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United States Supreme CourtCases 2007: Cosio v. United States, Counsel was ineffective in child sexual abuse and carnal knowledge case for failing to ask the defendant’s coworkers about his interactions with the alleged victim, who was the defendant’s younger half-sister. The alleged victim testified that she had been repeatedly sexually assaulted by the defendant over a seven year period starting when she was seven or eight, but she did not report the abuse until she was fifteen due to her fear of the defendant. The government’s case rested primarily on the alleged victim’s testimony, but also included evidence from a pediatrician that the condition of the child’s hymen was “strongly indicative of sexual abuse.” A defense expert testified in a similar fashion. Three of the defendant’s coworkers also testified that he was a good worker and a law-abiding citizen. Counsel’s conduct was deficient because counsel failed to interview the coworkers concerning their knowledge of the defendant’s relationship with the alleged victim even though counsel received a memo from his investigator that should have led counsel to investigate further rather than choosing to focus only a theory that the child resented the defendant due to discipline within the home, jealousy, and other matters, enough to fabricate charges against him. Reasonable counsel would also have seen the need to investigate the allegations that the alleged victim was afraid of the defendant. Further investigation would have revealed five coworkers with substantial knowledge of the relationship, who would have testified that the alleged victim voluntarily sought out the defendant at work and in other places, was very affectionate with him, and showed no sign of fear of him. Likewise, even in interviewing the coworkers to determine who would testify concerning the defendant’s character, counsel should have asked about any knowledge of the defendant’s relationship with the alleged victim because of the need to anticipate wide-ranging cross-examination. Counsel’s failure is also not explained by counsel’s “resentment” theory because counsel settled on this “theory prematurely, without having thoroughly investigated the relationship.” This “was not the kind of ‘reasonable professional judgment[]’ that could support the curtailment of further defense investigation.” Prejudice found because the coworkers would have undermined the alleged victim’s testimony of fearing the defendant and the believability of the remainder of her testimony. Likewise, counsel would also have been able to confront the alleged victim in cross-examination with the contradiction between her words and her deeds. Starling v. State, Counsel ineffective in aggravated assault and possession of a firearm by a convicted felon for failing to stipulate to the defendant’s felon status, eliciting the defendant’s testimony on the details of his criminal history, and failing to obtain a jury instruction on the use of the evidence of the defendant’s criminal history. Counsel’s conduct was deficient because a stipulation would have avoided exposing the jury to information that the defendant had previously been convicted of receiving stolen property, of aggravated assault that involved a gun, and possession of a gun by a first offender. Although counsel requested a limiting instruction at the conclusion of the evidence and the trial court agreed, counsel failed to renew the request the next day when the charges were given but the trial court failed to include the limiting charge. Prejudice found because the defense case rested largely on the defendant’s credibility, only a single eyewitness testified that he saw the shooting, and the state emphasized the defendant’s criminal history in closing arguments. People v. Sims, Counsel ineffective in felony murder case for failing to timely give notice of the affirmative defense of compulsion and to seek instruction on the defense. According to the state’s evidence, the defendant had been part of an armed robbery of a restaurant. The state’s primary witness was a co-defendant who had plead guilty in a cooperation agreement with the state. He testified that the defendant was 15 while the other four participants were adults. After the robbery was discussed but before they entered the car to go to the crime scene, the defendant indicated that he was scared and did not want to participate. A codefendant, who was holding a gun at the time, told him that “he was there when it started, he got to be there when it finished.” The state’s witness testified that everyone knew “what that meant.” During the robbery, the defendant was outside at a pay phone as a lookout and never entered the building. During the robbery, an employee of the store was hit and several shots were fired. The employee who was hit and close by the shooting died 5 ½ hours after the robbery. The state’s expert testified that the victim died from cardiac arrest caused by the stress of the robbery. A defense expert disputed this finding. Counsel’s conduct was deficient in failing to give timely notice of a compulsion defense or to, at least, give notice when he learned of this aspect of the codefendant’s testimony 1 ½ hours before he testified. Although the court expressed concern about trial by ambush, the court allowed the codefendant’s testimony in this regard, but informed counsel that the issue concerning arguments and instructions would be addressed later. During the instruction conference, counsel did not request a compulsion instruction even though there was sufficient evidence to require the instruction on the affirmative defense, which required only a showing that the defendant acted under the threat or menace of imminent infliction of death or great bodily harm. Prejudice found because “this case was close” in light of the issues concerning the cause of death, a co-defendant’s prior acquittal on the murder because of that issue, the defendant’s age in comparison to his adult codefendants, and his role in the crimes as only a “look out.” *Commonwealth v. Bussell, Counsel ineffective in capital trial for failing to adequately investigate and to obtain expert assistance to rebut the state’s experts concerning tree bark from a tree near the victim’s body and the damaged fender of the defendant’s car, automobile pain on the tree, and hair and fiber samples from the car and the victim’s home. Prejudice found. People v. Tykhonov, Counsel ineffective for numerous reasons in driving while intoxicated case. The defendant was convicted based on a car accident. No one saw the accident but an ice fisherman allegedly saw the defendant walking around the vehicle from 200 yards away shortly after hearing the crash and was brought to the scene where he identified the defendant, who was then given field sobriety tests which he failed. Counsel failed to file a motion to suppress the arrest and identification. Counsel also “”was not prepared in both the law and the facts and he was unable to employ basic principles of criminal law and procedure.” Counsel’s conduct was ineffective under the New York State law standard, which is “more favorable to the defendant” than the Strickland standard. In re Hubert, Counsel ineffective in attempted rape case for failing to discover and present the defense that the defendant reasonably believed that the victim was not mentally incapacitated. The defendant had met up with three women out drinking and dancing and had been invited back to the home of two of the women for drinks. He was also invited to spend the night on the couch. He later entered the room of one of the women, who testified that she awoke undressed with the defendant having sex with her. She ended the encounter and left the home for over an hour while he remained in her room. He left after her roommate insisted he leave. The defendant testified that he believed the alleged victim’s was awake and consenting the entire time. Counsel’s conduct was deficient because it is a defense to second degree rape that the defendant reasonably believed the person was not mentally incapacitated. Counsel was also aware that both the defendant and the alleged victim confirmed that he stopped physical advances to the woman when she did insist and that he remained in her room for a substantial time even after she left. Counsel did not pursue this defense simply because he was not aware of the statutory defense. Counsel needed only to review the relevant statutes and pattern jury instructions to learn of the defense. “An attorney’s failure to investigate the relevant statutes under which his client is charged cannot be characterized as a legitimate tactic.” Id. at 1285. Prejudice found because the defendant was convicted of attempted rape, which required a finding of specific intent to have sexual intercourse with a victim incapable of consent. Here, the jury was unaware that a reasonable belief that the alleged victim had capacity to consent was a defense to this charge. State, ex rel. Humphries v. McBride, Counsel ineffective in