Barkell v. State, 00-223.

• Decision Date: 16 October 2002
• Docket Number: No. 00-223.,00-223.
• Citation: 2002 WY 153,55 P.3d 1239
• Parties: Gerald P. BARKELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Defendant).
• Court: Wyoming Supreme Court

55 P.3d 1239

2002 WY 153

Gerald P. BARKELL, Appellant (Defendant), v.The STATE of Wyoming, Appellee (Defendant).

No. 00-223.

Supreme Court of Wyoming.

October 16, 2002.

Kenneth Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Assistant Appellate Counsel; Diane E. Courselle, Director, Sean Minahan, Student Intern, and Kirk Morgan, Student Intern, of the Wyoming Defender Aid Program, Representing Appellant.Argument by Mr. Morgan.

Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; T. Alan Elrod, Assistant Attorney General, Representing Appellee.Argument by Mr. Elrod.

Before HILL, C.J., and GOLDEN, LEHMAN¹, KITE, and VOIGT, JJ.

GOLDEN, Justice.

[¶ 1] On January 25, 2000, a jury convicted Gerald P. Barkell(Barkell) of two counts of third degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-304(a)(ii)(LexisNexis 2001).On appeal, Barkell challenges his convictions based on the alleged ineffectiveness of his trial counsel.We find that Barkell has not overcome the strong presumption that his counsel rendered adequate assistance and affirm his convictions.

ISSUES

[¶ 2] Barkell states the issues as follows:

I.Did [trial counsel's] failure to conduct an adequate investigation, failure to effectively examine witnesses at trial, and general lack of understanding of controlling principals [sic] of law, deny Mr. Barkell his constitutional right to effective assistance of counsel under the 6th Amendment of the United States Constitution and under Article 1, § 10 of the Wyoming Constitution?

II.Did this Court effectively deny Mr. Barkell the right to due process and a meaningful appeal by denying Mr. Barkell the opportunity to supplement the trial record in his attempt to prove his appellate claim of ineffective assistance of trial counsel?

The State puts the issues as follows:

I.Did Appellant receive effective assistance of counsel?

II.Should this Court refuse to consider Appellant's improper, second issue?

FACTS

[¶ 3] Barkell was charged with two counts of third degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-304(a)(ii).The charges were based on allegations by Barkell's stepdaughter, BV, that on successive nights in early July 1999, Barkell forced her to shower with him, to lie naked with him, to rub lotion on him and allow him to do the same to her, and to touch his genitals and allow him to do the same to her.BV was ten years old at the time.

[¶ 4] The morning after the second incident, BV told her mother about the allegations.Her mother took her immediately to the Safe House shelter in Cheyenne and called the police.A detective from the Laramie County Sheriff's Department interviewed BV and her mother at the shelter.BV told the detective that Barkell first offered her money to shower with him and, when she refused, used physical force to disrobe her and force her into the shower.

[¶ 5] Mr. Barkell was arrested in July 1999, and a public defender was appointed for him.A replacement public defender entered his appearance on October 26, 1999.Following a continuance at Barkell's request, he was tried on January 24 and 25, 2000.The jury returned guilty verdicts on two counts of third degree sexual assault, and Barkell received consecutive sentences of five to seven years on each count.

[¶ 6] At trial, the State's witnesses included BV's mother, a child psychologist, BV, and the investigating detective.BV's mother testified about her daughter's allegations and about behavioral problems she had observed in her daughter before learning of those allegations.The psychologist testified regarding behavioral patterns commonly seen in child victims of sexual assault.The detective testified regarding his interviews with BV and her mother, as well as his investigation of the crime scene.

[¶ 7] Barkell's defense at trial was based on the lack of corroborating physical evidence and on BV's alleged motivation to fabricate the allegations of sexual assault in retaliation for Barkell's efforts to discipline her more strictly than did her mother.In support of the latter argument, he presented three witnesses to testify regarding BV's reputation for dishonesty.Barkell did not testify.

[¶ 8] On appeal to this Court, Barkell previously filed a motion and brief requesting a limited remand to develop evidence of trial counsel's ineffectiveness.That motion was denied.

STANDARD OF REVIEW

[¶ 9]We recently reaffirmed our standard for reviewing claims of ineffective assistance of counsel in Becker v. State,2002 WY 126, ¶ 12, 53 P.3d 94, ¶ 12(Wyo.2002), andChapman v. State,2001 WY 25, ¶ 6, 18 P.3d 1164, ¶ 6(Wyo.2001).Those cases approve the standard articulated in Jackson v. State,902 P.2d 1292, 1295(Wyo.1995), and applied in Grainey v. State,997 P.2d 1035, 1038-39(Wyo.2000):

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 on as having produced a just result."Strickland,466 U.S. at 686, 104 S.Ct. at 2064.

[¶ 10] The burden of proving that counsel was ineffective therefore rests entirely on the Appellant.Sorenson v. State,6 P.3d 657, 660(Wyo.2000), cert. denied,531 U.S. 1093, 121 S.Ct. 818, 148 L.Ed.2d 702(2001).

DISCUSSION

[¶ 11] In connection with his first issue, Barkell asserts three general categories of ineffective assistance by trial counsel: 1) failure to adequately prepare for trial; 2) failure to present proper witnesses and evidence at trial; and, 3) unfamiliarity with trial practice rules and standards.He cites nine particulars of alleged ineffective assistance, which we will discuss in the order presented.As to each, we begin with a presumption that counsel rendered adequate representation unless Barkell demonstrates on the record that counsel's performance was deficient and that prejudice resulted.Becker,¶¶ 16, 17.

Failure to present testimony of BV's counselors

[¶ 12] Testimony at trial indicated that BV had been in counseling before the incidents that led to the charges against Barkell.Barkell alleges that trial counsel failed to investigate "possible evidence" that the victim's counselors "may have been able to reveal."He makes the assumption that, because BV was in counseling, there may be evidence in her counseling records to support his defense theory that she was either dishonest or motivated to fabricate the allegations of sexual assault.

[¶ 13]We have often said that a defendant does not meet his burden to show his counsel's performance was deficient by mere speculation or equivocal inferences as to potential witnesses and testimony that could have been called at trial.Grainey,997 P.2d at 1039-40;Cutbirth v. State,751 P.2d 1257, 1266(Wyo.1988)."[The listing] of possible witnesses along with vague statements of the testimony they might provide ... falls far short of a presentation of the facts about which the proposed witnesses would have testified that is necessary to overcome the strong presumption that the failure to call these witnesses was a strategic trial decision."Eustice v. State,11 P.3d 897, 904-05(Wyo.2000).

[¶ 14] Because Barkell does not identify any specific testimony or evidence that the counselors would have offered, the presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment is not rebutted, and it is therefore not necessary to address the second prong of the Strickland test.

Failure to Consult with or Call an Expert

[¶ 15] At trial, Barkell's counsel vigorously cross examined the State's expert witness, a child psychologist, but did not call a second expert to testify on behalf of defendant.Barkell assumes from this that his counsel did not consult with an expert or consider the possibility of calling a defense expert, and that such failure constitutes ineffective assistance.

[¶ 16] In McCoy v. State,886 P.2d 252, 256(Wyo.1994), we recognized that failure to call an expert witness may constitute ineffective assistance of counsel.However, in Bloomquist v. State,914 P.2d 812(Wyo.1996), we also stated that "the defendant must show that such expert testimony was available and necessary" and that "[a]ppellant must show that an expert was available who would have testified consistently with his theory."Id....