Harmon v. State ( 2005 )

LUMPKIN, Vice-Presiding Judge:

Concur In Part/Dissent In Part:

¶ 11 dissent to the reversal on the grounds of ineffective assistance of counsel. Under Livingston v. State, 1995 OK CR 68, 907 P.2d 1088, no actual conflict of interest in counsel’s representation has been demonstrated here. The record reflects trial counsel zealously represented Appellant and aggressively cross-examined Sunny. Her criminal record was extensively covered in counsel’s cross-examination and her testimony was thoroughly impeached on that basis. Appellant does not point to any specific evidence which would have come to light if counsel had not previously represented Sunny. Under Strickland, Appellant has made no showing of actual conflict or adverse effect. Accordingly, Appellant has not met his burden of establishing ineffective assistance of counsel.

¶ 2 Reversal is warranted in Case No. CF-2002-59 on the basis of stare decises. This is just the type of problem I warned against in my separate writing to Chappie v. State, 1993 OK CR 38, ¶ 1, 866 P.2d 1213, 1219 (Lump-kin, P.J. concurring in results). In the present case though, all the jury did in the first stage was find possession. Not until the second stage did they find Appellant guilty of being a felon in possession.