DEAN V. COM.
CRIMINAL: INEFFECTIVE ASSISTANCE OF COUNSEL
PUBLISHED: REVERSING AND REMANDING
DATE RENDERED: 10/05/2007
CA found Defendant was entitled to new trial based upon ineffective assistance of counsel. Counsel’s failure to request a mistrial or an admonition after the prosecutor made comments of a testamentary nature and further failure to object to improper comments during the prosecutor’s closing argument constituted ineffective assistance of counsel. Although these issues were previously considered on direct appeal, they failed to rise to the level of palpable error.
Note: This case is nothing more than two panels of the CA disagreeing on whether Dean received a fair trial. The first panel obviously did, affirming the convictions and considering the same issues that ultimately led to the reversal pursuant to RCr 11.42. The second panel, in a 2-1 split, must have disliked the prosecutor trying to interject himself into the trial as a sworn witness.
Digested by Scott C. Byrd
Olgin and Byrd