failure to prepare to challenge this evidence was
unreasonable. The defendant was prejudiced because the trial court that
had conducted the bench trial provided testimony that he credited the
state’s DNA evidence because it was unchallenged. Counsel also admitted
"his lack of preparedness and ignorance with respect to DNA analysis."
Nonetheless, the state court ignored this evidence. "While a court
should not critique an attorney’s performance with the benefit of
hindsight, in this case, the court is only reiterating what the trial
judge identified as defense counsel’s deficiencies and accepting defense
counsel’s own statements." Defense counsel had not even obtained copies
of documents to which witnesses were referring and reviewed those
documents at the time of the suppression hearing.
How
defense counsel could have proceeded to trial, knowing the critical
piece of information against his client was DNA evidence, without
further reviewing the experts’ reports, protocol, and analysis is almost
incomprehensible and certainly unreasonable. Defense counsel’s almost
complete lack of preparation for this trial is indefensible. He himself
admitted he lacked the requisite knowledge to question the experts and
expressed jealousy for the prosecutor’s access to an expert. In light of
the circumstances of this case and the central role the DNA evidence
played in conviction, defense counsel’s lack of preparation is the
definition of ineffective assistance of counsel and for the court of
appeals to have found otherwise is unreasonable.
Under the AEDPA the state court’s decision was
unreasonable because "[o]bjective review of the facts demonstrates
Petitioner’s defense counsel did not ensure P1etitioner was provided a
fair trial having a just result."
State Cases
2007: *Sims v. State,
___ So. 2d ___, 2007 WL 2002477 (Fla. July 12, 2007).
Counsel ineffective in capital trial for failing to object to evidence of a “canine-alert” to
drugs in a car that had been driven by the defendant at the time of the murder. The defendant
had been stopped by an officer on suspicion of driving a stolen vehicle, which the defendant
had borrowed but had failed to return. During the stop, the defendant shot and killed the
officer. The defendant abandoned the car, which was subsequently searched. Although there
was a “canine-alert” for drugs, no drugs were found in the car and there was no evidence the
defendant had ever used drugs or been involved in the sale of them. Counsel’s conduct was
deficient in failing to object to this “canine-alert” evidence or an officer’s testimony that “the
dog would alert to the scent of narcotics after the drugs had been removed.” Counsel
objected only when the defendant’s parole officer was called to testify that parole would have
been revoked if the defendant had been found in possession of drugs. The court overruled
this objection. Counsel’s conduct was also deficient in moving to strike the “canine-alert”
evidence that laid the foundation for this testimony. All of this evidence supported the
state’s theory that the officer was killed because the defendant possessed drugs and was
attempting to avoid a return to prison for violation of parole. Counsel admitted that there
was no strategic reason for the failure to object and that he knew before trial that the state
intended to offer this evidence, which was irrelevant since the defendant did not own the
vehicle and no drugs were actually found in the car. Prejudice found because this evidence
was essential to the state’s motive theory and the state repeatedly relied on it in closing
arguments.
Fuller v. State,
224 S.W.3d 823 (Tex. App. 2007).
Counsel ineffective in sexual assault of a child and indecency with a child case for failing
to object to improper testimony from four witnesses “bolstering” the 15-year-old alleged
victim’s truthfulness and credibility. The child’s teacher testified in the state’s case-in-chief
that she was a credible and truthful person. This testimony was improper because the
relevant rule of evidence allowed testimony concerning the victim’s character for truthfulness
only after her character had been attacked. The defense cross-examination of her does not
“open the door” to character for truthfulness evidence. Likewise, “a defense theory of
fabrication (as opposed to recent fabrication) which generally denies the charges against a
defendant is not the equivalent of an attack on the victim's general character for truthfulness
so as to warrant the admission of character testimony.” The alleged victim’s mother, an
expert in child sexual assault investigations, and a forensic interviewer also testified that they
believed the alleged victim’s allegations against the defendant. This testimony was improper
and inadmissible. Counsel’s conduct was deficient in failing to object to this evidence
because “counsel's conduct in allowing the State unfettered and unchecked bolstering of the
victim was so outrageous that no competent attorney would have engaged in it.” The failure
to object was not explained by strategy or tactics. “Where counsel's strategy is premised on
an incorrect understanding of the law, we need not defer to that as a reasonable strategy.”
Prejudice found because the alleged victim’s credibility was the only real issue at trial and
the repeated objectionable testimony was also “emphasized . . . to the jury during [the state’s]
closing argument.”
State v. Hendrickson,
158 P.3d 1257 (Wash. App. 2007).
Counsel ineffective in second-degree identity theft case for failing to object to hearsay
testimony from a Social Security Administration special agent that the owner of the social
security card stated that his card had been lost and that no one had permission to use it.
These statements were not admissible as business or government records and were
“testimonial” and barred under Crawford v. Washington, 541 U.S. 36 (2004). Counsel’s
conduct was deficient and not explained by strategy. Prejudice found because this was the
only evidence that the defendant did not have a valid reason to possess this card. Thus,
absent counsel’s error, there is a reasonable probability that the defendant would have been
acquitted on this charge.
State v. Butcher,
866 N.E.2d 13 (Ohio App. 2007).
Counsel ineffective in rape and kidnaping case for failing to adequately object to hearsay
testimony. The defendant was charged with raping two sisters in the same room at the
same time. One sister was five and the other was six. Almost two months after the
alleged incident the sister’s reported the alleged abuse and the identity of the abuser, the
boyfriend of the aunt of one of the girls, to their grandmother, who relayed the
information to the mother. During trial, counsel objected to the grandmother’s testimony
concerning statements the girls had made to her but the trial court improperly admitted
this testimony. During the mother’s testimony, which included double hearsay of what
the girls said to the grandmother, who told her, counsel failed to object, however.
Counsel also failed to timely object to improper hearsay testimony of the state’s medical
expert. The mother had taken the girls to a private doctor initially for treatment. On the
advice of Child Services, the mother then took the children for examination at the “Child
Advocacy Center” where they were physically examined and interviewed in depth by the
doctor. The Detective on the case did not interview the children and deferred to the
doctor’s interview. Prior to trial, counsel had filed a motion in limine to exclude the
doctor’s testimony about statements of the children because these were not made for the
purpose of medical treatment. The court conditionally granted this motion unless a
hearsay exception was established. When the doctor’s testimony and report, which also
included the hearsay statements, was offered, however, counsel failed to object.
Counsel’s conduct was deficient in failing to object to the mother’s double-hearsay
testimony, which was based on the grandmother’s statements that counsel had objected
to, and in failing to object to the Doctor’s testimony and report because “[t]he granting of
a motion in limine alone will not preserve error for review.” It was also clear here that
the doctor was “a ‘manufactured witness’” that “assume[d] the role of a police
investigator” and testified to hearsay statements “under the guise that they were given for
the purpose of medical diagnosis or treatment.” For example, the doctor testified that the
identity of the perpetrator was important medically due to concerns about sexually
transmitted diseases, but clearly was not concerned about that since the girls were not
tested for STD. Considering both the court’s error and the IAC, the court found the
denial of a fair trial because four different adults (grandmother, mother, doctor,
and detective) testified and the doctor’s report also concluded that the defendant was the
perpetrator based on inadmissible hearsay. Although the girls also testified,
The prejudice arises when numerous adults repeat the girls’ stories
in court. If a statement is repeated often enough, it is more
believable. Additionally, the repetition has the effect of the adults'
vouching for the veracity of the statements.
