 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Thompson v. Commonwealth11/23/2005
whether counsel was ineffective. However, in its analysis of the first prong of Strickland, the majority simply ignores applicable legal standards to achieve the outcome it so desperately wants to reach.
In order to satisfy the first prong of the two-part test announced in Strickland, Appellant "must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. The trial court conducted an evidentiary hearing to determine if Appellant could make the requisite showing. At the hearing, Appellant's counsel testified that he had been a lawyer since 1976 and had handled two to three hundred criminal cases in circuit court, at least ten to twelve of which involved jury trials. He also testified that (i) he had been aware that the Commonwealth intended to introduce accident reconstruction expert evidence; (ii) he had reviewed the evidence; (iii) he had reviewed the math calculation page but had not recognized the error; and (iv) he had considered retaining an expert but felt it was unnecessary because, after Appellant had informed him and the police that he had not seen the victim, he had concluded that the braking distance was not important to the defense. Despite his failure to recognize the calculation error or retain an independent expert, it was also noted at the hearing that Appellant's counsel nevertheless had objected to the accident reconstruction expert evidence when it was presented at trial.
After considering the evidence introduced at the hearing, the trial court specifically found that Appellant's trial counsel (i) mounted a "vigorous defense," (ii) was,'very attentive," and (iii) "missed no objections." (Emphasis added). With these findings in mind, the trial court ruled that Appellant had failed to show that his trial counsel's performance was deficient.
An appellate court is to "defer to the determination of the facts and witness credibility made by the. trial judge." Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001). Despite this mandate, the majority has ignored the evidence and the trial court's findings to hold that Appellant's trial counsel was ineffective. In doing so, the majority has failed to defer to trial court's findings and is focused instead on reaching a desirable result. The United States Supreme Court has rejected such an approach:
Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.
Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993).
Moreover, in focusing solely on the outcome, the majority has ignored the proper analysis under the first prong of the Strickland test. Instead, we should determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
Strickland, 466 U.S. at 690, 104 S.Ct. at
Page 1 2 3 4 5 6 Kentucky DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|