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, atrial counsel’s performance will not fall below the boundaries ofacceptable professional conduct where counsel was attempting toelicit 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 topursue such a course: During the State’s direct examination ofMoore, Moore had testified that he had not previously known either manthat he encountered in the rear of building, and only provideda description of the men that had robbed and assaulted him — thatone man was of darker complexion than the other and that both wereroughly the same height. The State did not have Moore make an in-court identification of defendant. Thereafter, defendant’s counselmade a tactical choice to question Moore about his ability toidentify defendant as the perpetrator of the crimes. Given Moore’stestimony on direct examination, it was not unreasonable fordefense counsel to conclude that Moore would likely be unable toidentify defendant and to pursue the line of questioning quotedabove. Accordingly, we hold that defendant’s counsel’s performancedid not fall below an objective standard of reasonableness.

(Mike Frisch)