Asch v. State

• Decision Date: 06 February 2003
• Docket Number: No. 00-128.,00-128.
• Citation: 62 P.3d 945,2003 WY 18
• Parties: David ASCH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

62 P.3d 945

2003 WY 18

David ASCH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-128.

Supreme Court of Wyoming.

February 6, 2003.

John M. Burman, Laramie, Diane E. Courselle, Director, Defender Aid Program; Kimberly A. Corey and Gay George, Student Interns, Representing Appellant.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; Jillian M. Bullock and Zachary T. Lee, Student Interns, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] A jury convicted David Asch (Asch) of possession of a felony amount of methamphetamine, in violation of Wyo. Stat. Ann. § 35-7-1031 (LexisNexis 2001). In this appeal, Asch contends that he received ineffective assistance of counsel, that the district court improperly instructed the jury after a witness refused to answer a question, and that he was denied his right to due process of law when he was forced to appear before the jury in shackles.

[¶ 2] We reverse.

ISSUES

[¶ 3] Six issues have been identified by the parties:

1. Was Asch's right to effective assistance of counsel violated as a result of a conflict of interest in his representation at the preliminary hearing?

2. Was Asch's right to effective assistance of counsel violated as a result of counsel's failure to obtain a copy of the preliminary hearing transcript and to undertake a reasonable investigation of the case?

3. Was Asch's right to effective assistance of counsel violated as a result of counsel's failure to ensure that Asch would be in street clothes during the trial?

4. Was Asch's right to effective assistance of counsel violated as a result of counsel's calling a witness who refused to answer a question and was held in contempt of court?

5. Did the district court abuse its discretion in instructing the jury that it could consider the witness's refusal to answer a question as bearing on her credibility?

6. Was Asch denied his right to due process of law as a result of his legs being shackled during the jury trial?

FACTS AND PROCEDURAL HISTORY

[¶ 4] At about 10:30 p.m., on September 2, 1999, in Casper, Asch was the front-seat passenger in a car being driven by Sheryl Sutton (Sutton). Casper Police Officer Andrew Swisher (Swisher) stopped the car for expired registration. In the process, Swisher observed Asch "making ... concealing movements" to the center and left of his seat. The denouement of the traffic stop was Sutton's arrest for possession of a marijuana pipe found under the passenger seat, and Asch's arrest for possession of seven grams of methamphetamine found between the front seats and for interference with a peace officer for having lied about his identity.

[¶ 5] At his initial appearance in county court (now referred to as circuit court) the following day, Asch requested appointment of counsel. An order was entered on September 9, 1999, appointing the State Public Defender to represent him. A preliminary hearing was set for September 13, 1999. The Notice and Order of Preliminary Hearing shows copies having been sent to "prosecutor" and "defense counsel," but neither is identified by name.

[¶ 6] The preliminary hearing took place at the time and date scheduled. However, Nadine McLeod (McLeod), the contract public defender assigned to represent Asch, did not appear. Instead, Asch was represented by Wilhelm Bierman (Bierman), the supervising attorney in the Casper office of the State Public Defender. Asch was bound over for trial in the district court.

[¶ 7] McLeod appeared with Asch at arraignment in the district court on November 9, 1999. Asch pled not guilty to the felony possession charge, but he pled guilty to the misdemeanor charge of interference with a peace officer. Sentencing on the misdemeanor charge was postponed pending completion of a presentence investigation report. The felony count was placed in the "trial stack;" it eventually was tried to a jury on February 22, 2000.