Prejudice was also clear because portions of the girls’ testimony were suspect because
inconsistent with each other and one girl could not even identify the defendant in the
courtroom and the medical evidence was equivocal because it was “consistent with” but
not “diagnostic of” abuse.
2006: McIntosh v. State
941 So. 2d 1 (Fla. App. 2006).
Counsel ineffective in attempted murder case for failing to object to the improper use of
demonstrative evidence and improper prosecutorial questioning and argument. The
defense theory was that the defendant stabbed the victim in the neck with a pocketknife in
self-defense. The stab wound was less than 3/4 inch across but left the victim partially
paralyzed. Counsel was ineffective in failing to object when, during cross examination of
the defendant, the prosecutor pulled out his own knife to demonstrate his theory that the
defendant could not have pulled out his knife during the struggle and had come prepared
to fight. Although the defendant had used an ordinary pocketknife, the prosecutor pulled
out a knife that was 8 to 10 inches long, which was 3 times larger than what the defendant
had used. Counsel did not object even though this knife was not in evidence and the
prosecutor had given no notice of his intent to use it. Counsel also failed to address this
issue when the jury returned from deliberations and asked, "What happened to the knife?
And what are its dimensions?" Counsel did not request an instruction to clarify that the
knife used by the prosecutor was not in evidence and was not intended to replicate the
knife the defendant used, which was also not in evidence. Instead, counsel said nothing
when the court instructed that "you've heard all of the evidence you're going to hear and
seen all of the evidence you're going to see." Prejudice established because the evidence
of self-defense was fairly strong and the jury's question revealed that the jury was
influenced by the prosecutor's improper actions. Counsel also failed to object to the
prosecutor's "completely improper" question to the defendant about whether he believed
one of the defense witnesses, whose testimony was mostly helpful to the defendant, but
included some bad information, which the defendant denied. This error was compounded
when the prosecutor repeatedly restated in his closing arguments that the defendant called
his own witness a liar, again without objection. While this error alone may not have been
sufficiently prejudicial to require reversal, when "added to" the other error there was
cumulative prejudice.
Rose v. State
846 N.E.2d 363 (Ind. App. 2006).
Counsel ineffective in child molestation case for failing to object to the treating physician’s opinion
that the victim’s allegations were truthful. Prejudice found in light of the inconclusive physical evidence in the case.
State v. Milne
921 So. 2d 792 (Fla. App. 2006).
Counsel ineffective in sexual battery and false imprisonment case for failing to request a mistrial due to the prosecutor’s unsupported allegations during closing arguments. The defendant had told police at the time of arrest, consistent with his trial testimony, that he had consensual sex with the victim. The state had successfully excluded evidence of the prior consistent statements from evidence with a motion in limine. During arguments, however, the prosecutor implied that the defendant had tailored his trial testimony after hearing all the other witnesses testify.
Bowman v. State
710 N.W.2d 200 (Iowa 2006)
Counsel ineffective in kidnaping and assault case for failing to object to the prosecutor’s repeated cross-examination questions asking the defendant if the state’s witnesses fabricated their testimony. These questions were prohibited under clear state law. The defendant was prejudiced because the case depended on witness credibility to such a great extent that counsel presented two expert witnesses to testify concerning the impaired credibility of the state’s intoxicated witnesses.
State v. Roberson
924 So. 2d 1201 (La. App. 2006)
Counsel ineffective in robbery case for failing to object to admission in evidence of the defendant’s letter to the prosecution and cross-examination concerning the defendant’s pretrial offer to plead guilty to a lesser included offense. Counsel’s conduct was deficient because counsel was unaware of the state law making this information clearly inadmissible. Prejudice found.
2004: Vaughn v. State
607 S.E.2d 72 (Dec. 2004).
Counsel was ineffective in drug case for failing to object to the
prosecutor’s closing argument stating what uncalled witnesses would have
testified to. The state presented only the testimony of the arresting
officer to support a finding that the defendant possessed drugs. In
response to defense counsel’s argument that there had been another
officer in the car at the scene who did not testify, the prosecutor
argued that the other officer would have testified consistently if
called to testify. Although the prosecutor was entitled to "some
response" to the defense argument, the prosecutor’s argument was unfair.
Prejudice was found because the state’s evidence was limited to the
arresting officer. Moreover, during deliberations, the jury asked to see
the "testimony" of the officer who was not called to testify.
Peterson v. State
149 S.W.3d 583 (Mo. Ct. App. 2004).
Counsel was ineffective in second degree murder case for failing to
object to the prosecutor’s improper rebuttal closing argument that
suggested that the state had more than one eyewitness implicating the
defendant, although only one eyewitness testified. Counsel’s conduct was
deficient because the prosecutor’s argument was not supported by the
evidence. Prejudice was found because "a prosecutor’s assertions of
personal knowledge . . . are apt to carry much weight against the
accused when they should carry none. . . ." The improper arguments were
"especially troublesome" in this case because there was no physical
evidence implicating the defendant and the only eyewitness was a
convicted felon with credibility problems.
People v. Jura
___
817 N.E.2d 968 (Ill. App. Ct. 2004).
Counsel ineffective in use of weapon by felon
case for failing to object to the admission of hearsay portions of a
radio call and to the prosecution’s use of that evidence. Three police
officers testified and included hearsay statements identifying the
suspect in initial radio calls about the incident. They further
testified that the defendant matched these initial descriptions and the
state relied on this testimony in closing argument, without objection,
even though the court had sustained an objection to the testimony about
the match. Prejudice found because the trial amounted to a credibility
contest between the three officers and the defendant but the improper
hearsay was repeatedly used by the state in argument and evidence as
substantive evidence from a "concerned citizen" that made the radio call
but never testified at trial.
Joncamlae v. State
598
S.E.2d 923 (Ga. Ct. App. 2004).
Counsel ineffective in aggravated assault case
for failing to object to tainted in-court identifications of the
defendant by the two victims. Defense counsel learned only during the
testimony of the victims that they had been shown a photo line-up,
including the defendant’s picture, the day before trial. Counsel
conceded that her conduct was deficient because she was "in shock" at
that point and failed to object or move for mistrial. Prejudice found
because the witnesses "were not absolutely certain of their in-court
identifications, and did not have excellent views of the defendants at
the time of the attacks." One witness even admitted outright his
reliance on the photograph of the defendant he had seen in the
prosecutor’s office.
People v. Young
807
N.E.2d 1125 (Ill. App. Ct. 2004).