murder case for numerous reasons. The defendant was convicted of accessory before the fact of murder and conspiracy to commit murder in the bombing death of his wife’s ex-husband, which was originally determined to be an accidental death by a bomb the victim built, 22 years before trial. Counsel’s conduct was so bad that the state even conceded ineffective assistance of counsel and other reversible errors. (1) Counsel had an actual conflict and should have withdrawn from the case or should have been removed by the court when the state moved to disqualify counsel prior to trial. At that time, counsel admitted that his father and law partner had represented the victim in divorce proceedings from the defendant’s wife, which went “to the very heart of the alleged motive” for murder. He stated that he was not involved in that representation and that the defendant waived any potential conflict. The post-conviction evidence, however, established that counsel was likely the last attorney to see the victim before his death, he did work on the divorce case, and he could have been a necessary witness for the defense to refute some of the state’s assertions. Because counsel had misrepresented his involvement in the divorce case prior to trial, the court also questioned whether the defendant’s waiver was “truly an informed decision” following adequate disclosure. (2) Counsel failed to object to testimony that the defendant had consulted with counsel and declined to speak with investigators during the initial investigation of the death, which violated the defendant’s Fifth Amendment rights. (3) Counsel failed to offer an FBI report into evidence or to cross-examine an FBI agent with his original report that revealed that all of the components of the bomb were also found in the alleged victim’s home, which supported the defense theory that he constructed the bomb himself and accidentally detonated it. (4) Counsel failed to retain a bomb expert or an independent investigator even though the case was very complex. (5) Counsel failed to object to testimony that the defendant’s co-defendants had already been convicted even though counsel had sought a change of venue because of the publicity generated by those trials. (6) Counsel failed to object to numerous instances of hearsay testimony even though the state and the trial court were even posing their own objections to counsel’s questions eliciting hearsay because “even they feared that [the defendant] was being ‘done in’ by his defense counsel.” Counsel’s deficient conduct was not excused by his “strategy” to “put it all out on the table” because “no reasonable attorney would have pursued a like ‘strategy.’” Prejudice found due to the “cumulative effect of these errors.” Strandlien v. State, Counsel ineffective in aggravated vehicular homicide case for failing to secure the services of an expert in accident reconstruction. Although the defendant’s blood alcohol concentration shortly after arrest was .20, the defense theory was that the impairment was not the proximate cause of the accident. The defendant testified that he was passing the victim’s car when, without a turn signal, the victim began turning left. Two state troopers disputed the defendant’s theory and testifying that the defendant had adequate notice to avoic the collision had he not been impaired. Counsel’s conduct in failing to retain an expert was deficient because the exact nature of how the collision occurred was vital to the defense strategy and counsel had notice of the troopers’ opinions months before trial. Prejudice established because an independent expert would have supported the defense theory and challenged the validity of the troopers’ investigations and conclusions. State v. McMillon, On review of trial court’s granting of a motion for new trial in involuntary manslaughter case based on ineffective assistance of counsel, the court affirmed because the trial court had not abused its discretion because “the verdict set aside by the trial court was [not] absolutely demanded” by the evidence. The defendant was charged with pushing his wife into the path of an oncoming vehicle during an argument outside a nightclub. The trial court found counsel was ineffective for failing to interview the state witnesses, including the driver of the vehicle, or to obtain their prior tape recorded statements; failed to investigate how the drugs and alcohol revealed in toxicology reports of the defendant and the victim may have “affected their ability to function”; and failed to investigate or pursue evidence that the death may have been an accident when the evidence raised the possibility that the defendant had thrown his shirt into the highway and the victim died accidentally when she bent to pick it up. *Ard v. Catoe, Counsel ineffective in capital case for failing to adequately develop and present gunshot residue evidence. The defendant was charged with killing his pregnant girlfriend, which resulted in the viable fetus dying from a lack of oxygen. The defense theory and the defendant’s testimony was that his girlfriend was holding a gun during an argument and that it fired when he grabbed it to take it away from her. The state examiner issued a report that there was no gunshot residue on the victim’s hands but testified that several particles were “very interesting, but there was not any or enough material for us to be able to call gunshot residue.” Citing to the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty cases, the court held that counsel’s conduct was deficient in failing to interview the state examiner or to cross-examine him on this point. Counsel’s conduct was also deficient because the expert they retained had been the state expert’s supervisor at the time the test was done and he reviewed and approved the report. This expert was not an “independent expert” because casting down on the state examiner’s findings would have implicitly cast doubt on his own oversight of the analysis. Counsel’s actions “were unreasonable and clearly deficient, especially given the fact that this was a capital case with an arguable defense to the guilt phase.” Prejudice found because interviewing or cross-examining the state expert and hiring an independent expert would have revealed that, although the tests were not conclusive for gun powder, the “interesting” particles contained the three required elements of gunshot residue and the particles were “consistent with gunshot residue and could have come from her handling a weapon.” Prejudice was also established because the defense’s critical theory relied on this evidence and the state capitalized in argument on the lack of gunshot residue evidence and even called the “defense expert” to testify that he agreed with that finding and that he had been hired by the defense. Finally, the court noted that “the jury apparently did not believe this to be an open-and-shut case of murder” because the jury sought additional instructions on involuntary manslaughter during deliberations. State v. Hales, Counsel ineffective in murder of a child victim case for failing to obtain a qualified expert to give an independent interpretation of CT scans of the child victim. The defendant was charged with the murder 14 years after the child was allegedly injured by being violently shaken as a five-month-old infant. The child lived until the age of 12 but was mostly in a persistent vegetative state. The defendant was not charged until two years later. The child had been in the defendant’s care for only 20 to 30 minutes on the alleged date of the crime when he called 911. The state’s case that the injury occurred while the child was in the defendant’s care and that the cause of death was a violent shaking that caused immediate unconsciousness was almost entirely based on a state expert’s interpretation of CT scans of the child’s brain taken after admission to the hospital. Counsel did not seek to have a defense expert to review the CT scans until the morning of trial and then asked a defense-retained pathologist to conduct this review. The pathologist testified that shaking could injure a child’s neck but not the brain and that the most likely cause of death was an alleged near miss car accident in which the child had hit its head several days before followed by a “lengthy ‘lucid interval.’” The pathologist was not permitted to testify concerning the CT scan though because he admitted in voir dire that he was not qualified to interpret the scan and did not do so in his practice. Counsel’s conduct was deficient in failing to adequately investigate. It was clear from the preliminary hearing that the interpretation of the CT scans was critical to the State’s case because there was no witness to the child’s injuries. Counsel’s conduct was not explained by strategy because counsel made the choice to rely only on the pathologist without having conducted the investigation with an expert review of the CT scans. It is also clear from the opinion (although not clearly relied on by the court on this point) that counsel did ask the pathologist to review the scans