*1 APPENDIX
Raymond MARLOW, Appellant, Howard Texas, Appellee.
The STATE of No. 01-90-01079-CR. Texas, Appeals Court of (1st Dist.). Houston Aug. Publication Sept. Ordered *2 Moran, Houston, appellant. D. for
Thomas Cameron, Holmes, Marylou B. Carol John Harris, Keel, appellees. for C.J., OLIVER-PARROTT, and Before ANDELL, and HEDGES JJ.
OPINION
HEDGES, Justice. Raymond appellant, A found Howard Marlow, The trial court guilty of murder. 45-years confine- punishment assessed previous appeal of convic- ment. On tion, an Anders1 appellant’s counsel filed brief, wholly appeal asserting that Appellant then and merit. frivolous without brief, raising untimely pro se two filed an error, points and we affirmed. The Court of Appeals of vacated court’s Criminal proceed- and further judgment remanded for remand, ings. we overruled On error, appellant’s sec- point sustained error, and point ond and reversed remand- granted the ed new trial. We then rehearing, our motion for withdrew State’s had reversed and opinion in which we earlier remanded, appellant to re- we ordered and any he desired. brief his case and raise issues error, he claims four counsel, ineffective assistance received court committed funda- asserts sua mental error in sponte or on self- on defense prevention as it relates robbery. affirm. We
Facts sup- disabled and received
Appellant was
(SSI).
security
plemental
income
Ashlock, had known
complainant, Harold
years. Appellant
four
each
for over
other
history of
complainant
getting
had a
31,
fighting.
together and
On March
drunk
1990,
at a
appellant cashed his SSI check
purchased
bags
two
grocery store and
groceries
gallons
of wine.
and five and half
folding
purchase also included
Appellant’s
knife,
weapon a
the murder
which became
complainant
few hours later.
(1967).
California,
18 L.Ed.2d
386 U.S.
S.Ct.
Anders
motel, paid
room,
then took a taxi to a
for a
(Tex.Crim.App.1984). “There are countless
began drinking.
Appellant testified that ways
provide
effective assistance in
complaint
taking
money, and,
saw
Strickland,
given
689, 104
case.”
466 U.S. at
him,
when he tried
“went S.Ct. at 2064. Trial counsel must have wide
to hit me.” At
point, appellant
stabbed
latitude in making strategic and tactical deci
*3
complainant in the chest with the knife “to
Otherwise,
sions.
counsel would
its
lose
con
get him off me.”
stitutionally protected independence. Strick
land,
689,
Complainant lay on the bed awhile and
distorting
“eliminate the
effects of hind
got up
then
open
wandered to the
door-
sight,”
indulge
this Court
strong
“must
way, where
nearby
he told two
residents of
presumption that counsel’s conduct
falls
the motel that he needed an ambulance. Of-
range
within the wide
professional
of reasonable
Jeffrey Shipley
ficer
police
the Houston
Strickland,
assis tance....”
466 U.S.
department responded
stabbing
call
689,
2064;
at
Ingham,
sel’s was deficient. This re- Ineffective Assistance of Counsel quires showing that counsel made errors so serious that functioning counsel was not error, In his first and second guaranteed as the “counsel” the defendant appellant asserts that he received ineffective by Second, the Sixth Amendment. assistance counsel under the constitutions defendant must show that the deficient of the United States and of Texas. He bases performance prejudiced the defense. This primarily this claim on counsel’s failure to requires showing that counsel’s errors request instructions on defense of were so deprive serious as to the defen- preventing self-defense as relates to trial, dant of a fair a trial whose is result or robbery. Appellant reliable. Unless defendant makes both contends that the evidence at trial raised showings, it cannot be said that the convic- voluntary neither manslaughter nor self-de tion or death sentence resulted from a fense as defined in charge. in adversary process breakdown further contends that testimony his own renders the result unreliable. property, raised defense of under Tex Penal (Vernon § 1974), 9.42 and self- Code Ann. 687, 104 466 U.S. at at S.Ct. defense as it preventing robbery relates to proving has the burden ineffective assis aggravated robbery, under Tex.Penal Code tance of counsel and must two-step meet this 9.32(3)(B) (Vernon § Supp.1994). Ap Ann. by preponderance test of the evidence. pellant that, argues because these issues State, (Tex. 762, Davis v. 830 S.W.2d 765 evidence, were raised and because the ref'd). App. pet. [1st Dist.] — Houston support any evidence did not other defensive Jury A. Instructions theory, defense counsel request should have ed these charge. Ap instructions Appellant’s primary basis for his pellant claims that counsel’s failure to do so claim of ineffective assistance is counsel’s constituted ineffective assistance. We dis failure to instructions raised agree. evidence. The following included the instruction on self-defense: proper attorney standard for performance reasonably self-defense, is Upon effective assis the law of are tance. Washington, Strickland v. 466 U.S. person justified instructed that a is in us- 668, 687, 104 2052, 2064, S.Ct. 80 L.Ed.2d ing against force another when and to the (1984); Ingham degree reasonably believes the force is going to hurt me like he was