Counsel ineffective in first degree murder case
involving a shooting at a backyard barbecue where the defense was
self-defense because counsel failed to object to the prosecutor’s
improper questions to the defendant and argument. The prosecutor
improperly questioned the defendant concerning the veracity of other
witnesses, confused the jury about the state’s burden of proof,
cross-examined the defendant about his post-arrest silence and prior bad
acts, improperly vouched for witnesses and injected his own opinions in
the proceedings. Counsel was also ineffective for admitting during
cross-examine that he lacked the expertise to adequately cross-examine
the state’s pathologist, but failing to ask for a continuance that would
likely have been granted. The cross of the expert actually bolstered the
testimony of the expert. Counsel was also ineffective in failing to
order gunshot residue tests of the victim’s clothing, which the state
had declined to order. The court declined to address whether each
instance of deficient conduct would require reversal on its own because
"[t]he process was tainted by the prosecution such that the arguable
failures of the defense acting in concert therewith denied this
defendant a fair trial.
Collier v. State
596
S.E.2d 795 (Ga. Ct. App. 2004).
Counsel ineffective in aggravated assault case
for failing to object to the prosecutor=s improper
comments during closing argument. The defendant was charged in
connection with several unrelated bar fights that he initiated. During
the trial, evidence was admitted concerning two similar incidents, one
of which resulted in a guilty plea to terroristic threats. The defendant
claimed self defense or defense of others with respect to all four
incidents. During the closing argument, the prosecutor, without
objection, commented that he had taken part in a negotiated plea with
respect to defendant=s prior conviction for terroristic threats
and was now asking for the jury's "forgiveness" for making the deal,
which involved no confinement time, and that the jury should ensure
confinement to protect the community from future danger. The
prosecutor=s arguments were impermissible use of
similar transaction evidence and argument on future dangerousness, which
was irrelevant to guilt or innocence. Counsel did not object solely
because of his policy not to object in closing argument absent Ablatant@ error because
objection just draws attention to the argument. The court rejected this
as a Areasonable trial tactic@ because of
numerous state cases rejecting these same arguments as improper.
Prejudice found, Anot because the jury would have reached a
different verdict, but because the case would never have been submitted
to it for deliberation if defense counsel had moved for a mistrial.@
Sessums v. State
129
S.W.3d 242 (Tex. Ct. App. 2004).
Counsel ineffective in indecency with a child
case for failing to object to inadmissible expert testimony that
improperly commented on the alleged victim=s
truthfulness. The evidence at trial showed that the alleged victim=s mother found
the five-year-old boy performing oral sex on her husband=s stepfather.
Child Protective Services (CPS) investigated. During interviews of the
victim, he stated that he was also sexually abused by the Defendant, who
was his paternal grandfather. At trial, the State's evidence consisted
of testimony of four expert witnesses and the testimony of the
victim=s
step-grandfather, who said the victim had told him his bottom was sore
because the Defendant had been Aplaying with it.@ Each of the
experts testified about the alleged victim=s statements
to them and were then asked to explain and then to comment directly on
the factors they used in determining if this child was telling the
truth. This testimony was inadmissible. Counsel=s conduct was
deficient Ain failing to object to [this] clearly and
unquestionably objectionable testimony of the most outrageous and
destructive type. There is no conceivable strategy or tactic that would
justify allowing this testimony in front of a jury.@ Prejudice
found because the entire trial hinged on statements of the alleged
victim, who did not even testify, and the state specifically argued in
closing that the child must be truthful because he had convinced these
four experts.
2003: State v. Graves
668
N.W.2d 830 (Iowa 2003).
Counsel was ineffective in manufacturing and
possession of marijuana case for failing to object to the prosecutor
asking the defendant whether a police officer was lying, failing to
object to the prosecutor’s argument in which he accused the defendant of
calling the officer a liar, and failing to object in the prosecutor’s
rebuttal argument when he repeatedly characterized the defendant as
lying. In addition, the prosecutor improperly called the defense
argument a "smokescreen," improperly asserted that the police officer
had no motivation to lie because he would keep his job regardless of the
outcome of the case, argued that he personally did not leave cash at
other people’s homes, and inaccurately declared that if the jury
believed the police officer it would have to find the defendant guilty.
The court found that all of these arguments were improper and that
counsel could not reasonably have concluded that failing to object was
sound trial strategy. Prejudice was found because the police officer’s
and the defendant’s credibility were the primary issue in the case, and
the state’s case was relatively weak and circumstantial outside of the
credibility issue.
Orr v. State
584 S.E.2d 720 (Ga. Ct. App. 2003).
Counsel ineffective in statutory rape case for
failing to object to police officer’s testimony that impermissibly
bolstered the credibility of the alleged victim where credibility was a
major issue on the element of penetration.
State v. Faust
660 N.W.2d 844 (Neb. 2003).
Counsel was ineffective in first-degree murder
case for failing to object to numerous instances of improper negative
character evidence. The defendant was charged with killing her husband’s
lover and a bystander, who tried to assistance the lover as she was
dying. In defense, the theory was that the defendant’s husband had
killed his lover and the defendant presented a number of witnesses to
testify to her peaceful character. In rebuttal, the state presented
witnesses to testify to specific instances of violent and aggressive
behavior by the defendant. The state was also allowed to examine the
defendant’s daughter in a similar fashion even though she was called as
a state’s witness and did not offer any testimony concerning the
defendant’s character. During the testimony of the first state’s
rebuttal witness, the lover’s husband, counsel objected, on the basis of
state Rule 404 (analogous to Federal Rule.s of Evidence), to testimony
that the defendant had cursed and been aggravated previously with the
victim. The state abandoned its argument that this testimony was
independently admissible under Rule 404 and asserted that the testimony
was admissible as rebuttal evidence to the defendant’s character
evidence. The court admitted the testimony for that purpose and gave a
limiting instruction without ever considering the application of Rule
405 and/or Rule 403. Everyone involved "was on the wrong page," because
they stopped at Rule 404 that allowed rebuttal of character evidence,
but they failed to consider Rule 405 prohibiting rebuttal with specific
instances of conduct. Id. at 875. The trial
court committed the initial error, but then defense counsel’s conduct
was deficient because counsel failed to object after that to improper
specific instance rebuttal evidence of numerous annoying calls to the
lover’s husband, testimony concerning an angry exchange with the
husband’s friend, and aggressive and violent behavior to the husband,
including pointing a gun at him twice. The state was also improperly
allowed to elicit through the defendant’s daughter, who did not offer
character evidence, testimony and extraneous evidence of yelling and
lying about her husband’s conduct. Counsel’s conduct was deficient
because Rule 405 limits character evidence and its rebuttal to
reputation or opinion, unless the character trait is an essential
element of a charge, claim, or defense. Here, a character trait for
violence or peacefulness was not an element of the crime charged or an
asserted defense. Under Rule 405, the state was limited to
cross-examining the defendant’s character witnesses with specific
instances to test the basis of their knowledge, but the state was
required to accept the witness’ answers. Even in circumstances, like
here, where the defense was improperly allowed to use specific examples
of good conduct, the door was not opened to the state’s improper
rebuttal evidence. Prejudice was found because "the State was able to
parade before the jury a series of witnesses whose testimony was not
only inadmissible but also prejudicial." Id.
at 869. This testimony also came "at the end of the trial where it was
fresh in the juror’s memories and wafted an unwarranted innuendo into
the jury box just before the jury entered deliberations." Id. While this court had never reversed a
conviction on direct appeal for ineffective assistance of counsel, the
Court found that there could be no reasonable strategy to explain
counsel’s conduct. Even if counsel wanted to avoid continuously
objecting and emphasizing the evidence before the jury, "such a strategy
is not reasonable when the objectionable testimony if so extensive and
damaging. Further, counsel could have requested a continuing objection."