and sought to introduce his testimony on this point, but counsel had failed to ascertain beforehand his qualification to do so and had not sought review by a defense expert until the morning of trial. The court also noted that, while counsel may sometimes have a valid strategy to rely on cross- examination or other strategy such that a defense expert need not be retained in every instance, “the centrality of this medical evidence to the jury’s determination of . . . guilt or innocence made an expert necessary in this case.” Id. at 341. Prejudice was also established because review of the CT scans by a qualified pediatric neuroradiologist “would likely alter the defense’s theory at trial as well as the entire evidentiary picture presented to the jury.” Id. at 342. Here, a qualified expert could have countered the state expert’s testimony with testimony that the initial CT scans showed changes in cell structures that would not be present until 6 to 12 hours after injury. This testimony alone would have been significant because the child was not in the defendant’s care during that time frame. A defense expert also could have countered the state’s expert conclusion that the injuries were a result of shaking because nothing in the scans suggested shaking as a cause as opposed to an impact injury or other possible causes. Likewise, a defense expert could have testified that the scans did not support any conclusion of immediate unconsciousness and were not inconsistent with a period of lucidity following the injury. In short, a defense expert could have countered most of the state’s expert testimony because the “[t]he scan shows the point to which the injury had progressed–not how it got there.” 2006: In re Nourn Counsel ineffective in first degree murder and arson case for failing to investigate the defendant’s mental condition to ascertain availability of battered women's syndrome (BWS), state of mind, duress, or other defenses. Counsel’s conduct was deficient because he simply “assumed” the defendant’s statements to him were correct even though he was aware of the co-defendant's longstanding and escalating physical and emotional abuse of the defendant, that prior counsel withdrew after discovering the co-defendant was planning to have him killed, and that the defendant was operating under the codefendant's threat to have her family killed if she did not accept total responsibility for the crimes at the time when she changed her account of the murder from statements made to police and prior counsel and told him that she had instructed the codefendant to kill. Prejudice found because BWS evidence would have been relevant to the defense of duress or other state of mind defenses, and could also have been used to bolster defendant's credibility. Goldstein v. State Counsel ineffective in child molestation and aggravated sexual battery case for several reasons: (1) failing to cross-examine the alleged victim’s mother about her many prior allegations of child molestation extending from childhood into adulthood; and (2) failing to present expert medical testimony to refute the state’s experts’ opinions. The mother’s own family members had provided information concerning her numerous false allegations to defense counsel, but this evidence was not pursued. Likewise, experts were available to contradict the state’s expert’s medical testimony concerning the elasticity of a prepubescent hymen, which counsel had notice of but did not attempt to rebut. Prejudice found because the state’s evidence was far from overwhelming. There was no physical trauma to the alleged victim, no eyewitnesses, and the first witness to report the “crime” had a history of making false accusations of molestation. State v. Gondor Counsel ineffective in separate murder trials for two defendants. One co-defendant plead guilty and the other two were tried separately and convicted with their former co-defendant as the prosecution’s key witness in both cases. During both trials, the state also relied on blood evidence in the back of one co-defendant’s truck and evidence that the two co-defendants attempted to create a false alibi. One counsel testified that the prosecutor’s file was made available to him but he did not review each page because of his busy trial schedule. He relied just on things pointed out to him that were consistent with the state’s theory. The other counsel also testified that the state’s file was made available to him. If either counsel had adequately reviewed the state’s files, they would have discovered a report from a serologist that the substance found in the back of the truck was not blood and was most likely perspiration. There was also evidence in the file to impeach some of the testimony concerning development of a false alibi by showing that this attempt was after the defendants became suspects rather than just hours after the murder as the state suggested. The state’s file also contained a transcript of a prior inconsistent statement by the prosecution’s key witness, which also reflected his statement that he would set the other co-defendants up if necessary to help himself. There was also evidence that the witness’ mother had attempted to smuggle a knife into the jail for him and the charges were dropped against her as part of his plea agreement. Finally, there was evidence reflecting that others, who had never been charged or convicted, may have been involved in the murder. Both trial counsel denied seeing this information in the state’s files, but would have used the information if they had known about it. In addition to the state’s open file policy, the post-conviction evidence reflected that both trial counsel had been provided with copies of the relevant information. Trial counsel’s conduct in both cases was found to be ineffective for failing to discover and use this evidence during the trials. Prejudice was found due to the “cumulative effect of trial counsels' errors.” Ex parte Amezquita, Counsel ineffective in aggravated assault case for failing to investigate evidence involving the alleged victim’s cellular telephone, which was taken and used while she remained in a coma for 10 days after the offense. If counsel had adequately investigated, the evidence would have revealed that the defendant was never in possession of the victim’s telephone or that, other than the victim’s testimony, he was at her place of business on the day of the assault. There was, however, evidence that another business employee, who was a parolee with a history of violent crime and who had recently been confronted about his harassment of the victim, was at the business on the day of the assault and possessed the victim’s telephone shortly after the attack. Prejudice found. /p> Douglas v. State, Without any detail or explanation of the case, the court held that counsel was ineffective for failing to investigate appellant's treating physician due to counsel's speculation that the physician's opinions, which counsel was unaware of, would be successfully challenged on cross-examination. /p> Gibson v. State, Counsel was ineffective in homicide by vehicle case where the defense theory was that the defendant had a green light before entering the intersection where the accident occurred. Counsel was ineffective in failing to introduce into evidence county records indicating previous problems with the traffic signals at the intersection. The records included a document provided in discovery that showed that just four days prior to this collision there had been a report that the traffic signals were showing green in all four directions at the same time. Counsel was also ineffective in failing to discover additional documents showing similar malfunctions in the year before this accident, which were obtained by appellate counsel. Counsel did not present evidence of the malfunction 4 days before because their request to subpoena the appropriate witness was not made until just before the state rested and the court denied the request. Prejudice established. Testerman v. State, Counsel ineffective in eluding a uniformed officer and DWI case for failing to challenge the sufficiency of the evidence of eluding. The charge was based on the defendant's changing seats with the passenger as the arresting officer was getting out of his patrol car. Counsel's conduct was deficient because these actions may have been an attempt to evade arrest, but was not an evasion of the police officer, which was required under the statute for this offense. Prejudice established. Smith v. State, Counsel ineffective in murder case for failing to prepare and present a Battered Woman's Syndrome defense. The defendant called a neighbor and asked him to come to her house where she admitted to shooting her husband and killing him because she said she couldn't take another beating from him. The weapon was located at the scene with a live round jammed in the chamber. She told police that her husband was physically abusive throughout their marriage and his abuse had gotten worse through the years. In the month before the shooting, he had kicked