immediately necessary protect himself A Afraid person’s attempt he’s done against the other use before. use of unlawful force. The use of force ed any feel that Q. Did —do response justified in against another is not to do what did? choice provocation verbal alone. Well, let him do that or it was either A justified using deadly A is out me and take beat the hell justi- against if he would be another
force money leave.... using against force fied the other out, place, and when he as above set anything Q. you have done else Could deadly reasonably such believes that force do that time other than what necessary immediately protect him- him? other than stick *4 against person’s use or other at- self said, up get I I and A No. Like can’t tempted deadly force, use and of unlawful I I can’t do that because fight him. in the reasonable defendant’s if can’t walk. situation would not retreated. added.) (Emphasis question following here The is whether the alone, testimony jury could From testimony as raises issue self-defense appellant in fear of was have inferred jury charge: defined and could Appellant his life. was disabled sir, then, Q. happened what when beating complain State from the retreat taking your money. him Hence, saw begun upon him. ant had to inflict theory of a reasonable de self-defense was Okay. stop taking A. I went him from in this See Tex.Penal Code Ann. case. fense my money. He went hit me. (Vernon 9.32(1), (2), (3)(A) Supp.1994). § Q. All right. what did do? Then knife, grabbed I I him. A and stuck that trial counsel in- record indicates The only de- Q. tentionally One times? time two chose theory, though defensive fensive even other once, enough A Just him me. off The of de- were available. theories theories Q. literally you? Was he jury charge gen- fense to be included enough He close I A Almost. was where erally counsel’s wide latitude fall within though. go could like that strategic Appel- tactical decisions. make and Q. happened What after stuck him? upon Vasquez v. lant relies just stopped. He and all A sat down proposition (Tex.Crim.App.1992), for bed, he laid down in the sudden failing was that trial counsel ineffective that was it.... on alternative defenses instructions earlier, sir, however, Q. Vasquez, When testified in- that were available. you— only came at available the omission of the volved case, present appellant had In the defense. A Yeah. him, theories available several defensive exactly? Q. happened tell What Can only proceed chose to with and trial counsel specifics, exactly hap- what those, namely, This is one of self-defense. pened happened? how as a trial within his matter prerogative my money. All is A I know he went for strategy. him, I went to and that’s when he hitting grabbed knife started option of the not have the The place him there no and stuck was now appellant theories alternative defensive get up and go me to to. I can’t stand raises, omission does not constitute but this up fight him. may pursue Trial counsel ineffectiveness. theory exclude one defensive reasonable Q. during period At time time constitutionally pro- others; this within guy at all or were afraid of independence under Strickland. anything? tected Alderetti, B. Statement to Police According Sergeant the dece- got argument into an dent which accelerat- addition, appellant claims that trial Marlowe, fight Raymond ed to a E. object counsel ineffective in During 8325 LaPorte Road. the alterca- evidence, including several items of his own tion, Marlowe stabbed the decedent containing vulgar statement and hostile lan folding pocket chest with knife. guage, investigator’s report an that was con stabbing approximately occurred at 2:00 autopsy report, in an tained murder p.m., March 1990. Marlowe was weapon, which was seized from the motel custody by taken into Houston De- Police room with neither a warrant nor partment[.] appeal consent. claims on objected counsel should have agree hearsay this is We and even following statement, written hearsay. However, hearsay within signed stabbing: few hours after the testimony essentially lant’s own contained Harold Ashlock jump on me and I [sic] the same information. The evidence was pocket stuck with a knife. Yea