442 So. 2d 167 | Ala. Crim. App. | 1983
Cornelius Stanford, the appellant, was indicted and convicted for the possession of a forged instrument in the second degree in violation of Alabama Code Section
In this state, the standard for constitutionally effective assistance of counsel continues to be the "farce or mockery test." Taylor v. State,
We find that this withdrawal of her challenge to the identifications did not render counsel ineffective. In order to prevail on a motion to suppress the in-court identifications, Stanford would have had to convince the court that the procedures employed, evaluated in light of the totality of the surrounding circumstances, were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States,
Defense counsel is not required to file a motion to suppress in every case in which a pretrial identification of the accused has been made. "On the contrary, counsel must exercise his best professional judgment in deciding whether there are sufficient grounds for filing a motion. Were this not so counsel would be required to file a motion to suppress in every case, to protect himself against a charge of incompetency." United States v.Brown,
Although "counsel is expected to perform as an advocate as opposed to amicus curiae", J. Cook, Constitutional Rights OfThe Accused: Trial Rights Section 45, at 147 (1974), the failure to object to the introduction of evidence does not automatically render counsel's assistance ineffective. TrialRights, Section 45, at 141 n. 60.
Generally, objections to testimony are clearly a matter of trial strategy. Trammell v. State,
In his brief, Stanford argues that "(t)he State's attorney led her witnesses, got hearsay in, offered physical evidence, statements, photos, asked questions not based on fact, and on the whole, ran the show, but at no time can this writer ascertain defense counsel objecting to or contesting any of the evidence." Despite this statement, no specific instance of counsel's failure to object is cited. Here, as in United Statesv. Gibson,
We have searched the record and have found nothing so egregious as to constitute plain error.
"To return to defendant's complaint of ineffective assistance of counsel, when the claim is premised on failure to object to evidentiary rulings . . . we are reluctant to find ineffective assistance when the rulings by the court do not rise to the level of plain error. To do so would allow a defendant to whipsaw the government, claiming inadequate representation for failure to note objections when not saved by plain error. This is not to say that the cumulative effect of counsel's failure to object to a number of clearly erroneous rulings could not demonstrate ineffective assistance even though there was no plain error." United States v. DeWolf,
696 F.2d 1 ,4 (1st Cir. 1982).
Neither does our review of the record convince us that the cumulative effect of counsel's failure to object to several improper questions by the prosecutor and answers by the witnesses demonstrate that counsel's incompetency reduced the trial to a sham or mockery of justice.
Since whether to allow or disallow leading questions is discretionary with the trial court, Jones v. State,
The totality of the circumstances in considering what counsel did and did not do does not demonstrate that Stanford was deprived of the effective assistance of counsel. The trial was brief and simple. The testimony consumes only 54 pages of the transcript. The State's case was based on the testimony of the bank cashier who stated that Stanford presented the forged check for payment. In her identification of Stanford, the cashier noted that he had a "gold-edged" front tooth and an "eye that wanders." Stanford testified in his defense that he did not cash the check and denied that he was even present at the bank at the particular time. Four other witnesses verified Stanford's alibi.
The Sixth Amendment does not require errorless counsel and counsel should not be judged ineffective by hindsight. Haggardv. Alabama,
The judgment of the circuit court is affirmed.
AFFIRMED.
TYSON, SAM W. TAYLOR and HUBERT TAYLOR, JJ., concur.
HARRIS, J., not sitting. *922