Kirkland v. State

Defense counsel was not deficient for failing to make a futile attempt to call a psychologist to testify about the affect of the drug GHB on the defendant's ability to distinguish right from wrong, since no evidence showed that the defendant had taken GHB and the trial court expressly stated that it would not have allowed the psychologist to so testify.

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After a jury trial, Barrett Kirkland was convicted of multiple crimes, including aggravated assault, kidnapping, armed robbery and burglary. Viewed in favor of the verdict,1 the evidence shows that on December 29, 2005, Kirkland and Rodolfo Matthews went to a Tires Plus store. Marty Turner was in the store working on a tire order placed by CarMax when Kirkland and Matthews entered, tied up Turner and attempted to get into a store safe. Unable to open the safe, they forced Turner into a Tires Plus truck and drove to a nearby O’Charley’s restaurant. Holding Turner at gunpoint, they broke into the restaurant through a front window. They pried open a safe inside the restaurant and stole approximately $2,000. As police responded to the scene, Kirkland and Matthews fled in the tire store truck with Turner. The truck crashed into a retention pond, and Kirkland ran from the police. Officers caught up with Kirkland and placed him under arrest. Kirkland appeals, claiming that the trial court made erroneous evidentiary rulings and that his trial counsel was ineffective. The claims are without merit and we affirm Kirkland’s convictions.

1. Kirkland argues the trial court erred in ruling a psychologist could not give his opinion that at the time of the crimes Kirkland was unable to distinguish right from wrong because he was under the influence of the drug GHB. Kirkland’s argument, however, misconstrues the trial court’s ruling. What the trial court actually ruled was that the psychologist could not give such opinion testimony until there was evidence in the record to support it. At the time, there was no evidence that Kirkland was under the influence of GHB. This was a correct ruling since the law provides that “for an expert to give his opinion based upon a certain state of facts, those facts must be supported by evidence admitted into the record.”2 The trial court committed no error in refusing to allow the psychologist’s opinion until it was supported by evidence in the record.

Kirkland v. State

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