stick cumulative and its admission was harmless. again times, five hundred more that Appellant prejudice has failed to from show too, judge mother f-. F— f— object trial counsel’s failure to evi- to this time, Huntsville. if I get will do out dence. *5 again. I stick him [sic] will It make a dont [sic], I going different am to do life. D.Physical Room Evidence From Motel do, I to do what I not [sic] had to thats Appellant coun next claims that trial jumped the first time he on me. He will fading object in sel was ineffective to to the jump again. not on me kill him will appellant’s personal admission of some of time, I will next make sure he’s dead next a knife that purportedly effects and was the If f-lying, try time. he thinks I [sic] weapon, murder labeled as State’s exhibits I kill that mother f-dead like a 21, respectively. complains Appellant f-rat, worst a f- [sic] then [sic] that these items were in seized a warrant- rattle snake. less, nonconsensual search of his rented mo tel room. exhibit 22 some State’s included joined offering Trial counsel in the State cash, papers, cigarette whiskey a label from a appellant’s written statement into evidence. bottle, personal papers, some unidentified part strategy, This was of his defensive trial appellant’s wallet. Trial counsel affirma statement, from his opening evident own tively objection that he had no to stated this jury, when he told the to “[Y]ou have the Appellant evidence. fails to show how the Appellant intent from that has statement.” possibly admission of evidence could failed to show how trial counsel was deficient why prejudiced him. Nor does he show using in this written in- statement show objected Ap trial should have counsel to it. tent.2 pellant faded to has meet his under burden test as it Strickland relates to State’s Investigator’s Report C. exhibit 22. Appellant contends that attached report the medical examiner’s the inves Appellant was next contends trial that tigator’s report, appears object to have been counsel failed to the of admission by prepared Appellant an Officer appellant J. Brite. State’s exhibit the knife that report that lulling. claims considerable “contains used The record does not hearsay, point. Sgt. support appellant’s argument inadmissible such as Alderetti’s on this shows, portion description contrary, of the incident.” of The to the trial The record report appellant objected to which us is as no than directs counsel less four times follows: the admission of the knife. The three Immediately requested after the was intro- that the be statement members of the evidence, objected objection duced into trial it for counsel allowed to read themselves. This jury, reading State's witness it aloud was overruled. Justice, ANDELL, dissenting. The fourth was
objections were sustained. overruled, during the knife was admitted Appellant bases respectfully dissent. examin- questioning of the assistant medical counsel’s argument trial ineffectiveness cross-examined er. Trial counsel then defens- on two failure to instructions attempt examiner an assistant medical evidence, allowing while by es raised We can- appellant. knife from dissociate the not raised on a defense instructions agree characterization not This is not sound trial the evidence. performance trial counsel consti- that this show, the strategy. excerpts below As the Appellant has ineffective assistance. tuted prop- of defense evidence raised issues deficiency prong failed to meet prevent- erty as it relates and self-defense Strickland test. robbery. robbery ing voluntary man- either did riot raise points of error one two.
We overrule as defined slaughter or self-defense charge. Error Fundamental majority theories agree with the his third and fourth jury charge error, trial included appellant asserts that the court be wide lati- generally fall within trial counsel’s fundamental error committed property, strategic and tactical decisions. jury on to make instruct the the defense tude However, undisputed evidence failing to and in instruct where aggravate caused the death of prevention applied shows robbery.3 within trial coun- complainant, it cannot be ed concedes unrequested ignore defenses and failure to include latitude to available court’s sel’s This cannot pursue unless one is unavailable. instructions is fundamental error meaning sixth amendment deprived appellant satisfy of the egregious is so that it *6 v. right to I would hold trial. Almanza impartial guarantee a counsel. fair and request (Tex.Crim.App.1984). failure to instructions 171 that counsel’s 686 S.W.2d constituted claims the trial failure to so on at least one viable defense He that court’s Almanza, the con instruct satisfies and that ineffective assistance.
