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The Second Circuit Court of Appeals denied a second-degree murder appellant's ineffective counsel appeal on Monday, finding that the lawyer's failure to preserve a claim of insufficiency at the trial level did not prejudice the appellant because there was sufficient evidence to support his conviction.
Appellant Clay Parker was tried in the Albany County Court on a "twin indictment" alleging two counts of second-degree murder, one count for intentional murder and one count for depraved-indifference murder.
The state presented evidence at trial that, after a night of drinking, Parker and his friend stole the cars of Pat Johnson, (the victim), and a friend of Johnson's. When Johnson and his friend confronted them, a fight broke out, and a single rifle shot from inside the house where Parker was standing killed Johnson.
Witnesses heard Parker bragging that he had shot the victim, but Parker testified in his own defense at trial that he was not the shooter.
While Parker's attorney and the Assistant District Attorney (ADA) generally agreed that the murder was intentional, and the question was whether Parker pulled the trigger, the ADA alternatively suggested to the jury that, "if you don't find that [Parker intentionally killed Johnson] because you don't know what was in his head, you should find that it was depraved-indifference murder and he acted depraved."
The jury acquitted Parker of intentional murder and found him guilty of depraved-indifference murder.
Parker moved to set aside the verdict, and the court denied his motion. Parker appealed, but his appeal was rejected because his attorney had not preserved the sufficient evidence claim.
After exhausting his state appeals, Parker tried his hand at the federal appellate system, arguing that he had ineffective counsel because his lawyer failed to preserve the claim.
The district court ruled that Parker "would not have prevailed in the New York Court of Appeals on his claim that the verdict was not supported by sufficient evidence," and therefore could not sustain his ineffective assistance claim because he "cannot show prejudice." The Second Circuit Court of Appeals affirmed the decision.
The Second Circuit reasoned that even if Parker's attorney had preserved his sufficient evidence claim, the outcome would have been the same because there was sufficient evidence to convict Parker.
The timing of this opinion is interesting because the Second Circuit Court of Appeals reversed itself last month in another twin indictment case, Rivera v. Cuomo. In Rivera, the court initially overturned a depraved-indifference murder conviction, ruling that "certain murders are so 'quintessentially intentional' that they cannot properly be categorized as depraved-indifference murder." In December, the court changed course, and upheld the conviction, reports Wait a Second!