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Bland v. State5/16/2000
fendant is not prejudiced by the error. White v. State, 900 P.2d 982, 992 (Okl.Cr.1995). Error may also be "cured" where the trial court sustains the defendant's objection and admonishes the jury. Id. In this case, any error was cured by Appellant's objection and the trial court's admonishment to the jury to disregard the comment. Accordingly, this assignment of error is denied.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
In his fifteenth assignment of error, Appellant asserts he was denied the effective assistance of counsel by counsel's failure to: 1) request jury instructions on voluntary intoxication and first degree manslaughter while resisting criminal attempt; 2) adequately investigate, prepare and present evidence available evidence during both stages of trial; 3) preserve the record; and 4) object to instances of prosecutorial misconduct.
An analysis of an ineffective assistance of counsel claim begins with the presumption that trial counsel was competent to provide the guiding hand that the accused needed, and therefore the burden is on the accused to demonstrate both a deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See also Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, ___ L.Ed.2d ___ (2000). Strickland sets forth the two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. First, the defendant must show that counsel's performance was deficient, and second, he must show the deficient performance prejudiced the defense. Unless the defendant makes both showings, "it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687, 104 S.Ct. 2064. Appellant must demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. at 688-89, 104 S.Ct. at 2065. The burden rests with Appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., 466 U.S. at 698, 104 S.Ct. at 2070, 80 L.Ed.2d at 700. This Court has stated the issue is whether counsel exercised the skill, judgment and diligence of a reasonably competent defense attorney in light of his overall performance. Bryson v. State, 876 P.2d 240, 264 (Okl.Cr.1994), cert. denied 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995).
When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Id. at 697, 104 S.Ct. at 2069. Appellant's claim regarding counsel's failure to request jury instructions on voluntary intoxication and first degree manslaughter while resisting criminal attempt can be disposed of based upon a lack of prejudice. As discussed in Propositions IV and VI, such instructions were not supported by the evidence, therefore Appellant would not have received the instructions even if counsel had requested them. Therefore, defense counsel's failure to request the instructions, did not constitute ineffective assistance. Valdez, 900 P.2d at 388.
Appellant next complains trial counsel did not conduct a worthwhile investigation into his case as evidenced by his failure to: 1) question available witnesses regarding their knowledge of relevant facts; 2) fully investigate State's witnesses regarding the veracity of their testimony; 3) prepare to fully present all available evidence of Appellant's st
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