finding lack of Cargle instruction made it impossible to find errors in admission of prejudicial victim impact testimony were harmless
How later courts described this case
- finding lack of Cargle instruction made it impossible to find errors in admission of prejudicial victim impact testimony were harmless
- emphasizing the Court will "apply a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."
- noting the importance of using the Cargle instructions when victim impact evidence is borderline or crosses over the line of what can be considered permissible.
- discussing Strickland in depth
Written by the judges who cited it.
The opinion
LILE, Judge:
Dissents.
T1 I find the trial judge's handling of the victim impact evidence to have been proper. The fact that two of the victim's family members felt the death sentence was the appropriate sentence was properly admitted under 22 0.8.1991, $ 984, which plainly provides for admission of "the victim's opinion of a recommended sentence." The improper amplification of that sentence was not objected to by Appellant's trial counsel and any error was waived. Further, defense counsel did not request a Cargle instruction and any error in that regard is waived, under the facts of this case.
T 2 I believe that the trial judge's handling of Juror Murphy was proper. The trial court offered the attorneys the opportunity to participate in the in camera hearing and that opportunity was declined.
T8 Concerning the issue of incompetency of trial counsel I point out that the trial judge has provided a comprehensive and thorough order setting forth Findings of Fact and Conclusions of Law Following Evi-dentiary Hearing, one of the best I have seen. I agree with its conclusions. I would affirm.