Id. at 871-72. The court also noted that Massaro still allows, in instances of obvious
deficiencies, for appellate courts can still address ineffective
assistance of counsel claims. Id. at 870.
While not addressing the actual ineffectiveness of other issues, the
court also stated that counsel should have: (1) objected to an
instruction on self-defense when that was not the defendant’s theory and
the defense had not presented any evidence on the issue; and (2)
objected to pictures of the victim’s while still alive, which had no
evidentiary value.
Butler v. State
108 S.W.3d 18 (Mo. Ct.App. 2003)
Counsel was ineffective in forcible
sodomy case for failing to object to inadmissible expert testimony
concerning hair analysis and its significance. The defendant was charged
with sexually assaulting two teenage boys. Following the assault, an
unidentified head hair and an unidentified pubic hair, were recovered
from the sixteen year old, who was anally sodomized. Twenty months after
the crime, the defendant became a suspect and the police collected hair
and blood samples from him. Following his first trial, a mistrial was
declared. In his second trial, neither of the two boys was able to give
a positive identification, and there was no admission by the defendant.
The state’s expert on hair analysis testified that hair comparisons were
not accepted by the scientific community as reliable in unequivocally
making positive identifications. Nonetheless, she testified that she
found a "very strong probability" that the two unidentified hairs
collected from the victim came from the defendant and she testified that
she had never seen a case where both an unidentified head hair and an
unidentified pubic hair matched a suspect. She quantified this as "like
double significance of evidence." On direct appeal, the defendant
challenged the sufficiency of the evidence and the court split with some
judges noting that the expert’s testimony was not admissible but that it
could be considered by the court as it could be by the jury because the
defense had failed to object. During post-conviction, defense counsel
acknowledged that he was aware of what the expert’s testimony would be
because she testified in a similar fashion in the first trial. He also
acknowledged that he had extensively reviewed treatises and articles on
hair comparison analysis and was certain that there was no
scientifically accepted basis for her testimony. Nonetheless, he stated
that he did not believe that a challenge to admissibility would be
granted and he decided instead to try to surprise the expert on cross
examination. The court held:
Based on the foregoing, it is apparent that
counsel’s trial strategy in not objecting to the testimony was formed on
the basis of either erroneous interpretations of the law or failure to
sufficiently review the relevant case law. Counsel could not have made
an intelligent and informed decision about trial strategy without
adequately assessing his chances of success in asserting a Frye challenge and the consequences of failing
to make such a challenge. Given the existence of a meritorious objection
to the positive identification and quantification testimony, the State’s
obvious need to rely upon the hair comparison evidence, and the
inability of counsel to later challenge the reliability of that
testimony in arguing the insufficiency of the evidence, the strategy
adopted by counsel was simply not reasonable."
Prejudice was found because, if counsel had
objected to the inadmissable testimony, there is a reasonable likelihood
that the court would have found that there was insufficient evidence to
submit the case to the jury at trial or that the court would have found
insufficient evidence on appeal. Nonetheless, because of trial counsel’s
failure to object and the uncertainties of how the state would have
proceeded otherwise, the court remanded for a new trial rather than
dismissing the charges.
2002: Sanchez v. State
569
S.E.2d 363 (S.C. 2002)
Counsel ineffective in criminal sexual conduct
with a minor case for failing to object to hearsay testimony. The six
year old alleged victim testified about the alleged assault. Her mother
and father also testified and included hearsay statements from the
victim concerning details of the assault and the identity of the
perpetrator. Counsel testified that he did not object to this hearsay
because it did not alter the victim’s testimony and that some of the
statements were different. Counsel’s conduct was deficient because while
limited corroborative testimony is allowed in criminal sexual conduct
cases the corroborative evidence is limited to the time and place of the
assault and can not include details or particulars or the identity of
the perpetrator. Thus, the mother’s and father’s testimony was clearly
inadmissable. Prejudice found because improper corroboration testimony
that is cumulative to the victims testimony cannot be harmless. "[I]t is
precisely this cumulative fact which enhances the devastating impact of
improper corroboration." Counsel’s conduct was also deficient in failing
to object to the testimony of a police officer concerning the alleged
victim’s statement and actions with anatomically correct dolls.
Counsel’s alleged strategy to allow this testimony was to show that the
victim’s statements where vague. "Because the officer’s testimony
regarding the dolls corroborated the victim’s testimony at trial,
counsel’s strategy was not reasonable given to the judicial effect this
testimony had."
Matthews v. State
350 S.C. 272, 565 S.E.2d.
766 (2002)
Counsel ineffective for failing to object to
prosecutor vouching for the credibility of a state witness in her
argument. Counsel agreed remarks were improper but did not object
because he did not want judge to admonish him for objecting during
argument or give the state additional time to argue ( both of which had
already happened). Counsel’s reasons insufficient because "counsel
cannot assert trial strategy as a defense for failure to object to
comments which constitute an error of law and are inherently
prejudicial." Prejudice also found because this was a mass drug
conspiracy trial with numerous witnesses where the state’s evidence was
pretty much all people "higher" in the conspiracy testifying for reduced
sentences.
State v. Gilchrist
350 S.C. 221, 565
S.E.2d 281 (2002)
Counsel ineffective in attempted common law
robbery case due to counsel’s failure to object to prosecutor’s improper
vouching for witness’s credibility in opening statements. The prosecutor
essentially gave personal assurance of the witness’s veracity in
"religiously-tinged language." Prejudice found because the witness at
issue was the state’s key witness and his credibility was crucial to the
state’s case.
2001: People v. Donaldson
113
Cal. Rept. 2d 548 (Cal. Ct. App. 2001)
Counsel ineffective in child endangerment case
for failing to object to prosecutor calling herself as a witness to
impeach the credibility of a key prosecution witness, whose credibility
was the critical issue at trial. The witness testified at trial that her
previous inculpatory statements to police were lies. Counsel did not
object to the prosecutor testifying, instead objecting only to the
narrative fashion of that testimony. Counsel even elicited information
from the prosecutor on cross that the prosecutor believed the initial
inculpatory statements. Counsel also failed to object to the
prosecutor’s closing argument expressing her personal belief in the
defendant’s guilt.
Mann v. State
555 S.E.2d 527 (Ga. Ct.
App. 2001)
Counsel ineffective in sodomy case for failing
to object to the testimony of a police investigator and a professional
counselor that they believed the victim when
he said he had been sexually abused. After the jury had already heard
much of this testimony, the defense objected at a bench conference and
the judge sustained. The jury had already heard the testimony though and
no instruction was given to the jury to disregard the testimony, and no
other type of curative instruction was asked for or given. Prejudice was
found due to this improper testimony because the case was otherwise
based only on the credibility of the alleged victim and the defendant
when the victim refused to answer many of the questions during the trial
and had only initially reported the abuse when he had himself been in
trouble for committing sexual acts on another child.
