McNary v. Lemke

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder conviction on grounds that his trial counsel was ineffective for failing to establish that defendant was in custody at time he gave statement to police officer, who had not given defendant Miranda warnings at time of said statement, and by eliciting fact that defendant had been drinking heavily just prior to defendant hitting victims with his car. Ct. rejected defendant’s claim that failure to call defendant’s sister to testify regarding whether defendant had been in custody prior to giving statement was not prejudicial where sister’s testimony was not credible, and where defendant’s statements to others established that he was aware of his impaired state and knew that his actions created strong probability of death or great bodily harm. Ct. also rejected defendant’s claim that his appellate counsel was ineffective for failing to appeal trial court’s denial of defendant’s proffered voluntary intoxication jury instruction where said failure was product of counsel’s valid appellate strategy to argue, albeit unsuccessfully, that trial counsel was ineffective for attempting to use voluntary intoxication defense at all.