Campbell v. State, 86-125

• Decision Date: 21 November 1986
• Docket Number: No. 86-125,86-125
• Citation: 728 P.2d 628
• Parties: Larry CAMPBELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 628

728 P.2d 628

Larry CAMPBELL, Appellant (Defendant), v.The STATE of Wyoming, Appellee (Plaintiff).

No. 86-125.

Supreme Court of Wyoming.

Nov. 21, 1986.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender; Julie D. Naylor, Appellate Counsel; Howard J. Kushner, Cheyenne; Wyoming Defender Aid Program: Gerald M. Gallivan, Director, Laramie, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., S. Jane Caton, Asst. Atty. Gen., Cheyenne, for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Justice.

AppellantLarry Campbell was convicted after a jury trial of first degree sexual assault in violation of § 6-2-302(a)(i), W.S.1977(June 1983 Replacement), ¹ and sentenced to a term in the penitentiary.On appeal, appellant raises one issue:

"Whether defense counsel's failure to call witnesses in appellant's behalf denied appellant of effective assistance of counsel."

We will affirm.

On the evening of October 13, 1985, appellant went to the home where his girl friend, the victim, was baby sitting four girls.There, appellant struck the victim in front of the children.After the victim sent the children away appellant sexually assaulted her.

On January 23, 1986, appellant filed a pretrial memorandum which listed four witnesses whom he intended to call.Two of these witnesses were to testify about the relationship between appellant and the victim.The other two were to testify about this relationship, as well as the events which occurred on October 13, 1985.

Trial was held on February 3, 1986.The four children testified as to the events leading up to the sexual assault, as well as the events occurring thereafter.After the state rested their case, appellant chose not to testify and defense counsel called no witnesses.As noted earlier, the jury found appellant guilty of first degree sexual assault.

On appeal, appellant claims he was denied the right to effective assistance of counsel in violation of the Sixth Amendment of the United States ConstitutionandArt. 1, § 10 of the Wyoming Constitution.We have previously stated that we will construe these similar constitutional provisions together.

When reviewing the question of whether the assistance of counsel was effective, we use the standard of reasonableness.Frias v. State, Wyo., 722 P.2d 135(1986);andMunden v. State, Wyo., 698 P.2d 621(1985).To determine reasonableness, we look at trial counsel's acts or omissions in light of all the circumstances to determine if such acts or omissions fall outside the wide ambit of professionally competent assistance.Frias v. State, supra.

The burden rests upon an appellant to show the ineffective assistance of counsel.In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), reh. denied467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864(1984), the United States Supreme Court stated that in order for a convicted defendant to show that counsel's assistance was so defective as to require reversal, he must show two things:

" * * * First, the defendant must show that counsel's performance was deficient.This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.Second, the defendant must show that the deficient performance prejudiced the defense.This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

Appellant argues that " * * * his proposed witnesses could have testified to events and circumstances which would have raised doubt as to the credibility of the victim and the four children who testified against him.* * * " However, in appellant's motion for a new trial, he admitted that his witnesses would not be able to testify about "the actual crime incident."The only eye witnesses to the physical assault on the victim occurring before the sexual assault were the four children, who all testified.The victim testified also.

Since appellant's witnesses were not present during the assault, the only testimony they would have been able to offer concerned the relationship between appellant and the victim and events occurring before the assault.

At the hearing on appellant's motion for a new trial, the trial court pointed out that defense counsel knew of the prospective witnesses' testimony, and commented on trial strategy:

"I'm confident that Mr. O'Connell [defense counsel] knew those witnesses, and I assume from the fact that he listed them as willcall witnesses that he had investigated what they would testify about.

"The fact that for some reason later on you changed your minds and decided not to call them does not in my mind come up to ineffective assistance of counsel.

"There are a lot of--of calls that are made that are judgment calls and tactical calls during the course of a trial, which, in retrospect, you may decide would have been better called the other way, hindsight always being 20/20 and your 20/20 hindsight being the result of a conviction of a very serious felony.I certainly don't see that.

"Whatever Mr. O' Connell may have told you about testifying or not testifying, I recall that I emphasized to you very strongly that I...