Barker v. State, 03-85.

• Decision Date: 17 February 2005
• Docket Number: No. 03-85.,03-85.
• Citation: 106 P.3d 297,2005 WY 20
• Parties: James BARKER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

106 P.3d 297

2005 WY 20

James BARKER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-85.

Supreme Court of Wyoming.

February 17, 2005.

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Diane E. Courselle, Director, Elizabeth B. Lance, Student Director, and Rocky Vroman, Student Intern, of the Wyoming Defender Aid Program. Argument by Mr. Vroman.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.

Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and JAMES, D.J.

GOLDEN, Justice.

[¶ 1] After filing his notice of appeal, James Barker filed a motion for limited remand for the purpose of developing the record on his ineffective assistance of counsel claims. This Court granted Barker's motion. After a hearing, the trial court held that Barker's trial counsel rendered effective representation. Because the trial court unduly limited the evidence Barker was allowed to present at the remand hearing, we reverse the finding of the trial court that defense counsel was effective and remand for the limited purpose of allowing Barker to fully develop the record on the issues of pretrial investigation and the circumstances surrounding Barker's waiver of his right to testify at his criminal trial.

ISSUES

[¶ 2] Barker presents the following four issues on appeal:

I. Was Mr. Barker denied his right to testify when the judge declined to allow a continuance and refused defense counsels' request to re-open the bench trial, so that Mr. Barker could testify unimpaired by illness?

II. Was Mr. Barker denied his constitutional right to proper notice which prevented him from effectively defending against the charges?

III. Was Mr. Barker prejudiced when the prosecution presented evidence of uncharged misconduct that was irrelevant to the charged offenses and should have been inadmissible under W.R.E. 404(b)?

IV. Was Mr. Barker denied his constitutional right to effective assistance of trial counsel; in the alternative, was Mr. Barker deprived of the opportunity to fully develop the record for review of his ineffectiveness claim?

This Court will only address Issue IV since it is dispositive of the appeal at this juncture.

FACTS

[¶ 3] Only limited facts are needed for the resolution of the appeal as it currently presents. After a bench trial, James Barker was convicted of one count of grand larceny by a bailee. The charge stemmed from allegations that Barker converted certain computer equipment from his then employer, Computer Professionals Unlimited (CPU). Barker's defense theory was that the computer equipment at issue was rightfully in his possession, alleging he had either purchased the equipment or the equipment was on authorized loan from CPU. Barker alleges he could prove his defense theory through certain business documents regarding the items in question and through his own testimony. At the bench trial, only limited documentation was available, and Barker did not testify.

[¶ 4] After filing his notice of appeal, Barker filed a motion for limited remand with this Court in order to develop his claims of ineffective assistance of counsel. His allegations of ineffectiveness revolved around two issues: defense counsel's failure to properly pursue documentary evidence that Barker had informed them was necessary to his defense; and defense counsel's failure to appropriately protect his right to testify at his criminal trial.

[¶ 5] In his motion for a limited remand, Barker alleged that, before his criminal trial, Barker instructed his defense counsel to obtain certain documents that were in the possession of either CPU or the State. Although his defense counsel requested at least eight categories of documents in discovery, the documents allegedly were never supplied in full and defense counsel never completely pursued compelling the production of the documents in question before trial.

[¶ 6] Further, Barker did not testify at his criminal trial. Barker alleges he was suffering from complications from diabetes and lacked the requisite mental coherence to effectively testify when it was time for him to testify. Defense counsel, however, never asked for a continuance on the record. Defense counsel spoke to the trial court off the record, indicating that Barker was not feeling well. The trial court told defense counsel that they should submit medical proof of Mr. Barker's allegedly impaired condition if they were going to officially seek a continuance on that ground. Defense counsel did not obtain any medical evidence or in any other manner attempt to protect Barker's right to testify.

[¶ 7] Ultimately, Barker waived his right to testify at his criminal trial. Barker alleges that his waiver was the result of his defense counsel not formally attempting to seek a continuance or in any other way attempting to preserve his right to testify. Barker alleges that, since his entire trial strategy had always been for him to testify in order to refute the allegations made by his former employer, his failure to testify ultimately led to his being denied the right to present a complete defense.

[¶ 8] This Court concluded that the evidence proffered in Barker's motion for limited remand, if credible, was sufficient to demonstrate a reasonable likelihood that Barker's claims of ineffective assistance of counsel would ultimately succeed on the merits. Thus, because in his motion for limited remand Barker alleged an appropriate specific factual basis, the case merited a remand for the limited purpose of allowing Barker to develop the record with regard to his ineffective assistance of counsel claims. Upon remand, however, the trial court limited the documentary evidence Barker's appellate counsel could seek through discovery and could introduce into evidence at the hearing. The trial court also determined that no evidence regarding the actions of trial counsel in relation to protecting Barker's right to testify in his own behalf would be allowed since the trial court had previously determined in response to a motion for a new trial that Barker voluntarily and independently waived his right to testify. At the close of the hearing on remand, the trial court determined that Barker had not proven defense counsel had been ineffective.

STANDARD OF REVIEW

[¶ 9] This Court has addressed the appropriate standard of review of an evidentiary hearing regarding ineffectiveness of counsel in Robinson v. State, 2003 WY 32, 64 P.3d 743 (Wyo.2003). In Robinson, this Court concluded that the appropriate standard of appellate review of a trial court's determination that defense counsel was effective is:

Where the trial court has heard and decided the issue, we will not disturb that court's findings of fact unless they are clearly erroneous or against the great weight of the evidence. We will, on the other hand, conduct a de novo review of the trial court's conclusions of law, which include the question of whether counsel's conduct was deficient and the question of whether the appellant was prejudiced by that deficient conduct.

Id. at ¶ 16.

[¶ 10] Evidentiary issues are reviewed for abuse of discretion.

We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Griswold v. State, 2001 WY 14, ¶ 7, 17 P.3d 728, ¶ 7 (Wyo.2001). Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Id."In the absence of an abuse of discretion, we will not disturb the trial court's determination." Id. The burden is on the defendant to establish such abuse.

Seward v. State, 2003 WY 116, ¶ 13, 76 P.3d 805, ¶ 13 (Wyo.2003). See also Hannon v. State, 2004 WY 8, ¶ 13, 84 P.3d 320,

¶ 13 (Wyo.2004).

DISCUSSION

[¶ 11] The order of this Court remanding the case for an evidentiary ruling stated simply that Barker's motion for limited remand was granted. Barker's motion would not have been granted if it did not meet the requirements of this Court:

[P]artial remand for a criminal appellant to obtain an ineffectiveness of counsel hearing will only be granted (a) when the contention of ineffectiveness specifies acts or conduct which could properly be considered to allege ineffectiveness within the text of the motion, and (b) factual information is provided by citation to the record, affidavit or otherwise sufficient documentation for this court to perceive something more definite than conjecture as an unsupported assertion. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Hornecker v. State, 977 P.2d 1289, 1291 (Wyo.1999). By ordering the limited remand, this Court, with the record extant at its disposal, determined that Barker's proffer of evidence in his motion for limited remand presented claims of arguable merit; that the claims were neither facially insufficient nor conclusively refuted by the record.

[¶ 12] In his motion for limited remand, Barker requested he be allowed to develop the record in regard to alleged ineffectiveness of defense counsel in regard to two claims. The first was the failure of defense counsel to obtain documentary...