the dog and shot the defendant's cat. His abuse of her escalated. During an episode of physical and mental abuse, she picked up a gun that was lying on a table. With her husband still yelling at her, the defendant, who feared another beating, shot him and then attempted to kill herself but the gun jammed. While counsel presented nine witnesses at trial concerning the victim's abusiveness to the defendant, counsel did not present an expert on Battered Woman's Syndrome and instead relied on a generalized self-defense argument. Counsel's conduct was deficient in failing to file an application with the court for appointment of an expert when the defendant said that she could not afford to pay for the expert. Prejudice established even though the defendant had been convicted of the lesser offense of second degree murder because, if counsel had obtained an expert, the defendant may have been acquitted. Wright v. State, Counsel ineffective in indecency with daughter case for failing to investigate following receipt of notes of the victim's therapy sessions and failing to obtain the assistance of an expert. The defense theory was that the victim had been coached into making false allegations because of a child custody dispute. The victim initially said that the defendant masturbated in front of her. She then began therapy and the therapist's notes indicated that the victim's mother, who had child custody disputes with the defendant, was present for most of the sessions. The therapist initially noted that the child said she accidentally woke up and saw her father and it was her fault. Her statements kept evolving though. The therapist was noting a belief that the defendant had the child to participate in the masturbation months before the child said that he had done so. The prosecutor was also present at one of the "therapy" sessions. Although counsel had never been denied access to the state's file and knew of the therapist at least a month prior to trial, counsel did not obtain the file until just before trial. Counsel did not seek a continuance or obtain expert assistance. Counsel's conduct was not excused by strategy because counsel did not seek an expert only because he had been told that his expert would not be allowed to interview the child, he did not have time after receiving the notes, he had difficulty reading the notes, and he thought the therapist would be providing him with a report. Prejudice found because an expert could have testified that custody disputes generate a high proportion of false allegations of sexual abuse. In addition, this "therapy" was outside the standard protocol for working with child victims and conducive to false allegations. The expert also could have assisted counsel in preparing cross-examination of the state's witnesses. People v. Anderson, Counsel ineffective in drug case for announcing that the defense would be that of agency and conceding the defendant's identity as person involved in drug transaction when the officer's out of court identification of the defendant had been suppressed and counsel abandoned the issue of allowing the officer's in-court identification of the defendant. People v. Gayton, Counsel ineffective in probation revocation proceeding for failing to review the defendant’s probation file and to present it to impeach the probation officer’s testimony that the defendant never reported and had otherwise failed to comply with the terms of probation. The probation file and the officer’s own notes completely contradicted the probation officer’s notes but counsel never bothered to review the file despite the defendant’s statements to him, which were “from a different universe” than the probation officer’s statements. The probation file would have corroborated the defendant’s statements and revealed that the probation officer’s testimony was, at best, “brutally incorrect.”Counsel’s conduct was deficient because, he interviewed the probation officer, but otherwise “assumed his client was lying and did not bother to take even the most basic steps to test that assumption.” There was “no justification for counsel’s failure to review the file.” Prejudice was “inescapable” where probation was revoked and the defendant confined for seven years. *Terry v. Jenkins, Counsel ineffective in capital trial for failing to adequately investigate and present defense in case where the victims were abducted from a coin-operated laundry and later murdered. The state’s evidence was largely based on immunized testimony and trial counsel attempted to show that other persons were the murderers. Local counsel had no experience in capital cases so lead counsel was appointed. The two appointed counsel miscommunicated on the role of each counsel. Lead counsel assumed local counsel was investigating. Local counsel believed his job was to provide “local flavor” and knowledge, but otherwise just to do as he was told. Lead counsel did not discover until trial that very little investigation had been done. Counsel’s files revealed some information pointing to other suspects and the falsity of their alibis but counsel could not recall investigating further and this evidence was not presented. Counsel also failed to seek a continuance in order to investigate when the defendant told counsel only six days before trial that his family had been threatened if the defendant “spoke up.” “Had defense counsel investigated its own primary defense,” the evidence would have implicated persons other than the defendant. Counsel’s conduct was deficient and prejudicial. Commonwealth v. Garcia, Counsel ineffective in indecent assault case for failing to adequately investigate and present a defense. The defendant, a former part-time teacher, was charged with sexual acts with three young children at a Learning Center. Counsel’s conduct was deficient because counsel failed to interview any of the government witnesses and inexplicably failed to present evidence from one essential witness, who was a teacher and a babysitter for one of the children. Her statement provided by the state in discovery included information that the child initially denied allegations even though she encouraged him to speak up until his mother became involved, which supported a defense theory of parental influence and pressure. Prejudice found on all three charges because the case against the defendant with respect to the other two children had similar problems in that there was physical evidence or injury and credibility was the sole issue. Johns v. State, Counsel ineffective in aggravated assault case for failing to adequately investigate and present alibi witnesses. The victim testified that he was shot during a 20-minute period by the defendant firing into his car from the defendant’s car behind him. The defendant was quickly arrested at his home and no evidence was found connecting him to the crime. The defendant claimed to have been at home with his young daughter at the time of the shooting. The defendant retained counsel he met in a retail store, who had no office, met with his client only at McDonald’s or the courthouse, and was indicted four months after this trial for the sale of marijuana in a correctional facility. The defendant and his parents, who retained counsel, all informed counsel of the names and addresses of three alibi witnesses. Counsel never interviewed them and never contacted his client again until the night before trial. The defendant did not realize until the morning of trial that he had no witnesses, but he turned down a plea offer for five to six years because counsel told him the State had no evidence and that he would be able to win. Counsel’s conduct was deficient. The decision not to interview witnesses, particularly your own, cannot be considered an effective strategic choice. When counsel makes choices of which witnesses to use or not to use, those choices must be based on counsel’s proper investigation. Counsel’s minimum duty is to interview potential witnesses and make an independent investigation of the facts and circumstances of the case. Prejudice found because the post-conviction testimony of the alibi witnesses was not rebutted by the prosecution and “could very well have changed the outcome of the trial.” *Nance v. Ozmint, On remand from the U.S. Supreme Court for consideration under Florida v. Nixon, 543 U.S. 175 (2004), the court reinstated its opinion finding that trial counsel’s failure to investigate, plan, and present a defense in this capital trial constituted “a classic example of a complete breakdown in the adversarial process” and prejudice was presumed for eight reasons. (1) Lead counsel was suffering from numerous health problems, including alcoholism, and was taking numerous medications that impaired his memory and caused other problems. Co-counsel had been practicing law for only 18 months. (2) Counsel sought to show that the defendant was mentally ill and wanted the jury to view him in his unmedicated state and successfully got the judge to order such, but then failed to inform the jail personnel of the court’s order so the jury saw “a