Criminal – Multiple RCr 11.42 issues, ineffective assistance of counsel, specific grounds, calling witnesses: Harris v. Com. (COA 5/29/2009)

Harris v. Commonwealth
2009 WL 1491399

Opinion by Judge Lambert; Judges Caperton and Keller concurred.

The Court affirmed an order of the circuit court denying appellant’s motion filed pursuant to RCr 11.42.

The Court first held that the issues of whether counsel was ineffective for failing to preserve for appellate review appellant’s claim for a speedy trial and whether appellant was denied his constitutional rights to a fair trial by an impartial jury were raised and rejected in his direct appeal and therefore, were not properly raised in the post-conviction proceeding.

The Court also held that appellant’s failure to state specifically the grounds upon which his claim that counsel was ineffective for failing to impeach a prosecuting witness with prior felony conviction precluded review.

The Court also held that trial counsel was not ineffective for failing to call witnesses, some of whom were convicted felons, who would have only provided cumulative testimony. The Court also held that counsel was not ineffective for failing to object to statements made by the prosecutor that the jury had an opportunity to contribute to the “Take Back the Night” movement by finding appellant guilty because there was no likelihood that the argument affected the result or prejudiced the defense.

The Court declined to address appellant’s argument that counsel was ineffective for failing to hold the direct appeal in abeyance while he developed a record to support his ineffective assistance of counsel claims because assistance of appellate counsel was not a cognizable issue.

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