King v. State ( 1991 )

THOMAS, Justice,

specially concurring.

I agree that this case must be reversed and remanded for a new trial. I would limit the grounds for reversal, however, to the failure to subpoena the witness, Ike King, and to the failure of the trial court to resolve an apparent conflict of interest on the part of defense counsel.

I cannot agree that the record justifies a conclusion that counsel was ineffective because he apparently failed to interview the witness, Linda King. A subpoena in fact was issued, and I am satisfied that ineffective assistance of counsel is not demonstrated by the failure to secure the subpoena more than four days prior to trial. The fact that the subpoena was issued leads to an inference that counsel had interviewed Linda King and wished to secure her testimony.

Furthermore, the state of the record would suggest that the witness, Ike King, had been contacted and wanted to come to Wyoming. He was deterred by his probation situation, but those circumstances would lead to an inference that he had been interviewed. The ineffectiveness of counsel here lies in the failure to subpoena the witness which could have been done even though that witness resided in Colorado.