# Harper v. Commonwealth

> Kentucky Supreme Court · September 3, 1998 · 978 S.W.2d 311

URL: https://www.frixlaw.com/law-library/cases/9673026

## Case

- **Full name:** Edward Lee HARPER, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** September 3, 1998
- **Citations:** 978 S.W.2d 311; 1998 Ky. LEXIS 121; 1998 WL 565932
- **Precedential status:** Published
- **Opinion:** Dissent by Stumbo
- **Judges:** Graves, Johnstone, Wintersheimer, Stumbo, Cooper, Lambert
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9673026

## How later opinions describe it (automated extraction)

- holding that claims of ineffective assistance of appellate counsel not cognizable in Kentucky state courts

## Opinion text

STUMBO, Justice,
dissenting.
Respectfully, I must dissent. The issues raised by Appellant in his RCr 11.42 motion for relief are extremely serious and, in my opinion, should not be disposed of without first having the benefit of an evidentiary hearing in the trial court. Among other holdings, the majority herein reaches the conclusion that trial counsel’s decision not to seek additional evidence by way of mental health experts is “certainly consistent with trial strategy based on investigation.” I find it difficult to understand how the Court can so hold without first hearing from trial counsel that trial strategy dictated that decision, as opposed to financial restraints or simple assumption that the experts who did testify would do so more affirmatively than they actually did. To conclude either of the latter would be just as speculative as to conclude counsel reasonably could have assumed further expei’t testimony was unnecessary. Indeed, we also easily could assume that trial counsel simply did not fully investigate what the testimony would be, or that counsel was unschooled in the method of presenting the evidence needed to fully develop his client’s defense.
While it is true our function is not to second-guess the actions of trial counsel, we are not required to assume that trial counsel has within his or her grasp every detail about his or her client and is fully versed in all aspects of trial strategy. Each ease is different and presents its own complexities, which may or may not fit within the parameters of counsel’s previous experience. In a ease in which the potential penalty is death and the client is uncooperative, preparation for trial is far more difficult than in typical cases, and the demands on even usually competent counsel are increased. There are times when a lawyer is simply over his or her head. In saying this, I do not mean to disparage trial counsel in this case, but rather I merely point out that without an evidentiary hearing and the requisite findings by the court conducting same, we cannot, and should not, pass judgment on whether this particular lawyer’s actions in this particular case were within the requisite range of professional skills needed to conscientiously protect the client’s interests. Henderson v. Commonwealth, Ky., 636 S.W.2d 648 (1982). I would, therefore, remand this ease to the trial court for an evidentiary hearing on the allegations presented by the RCr 11.42 motion.
LAMBERT, J., joins.
COOPER, J., joins this dissent to the extent that he would reverse and remand for an evidentiary hearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9673026. Public record. Not legal advice.