Tuesday, May 20, 2008

Not Ineffective Assistance

A criminal defense lawyer does not render ineffective assistance of counsel by asking a question that elicits unfavorable testimony. The cross-examination brought out an identification that the prosecutor had not gotten on direct examination. This morning, in an opinion by the North Carolina Court of Appeals, the court concluded that:

When unfavorable information is inadvertently elicited, a trial counsel's performance will not fall below the boundaries of acceptable professional conduct where counsel was attempting to elicit favorable information.  State v. Pretty, 134 N.C. App. 379, 390, 517 S.E.2d 677, 685 (1999) (Greene, J., concurring) (concluding that where evidence presented supports the inquiry, there will be no finding of ineffective assistance of counsel). Here, defendant's counsel was attempting to elicit a favorable non- identification by Moore. Defense counsel had ample reason to pursue such a course: During the State's direct examination of Moore, Moore had testified that he had not previously known either man that he encountered in the rear of building, and only provided a description of the men that had robbed and assaulted him -- that one man was of darker complexion than the other and that both were roughly the same height. The State did not have Moore make an in- court identification of defendant. Thereafter, defendant's counsel made a tactical choice to question Moore about his ability to identify defendant as the perpetrator of the crimes. Given Moore's testimony on direct examination, it was not unreasonable for defense counsel to conclude that Moore would likely be unable to identify defendant and to pursue the line of questioning quoted above. Accordingly, we hold that defendant's counsel's performance did not fall below an objective standard of reasonableness.

(Mike Frisch)

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