viction should be reversed remanded following excerpts from defense coun- The a new trial. argument closing opening statement sel’s Appeals intentionally has ex the The Court Criminal omitted the- suggest that he pressly impose duty declined to a on trial self- ories defense sua unrequested to preventing court submit instructions as it relates to State, sponte. White robbery: (Tex.Crim.App.1973). It cannot be said that court committed fundamental error
the trial Opening Statement duty it not failing perform in that did show, any question, it intend to without We contrary, To had the court owe. sticking, stabbing, killing, justified was provided appellant when in the instructions call There’s no you want to it. whatever objection charge, the trial dicated no have a dead man. We intend question we have counsel’s court would interfered with man. show there’s dead constitutionally protected independence. See go- is going You’re find Strickland, 689, 104 at 2065. U.S. at S.Ct. out, bring one ing to intend show—we and four. points of error three overrule We bunch, wound, one not but that stab you, yes, Marlow would tell judgment of the trial court. Mr. affirm the occurred. We just a few in a statement taken he did later, he to show was J., we intend ANDELL, dissenting. hours charge, funda- the trial court committed argument presentation of is 3. This an alternative brings failing instruc- complaint forth in to include these same that he error in mental was and two: either counsel ineffec- sponte. of error one sua tions in these instructions tive Regardless you says, complainant hospital. intoxicated. he Complain- was get the intent that pronounced statement. We ant was dead 59 minutes later. from going you intend we’re to show appellant’s Defense counsel contended that says time, statement it I kill didn’t him this assertion that he “kill him next will time” I If jumps but next time will. on me stabbing him 500 times showed times, again I’ll stab him 500 not The lant did not intend to kill with says statement single stab to the chest. Defense coun- Remember when the statement comes in opening sel continued his statement as- gentleman’s intend to we use —the intoxi- self-defense, serting theory the defensive cated, you language I told would come with no mention of the theories out, hope you your don’t fall on ears. appeal. closing argument, now raises rank, all heard it It We’ve before. but apparent defense counsel reiterated his de- self-defense, the issue in this case will be strategy: fensive killing justified from defendant’s point view at the time. That’s all the Argument Closing Judge you you will tell all later. That’s Murder, voluntary manslaughter, self- justify viewpoint can from his time. I told on voir dire at the defense. very beginning going was be the The “rank” statement to whieh defense issues, three I not? I I don’t think referring counsel was written Further, step I deviated one it. told from confession, which stated: Judge charge would on self- defense as from viewed the defendant’s jump Harold Ashlock on me and I [sic] standpoint.1 pocket him I stuck knife. Yea stick times, again five hundred more Remember, told as I’ve well. too, judge mother f-. F— f— think, objected. I The Court time, I Huntsville. will do if I out gave you charge exactly I told like again. I will It stick dont make a [sic] So, give you. repeatedly, would it to [sic], I am going different to do life. fact, throughout four times say do, does it from viewed the defendant’s to do what had to [sic] thats not standpoint at that time. That’s where first time he jumped will got place yourself, position, under jump again. on me will kill him *7 time, the circumstances of what occurred at that I will sure next make he’s dead next point to make a decision. f-lying, try If thinks I [sic] time. he I kill that like a mother f-dead f-rat, f- [sic] [sic] worst then a argue The wants to murder. State rattle snake. arguing self-defense, voluntary We’re but added.) (Emphasis I manslaughter is in there. What asked you do, don’t please compromise to not and jury Defense the counsel told to determine because, see, split if you you the difference stabbing intent at the time of the put yourself at that scene out there under from this written statement. record State Exhibit 1 where it occurred No. and signed shows that this written you it view from a defendant who has to p.m. statement at 4:55 on March a crutches, going walk on where’s he to re- stabbing. few hours after the As the state- going go? treat to? Where’s to shows, appellant thought ment had yet complainant, sitting not killed but that he in- He’s on side of a bed. The past, to that com- man’s him in the tended do so “next time” struck contradicting plainant way, on At jumped him. the time there is no evidence gave police, than the lant this written statement to the whatsoever other fact defen- presume missing portion counsel refers his own must of the Defense to statements proceedings. Appellant earlier in the voir dire supports record the conviction. to failed include voir dire record. We got to it from what we jumped past by there. You view dant has been none_ right get deceased, to know at the time. He had a get money his back or him him and says it Regardless of that his own off of money from, stealing his or what- they into statement introduced evi- know, can You one us ever. neither me, jumped on dence Harold Ashlock day argue sides all argue can both had poeketknife. I stuck I to —we right long still it comes back down the not the do what I had to do. That’s happened. And way what as see jumped time he on me. No evidence what- you read Court tells when other anything soever to show than at charge and look charge you’ll read that to him. happened ain’t the first time it viewing standpoint from his You are it. going man to do that can’t What’s the necessary It is not that there at the time. his run? He can’t walk without crutches. attempted or attack. be an actual attack an oh, minute; jump Tell the man wait a don’t person right A has a to me; get my let Talk- me crutches on? life defend apparent danger fully person as ing person about what reasonable would from to the same extent as he would had [sic], do at the time this occurence what Ray- danger from been real as viewed to Drunk or not defendant do? viewpoint mond Marlow’s the time. drunk if he if even was stone sober whatever, applies. Sickening, had to have on and a man crutches walk Self-defense applies Raymond Mar- law still but the money your takes and starts hit guilty ask for a not low. We verdict. again past, you going as he are you. Thank say let I me me crutches so can [sic] It retreat? That not common sense. going to do it. cannot be done. You’re not excerpts closing in these from As shown I it. wouldn’t do apparently never argument, defense counsel object [PROSECUTOR]: go jury on intended to the defensive Epps
what Mr.
