Kilpatrick v. State

Trial counsel's decision not to object to testimony from the victim's mother that she lost a child to leukemia in 1994 was a matter of trial strategy.

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Appellant Forrest Lamar Kilpatrick appeals his convictions for murder and aggravated assault.1 We conclude that the trial court erred by instructing the jury that aggravated assault may be committed by either one of two methods when the indictment charged that crime was committed by one specific method. However, having reviewed the record, we determine that there is no reasonable probability that the jury could have convicted appellant of committing aggravated assault in the manner charged to the jury but not alleged in the indictment. Therefore, the erroneous jury instruction is harmless. As for appellant’s claim that he received ineffective assistance from trial counsel, he has failed to show either that counsel was deficient or that he was prejudiced by counsel’s performance. Therefore, we affirm.

The evidence of record, construed most favorably to the jury’s verdicts, was sufficient to authorize rational triers of fact to conclude that on August 3, 1996, the victim, Portia Patterson, sat on the front steps of an abandoned house. With her were her friends Redlace, Lee and appellant’s father, Willie “Moody” Kilpatrick “Moody”. The victim and Moody had been friends for some time and used drugs together. The victim had previously owed Moody some money, but had recently repaid him. Appellant had recently told Redlace that he did not like the victim’s treatment of Moody, and that he would shoot her when he next saw her. As the four friends sat on the steps of the abandoned house, appellant, armed with a pistol, approached them from behind. He then shot the victim in the head, killing her. Upon hearing the shot, the others turned around and saw appellant behind them, holding a pistol. Appellant said, “That’s right, I shot her,” then fled the scene.

Kilpatrick v. State

Trial counsel's decision not to object to testimony from the victim's mother that she lost a child to leukemia in 1994 was a matter of trial strategy.

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