drug-influenced demeanor” during trial. (3) Counsel pronounced in opening statements that they were appointed and neither of them “wanted to be there.” (4) Counsel presented a defense of guilty but mentally ill but failed to qualify their only expert and presented supporting testimony of the defendant’s sister only after the expert testified denying him the opportunity to inform the jury of how the sister’s testimony supported a finding of mental illness. (5) Counsel presented no evidence of adaptability to confinement in sentencing when they had presented the only bad incident of urine-throwing in confinement during the trial. Evidence was available to establish that the defendant had been selected as an institution’s inmate of the year and nominated for the entire state’s inmate of the year and testimony was available from a jail administrator and prison minister that the defendant was a “model inmate.” (6) Counsel presented “no mitigating social history evidence,” even though the evidence would have established physical abuse throughout the defendant’s childhood, an alcoholic, abusive father; being “treated with alcohol as a child in lieu of over-the-counter medication”; and growing up “in a family of extreme poverty and physical deprivation.” (7) “[D]efense counsel’s seven-minute mitigation presentation failed to provide the jury with any insight concerning Petitioner’s mental illness,” even though he has a family history of schizophrenia, history of hearing voices, and suffered from neurological damage. (8) In closing arguments in sentencing, counsel “failed to plead for Petitioner’s life and referred to him as a ‘sick’ man.” [C]ounsel abandoned his role as defense counsel and in fact helped bolster the case against his client. . . . We again recognize that this type of “consistently inept form of lawyer conduct [is not] acceptable in this state, nor will we employ a prejudice analysis, for ‘[defense] counsel’s ineffectiveness [is] so pervasive as to render a particularized prejudice inquiry unnecessary.’” Id. (quoting Nance v. Frederick, 358 S.C. 480, 490, 596 S.E.2d 62, 67 (2004)). *Wiley v. State, Counsel ineffective in felony murder trial for failing to request an instruction on second degree murder and failing to preserve the issue for appeal and in failing to adequately investigate and assert self-defense. Prejudice was found because the defendant informed counsel that the victim “rushed” him. Although the defendant did not tell counsel that his nose had been bloodied, diligent counsel would have conducted additional investigation. Prejudice found because two bloody towels were evident in crime scene photos and at least one of them had the defendant’s blood on it. The victim also had a prior conviction for battery, which would have been admissible under state law even though the defendant was not aware of it to establish that the victim was the initial aggressor Walker v. State, Counsel ineffective in resisting arrest case for several reasons. First, counsel’s conduct was deficient in failing to ask any questions in voir dire even after six members of the jury venire identified themselves as working or having close relatives who worked in law enforcement and made statements indicating potential prejudice or bias. Counsel used peremptories to remove two of these jurors but otherwise failed to conduct voir dire or challenge these biased jurors for cause. Counsel was also ineffective in failing to conduct an appropriate investigation and to object to inadmissible evidence of extraneous offenses and bad acts that were irrelevant to the trial for resisting arrest. This evidence included evidence of another person at the scene being arrested for possession of drugs, the defendant having previously disturbed the peace by firing an automatic weapon, and a 20-year-old misdemeanor conviction for assault on an officer. Counsel failed to object to this evidence because he was not familiar with the appropriate admissibility standards and also failed to request a limiting instruction. Here, where the defendant’s credibility was critical to the defense, counsel should have investigated, filed appropriate discovery, prepared the defendant for his testimony, filed motions in limine to prevent the inadmissible evidence from coming before the jury, and objected and requested a limiting instruction when the evidence did come before the jury. Counsel was also ineffective in sentencing for failing to adequately investigate and opening the door to cross-examination of the defendant about numerous arrests for concealed weapons, criminal mischief, assault, and reckless conduct. Counsel also failed to object to the court’s failure to instruct the jury in sentencing that evidence of unadjudicated offenses could not be considered unless the offenses were proven beyond a reasonable doubt. The defendant was prejudiced even though unadjudicated offenses were admissible under state law because the state did not offer any of this evidence or raise the issue until counsel asked the defendant broadly in redirect if he had “any problems with law violations.” Prejudice found because evidence of extraneous offenses is inherently prejudicial. The prejudice in sentencing was particularly clear because the state recommended probation only, but the jury sentenced the defendant to 180 days in jail and a $2000 fine in addition to probation. 2005 Martin v. Barrett, Counsel ineffective in aggravated child molestation and cruelty to children case where counsel failed to seek to obtain the records or to request the assistance of an expert despite counsel’s knowledge that the defendant had been hospitalized for treatment of mental illness. Prejudice found because the defendant had Bipolar Disorder with psychotic episodes of auditory and visual hallucinations. The defendant “might have been found to be incompetent to stand trial, legally insane at the time of the crimes, or guilty but mentally ill.” Parish v. State, Counsel ineffective in attempted murder and robbery case for failing to adequately investigate and present a defense and failing to object to an improper Allen charge. The state’s witnesses testified that they were in the victim’s apartment watching a movie. After a knock on the door, intruders entered demanding drugs, money, and guns. After a struggle with the co-defendant the victim was shot in the stomach. The defendant allegedly threatened the witnesses with a gun if they moved. The co-defendant was tried separately. Counsel presented an alibi defense supported by seven witnesses, all family members, during trial. Counsel’s conduct was deficient in failing to adequately investigate because he just “assumed” that the crime did occur in the fashion the state alleged. Id. at 501. In short, counsel “did not make a reasonable decision not to investigate the shooting, which would have uncovered evidence that perhaps the crime did not occur as the State’s eyewitnesses testified at trial.” Id. at 502. If counsel had investigated, he would have discovered two independent witnesses who would have testified that the victim was selling drugs in the parking lot of the building when he was shot. This was also supported by a witness that did not testify for the state during trial but his statement to officers and identification of the defendant was admitted into evidence. This witness testified in post-conviction that he had been coerced by police into identifying the defendant. The state’s crime technician would have testified that no blood was found in the apartment, although there was blood in the car used to transport the victim to a nearby fire station. Likewise, DNA evidence from a hat allegedly belonging to the co-defendant revealed that it was not the co-defendant’s hat. Prejudice found because, at the least, this evidence would have seriously undermined the credibility of the state’s witnesses. “That is, if the eyewitnesses were not telling the truth about where the crime occurred, then that could cast doubt on their account of how the crime occurred and who was involved,” strengthening the alibi defense. In addition, five additional alibi witnesses, one of whom was not a family member, were available but not presented by counsel. This was complicated by the trial court’s Allen charge, which had been modified from the state’s standard charge, in an impermissible fashion and was included in pre-deliberation charges. During deliberations, the jury submitted several questions concerning the state’s primary witnesses, which went unanswered. After 9 hours of deliberations, the jury returned with a verdict of guilt. If counsel had “independently investigated the shooting, presented that evidence, and then objected to the Allen charge, the result of the proceeding would be different.” Id. at 503. Bolden v. State, Counsel was ineffective in assault and armed criminal action trial for failing to seek a mental health examination, waiving the issue of competence, and proceeding to trial despite the defendant’s incompetence. Counsel and the court had received letters prior to trial that contained “random numbers and letters that made no sense” and one had feces smeared on it. During pretrial hearings, the defendant “acted erratically and strangely,” including urinating in the courtroom and swinging at counsel. He also testified in a hearing about “a conspiracy regarding activist Louis Farrakhan.” Counsel was also aware that the defendant was unable to understand the plea offer by the State but refused to allow counsel to talk with his family and would not respond to her questions. Instead, the defendant would tell counsel how to kill herself. Counsel requested a mental health examination and the defendant was found to be competent but the doctor warned that there could be deterioration over time. Counsel requested a second examination and the defendant refused to speak with the doctor, but based on a review of the records, the doctor concluded that the defendant should receive an inpatient evaluation. The initial examining doctor agreed that inpatient examination was appropriate. The defendant, however, “announced that he was competent and ready for trial.” Counsel then let the case go forward without requesting further evaluation. During the trial, the defendant’s bizarre behavior continued, including making sexual and threatening statements to witnesses in the presence of the jury. He made a number of bizarre statements in sentencing including that the country would end and that he had done away with emotions and feelings through “astro-rejection, metaphysics, telepathic powers, telekinetics, and psychokinesis.” Counsel had no strategy. She simply waived the competency issue because the defendant wanted her to do so. Prejudice found because “there is a reasonable probability that the result would have been different if an inpatient evaluation had been requested” because the defendant would likely have been able to establish a defense of not guilty by reason of insanity. Johnson v. State, Counsel ineffective in assault on public servant case where the defendant and her husband had fought, he called 911 asking for an ambulance but then called back saying the defendant did not want an ambulance, and police went to the home anyway. When no one answered the door they kicked the door in and refused to leave when asked to do so insisting on questioning the two individually. The defendant became agitated and fought with officers. Afterwards another officer arrived and was audiotaping events as he talked with the defendant, her minister talked to her, and she talked to an officer that was allegedly assaulted. Counsel’s conduct was deficient because, although counsel filed a discovery motion seeking all statements of the defendant, counsel never obtained a ruling on the motion and, thus, was not provided with this tape. When he learned of the tape during the trial, he ignored the defendant’s request to personally review the tape, did not seek a continuance or recess, and reviewed the tape just over a lunch recess without the benefit of a transcript. He did not object to admission of a redacted tape that excluded the only arguably exculpatory portion of the tape. Counsel’s conduct was deficient because the defense was clearly entitled to receive this tape in discovery but “a discovery request alone, without an order or follow-up in some manner, is a hollow gesture.” Moreover, counsel’s attempt to redact the tape, without the benefit of a transcript, just over a lunch recess was “difficult and virtually meaningless.” Counsel also did not correct and, in fact, agreed with the state’s evidence that the redacted tape contained the entire dialogue between the defendant and officers when it did not and the portion excluded was the only arguably exculpatory portion. Prejudice was found because if the defendant had been provided with the tape prior to trial her trial strategy might have changed. She might have considered a plea or been better prepared to testify. Counsel might have considered filing a motion to suppress when counsel otherwise was not even aware that the defendant had not been read her rights prior to the taping. Here, the recording was the “lynchpin of a case that turned on” the defendant’s credibility and she was prejudiced by counsel’s actions. Keats v. State, Counsel ineffective in first degree arson case for failing to investigate the possibility of a plea of not guilty by reason of mental illness (NGMI). After the defendant set a fire in his mobile home, his roommate put it out and called police because he was threatening to burn the home down with him in it. After police arrived he vacillated between suicidal, threatening, anger, laughter, and depression. He set several fires that officers and firemen were able to put out, but ultimately set a fire that spread and filled the home with smoke. He was finally subdued but the mobile home was damaged beyond repair. After his arrest, the defendant was involuntarily committed to a mental health unit and found to have a major depressive disorder and reality distortion. He also had symptoms consistent with bipolar disorder. He was later transferred to another mental health facility where he was diagnosed with substance abuse and a bipolar disorder. Counsel was aware of these facts and had also been informed by the defendant’s mother that he had a history of mental heath problems and an inability to stabilize his moods. While counsel discussed the possibility of an NGMI plea with the defendant and his mother, his strategy was to argue that the defendant’s specific intent was suicide and not to burn down the house. He believed that NGMI was incompatible with this argument. Prior to trial, the court granted the state’s motion to exclude mental state evidence because counsel had not entered an NGMI plea. Counsel’s conduct was deficient because his trial strategy was to make some sort of diminished capacity argument that the defendant was depressed and suicidal when state law did not recognize a diminished capacity defense. Counsel’s belief that the NGMI argument was inconsistent with his theory of the case was also “puzzling” and “not a reasonable decision that made further investigation unnecessary.” “[F]urther investigation was essential” under these facts. Nonetheless, counsel did not obtain the defendant’s medical records, did not consult with a mental health expert, or obtain an opinion about the defendant’s mental state at the time of the crimes. Prejudice was found because the only question during trial was the defendant’s intent. Counsel’s deficient conduct deprived him “of the only true defense available to him,” which had a reasonable likelihood of success. State v. Hamlet, Counsel was ineffective in robbery case for numerous reasons. One counsel was appointed and did not do much in preparation. The other was retained only days before trial but acted as lead counsel without preparation (although he had moved for a continuance). The original counsel did not inform the new counsel of prior inconsistent statements by key state witnesses and sat silently while the new counsel pursued a defense theory that fell apart quickly and required a change in the middle of trial. And, neither counsel advised the defendant of the state’s plea offer. Lee v. State, Counsel ineffective in capital sexual battery of child under 12 case for failing to adequately investigate and present a defense. This was a “classic familial sexual abuse situation, with no eyewitnesses, no direct physical evidence of abuse, nor even similar fact evidence.” The defendant’s 10-year-old stepdaughter alleged abuse on three occasions. The allegations were not made until the defendant left her mother for another woman, her mother was incarcerated, and her step-sister (who had found a letter to the alleged victim’s mother stating that the defendant “was doing it with her”) urged her to tell her grandmother, with whom she was living although she did not know her well. The only alleged physical evidence was from the testimony of a pediatrician, who testified that the victim’s hymen had been torn and formed a scar as it healed. The pediatrician concluded that the hymenal ring was abnormal and indicated repeated penetration. She acknowledged that it was possible that the abnormality was caused by excessive masturbation “but virtually excluded that possibility.” The only defense presented (other than the defendant maintaining his innocence) was that the alleged victim’s mother had previously caught her masturbating and had been told then that a man (other than the defendant) had showed her how. Counsel’s conduct was deficient. Counsel had never tried a capital sexual battery case and did not consider retaining an expert even though counsel could not read the state expert’s notes and did not know the meaning of some of the terms used in the notes. Counsel also did not retain an expert because counsel dismissed the pediatrician’s opinion because she “was not an expert.” Counsel even advised the defendant that “he had a good trial case because there was no physical evidence of abuse.” The defendant “had the right to an attorney who understood the ramifications