or
would
would
do.
appellant now raises. From the be
theories
argue
He’s not —have to
it from a reason-
trial,
ginning
apparent
end of
person looking
able
itat
from the defen-
Appel
strategy was self-defense.2
defensive
dant’s—
appeal that the
failed
lant claims on
your
THE
as to
COURT: Sustained
theory.
agree.
support a self-defense
opinion.
only
Appellant contends that
defensive
[DEFENSE
COUNSEL]: What would
supported
theories
the evidence would be
person
a reasonable
do?
would
What
as
either defense of
your
do? ...
If
take
common sense
prevention
aggravat
related to
you going
too
back to that
room are
robbery.3
again agree. Appellant con
ed
say
position hey,
wait a
counsel’s failure to re
cludes that defense
get my
minute until I
so I
quest
only
crutches
can
instruction on the
viable
*8
I don’t think
retreat?
so.
constituted ineffective assistance of
defenses
appel
support
argument,
In
of this
counsel.
see,
defendant,
you
whether
You
Vasquez v.
we affirmed.
S.W.2d
rev’d,
1990),
know,
says,
you
App.
[1st Dist]
he shouldn’t
The State
— Houston
just
(Tex.Crim.App.1992). The Court
don’t look like murder to this man S.W.2d 948
be—
evi
Appeals
of
observed that the
or he wasn’t in reasonable
Criminal
fear of
life.
necessity,
of
How
dence raised the issue
does the State know? We weren’t
provided
closing
These defenses are
in TbxJPenal
In the words of defense counsel at
3.
Code
9.32,
(Vernon
argument:
Supp.1994).
§§
arguing
.42
1974 &
"We’re
self-defense....”
Ann.
would have
a
charged
then,
been
defense to the
Q.
sir,
State
happened
what
when
offense, yet
you
the defense counsel failed to
taking your money.
saw him
request
necessity
a
instruction. The Court
Okay.
from,
A.
I went
taking
trial,
reversed and remanded
holding
for new
me,
my money. He went to hit
that the
received ineffective assis-
Q. All right.
you
Then what did
do?
tance
for failing
jury
counsel
knife,
I grabbed
A.
and stuck him.
charge
only
on the
viable defense available.
at
Q.
One
or two
time
times?
once, enough
A. Just
me.
off
Vasquez,
pursued
defense counsel had
Q.
literally
you?
Was
on
self-defense,
defense of
which was unavail-
charged
as a
able
matter
law for the
enough
A. Almost. He was close
where
(possession
in
offense
that case
of a firearm
go
though.
could
like that
felon).
by
would have been were guy afraid of the all only reasonably force if and if he believed anything? immediately it was necessary protect going A. he was to hurt me like Afraid against complainant’s deadly himself use of he’s done before. force, and that a in his reasonable Q. any Did feel situation would not have retreated. This fol- —do had choice to do what did? language lows the statute. Tex.Penal (3)(A) 9.32(1), (Vernon (2), § ANN. Code Well, A. it was either do that or let him Supp.1994).5 beat the hell out me and take money and leave. testified that had jumped on past him and hit him the they
about six or seven when Q. anything occasions Could have done else *9 drinking together. Appellant been tes- then other than what do at time did that tified on direct as examination follows: other than stick him? is, complaint
4. Appellant's part, further contends the lesser that the re- voluntary charge manslaughter, of which statute, would 9.32(3)(B), maining part the section of culpability, sup- have diminished his was not jury charge. not in the was included ported by the evidence. Because I would dis- pose appeal jury charge argument, of this on the I do not address this contention.
