 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Allen v. State4/2/2002
ure to wear a seat belt does not supersede a criminal defendant's causal responsibility. *fn9 Other jurisdictions have similarly found that a victim's failure to wear a seat belt is not sufficient to supersede a criminal defendant's conduct in causing the victim's injuries or death. See generally Panther v. State, 780 P.2d 386, 394-95 (Alaska App. 1989); State v. Stewart, 60 Conn.App. 301, 759 A.2d 142, 147-49, cert. granted on other grounds, 255 Conn. 913, 763 A.2d 1039 (2000), cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001); State v. Hubka, 480 N.W.2d 867, 870-71 (Iowa 1992); State v. Myers, 88 N.M. 16, 536 P.2d 280, 286 (1975); State v. Dodge, 152 Vt. 503, 567 A.2d 1143, 1144 (1989); State v. Nester, 175 W.Va. 539, 336 S.E.2d 187, 189 (1985); and State v. Turk, 154 Wis.2d 294, 453 N.W.2d 163, 164-65 (1990). To the extent a contrary inference might arise from our decision in Candelaria, 895 P.2d 434, *fn10 it is overruled.
[ ] Accordingly, appellant's counsel was not ineffective in this respect.
C. Failure to Question Linda Evans Regarding Her Prior Written Statement
[ ] Appellant contends that his defense counsel was ineffective in not cross-examining witness Linda Evans regarding her prior written statement. In particular, appellant claims that Linda Evans testified at trial to her observations of appellant at the scene of the collision (that appellant appeared to be intoxicated, that she smelled alcohol on appellant's breath, and that appellant's eyes were bloodshot), but allegedly did not include this information in a prior written statement. Appellant argues only that "no sound trial strategy" could support defense counsel's failure to cross-examine Linda Evans and expose this "inconsistency."
[ ] Linda Evans' omission of such information from her written statement does not necessarily render her later testimony "inconsistent," but might have been utilized in impeaching her recollection or for other impeachment purposes. Appellant presents no cogent argument or pertinent authority as to how this perceived deficiency prejudiced him, and appellant has therefore failed to meet his burden on the issue. *fn11
D. Failure to Request a Mistrial or Move to Withdraw Following Appellant's Comment in the Jury's Presence
[ ] Appellant asserts that his defense counsel was ineffective by not taking "curative action," such as moving for a mistrial or to withdraw from the case, after appellant commented about his defense counsel's representation in the jury's presence. According to appellant, the jury "could only be distracted from the evidence" based on appellant's remarks, which remarks "may" have left an impression that appellant's defense counsel was ineffective and lessened defense counsel's impact thereafter. Further, a motion to withdraw would have "been of some benefit" to appellant because the "trial court could reasonably have granted that motion in these circumstances . . .."
[ ] We reiterate appellant's comments in the jury's presence following Tina Evans' testimony:
[APPELLANT]: Excuse me, Your Honor. Before we continue, may I make a brief statement?
THE COURT: I don't think you should. Have you conferred with [defense counsel]?
[DEFENSE COUNSEL]: This is new to me.
[PROSECUTOR]: Your Honor, this is probably something that shouldn't be before the jury.
[APPELLANT]: I just want to make a statement for the record, Your Honor. I don't believe that I'm getting adequate assistance of counsel. [Defense counsel] is refusing to bring forth discrepancies and statements made seven months ago and statements made -
THE COURT: Let's do it this way, sir. We're going to go ahead with the evidence. I
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Wyoming DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|