760 P.2d 1174 (Idaho 1988), 16742, Aragon v. State

Docket Nº:16742.
Citation:760 P.2d 1174, 114 Idaho 758
Opinion Judge:BISTLINE,
Party Name:Mark Emilio ARAGON, Petitioner-Appellant, v. STATE of Idaho, Respondent.
Attorney:Randy John Stoker, Twin Falls, for petitioner-appellant. Jim Jones, Atty. Gen., and Lynn E. Thomas, Sol. Gen. (argued), Boise, for respondent.
Case Date:August 25, 1988
Court:Supreme Court of Idaho

Page 1174

760 P.2d 1174 (Idaho 1988)

114 Idaho 758

Mark Emilio ARAGON, Petitioner-Appellant,


STATE of Idaho, Respondent.

No. 16742.

Supreme Court of Idaho.

August 25, 1988

Page 1175

[114 Idaho 759] Randy John Stoker, Twin Falls, for petitioner-appellant.

Jim Jones, Atty. Gen., and Lynn E. Thomas, Sol. Gen. (argued), Boise, for respondent.

BISTLINE, Justice.

Appellant Mark Aragon was convicted of first degree murder and sentenced to death. On appeal he argues that the district court erred in denying his post-conviction petition in that he was denied effective assistance of counsel, and also because he was denied the constitutional right to testify. We affirm.


    Aragon was convicted by a jury of murder in the first degree in the death of eight month old Monique Longoria. The trial judge sentenced him to death and the Supreme

    Page 1176

    [114 Idaho 760] Court affirmed the conviction and sentence. State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984) (Aragon I ). Aragon subsequently filed a civil petition for post-conviction relief. A motion for disqualification was granted and the case was assigned to District Judge Hurlbutt. Upon application the court appointed new counsel, Randy Stoker, to represent Aragon on ineffective assistance of counsel issues.

    A hearing on the merits was held and the evidence adduced therein produced the following. At the time of Aragon's trial, his court appointed attorney, Robert Fallowfield, had the experience of but one felony trial; he was without any background, experience or special training in capital cases. Similarly, his partner had a civil practice and no criminal experience.

    A reputable Idaho attorney well-versed in criminal law testified on behalf of the appellant as an expert. His opinion was that Aragon did not receive effective assistance of counsel with regard to the decision as to whether or not to testify, and that trial counsel violated ABA Criminal Standard 5.1(a), which directs an attorney to advise the accused with complete candor concerning all aspects of the case. He also stated that had Aragon testified, there would have been a reasonable probability that doubt would thereby be created in the jury's mind on the issue of premeditation.

    The district court concluded, however, that nothing in the record established that Aragon would have testified if offered the opportunity to do so, or that he wanted to testify, or that he was denied the opportunity to testify by his counsel. The district court concluded that the alleged errors concerning effective assistance of counsel, whether taken individually or as a whole, did not constitute ineffective assistance of counsel.


    Aragon's contention on the denial of effective assistance of counsel argument is predicated upon the sixth amendment, 1 made applicable to the states via the due process clause of the fourteenth amendment, and also of the right to counsel clause of art. 1, § 13 of the Idaho Constitution. 2 It is directed against counsel's handling of the innocence/guilt trial, the sentencing trial, the direct appeal, and the mandatory review.

    A. The Right to Effective Assistance of Counsel Under the Federal Constitution.

    In the landmark decision of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court of the United States enunciated a two part test for determining whether a defendant is denied effective assistance of counsel. First, a claimant must prove that counsel's performance was deficient. Second, a claimant must show that this deficient performance prejudiced his or her case. 104 S.Ct. at 2064.

    Concerning the deficiency of performance component, there is a strong presumption that counsel's performance falls within the "wide range of professional assistance." Id. at 2065. Accordingly, the defendant bears the burden of proof to show that "counsel's representation fell below an objective standard of reasonableness." Id. at 2064 (emphasis added). The effectiveness of counsel's performance must be evaluated from counsel's perspective at the time of the alleged error, not with hindsight. Id. at 2065.

    Page 1177

    [114 Idaho 761] In regard to the second element, the Supreme Court has defined prejudice as "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2068. Prejudice is presumed in some instances, for example, where the defendant is denied counsel altogether, or where counsel represents conflicting interests. Generally, however, the defendant must affirmatively prove prejudice. Id. at 2067.