323
said,
response
up
deadly
that was not in
get
A.
Like I
can’t
and
use of
force
No.\
deadly
complainant.
to
force
Self-defense
fight
him.
can’t do that because
charge
apply
not
even
as defined
can’t walk.
argued
it
though
did.
defense counsel
argument.
support
did not
the
on one
excerpt, appellant
In this
testified
hindsight to
It is not a matter of distorted
self-defense,
of
issue of
of the elements
the
as ineffectiveness.
recognize this
go
me
place
was no
for
“[T]here
retreat:
stabbing complain
Appellant testified
next
to.”
must
consider whether
We
him from
only way
stop
he could
was
ant
of
that his own use
reasonably
lant
believed
do that or
money:
either
“[I]t
his
was
taking
necessary to
deadly
immediately
force was
out me and take
of
let
beat
hell
of
protect
complainant’s
himself from
use
testimony raises
money and leave.” This
deadly
Appellant’s testimony quoted
force.
as
both
of
and self-defense
appellant
above shows that
believed com-
robbery
aggra
or
preventing
a
relates to
him,
plainant
hurt
he never indi-
would
but
re
robbery.
counsel even
vated
Defense
using
was
cated a belief
testimony
part
appellant’s
to this
of
ferred
deadly
against him.
force
right
closing arguments:
had a
during
“He
justified
deadly
money
get
The use of
force is not
him of him and
his
back
off
money
stealing
his
or what
against
attacks
from
someone who
with lesser
suggests that defense counsel
ever.” This
he
Although appellant
force.
testified that
may
these
additional
have considered
two
by complainant,
attacked
he never testi-
was
defenses,
jury
requested
a
but
never
deadly
complainant’s
involved
fied that
attack
comment
charge on them. He followed this
Therefore,
force.
self-defense as defined
theory: “A
by returning to
self-defense
appellant
jury charge
was not available to
right
his
has a
to defend
life
under the facts of this case.6 Defense coun-
applies.”
person....
Self-defense
was,
urged
insisted that it
that the
sel
State,
consider it.
v.
624
The State relies
Riddick
709,
(Tex.App
[14th
712
S.W.2d
. —Houston
above, appellant
As stated
contends that
State,
1981,
pet.)
Lynn
860
no
v.
Dist.]
failing to
defense counsel was ineffective in
599,
(Tex.App —Corpus
603
Christi
S.W.2d
.
request
jury charge
prop
on defense
refd).
1993,
two
pet.
Each of these
cases
erty
prevention
as related
a
was
involved
claim that defense counsel
robbery
aggravated robbery.
These
charge
request
ineffective for
evidence,
by the
two defenses were raised
Riddick, 624
on lesser included offenses.
appellant’s testimony quoted
shown in
above.
711;
In
Lynn,
fense. courts held that Jeremy NICHOLS, Appellant, Frank complained-of failures did not constitute inef- fectiveness, they affirmed the convic- Lynn, 603; Riddick,
tions. 860 S.W.2d at Texas, Appellee. The STATE of at 712. Neither of those two cases, however, involved omitted theories of No. 01-93-00925-CR. defense were raised the evidence. Texas, of Appeals Court Lynn distinguishable,
Riddick and are both (1st Dist.). Houston and neither controls. apparent strategy Defense counsel’s 18, Aug. 1994. present provide case failed to two available Rehearing 29, Sept. Overruled 1994. appellant, defenses either could theoretically acquittal. have led to his Given Discretionary 8, Review Refused Feb. appellant’s admission he stabbed com- plainant chest, coupled evi- result, that complainant
dence ap- died as a pellant’s foregone “conviction was a conclu-
sion” without those instructions.7 See Vas-
quez,
(quoting
Cohen’s dissent at 796 S.W.2d at By forcing to choose between defense, conviction and an unavailable while provide two viable alternative de- fenses, strategy defense counsel’s fell outside constitutionally protected
the wide latitude of
Strickland,
independence.
689,
466 U.S. at
By
omission,
single
United States Constitution.
U.S. at
I would hold that defense counsel’s failure
instruction on two available
evidence,
defenses that
raised
were
only
pursued
when the
was un-
case,
available under the facts of this
prejudicial
both deficient and
Hence,
lant.
this constituted ineffective as-
sistance
under the
counsel
Strickland test.
U.S.