Schaefer v. State,
750 N.E.2d 787 (Ind. Ct.
App. 2001)
Counsel
ineffective in child molestation and incest case for failing to properly
preserve the record with respect to the state's improper admission of
medical records with only an affidavit from the records custodian as
foundation. Counsel objected that the records were not properly
admissible under the hearsay exception for statements made for purposes
of treatment and objected that the records had not been provided until
the morning of trial. The court held that both of these objections were
properly overruled, but found that admission was improper because the
records contained opinions, which are not admissible under the business
records hearsay exception. The opinions included "blunt force trauma"
causing vaginal injuries. The court held that admission of the records
was thus improper because there was no showing that the person giving
the opinion was properly qualified as an expert and because the
defendant was denied the right to cross-examination of this person.
Prejudice found because aside from these records the trial was a
credibility contest between the defendant and the alleged victim.
State v. Robinson,
784 So. 2d 781 (La. Ct.
App. 2001), writ granted , 816 So. 2d 846
(2002)
Counsel
ineffective in possession of drug case for failing to request a mistrial
or admonition following the prosecutor's improper argument that the
defendant had previously "earned a living selling crack." The evidence
during trial revealed only a prior arrest related to narcotics and that
the defendant hung out with drug dealers. Counsel objected and the court
sustained but counsel failed to move for mistrial or admonition.
Prejudice found because sole defense was that officers planted drugs and
the trial was simply a credibility contest. Thus, this argument may have
improperly influenced the jury.
Dawkins v.
State
346 S.C. 151, 551 S.E.2d 260 (2001)
Counsel ineffective in criminal sexual conduct
case for failing to object to the hearsay testimony of four witnesses
that the alleged victim told them the identity of the perpetrator. While
limited hearsay corroborative testimony is allowed in sexual assault
cases, this corroboration is limited to the time and place of the
assault and cannot include details or particulars, such as
identification of the perpetrator. The defendant was prejudiced because
improper corroboration that is merely cumulative to the victim’s
testimony cannot be harmless. Moreover, where the alleged victim’s
credibility was the central issue at trial, counsel’s ineffectiveness
could not be excused by a strategy to avoid upsetting or confusing the
jury, especially since this issue could have been litigated outside the
presence of the jury.
2000: Ridenour v.
State,
768 So.2d 480 (Fla. Dist. Ct. App.
2000)
Counsel
ineffective in aggravated battery case for failing to object and
advising defendant to answer affirmatively when state impeached
defendant with a prior conviction that was invalid because "adjudication
had been withheld." Prejudice found where the case was solely a
credibility contest. Counsel also failed to call witnesses to support
defendant's claim of self-defense. Counsel's conduct was deficient and
based on an unreasonable strategy to introduce the witnesses' statements
through inadmissible hearsay evidence.
Eure v. State,
764 So.2d 798 (Fla. Dist.
Ct. App. 2000)
Counsel in drug
possession and sale case ineffective for failing to object to
prosecutor's numerous improper statements during closing argument.
Prosecutor argued "you can tell your families you were in court with a
drug dealer. That's the drug dealer," which effectively made the
prosecutor a witness. Prosecutor also improperly sought to buttress the
former police officer's testimony by reference to matters outside the
evidence, when he told jury that it should release defendant if it
believed the former officer lied when making two police reports while he
was conducting investigation and when he swore to arrest warrant, all
matters not in evidence. Prosecutor also argued that the jury should
acquit if they believed the officer was lying about defendant selling
him cocaine, and they should convict if they believed the officer was
not lying, amounted to a misinstruction on the law, as jury could have
determined that the State had not met its burden of proof without
finding that the officer deliberately lied. Finally, prosecutor's
statement, that cocaine was bane of our existence and that defendant was
man who caused it, was an improper "message to the community" argument,
aimed at the jurors' most elemental fears of a lawless community that
could endanger the jurors and their families.
State v. Carabello,
750 A.2d 177 (N.J. Super. Ct. App. Div.
2000)
Counsel
ineffective in murder case for failing to object to improper unsworn
statements and improper admission of hearsay. Defendant charged with two
murders that occurred in "street confrontation." One witness, who
testified, gave a detailed, graphic description of events and identified
the defendant as the shooter. Three other witnesses had given statements
to police essentially corroborating the first witness and identifying
defendant. Each of these witnesses was called to testify during trial.
The first refused to take oath or affirm he would testify truthfully.
Court instructed him to answer questions anyway and instructed jury to
bear in mind that he refused to take the oath. This witness disavowed
prior statement to police and court allowed prior statement to be
admitted as prior inconsistent statement. Appellate court found this was
error because a prior inconsistent statement can be admitted only to
impeach "testimony." Because the witness refused to take oath of any
kind, these unsworn statements was not "testimony." Second witness also
refused oath and affirmatively stated he would not tell the truth and
cooperate because he was afraid for his life. This witness acknowledged
the statement to police but did not confirm or deny the truth of the
identification of the defendant. Prosecutor did not offer the prior
statement into evidence but continually introduced the content of the
statements in his questions allegedly to "refresh recollection."
Appellate court found this was error because witness did not state he
could not recall, he simply refused to cooperate. Third witness did take
oath but testified that he was intoxicated and could not identify the
shooter. He acknowledged prior statement but said he lied to the police
to deflect suspicion from himself. Again the prosecutor did not offer
statement, but conveyed content to jury allegedly to neutralize the
"surprise" harmful testimony of the witness. Appellate court found this
was error because even if this testimony was a "surprise" after the
other two witnesses, a prior statement used in this case is admissible
only as impeachment evidence and not substantive evidence and trial
court must give a limiting instruction, which was not done here. Court
found that trial court erred in requiring witnesses to answer questions
when they refused oath and erred in allowing admission of prior
statements. Trial counsel ineffective because counsel sat idly through
all of this. "[P]rosecutor was thus given an open sesame to the
admission of tainted evidence." Id. at 553. Court also noted that trial
counsel had filed notice of appeal but refused to file brief despite
orders to do so, which prompted court to appoint new counsel and refer
trial counsel to ethics commitment for lack of diligence.
Edmond v. State,
341 S.C. 340, 534 S.E.2d
682 (2000)
Counsel
ineffective in burglary and grand larceny case for failing to object to
detective's testimony and prosecutor's comments regarding petitioner's
invocation of his rights to counsel and to remain silent, as jurors may
have used testimony and comments to infer petitioner was guilty simply
because he exercised his rights, and circumstantial evidence of
petitioner's guilt was not overwhelming.
1999: People v.
Burnett,
83 Cal. Rptr. 2d 629 (Cal. Ct. App.
1999)
Counsel
ineffective in felon in possession of weapon case for failing to object
when the state charged on the basis of one incident but then presented
evidence of two incidents, which allowed the jury to convict on either
incident when the second one was not included in the information or
addressed at the preliminary hearing.
Woody v. State,
745 So.2d 1033 (Fla. Dist.
Ct. App. 1999)
Counsel
ineffective in attempted murder case for failing to object to admission
of a videotape of the defendant's voluntary pretrial statement. Counsel
did not review the tape prior to trial. Defendant was charged with
slashing a prostitute's throat after consensual sex. He admitted act but
said it was self-defense. The tape included the defendant's statements
that he had stolen a motorcycle, was on probation, "trolled" for
prostitutes, "horniness" had cost him lots of money, agreement to take a
polygraph, that he had smoked marijuana and been through drug treatment,
and that he had been "cold-blooded" all his life. Prejudice found
because the case was solely a credibility issue between the defendant
and the prostitute.