of the pediatrician’s testimony.” Moreover, counsel’s conduct was not excused by the defendant’s request that the case not be continued for counsel to investigate because counsel had not done any investigation until two weeks before trial even though the defendant had informed counsel from the beginning that the alleged victim had previously alleged sexual abuse by someone else. Moreover, counsel’s erroneous belief that there was no physical evidence of abuse, even though the pediatrician corroborated the alleged victim’s testimony, “significantly contributed” to the defendant’s decision. By finding that counsel’s conduct was e xcused by the defendant’s conduct, “[i]ronically, the circuit court thus held the defendant to a higher standard than his attorney for understanding the significance of the evidence against him.” The trial court made no factual findings or legal conclusions about the fact that the attorney had information about previous allegations available to him almost six months before trial and did nothing about it until the eve of trial, despite knowing that his client had been unable to make bond, had been held in jail since his arrest, and was anxious for his case to be concluded. Thus, when [the defendant] insisted on going to trial, he did so without the benefit of all of the relevant information that a reasonably prompt and thorough investigation by an effective attorney would have revealed. The circuit court erred when it found that [the defendant’s] decision to go forward with the trial negated the deficiencies in his counsel’s preparation. If counsel had adequately investigated, counsel could have presented expert testimony that (1) the change in the hymenal ring was not indicative of repeated penetration: (2) the alleged victim’s hymen was considered “a normal variance”; and (3) it was inappropriate procedure for the pediatrician to take the child’s history while the grandmother was present. At a minimum, he could have impeached the pediatrician, and the jury would not have been left with the unchallenged impression that the medical evidence corroborated the State’s theory that something of a criminal nature happened to the victim. Had the defense attorney gone further and discovered whether the victim had made prior allegations of abuse, either founded or unfounded, that information could have provided valuable impeachment of the victim’s testimony. . . . As it stood, defense counsel was left with the very difficult job of attempting to demonstrate that a sympathetic young child, crying on the stand, was lying. People v. Moore, Counsel ineffective in burglary of car case for two reasons. First, counsel failed to object to the prosecutor’s improper closing argument urging the jury to convict the defendant in order to prevent their insurance rates from increasing. This was an inflammatory argument that “served no purpose other than to appeal to the jurors’ fears, prejudice defendant, and inflame the passions of the jury.” Id. at 1165. The argument was also based on “irrelevant speculation” and not on the evidence because there was no mention of auto insurance during the trial. Id. at 1166. Second, counsel elicited incriminating hearsay during cross-examination of two of the state’s key witnesses. The witnesses testified that they had seen the defendant burglarize the car and take a camera bag. When the defendant was arrested, however, he did not have the camera bag and it was nowhere near him so the defense was arguing mistaken identity and a reasonable doubt. During cross-examination of these witnesses, however, counsel elicited hearsay information from “members of the crowd” that the defendant dropped the bag during a struggle and a man with the defendant grabbed the bag and took it with him. “The members of the crowd who allegedly provided this information were not named, never testified during trial, and were never cross-examined.” Id. at 1170. Counsel’s conduct was deficient because this evidence was inadmissible, the trial court informed counsel in the midst of the cross that it was inadmissible (but the court did not exclude it since the state did not object), and any alleged strategy was unreasonable because the hearsay elicited “served to further incriminate” the defendant. Id. at 1171. Prejudice found on each of these issues. Dorsey v. State, Counsel ineffective in kidnaping, sodomy, and other offenses case for failing to present evidence of juror misconduct in the motion for new trial and for urging the jury to convict the defendant of forcible sodomy. The victim testified that she was lost and asked the defendant for directions and then was kidnaped and raped. The defendant testified that the alleged victim was looking for drugs and he had consensual sex with her in exchange for cocaine. During deliberations, one of the jurors went to the scene “to investigate the victim’s story about getting lost.” The juror got lost in the same area and told the other jurors about it. The defendant was convicted of forcible sodomy and other offenses that day, but acquitted of a number of other charges. Shortly after the verdict, the judge’s law clerk and an assistant prosecutor learned of the juror’s trip and the information to the other jurors and disclosed it. The officer conducting the pre-sentence investigation (PSI) also disclosed that the juror that had made the trip called the victim’s family after the trial to say that he “totally believed” the victim’s story. Counsel’s conduct was deficient because counsel filed a motion for new trial seven days late and included no evidence or argument other than the letter from the PSI officer. Counsel’s conduct was not excused because counsel did not offer a strategic reason. Counsel’s conduct was deficient because the jury misconduct was clear. Once that was established, prejudice was presumed and the state offered insufficient evidence to rebut the presumption. While three jurors testified that they were not influenced, nine jurors did not testify and the juror that engaged in misconduct “attempt[ed] to minimize the effect of his own misconduct.” Prejudice was found because “the victim’s credibility was clearly at issue.” If she had not been lost, her credibility was undermined and the defendant’s version was supported. Relief granted despite the trial court’s purported ruling on the merits even though it had no jurisdiction due to the late filing of the motion. The test is not whether that particular trial judge would have granted relief. The test of merit is not whether the trial judge would have reversed his earlier ruling but rather whether, in the light of applicable law, the contention was a valid one. In sum: Even though there was a verdict of acquittal on many of the charges, we cannot say that there was not a reasonable likelihood of even more acquittals, at least as to charges requiring belief in the use of a weapon. Because we know so little about the dynamics of the jury deliberations and the true effect of the juror misconduct in this case, we have very little basis to say that, had counsel secured a new trial, [the defendant] would have done no better in a second trial. Thus, we feel constrained to say that defense counsel's errors and overall performance were such that we cannot be confident in the trial having achieved a just result. Because we have a definite and firm impression that a mistake was made in ruling on the post-conviction motion, we reverse the motion court's decision. The court considered counsel’s concession of guilt “only in regard to our consideration of counsel’s overall performance.” While the jury could have found the defendant guilty of forcible sodomy based on his testimony, counsel is expected “to argue the evidence in a way favorable to the client.” In addition, the court’s instructions required a finding that the defendant “displayed a dangerous instrument” in order to convict and the defendant had not admitted this element here. Finally, where there was obvious concern about the victim’s credibility, “it seems less than astute for counsel to concede” guilt on any offense when the defendant had denied guilt. While the court declined finding ineffectiveness based only on this issue, it concluded that the overall performance of counsel undermined confidence in the outcome of the case. Hall v. State, Counsel was ineffective in drug trafficking case for numerous reasons. The defendant was a passenger in a car stopped for speeding. The officer asked for consent to search the vehicle and found cocaine in a cooler in the back of the car. The driver pled guilty and testified. State law required an accomplice testimony instruction under these circumstances and precluded conviction on the testimony of an accomplice unless there was other evidence tending to connect the defendant to the crime. Here, because the jury was not properly instructed, the jury was authorized to convict the defendant with no corroborating evidence and the nonaccomplice testimony provided only a weak inference of guilt. Counsel’s conduct was deficient because the failure to request a proper instruction “relieved the State from proving the portion of its case that would have been the most difficult to prove.” Counsel’s conduct was also deficient in failing to object the state’s cross-examination of the defendant based on inadmissible, unadjudicated offenses that the state referred to as “gang-banging” offenses. Counsel’s conduct was also deficient in failing to object to the state’s comment on the defendant’s post-arrest silence in the opening statement and closing argument. Counsel’s conduct was not excused by strategy because the court could not “envision a reason” for counsel’s failures in each respect. The court found prejudice with respect to each deficiency and found that “the combined effects” required reversal. 