    B. The Right to Effective Assistance of Counsel Under the Idaho Constitution.

    Article 1, § 13 of the Idaho Constitution assures criminal defendants of "reasonably competent assistance of counsel." Gibson v. State, 110 Idaho 631, 635, 718 P.2d 283, 287 (1986) (quoting State v. Tucker, 97 Idaho 4, 8, 539 P.2d 556, 560 (1975); State v. Estes, 111 Idaho 430, 434, 725 P.2d 135, 139 (1986)). In evaluating counsel's conduct, this Court has used as a "starting point" the American Bar Association's standards entitled "The Defense Function," which are also a guide by which counsel's performance is judged in a disciplinary proceeding. Tucker, supra, 97 Idaho at 9, 539 P.2d at 561. Strategic and tactical choices should not be second-guessed. State v. Larkin, 102 Idaho 231, 233, 628 P.2d 1065, 1067 (1981). However, "when counsel's trial strategy decisions are made upon the basis of inadequate preparation, ignorance of the applicable law, or other shortcomings capable of objective evaluation, the defendant may very well have been denied effective assistance of counsel." Tucker, 97 Idaho at 10, 539 P.2d at 562 (emphasis added). It is presumed that counsel is competent and that trial tactics were based on sound legal strategy. State v. Freeman, 110 Idaho 117, 122, 714 P.2d 86, 91 (Ct.App.1986). The burden is on the defendant to prove a claim of ineffective assistance of counsel. To prevail, a defendant must establish "that the conduct of counsel contributed to the conviction or to the sentence imposed." Tucker, 97 Idaho at 12, 539 P.2d at 564.

    In Gibson, supra, this Court stated:

    A superficial comparison between the standards discussed in the above cases and the federal standard reveals considerable similarity. Despite this similarity, we are aware that the Idaho Constitution potentially can be read to afford a broader right to effective counsel than does the federal Constitution. State v. Newman, 108 Idaho 5, 10 n. 6, 696 P.2d 856, 861 n. 6 (1985).

    110 Idaho at 635, 718 P.2d at 287 (emphasis added). To date that has not taken place. However, as noted in Gibson, we have not yet been required to define the differences between the rights afforded by federal and state constitutions. Id. Nor are we required to do so here. Our review of the record persuades us that the district court did not err in concluding that Aragon failed to establish that counsel's conduct contributed to the conviction.


    A. Counsel's Inexperience.

    Aragon's primary contention is that his trial counsel's inexperience in capital cases caused his counsel to be ineffective. Counsel's experience was limited to the trying of only one felony case involving the charge of a defendant's failure to appear. His experience otherwise had been in criminal misdemeanor trials as Blaine County's public defender since 1976. In representing Aragon he had some assistance by associate counsel Michael Donovan; Donovan, too, had never participated in a capital case.

    In support of his contention that counsel's inexperience denied him effective representation, Aragon argues that counsel's performance must be evaluated subjectively rather than objectively. "Counsel does not," so the argument goes, "read the Strickland decision to require an objective evaluation of trial counsel's performance." Appellant's Brief at 29. We are not persuaded. The dispositive facts upon which an ineffective assistance claim succeeds or fails centers on counsel's performance, not the level of his or her experience.

    Page 1178

    [114 Idaho 762] Furthermore, Strickland teaches that the defendant bears the burden of proof in showing that "counsel's representation fell below an objective standard of reasonableness." 104 S.Ct. at 2064 (emphasis added). Similarly, in Tucker, supra, this Court stated that the alleged errors of counsel, such as inadequate preparation or ignorance of relevant law, will be reviewed by an objective evaluation. 97 Idaho at 10, 539 P.2d at 562. Thus, it is of no more moment that counsel has fifty successful defenses to his credit than if counsel had never tried one capital case. Ineffective representation by a member of the bar of twenty year's experience is no less damning to the constitutional rights of the capital defendant than are the foibles of the attorney just out of law school. Accordingly, we decline to alter the objective approach of evaluation of ineffective assistance of counsel claims established in prior decisions as exemplified in Tucker and Strickland. 3

    B. Ineffective Assistance and the Right to Testify.

    The second assignment of error centers on the contention that each criminal defendant has a constitutional right to testify. Aragon submits that he was denied this constitutional right and therefore effective assistance of counsel because trial counsel alone made the decision not to testify, and because the trial court did not require Aragon to waive his right to testify on the record.

    Recently in Rock v. Arkansas, 482 U.S. ----, 107 S.Ct. 2704, 97 L.Ed.2d 37...

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