U.S. v. Smith, 91-4169

• Decision Date: 30 November 1993
• Docket Number: No. 91-4169,91-4169
• Citation: 10 F.3d 724
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Eugene SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 724

10 F.3d 724

UNITED STATES of America, Plaintiff-Appellee, v. Richard Eugene SMITH, Defendant-Appellant.

No. 91-4169.

United States Court of Appeals, Tenth Circuit.

Nov. 30, 1993.

Walter F. Bugden, Jr., Bugden & Lundgren, Salt Lake City, UT, for defendant-appellant.

Mark K. Vincent, Asst. U.S. Atty. (David Jordan, U.S. Atty., with him on the brief), District of Utah, Salt Lake City, UT, for plaintiff-appellee.

Before McKAY, Chief Judge, ANDERSON and BRORBY, Circuit Judges.

PER CURIAM.

Defendant Richard E. Smith was convicted of bank robbery pursuant to 18 U.S.C. Sec. 2113(a) (1988). Defendant appeals both the conviction and the sentence. The record reveals that on May 28, 1992, Defendant entered the Sun Capital Bank and handed the teller a note which read: "This is a robbery. All the money you have now fast." (R.Vol. IV at 5.) Thereafter, Defendant departed with $2,381. Defendant was arrested four days later and confessed to robbing the bank. Defendant told the police he was a drug addict and had robbed the bank to pay off a drug dealer who had threatened to harm the Defendant and his family if the debt was not repaid that evening.

At trial, the prosecutor read a stipulation entered into by Defendant and his counsel wherein Defendant admitted to robbing the bank. ¹ Defendant's evidence at trial focused solely upon a defense of duress. The jury rejected Defendant's claim of duress and convicted him of bank robbery. Defendant received an enhanced sentence as a career offender and was sentenced to 190 months in prison, followed by three years of supervised release.

I.

Prior to trial, Defendant filed a Motion in Limine to prohibit the government from impeaching him with his prior convictions for a 1988 robbery and a 1989 burglary. Defendant claims the trial court committed reversible error by denying his motion and permitting the admission of this evidence.

A district court's decision to admit evidence of a prior conviction under Federal Rule of Evidence 609 is reviewed for an abuse of discretion, United States v. Jefferson, 925 F.2d 1242, 1256 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 238, 116 L.Ed.2d 194 (1991), and we give considerable deference to the district court where the court has engaged in the weighing process prescribed by that rule. United States v. Halbert, 668 F.2d 489, 495 (10th Cir.), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 453 (1982).

Federal Rule of Evidence 609 provides in pertinent part:

(a) General Rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

Fed.R.Ev. 609 (emphasis added).

After a review of the record, we are satisfied that the district court did not abuse its discretion in this regard. The court balanced the probative value of the evidence against the prejudicial effect to the Defendant and determined that the probative value justified admission of this evidence, given Defendant's duress defense and the importance of his credibility. The district court also instructed the jury on the limited purpose for which the convictions were admitted. Under the circumstances of this case, we hold that the district court did not abuse its discretion in admitting this evidence and we affirm on this issue.

II.

Defendant also contends that the district court erred by failing to grant him a new trial based upon his ineffective assistance of counsel claim. ² The district court rejected Defendant's Motion for a New Trial because it determined Defense Counsel's conduct had not been objectively unreasonable.

Defendant asserts his trial counsel's representation was defective in two ways: Defense Counsel advised Defendant to stipulate that he had robbed the bank, and Defense Counsel failed to request a jury instruction for the lesser included offense of bank larceny. Defendant asserts Defense Counsel's conduct rose to the level of ineffective assistance of counsel entitling him to a new trial because the lesser included offense of bank larceny was viable under the facts of this case and because bank larceny has a significantly lesser penalty than does the more serious offense of bank robbery. ³

In an affidavit filed in support of Defendant's Motion for New Trial based upon ineffective assistance of counsel, Defendant's counsel averred that:

After reviewing the facts and police reports with the Defendant, I determined that the only viable defense available to the Defendant was the defense of duress and/or coercion.

In presenting this defense, I did not, as a matter of strategy, purposefully decline to present the jury with the option of convicting the Defendant of the lesser included offense of bank larceny.

On the contrary, I overlooked the availability of this possible defense.

(Affidavit of Defense Counsel pp 2-4.) Thus, Defendant asserts that at the time Defense Counsel advised him to stipulate to the robbery and failed to request a jury instruction on the lesser included offense of bank larceny, he was simply unaware of the consequences of his actions.

Although the preferred avenue for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack, see Beaulieu v. United States, 930 F.2d 805, 806-07 (10th Cir.1991), we find that the record in this direct appeal is sufficient to resolve the issues presented.

The benchmark of an ineffective assistance of counsel claim is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "To establish ineffective assistance of counsel sufficient to warrant reversal of a conviction, the defendant must show that counsel's performance was deficient and that this deficient performance prejudiced the defense." United States v. Pena, 920 F.2d 1509, 1518 (10th Cir.1990) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). Because a defendant must meet both of these requirements to establish an ineffective assistance of counsel claim, a claim may be disposed of for failure to meet either criteria. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; e.g., Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir.1986).

The standard for determining whether an attorney's performance is deficient or not is that of reasonably effective assistance. "In any case presenting an ineffective assistance claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances" and a defendant must demonstrate that counsel's conduct fell below an objective standard of reasonableness given prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. In making this determination, we are to avoid the distorting effects of hindsight and we are required to "reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689, 104 S.Ct. at 2065. A defendant must overcome the strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance," and we are reminded that there are "countless ways to provide effective assistance" of counsel. Id.

At first blush, Defense Counsel's recommendation that Defendant stipulate to the facts of the robbery and Counsel's failure to request a jury instruction for bank larceny would appear unreasonable in light of Defense Counsel's averment that he was unaware of the availability of the lesser included offense of bank larceny and thus necessarily ignorant of the consequences of his conduct. Such a conclusion would appear to be supported by language in Strickland referring to counsel's duty to investigate law and facts, or that a reasonable decision be made that makes a particular investigation unnecessary. Id. at 690-91, 104 S.Ct. at 2066. However, given Strickland's focus on objectively reasonable representation considering all circumstances, we are of the view that Defense Counsel's representation at trial was nonetheless reasonable in this case.

The purpose of the effective assistance guarantee of the Sixth Amendment is to ensure that criminal defendants receive a fair trial so that the outcome of the proceeding can be relied upon as the result of a proper adversarial process. See id. at 691-92, 104 S.Ct. at 2067. By focusing the inquiry into counsel's representation upon an objective standard of reasonableness under all the circumstances, we are of the view that counsel's representation as a whole should be considered when determining whether the defendant received a fair trial.

In this case, the record demonstrates Defendant received the assistance of an attorney experienced in criminal matters as evidenced by the well-presented defense of duress. Furthermore, by stipulating to the facts of the robbery, Defense Counsel was able to direct the jury's attention to Defendant's exigent circumstances and away from the fear and harm that resulted from Defendant's conduct in the bank. This strategy focused the jury's attention upon factors sympathetic to the Defendant. In our view, Counsel's representation was objectively reasonable.

If under the facts of this case counsel had in fact been aware of the availability of the lesser included offense but had nonetheless proceeded for strategic reasons as was done in this case, we are of the view that such representation would have fallen within "the wide range of reasonable professional...