2004 People v. Callahan, Counsel was ineffective in first degree murder case for three reasons. Following the arrest of four people, who believed that the victim had "ratted" on them, the defendant sought the assistance of two men who were members of "The Skin Head Dogs (SHD), a male white supremacist group," to obtain money to bail one of the arrested persons out. The victim subsequently asked the defendant to assist her in obtaining money to bail out a different arrested person. The defendant met with the victim at the defendant’s home. The victim ingested two pills from a prescription drug on the defendant’s dresser. In a pretrial statement, the defendant said that the victim took the pills to alleviate withdrawal symptoms of other drugs, even though the defendant warned her that the pills were strong and she would probably pass out. Two witnesses at trial testified, however, that the defendant stated that she deliberately gave the victim the pills to cause her to pass out within a few hours. According to the defendant’s pretrial statement, which was admitted in evidence, after the victim took the pills, she and the defendant picked up some stolen electronic equipment that they intended to sell for bail money. They then met up with the SHD men and went to a hotel. By the time they reached the hotel, the victim had passed out. While at the hotel room, the stolen equipment was sold and the SHD exited the room. When the victim woke up, the defendant allowed her to call her mother. While she was on the phone, the SHD men returned to the room. One of them became upset because he feared the victim would report them for stealing the electronic equipment. Although the defendant argued that the victim should be allowed to leave, the SHD men killed the victim by slashing her throat while the defendant was in another room. The defendant assisted in disposing of the body. The state’s theory was based on felony murder. While a duress defense would not apply to murder, it would apply to the underlying felonies of robbery and kidnaping, which were necessary to support first degree murder and the punishment of life without parole. Because counsel was aware of this, competent counsel would have sought to refute the testimony of the witnesses who asserted that the defendant deliberately gave the victim pills to cause her to pass out. This would have allowed counsel to portray any robbery and kidnaping as beginning inside the motel room, so that a duress jury instruction would be given, and counsel would have had a factual and legal basis to argue against application of the felony murder rule. Counsel’s conduct was deficient in failing to adequately cross examine the witnesses concerning the defendant’s alleged statements concerning the suspicious circumstances under which they came forward, which caused even the prosecutor’s investigator to doubt their truthfulness. Counsel’s conduct was also deficient in failing to call the defendant to testify since she would have testified that she never met these witnesses until after the victim’s death. She would have also testified that she was afraid of being killed if she did not comply with the SHD man’s orders. Counsel’s conduct was also deficient in failing to present expert testimony in support of a duress defense in that the defendant’s fear was reasonable under the circumstances because of the history of the SHD members in being controlling and threatening the defendant previously. The duress defense was also supported by evidence that the defendant suffered from drug addiction and dissociation at the time of the murder, which would have impaired her thinking. Prejudice was found because counsel’s actions "effectively" left the defendant with "no defense to the charged crimes," which allowed her conviction on felony murder despite her "concedely peripheral involvement" in the victim’s death. Woods v. Commissioner of Corrections, Counsel ineffective in murder case for failing to obtain an expert evaluation and to request an extension of time for notifying the state of the intent to present expert testimony in support of a diminished capacity defense. Counsel knew that the defendant was "slow" and was informed by another attorney, after jury selection began, than the defendant may have organic brain damage. Counsel did not seek expert assistance or a continuance because she believed it was "too late" and "felt that the court would have denied such a request." Counsel’s conduct was deficient because the court had the discretion to fashion a remedy and a denial of the request would have preserved the record for appeal. Prejudice found because, if counsel had performed adequately, the jury would have heard expert testimony supporting diminished capacity and a lack of intent to commit murder. People v. Briones, Counsel ineffective in damage to property case for failing to call the defendant to testify after promising the jury that the defendant would testify and failing to object to an erroneous witness identification instruction. Although counsel’s conduct is presumed to be sound trial strategy, when counsel promised that the defendant would testify and then changed his mind, "it was counsel’s responsibility to evidence in the record that she was not deficient, i.e., that the determination was a result of the defendant’s fickleness or of counsel’s sound trial strategy due to unexpected events." Counsel was also ineffective in accepting an erroneous instruction even though she initially submitted a proper instruction. The court also cited five other areas of deficient conduct and, "in conjunction with" with the other errors, found cumulative prejudice. People v. McMillin, Counsel ineffective in driving under the influence case for: failing to object to inadmissible hearsay that contradicted the defendant’s statement that another man was driving; failing to object to the prosecutor’s improper argument about missing defense witnesses; failing to object to the prosecutor’s argument expanding the evidence; failing to object to the prosecutor’s argument of prior consistent statements (which were not in evidence) by an officer; introducing the defendant’s prior convictions, including two prior DUI convictions; and failing to object to the prosecutor’s cross-examination concerning a charge for which the defendant was never tried or convicted. Prejudice found based on the "cumulative effect" of counsel’s errors. State v. Peterson, Counsel was ineffective in murder case for failing to prepare and present evidence of battered spouse syndrome. The defendant was charged with killing her husband. A defense expert testified that the defendant was suffering from bipolar disorder with psychotic features, had been physically abused throughout the marriage, and thought she was in imminent danger of being killed. Although counsel had discussed presenting a defense based on battered spouse syndrome and the expert would have testified in support of this defense, counsel did not ask any questions on this topic. Counsel’s conduct was deficient because evidence of battered spouse syndrome would have supported a defense of imperfect self-defense, which would have negated the element of malice and reduced the offense to manslaughter. If counsel had adequately developed and presented the evidence, the jury would have learned of more than 20 years of physical and emotional abuse of the defendant by the victim. In the months leading up to the shooting, there was an instance of physical abuse and escalating daily threats to rape and kill the defendant. Counsel was aware of much of this information and presented some of this evidence, but argued insanity and imperfect self-defense without presenting the evidence of the syndrome because counsel "did not appreciate" that this evidence was a necessary predicate to the defense of imperfect self-defense. Thus, "[t]he decision not to introduce battered spouse syndrome evidence was not a product of trial strategy; it was a consequence of trial counsel’s not being adequately familiar with the law." Prejudice found because, without the evidence of battered spouse syndrome, the trial court refused an instruction on the defense of imperfect self-defense. If the evidence had been presented and the instruction given, there is a reasonable probability that the outcome would have been different. |