Jenner v. Leapley

SABERS, Justice

(concurring in result).

I concur in result but I do not accept the majority’s position that defense counsel’s performance was adequate. I think it was deficient in several respects, including the failure to object when the State was improperly bolstering the credibility of its witnesses, the failure to adequately prepare in reference to the photograph and failure to use the fact that his client was a non-smoker. Even the treatment of Jenner’s prior incarcerations was questionable. Defense counsel’s cross-examination of the State’s key witness Fenstermaker was simply inadequate. Fen-stermaker was clearly an accomplice entitling the defense to instructions on accomplice testimony. How the majority opinion can assert that Fenstermaker was not an accomplice is beyond me, especially when, under his own *433testimony, he was involved in plotting the murder.

However, under Strickland v. Washington, the defendant must also show that counsel’s deficient performance prejudiced the defense. 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Lockhart v. Fretwell, 606 U.S. -, -, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993). I am not convinced that the second prong of the Strickland v. Washington test has been satisfied and, therefore, I concur in result.