Garland v. State,
719 N.E.2d 1184 (Ind.
1999)
Counsel
ineffective in murder case for failing to properly object to admission
of co-defendant's videotaped statement in joint trial where codefendant
did not testify and statement implicated defendant. Defendant was
charged along with son/codefendant of killing her husband. Son
implicated mom/defendant in lengthy statement. Defense counsel objected
to relevance and the fact that son was in prison clothes but failed to
object on Bruton grounds.
Green v. State,
338 S.C. 428, 527 S.E.2d 98
(2000)
Counsel
ineffective in distribution of crack cocaine case for failing to object
that the probative value of two prior possession of cocaine charges used
to impeach the defendant was outweighed by the prejudice. Defendant was
arrested in an undercover sting operation but the evidence essentially
was a match of credibility between the defendant's testimony and that of
the officers. Prejudice found because of the limited impeachment value
of the prior offenses, the remoteness of the prior convictions, the
similarity between the past crimes and the charged crime, the importance
of the defendant's testimony, and the centrality of the credibility
issue in this case.
1999: *Hudgins v. Moore,
337 S.C. 333, 524 S.E.2d
105 (1999)
Trial counsel was
ineffective for failing to object when the solicitor cross-examined the
defendant at the guilt or innocence phase of trial by reading back to
him in own answers to true-false questions that were part of an MMPI-A
(a standardized psychological test) administered as part of a pretrial
competency evaluation at the State Hospital. The cross-examination was
intended to impeach the defendant's character for truthfulness where he
initially said he was the shooter but then testified at trial that his
co-defendant was the shooter and he had told the police otherwise only
because the codefendant was like a brother and he thought if he accepted
responsibility the state would be more lenient with him since he was
only 17 and his codefendant was 18. While the court found no
constitutional violation, the court held that the state's use of test
materials derived from a pretrial competency evaluation to assist in
winning a conviction violated State v. Myers, 67 S.E.2d 506 (S.C. 1951),
which precludes use of information gathered during court-ordered
examination except for purposes ordered by the court. The failure to
prevent this cross-examination was prejudicial both because of the
importance of the defendant's credibility given the facts of the case,
codefendant said he was the shooter and he testified that codefendant
was the shooter, and because defense counsel's attempt to explain away
the test results led them to call a psychiatrist who made damaging and
otherwise inadmissible statements (in the trial phase) about the
defendant's antisocial character on cross-examination.
Ramirez v. State,
987 S.W.2d 938 (Tex. Ct.
App. 1999)
Counsel
ineffective in sexual assault on wife and injuring children case. Wife
initially made statement to police and then recanted prior to trial. The
prior statement was not admissible under the hearsay exception for a
statement against penal interest. The state improperly called the wife
as a witness for the purpose of impeaching her with the otherwise
inadmissible prior statement and the defense counsel failed to object or
request a limiting instruction. Prejudice found because this hearsay was
the only evidence identifying the defendant as child abuser. Other
evidence established only that the defendant was one of several people
with the opportunity to abuse.
1998: Peebles v.
State,
958 S.W.2d 533 (Ark. 1998)
Counsel
ineffective in rape of three-year old case for failing to introduce the
child's inconsistent statements recanting his incriminating statements.
Child did not testify at trial, but his mother was allowed to testify
under child-hearsay exception that son told her that he and the
defendant bit each other's "dingdongs." During a pretrial hearing, the
child denied five times that the defendant had done anything to him.
Court held counsel was ineffective for failing to cross-examine the
witnesses mother concerning these statements based on the pretrial
transcript, because evidentiary rules allow impeachment of out-of-court
declarant when that declarant's hearsay statements are admitted.
Ross v. State,
726 So. 2d 317 (Fla. Dist.
Ct. App. 1998), review dismissed, 743 So. 2d 15 (Fla.
1999)
Counsel
ineffective in battery on law enforcement case for failing to object to
the state's improper closing argument that bolstered the officer's
credibility and attacked and ridiculed the defendant, the defense, and
the defense witnesses.
Kegler v. State,
712 So. 2d 1167 (Fla. Dist.
Ct. App. 1998)
Counsel
ineffective in murder case for failing to impeach an alleged eyewitness
with statements he made to police on the night of the murder which were
inconsistent with trial testimony. At trial, witness testified that he
had seen the defendant and another shoot the victim and run. On the
night of the shooting, the witness told police that he heard two
gunshots and saw two men running, but that he could not identify the
mean or the location of the crime. The victim had gunpowder residue and
was initially arrested for the murder. His statements changed five
months later only after another witness surfaced.
People v. Valentine,
700 N.E.2d 700 (Ill. App.
Ct.), appeal denied, 706 N.E.2d 502 (Ill.
1998)
Counsel
ineffective in aggravated battery case where defendant charged with
beating girlfriend. He said she shot at him so he beat her; she said he
beat her so she shot him. Case was he said/she said. Defendant had a
prior theft conviction and had four prior battery arrests. Court allowed
state to use conviction as impeachment over defense objection. During
defendant's testimony, defense counsel asked if he had ever been
arrested for anything involving violence in 1993-94 and the trial court
held that defense had opened the door. State was then allowed to
question the defendant about his prior battery arrests from 1986-88.
Counsel was ineffective because the state could not have independently
used the prior battery arrests to impeach the defendant. Counsel did not
challenge this evidence prior to calling the defendant to testify and
opened the door to the impeachment by eliciting testimony that gave a
false impression of the defendant's criminal history. The court finds
prejudice because the outcome depended on credibility of defendant and
victim and defendant's credibility was undermined by the introduction of
inadmissible evidence of the prior arrests.
Commonwealth v. Drass,
718 A.2d 816 (Pa. Super.
Ct. 1998)
Counsel
ineffective in rape case for failing to move for a mistrial after
repeated comments on the defendant's invocation of his right to counsel
and right to silence. During examination of police officer, the
prosecutor elicited testimony that the defendant's mother said the
defendant should talk to a lawyer and the interview ended. During cross
of the officer, counsel elicited testimony that the defendant had a
constitutional right to do so. During cross of the defendant, the state
asked if an innocent person wouldn't go to the police and tell them what
happened, and then asked if he was given an opportunity to talk to
police. The defense finally objected, but failed to move for a mistrial.
The court held that there was no conceivable reason for the failure to
move for a mistrial and that the defendant was prejudiced because the
evidence of guilt was by no means overwhelming. There was physical
evidence of an assualt, two witnesses who said the defendant boasted
that he raped the victim, and another person who was present and said
that the defendant was the rapist. The defendant testified that he was
only joking about having committed the rape and that it was the other
person present who committed the rape.
