 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Adams v. Commonwealth11/5/2004
AFFIRMING
Zayer Adams (hereinafter appellant) appeals the order of the Christian Circuit Court denying his motion for RCr 11.42 relief from his judgment of conviction. Following a jury trial, appellant was convicted of Fleeing or Evading Police in the first degree, two counts of Wanton Endangerment in the second degree, Leaving the Scene of an Accident, Reckless Driving, Disregarding a Traffic Control Device and being a Persistent Felony Offender in the first degree. His conviction was affirmed on appeal to this Court on April 11, 2003.
Appellant now attacks the judgment with a claim that his trial counsel was constitutionally ineffective in representing him. Appellant cites counsel's failure to preserve for review a defense request for an instruction on the lesser included offense of Fleeing or Evading Police in the second degree. Appellant also alleges counsel failed to consult with him and to investigate sufficiently his defense that there was an armed gunman in the vehicle forcing him to drive as he did. He argues that she failed to investigate and call additional witnesses at trial to establish a defense based on the fact that no victim was shown to have been seriously injured. We conclude appellant has not shown he was prejudiced by any failures of counsel at trial. We affirm the trial court's denial of the RCr 11.42 motion.
The relief sought by the RCr 11.42 motion must by nature be a collateral attack upon the judgment or sentence and be based upon constitutional grounds. Commonwealth v. Basnight, Ky. App., 770 S.W.2d 231, 237 (1989). The assistance of counsel required under the Sixth Amendment is counsel reasonably likely to render and rendering reasonably effective assistance. Henderson v. Commonwealth, Ky., 636 S.W.2d 648, 650 (1982). Appellant must meet a two part test in order to establish constitutionally ineffective assistance of counsel. First, he must show that counsel made errors so serious that her performance fell outside the wide range of professionally competent assistance as she was not performing as counsel guaranteed by the Sixth Amendment. Second, appellant must show that deficient performance prejudiced the defense by so seriously affecting the process that there is a reasonable probability that the outcome would have been different. Centers v. Commonwealth, Ky. App., 799 S.W.2d 51, 55 (1990) citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). The court may examine the question of prejudice before it determines whether there have been errors in counsel's performance. Brewster v. Commonwealth, Ky. App., 723 S.W.2d 863, 865 (1986).
On direct appeal, this Court determined that due to counsel's failure to make any specific objection to the instructions as given, the issue of the lesser included offense instruction was not preserved for appellate review. In his RCr 11.42 motion, appellant argues counsel's failure to preserve this issue for appeal demonstrated ineffectiveness. He claims he was prejudiced because the jury could only have found him guilty under the lesser offense, not the one under which he was convicted. We note that appellant did not claim on direct appeal that his conviction for Fleeing or Evading Police in the first degree was not supported by the evidence.
Where the ineffective assistance of counsel claim is that counsel erred by failing to object to jury instructions or to the introduction of evidence, it must first be shown that the jury instructions were given in error or the evidence was admitted in error. Commonwealth v. Davis, Ky., 14 S.W.3d 9, 11 (1999). The offense of Fleeing or Evading Police in the second degree, a Class A misdemeanor, occurs when a person know
Page 1 2 3 Kentucky DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|