Grady v. State

LUMPKIN, Judge,

concurring in result.

I agree the judgment and sentence in this case should be affirmed. However, I am uncomfortable with language dealing with ineffective counsel, and therefore must concur in result.

*1073Initially, if this Court is disposing of the ineffective counsel claim on the second prong, there is no sense in discussing whether the attorney’s decision not to call a witness to testify constituted “reasonable trial strategy.” Accordingly, I view this as dicta.

Second, I believe the discussion of the test enunciating the “prejudice” prong of Strickland could be more thorough. To show “prejudice”, Appellant must show that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable”. Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). To show “prejudice”, an appellant must show that his attorney’s unprofessional errors “so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” Lockhart, 506 U.S. at 369, 113 S.Ct. at 842 (quoting Kimmelman v. Morrison 477 U.S. 365, 374, 106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986)). In other words, there is more than mere outcome determination involved in the “prejudice” prong.

Additionally, I continue to urge this Court to adopt a unified approach when examining the sufficiency of the evidence. As I said in White v. State, 900 P.2d 982, 993 (Okl.Cr.1995) (Lumpkin, J., specially concurring), I would adopt the test enunciated in Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985) when examining cases containing entirely circumstantial evidence.

Accordingly, I concur in result.