People v. Blattel CA3

DISCUSSION

I Ineffective Assistance Of Counsel During the prosecutor’s questioning of Detective David Gutierrez, one of the officers who participated in the search, the prosecutor asked Gutierrez if there was a reason why, during the search, he did not ask McCullough whether she could lawfully have a gun. Gutierrez responded, “It wouldn’t matter, because where we found the firearm, it was still within [ defendant’s] possession, and it would be illegal to be in the room.” Defendant’s counsel did not object to Gutierrez’s response. Defendant contends that his counsel’s failure to object to Gutierrez’s “offering of [his] legal opinion as to [defendant]’s guilt” constituted ineffective assistance of counsel.

3 The People respond that there was a legitimate tactical reason for counsel’s not objecting -- specifically that objecting “after [Gutierrez] volunteered his opinion would have highlighted it.” The People also claim that defendant cannot establish prejudice from counsel’s failure to object, i.e., that there is no reasonable probability the outcome would be more favorable had his counsel objected and had the testimony been stricken. “[A] court need not determine whether…