Does Lawyer's Incompentency Depend Upon Whether Client Would Have Testified Knowing That His Prior Convictions Would Be Used To Impeach Him ?
In People v. Kunze, 193 Ill. App. 3d 708, 726, 550 N.E.2d 284, 140 Ill. Dec. 648 (1990), the defendant claimed his trial counsel was ineffective for failure to investigate his prior criminal history and for consequently advising him to testify. Kunze, 193 Ill. App. 3d at 724.
The defendant then argued that he was deprived of his right to make an informed decision. Kunze, 193 Ill. App. 3d at 724-25.
The Court stated:
"The alleged incompetence of defendant's trial attorney depends upon whether defendant would have testified, even if he had known in advance that the State would use his prior convictions to impeach him.
No evidence in the record before us addresses this question, nor is there any evidence regarding consultations between defendant and his trial counselor between defendant's counsel and counsel for the other defendants." Kunze, 193 Ill. App. 3d at 725.
The court then declined to resolve this claim on direct appeal because this concerned a matter outside of the record, which is "more appropriately addressed in proceedings on a petition for post-conviction relief" Kunze, 193 Ill. App. 3d at 725-26.