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Click here for the full text of this decision FACTS:During Clyde Moore’s trial, the state cross-examined him. After the prosecutor concluded his cross-examination, he said, “I’ll pass the witness, Your Honor.” The record indicated that the trial judge asked Charles Potter, Moore’s defense attorney, “Any re-direct?” But Potter did not respond. Again, the court asked, “Mr. Potter?” The prosecutor then asked, “Charlie?” Finally, Potter asked Moore some responsive questions on redirect. Potter questioned Moore on redirect examination for two pages in the record before passing the witness and resting his defense. Trial counsel’s questions on redirect concerned events that occurred during the same time period as those events about which the state had asked during the latter part of its cross-examination of Moore. The trial judge believed that Potter “dozed off for a minute or less, shortly before the end of the State’s cross examination of the defendant.” The prosecutor did not opine on whether Potter had fallen asleep but stated, “I can place on the record that the defense counsel did return to the podium on re-direct examination and completed it with questions which were applicable to the facts in this case.” The bailiff’s recollection was that Potter “lean[ed] over with his head in his hand” near the end of the state’s cross-examination of Moore, at least momentarily failing to respond when it was his turn to question Moore on redirect examination. An affidavit from Edward Ray Keith Jr., an attorney present in the courtroom during the incident, also stated that Potter appeared to be asleep. Potter denied falling asleep. Rather, he said that he was formulating a strategy for redirect. He stated: “I’ve been doing this almost forty years, [and] I’ve developed a habit of listening to testimony such as that with my eyes closed. I heard every question, I heard every answer during Mr. Shepherd’s cross examination.” A jury convicted Moore. On appeal, Moore alleged that his trial was defective, because he received ineffective assistance of counsel. Specifically, Moore alleged that his defense attorney was ineffective, because he was asleep during a critical moment of the trial. HOLDING:Affirmed. To prevail on a claim of ineffective assistance, the court stated, an appellant must demonstrate first “that his trial counsel’s conduct was objectively deficient.” An appellant, the court stated, must overcome a strong presumption that counsel’s performance fell within a wide range of reasonable professional assistance. Then, an appellant must next demonstrate that trial counsel’s objectively deficient conduct prejudiced the appellant’s trial result. Moore, the court stated, correctly noted that some courts have held that sleeping counsel is tantamount to no counsel at all. But the trial court record, the court stated, suggested that the trial court ultimately decided either: that Moore’s counsel’s nap was of such a temporary duration that it did not rise to the level of a substantial absence from the proceedings or that Moore’s counsel was not really asleep at all but instead merely deep in thought. Thus, after reviewing the record, the court could not say the record necessarily demonstrated that Potter was asleep during any portion of the trial. Nor did the court conclude that such alleged conduct affected the outcome of Moore’s trial. OPINION:Morriss, J.; Morriss, C.J., and Carter and Moseley, JJ.

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