Simmons v. State,
331 S.C. 333, 503 S.E.2d
164 (1998)
Counsel
ineffective in burglary case for failing to object to improper argument
by solicitor concerning the meaning of a life sentence. Under state law,
jury in burglary case could find guilty (which meant, at the time, a
mandatory life sentence) or guilty with a recommendation of mercy (which
allowed judge to give a lesser sentence). (3)
The prosecutor's argument
that a life sentence "is not the entire natural life of a person"
injected the issue of parole into the proceedings. Likewise, the
prosecutor's argument equated a recommendation of mercy with a much
lighter sentence or an acquittal. The trial court instructed the jury
that the court would sentence the defendant but gave no instruction
which cured the errors.
State v. DeKeyser,
585 N.W.2d 668 (Wis. Ct.
App.), review denied, 588 N.W.2d 633 (Wis.
1998)
Counsel
ineffective in sexual contact with 15-year-old granddaughter case for
failing to know about the state law possibility of and failing to
stipulate to elements of the offense in order to prohibit the
introduction of other acts evidence. Granddaughter testified that
defendant improperly touched her through blue jeans. Defendant testified
to alibi. Essentially he said/she said. State called a second
granddaughter who testified that four years earlier the defendant had
touched her breasts when she was 15. If counsel had stipulated that the
purpose of the alleged touching would have been for sexual gratification
and that the victim was under 16, the state would not have been allowed
to present the other acts evidence because it was relevant only to issue
of sexual gratification. Counsel deficient for failing to know "the law
relevant to his or her case" and the defendant was prejudiced despite
the trial court's cautionary instruction because without this evidence
the case was simply one of credibility.
1997: Hidalgo v. State,
689 So. 2d 1142 (Fla. Dist. Ct. App. 1997)
Counsel
ineffective in sexual assault of step-daughter case where the case was
one of credibility between defendant and step-daughter who was an adult
at the time of trial. Counsel moved prior to trial to exclude evidence
of Battered Woman's Syndrome and motion was granted. During the trial,
however, the state presented the evidence anyway and counsel objected on
basis of hearsay and other evidentiary rules, but failed to draw the
court's attention to the exclusionary order.
Commonwealth v. Scheffer,
683 N.E.2d 1043 (Mass. App.
Ct. 1997)
Counsel
ineffective in child sexual abuse case where the only evidence of
digital penetration was the five year old child's testimony. Counsel was
ineffective for failing to seek voir dire of the child to determine
whether prior allegations of abuse were sufficiently similar to the
allegations against the defendant to explain the child's knowledge of
sexual acts and terminology.
1996: Rhue v.
State,
693 So. 2d 567 (Fla. Dist. Ct. App.
1996)
Counsel
ineffective in child sex abuse case for failing to object to testimony
of psychologist and family members vouching for child's
credibility.
Warren v. Baldwin,
915 P.2d 1016 (Or. Ct.
App.), review denied, 925 P.2d 908 (Or.
1996)
Counsel
ineffective in manslaughter case for failing to object to prosecutor's
argument that the "reckless" element of manslaughter had been proven and
the jury could find the element based on the defendant's alleged drug
dealing earlier in the day, his prior convictions, and his assaultive
behavior towards other victims earlier in the day. While this other
evidence was admissible in the trial for other purposes related to other
charges, this evidence was not relevant and could not be used to prove
"recklessness" as required for manslaughter conviction.
German v. State,
325 S.C. 25, 478 S.E.2d 687
(1996)
Counsel
ineffective in possession with intent to distribute crack case for
failing to object to prosecutor's argument and police officer's
testimony that police had received several tips that the defendant was
distributing or selling crack cocaine as this evidence was inadmissible
as comment on defendant's character.
Owens v. State,
916 S.W.2d 713 (Tex. Ct.
App. 1996)
Counsel
ineffective in aggravated assault case where girlfriend made statement
and signed charges but then recanted at trial and defense counsel failed
to object to prior written statement or request limiting instruction
when the prior statement was the only evidence of guilt and it was
admissible if at all solely for the purposes of impeachment and not as
substantive evidence.
1995: People v. Flewellen,
652 N.E.2d 1316 (Ill. App. Ct. 1995)
Counsel
ineffective in attempted murder case for failing to object to
inadmissible double hearsay from police officer and argument by
prosecutor that the victim told the officer she had a conversation with
an anonymous person who gave the victim the assailant's first name and
address.
Fossick v. State,
317 S.C. 375, 453 S.E.2d
899, cert.
denied, 516 U.S. 905 (1995)
Counsel
ineffective for failing to object to prosecutor's closing argument on
guilt that the defendant showed no remorse.
1994: Mincey v.
State,
314 S.C. 355, 444 S.E.2d 510
(1994)
Trial counsel
ineffective for failing to object to prosecutor's suggestions during
closing argument that defense witnesses testified falsely due to
intimidation by the defendant when there was no evidence of
intimidation.
Jolly v. State,
314 S.C. 17, 443 S.E.2d 566
(1994)
Trial counsel
ineffective in criminal sexual conduct case for failing to object to
witness' hearsay testimony that the alleged victim told the witness that
the defendant had sexually assaulted her.
1993: State v.
Allen,
853 P.2d 625 (Idaho Ct. App.
1993)
Counsel
ineffective in trial for lewd conduct with child where defendant and
child were only witnesses for failing to object to child psychiatrist's
inadmissible testimony that, in his opinion, the child was telling the
truth when she reported that defendant had fondled and penetrated her
vagina.
State v. Gay,
616 So. 2d 1290 (La. Ct. App.), writ
denied, 624 So. 2d 1223 (La. 1993)
Counsel in drug
case ineffective for failing to object to cross-examination of defendant
which implied that there were more drugs and drug paraphernalia at the
defendant's trailer.
Commonwealth v. Sugrue,
607 N.E.2d 1045 (Mass. App.
Ct.), review denied, 616 N.E.2d 469 (Mass.
1993)
Counsel in rape
of child case ineffective for failing to object when fresh complaint
witness testified to statements made by child victim about instances of
sexual abuse other than the one incident which was the subject of the
witness' testimony. Other statements were outside bounds of fresh
complaint evidence.
Commonwealth v. Clark,
626 A.2d 154 (Pa. Super.
Ct. 1993)
Counsel
ineffective for failing to object to cross-examination of defendant
which compelled defendant to admit he did not tell police of claim of
self-defense which amounted to comment on post-warnings silence.
Commonwealth v. Hyneman,
622 A.2d 988 (Pa. Super.
Ct. 1993)
Counsel
ineffective for failing to object to state trooper's testimony
commenting on defendant's post-warnings silence.
Commonwealth v. Doswell,
621 A.2d 104 (Pa. 1993)
Counsel
ineffective for failing to object to the state's impeachment of
credibility of defense witness with a criminal charge because defense
counsel failed to investigate and discover the witness had not yet been
convicted and sentenced on charge.
State v. Hallett,
856 P.2d 1060 (Utah
1993)
Trial counsel
failed to object to trial court's erroneous construction that "age" in a
state statute allowing admission of out-of-court statements of children
under 10. Judge interpreted statute to mean mental age as well as
chronological age and admitted out of court statements of a 19-year-old
with the mental age of 8-9 which formed the basis of a count of sex
abuse.
1992: Johnson v.