[¶ 8] The State called only two witnesses at trial—the arresting officer and an expert from the Wyoming State Crime Laboratory. Sutton was the only defense witness. Succinctly stated, Officer Swisher described the traffic stop and arrests, the expert identified the substance as methamphetamine, and Sutton testified that the methamphetamine belonged to her and not to Asch. On cross-examination, Sutton refused to identify the source of the methamphetamine, even in the face of the district court judge's direct order to do so. Proceedings were then had outside the presence of the jury, Sutton was found to be in direct contempt of court, and was sentenced to sixty days in jail. The jury was then brought back into the courtroom and the district court judge orally instructed them as follows:

Ladies and Gentlemen of the Jury, as you saw and heard, Ms. Sutton refused to answer the pending question that had been asked by the District Attorney's Office in this matter. I'm going to advise you that you can consider her refusal to answer that question in connection with your consideration of all other evidence and matters that may bear on her credibility and the credibility of her testimony before the Court.

[¶ 9] After the jury convicted Asch of the felony possession charge, the district court ordered the preparation of an addendum to the previously ordered pre-sentence investigation report. On March 28, 2000, Asch was sentenced to incarceration in the Wyoming State Penitentiary for a term of sixty to seventy-two months. Asch filed his Notice of Appeal with the district court on April 24, 2000.

[¶ 10] Development of the issues in this appeal has followed a tortuous path, at best. The appeal was docketed on May 18, 2000. Subsequently, five orders were entered extending the time for filing of briefs. The proceedings were also stayed while this Court considered Asch's motion for a limited remand for an evidentiary hearing on the issue of ineffective assistance of counsel. Well after oral argument, we granted Asch's earlier-filed motion for remand, not only to develop the evidence as to ineffective assistance of counsel, but also as to the shackling issue, which had not been raised in the initial appellate briefs. On remand, the district court held an evidentiary hearing and issued a decision letter finding, first, that Asch had failed to establish ineffective assistance of counsel, and second, that Asch had failed to prove that he was prejudiced by having been shackled during the trial. The case was then returned to this Court, where we allowed supplemental briefing. The briefs were filed in June and July of 2002. Further oral argument was not allowed, but the case was "reconferenced" on August 13, 2002.

DISCUSSION

Was Asch's right to effective assistance of counsel violated as a result of a conflict of interest in his representation at the preliminary hearing?

[¶ 11] Claims of ineffective assistance of counsel are reviewed under the following standard:

"Wyoming has a well-established and oft-repeated standard for reviewing claims of ineffective assistance of counsel:

`When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 793, 796 (Wyo. 1995); Starr v. State, 888 P.2d 1262, 1266-67 (Wyo.1995); Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Frias v. State, 722 P.2d 135, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Herdt, at 796; Starr, at 1266; Arner, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).

Under the two-prong standard articulated in Strickland and Frias, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to "render such assistance as would have been offered by a reasonably competent attorney" and that "counsel's deficiency prejudiced the defense of [the] case." Lower v. State, 786 P.2d 346, 349 (Wyo.1990). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.'

Chapman v. State, 2001 WY 25, ¶ 6, 18 P.3d 1164, 1168-69 (Wyo.2001) (quoting Grainey v. State, 997 P.2d 1035, 1038-39 (Wyo.2000)

)."

Becker v. State, 2002 WY 126, ¶ 12, 53 P.3d 94, 98-99 (Wyo.2002) (quoting Reyna v. State, 2001 WY 105, ¶ 19, 33 P.3d 1129, 1134-35 (Wyo.2001)

). An appellant bears the burden of proving that counsel was ineffective. Barkell v. State, 2002 WY 153, ¶ 10, 55 P.3d 1239, 1242 (Wyo.2002).

[¶ 12] The State does not contest Asch's assertion that the preliminary hearing is a critical stage in the criminal proceedings at which a defendant has a constitutional right to the assistance of counsel. See Davila v. State, 831 P.2d 204, 214 (Wyo.1992) (Urbigkit, C.J., dissenting)

; Auclair v. State, 660 P.2d 1156, 1160 (Wyo.),

cert. denied, 464 U.S. 909, 104 S.Ct. 265, 78 L.Ed.2d 249 (1983); and Hurst v. State, 563 P.2d 232, 235 (Wyo. 1977). In turn, Asch does not base his argument on the "failure" of his assigned counsel to appear at the...