State,
495 N.W.2d 528 (Iowa Ct. App.
1992)
Counsel
ineffective in sex abuse case for failing to object to testimony of
social worker that the alleged victims were telling the truth and they
were credible.
State v. Tracy,
482 N.W.2d 675 (Iowa
1992)
Counsel
ineffective in sex abuse case for failing to object to inadmissible
hearsay evidence offered to impeach the alleged victim's recantation of
prior allegation of sex abuse.
Simmons v. State,
308 S.C. 481, 419 S.E.2d
225 (1992)
Trial counsel
ineffective in narcotics case for failing to object to solicitor's
cross-examination and jury argument concerning defendant's refusal to
allow warrantless search of his vehicle.
In re Ross,
605 A.2d 524 (Vt.
1992)
Counsel
ineffective in child sex abuse case for failing to object to expert
testimony on credibility of child victim of alleged sexual
assault.
1991: Johns v.
State,
592 So. 2d 86 (Miss. 1991)
Counsel in sale
of drugs case ineffective for failing to object to testimony that
accomplice had been convicted of sale offense for which defendant was
being tried.
*State v. Wells,
804 S.W.2d 746 (Mo.
1991)
Counsel
ineffective for failing to obtain a letter by a state witness to the
defendant which stated she knew the defendant was innocent and another
state witness had committed murder and thus counsel did not use the
letter to impeach the two state witnesses and cast doubt on truth of
defendant's confession.
Thomas v. State,
812
S.W.2d 346 (Tex. Ct. App. 1991)
Trial counsel in
robbery case ineffective for failing to object to cross-examination of
defendant and state's argument which linked the implausibility of the
defendant's exculpatory story to the seemingly inconsistent
post-Mirandasilence.
State v. Humphries,
818 P.2d 1027 (Utah
1991)
Trial counsel
ineffective for failing to object to prosecutor's statement during
closing argument that a defense witness invoked her 5th Amendment right
to silence because she did not want to lie.
1990: State v.
Walters,
813 P.2d 857 (Idaho 1990)
Counsel
ineffective in arson prosecution for failing to object to state fire
investigator's testimony that it was his opinion that defendant started
fire.
People v. Vazquez,
551 N.E.2d 656 (Ill. App. Ct.), appeal
denied, 555 N.E.2d 384 (Ill. 1990)
Counsel
ineffective for failing to remind trial court that it had previously
ruled that the state could not disclose to jury the nature of the
defendant's prior convictions because the court specifically found that
the priors were unduly prejudicial.
People v. Sommerville,
549 N.E.2d 1315 (Ill. App. Ct. 1990)
Counsel
ineffective for failing to object to the improper testimony of a police
officer, fiance, and nurse concerning alleged rape victim's prior
consistent statements.
Pemberton v. State,
560 N.E.2d 524 (Ind.
1990)
Counsel in
robbery case ineffective for failing to preserve by contemporaneous
objection issue of admissibility of identification testimony where
identification was the only real issue and the identification procedures
had already been condemned by the court in accomplice's trial.
Riascos v. State,
792 S.W.2d 754 (Tex. Ct. App. 1990)
Trial counsel
ineffective in murder case for failing to object to prosecutor's
repetitive comments referring to defendant as an illegal Colombian
alien, referring to drug traffic and saying the killing was drug-related
which was unsupported by the evidence, and referring to extraneous
offenses.
1989: Mitchell v.
State,
298 S.C. 186, 379 S.E.2d 123
(1989)
Trial counsel in
murder case ineffective for failing to object to inadmissible evidence
of defendant's devil worship and Mafia membership which tended to prove
only that defendant was a bad person with a propensity to commit
crime.
1988: People v.
Stratton,
252 Cal. Rptr. 157 (Cal. Ct. App.
1988)
Trial counsel
ineffective in robbery case for failing to object to the introduction of
a knife and hand grenade seized from the defendant's person at the time
of his arrest because the complainant testified that the robber used an
entirely different weapon.
Norris v. State,
525 So. 2d 998 (Fla. Dist.
Ct. App. 1988)
Counsel
ineffective in child sex abuse case for failing to object to social
worker's testimony that she had scientifically "validated" the testimony
of victim.
People v. Rogers,
526 N.E.2d 655 (Ill. App.
Ct. 1988)
Counsel
ineffective for failing to object to the improper closing argument where
prosecutor argued facts not in evidence, argued his personal belief in
credibility of police officers, and argued that prior convictions were
substantive proof of guilt.
Bonner v. State,
765 S.W.2d 286 (Mo. App.
1988)
Counsel
ineffective for: failing to object to admission of evidence seized
during warrantless search of defendant's truck where the officers also
lacked probable cause to stop the truck or conduct search; failing to
impeach a state witness after he denied prior convictions when counsel
knew of priors from defendant but did not conduct discovery to obtain
documentation; and failing to object to admission of allegedly stolen
wire seized from the defendant when there was no evidence that the wire
was the same as that stolen from victim.
Miller v. State,
757 S.W.2d 880 (Tex. Ct.
App. 1988)
Counsel in
aggravated sexual assault case failed to object to extensive
inadmissible testimony of experts and parents concerning the only real
issue, which was the complainant's credibility.
1987: Williams v.
State,
515 So. 2d 1042 (Fla. Dist. Ct. App.
1987)
Trial counsel
ineffective for failing to make hearsay objection when police detective
testified and repeated co-conspirators post-arrest statements describing
defendant's participation in conspiracy.
People v. Stubli,
413 N.W.2d 804 (Mich.
Ct. App. 1987)
Counsel
ineffective in criminal sexual conduct for failing to invoke the
defendant's state law marital privilege to prevent wife from testifying
for the state that the defendant told her he made a move toward
intercourse with girl by undoing his pants, but then stopped.
1986: Martin v.
State,
501 So. 2d 1313 (Fla. Dist. Ct. App.
1986)
Trial counsel
ineffective for failing to object to comments by state witnesses and
prosecutor in closing argument concerning defendant's post-arrest
silence.
Garcia v. State,
712 S.W.2d 249 (Tex. Ct.
App. 1986)
Counsel in
burglary with intent to commit indecency with child case failed to
object to inadmissible testimony of detective and expert with respect to
their opinion of truthfulness of the testimony of the complaining
witness.
1985: People v.
White,
370 N.W.2d 405 (Mich. Ct. App.
1985)
Counsel in
criminal sexual conduct case ineffective for failing to object to
inadmissible testimony concerning hearsay statements by alleged victim
to witnesses which contradicted the defense theory that child victim had
been "persuaded" or led into believing that she was sexually
assaulted.
Aycox v. State,
702 P.2d 1057 (Okla. Crim.
App. 1985)
Counsel in
burglary case ineffective for failing to object to police officer's
inadmissible testimony that a witness had identified the defendant in a
lineup when state law permitted admission of this testimony only from
person who identified defendant and this was the only identification
evidence which linked the defendant to the crime.
1984: Collis v.
State,
685 P.2d 975 (Okla. Crim. App.
1984)
Counsel
ineffective in shooting with intent to kill case for failing to object
to blatant hearsay concerning death threats and essentially conceding
guilt in his closing argument.
(3) South Carolina abolished the "recommendation
of mercy" verdict and the mandatory life sentence in
1997.