Cook v. State

• Decision Date: 02 September 2014
• Docket Number: No. 41449.,41449.
• Citation: 339 P.3d 1179,157 Idaho 775
• Court: Idaho Court of Appeals
• Parties: Sean M. COOK, Petitioner–Respondent, v. STATE of Idaho, Respondent–Appellant.

157 Idaho 775

339 P.3d 1179

Sean M. COOK, Petitioner–Respondent,

v.STATE of Idaho, Respondent–Appellant.

No. 41449.

Court of Appeals of Idaho.

Sept. 2, 2014.

Review Denied Jan. 9, 2014.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.

Daniel G. Cooper, Coeur d'Alene, for respondent.

MELANSON, Judge.

The state appeals from the district court's judgment granting Sean M. Cook's petition for post-conviction relief. For the reasons set forth below, we vacate the judgment.

I.FACTS AND PROCEDURE

In the underlying criminal case, a jury found Cook guilty of rape, I.C. § 18–6101. The district court sentenced Cook to a unified term of thirty years, with a minimum period of confinement of ten years. The district court granted Cook's subsequent I.C.R. 35 motion, reducing his sentence to a unified term of twenty years, with a minimum period of confinement of ten years. Cook then appealed from the judgment of conviction and this Court affirmed in an unpublished opinion. See State v. Cook, Docket No. 36145, 2010 WL 9589740 (Ct.App. Nov. 22, 2010).¹

Cook filed a petition for post-conviction relief, asserting several claims of ineffective assistance of counsel and prosecutorial misconduct. The district court summarily dismissed several of the claims, but held an evidentiary hearing on two of Cook's ineffective assistance of counsel claims. Specifically, Cook alleged that his trial counsel was ineffective for failing to object to the admission of testimony that Cook had threatened a witness's family and testimony regarding the victim's out-of-court statements. An experienced defense attorney testified as an expert witness for Cook, asserting that Cook's trial counsel had provided ineffective assistance that affected the outcome of the trial. Cook's trial counsel testified for the state, offering his trial strategy in declining to object to admission of the disputed testimony. Following the hearing, the district court determined that Cook's trial counsel was ineffective for failing to object to both instances of disputed testimony because both were likely inadmissible and there was a reasonable probability that the outcome of the trial would have been different had the testimony been excluded. As a result, the district court granted Cook's petition for post-conviction relief, vacated Cook's judgment of conviction, and ordered a new trial. The state appeals.

II.STANDARD OF REVIEW

In order to prevail in a post-conviction proceeding, the petitioner must prove the allegations by a preponderance of the evidence. I.C. § 19–4907 ; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990). When reviewing a decision granting post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a) ; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct.App.1988). We exercise free review of the district court's application of the relevant law to the facts. Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct.App.1992).

III.ANALYSIS

The state argues that the district court erred in determining that Cook's trial counsel was ineffective for failing to object to admission of the disputed testimony. Specifically, the state asserts that the district court failed to use the proper legal analysis for both claims in that it did not find that the strategic decisions not to object were the result of inadequate preparation, ignorance of the law, or other shortcoming capable of objective review.

A claim of ineffective assistance of counsel may properly be brought under the post- conviction procedure act. Murray v. State, 121 Idaho 918, 924–25, 828 P.2d 1323, 1329–30 (Ct.App.1992). To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney's performance was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 2064–65, 80 L.Ed.2d 674, 693–94 (1984) ; Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995). To establish a deficiency, the petitioner has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687–88, 104 S.Ct. at 2064–65, 80 L.Ed.2d at 693–94 ; Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the petitioner must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697–98 ; Aragon, 114 Idaho at 761, 760 P.2d at 1177. We have long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. State v. Dunlap, 155 Idaho 345, 383, 313 P.3d 1, 39 (2013) ; Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct.App.1994). Indeed, there is a strong presumption that trial counsel was competent and that trial tactics were based on sound legal strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694–95 ; Dunlap v. State, 141 Idaho 50, 58–59, 106 P.3d 376, 384–85 (2004).

The district court granted Cook's petition for post-conviction relief based on his claims of ineffective assistance of counsel arising from his trial counsel's decision not to object to testimony concerning alleged threats against a witness's family and the victim's out-of-court statements. Trial counsel's lack of objection to testimony falls within the area of tactical, or strategic, decisions. Giles v. State, 125 Idaho 921, 924, 877 P.2d 365, 368 (1994) ; State v. Chapman, 120 Idaho 466, 469, 816 P.2d 1023, 1026 (Ct.App.1991). Thus, Cook's trial counsel's decision not to object may not be second-guessed unless Cook presents evidence indicating that the decision was based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. See Dunlap, 155 Idaho at 383, 313 P.3d at 39 ; Howard, 126 Idaho at 233, 880 P.2d at 263. In this case, there has been no allegation or evidence of inadequate preparation; instead, the district court determined that, because the evidence was likely inadmissible, there was no sound strategic basis for failing to object and the decision must have resulted from ignorance of relevant evidentiary law.

Effective legal representation does not require that an attorney object to admissible evidence. State v. Aspeytia, 130 Idaho 12, 15, 936 P.2d 210, 213 (Ct.App.1997). Indeed, if evidence is arguably admissible, and the trial court could have properly allowed the evidence even if counsel had objected, the counsel's performance generally will not be objectively deficient. See State v. Higgins, 122 Idaho 590, 602–03, 836 P.2d 536, 548–49 (1992) (noting that many of trial counsel's alleged errors in failing to object involved evidence that was arguably admissible and that the decision not to object may have reflected a conscious trial strategy to avoid frequent overruling by the judge and annoyance of the jury). Thus, the standard for deficient performance when dealing with a failure to object is not whether the testimony could have been excluded, but whether the testimony could have been properly admitted. See id. Failing to object to arguably inadmissible testimony will generally be insufficient to overcome the presumption that the decision was based on sound legal strategy. See Storm v. State, 112 Idaho 718, 722, 735 P.2d 1029, 1033 (1987) (agreeing with a district court's rejection of allegations of ineffective assistance of trial counsel as a result of failure to object to allegedly inadmissible statements because there was no allegation or evidence that the attorney was ignorant of the law or inadequately prepared concerning the issue). If the testimony could not have been properly admitted, then it can be reasonably inferred, absent evidence to the contrary, that the attorney's failure to object was the product of ignorance of the relevant law governing admissibility of the testimony. See Aspeytia, 130 Idaho at 18, 936 P.2d at 216. Accordingly, in order to determine if counsel's failure to object fell below an objectively reasonable standard of performance, we must first determine whether the testimony could have properly been admitted without error by the trial court. See State v. Yakovac, 145 Idaho 437, 445, 180 P.3d 476, 484 (2008) ; Aspeytia, 130 Idaho at 15, 936 P.2d at 213.

A. Testimony Regarding Witness Intimidation

Cook alleged in his petition that his trial counsel was ineffective for failing to object to testimony from Cook's former cellmate regarding threats Cook allegedly made against the cellmate's family. Specifically, Cook asserted that the marginal probative value of the threat testimony was substantially outweighed by the prejudicial effect.

At the preliminary hearing, Cook's cellmate testified that he had not talked to the police regarding Cook's statements to him and provided few details as to what Cook told him regarding the rape. At trial, however, the cellmate testified in more detail regarding Cook's confession to him, specifying that Cook said he had forced the victim to have sex with him by pushing her onto the bed in the hotel room and holding her down with his elbow on the back of her neck. During direct examination, the state asked the cellmate to explain the inconsistency between his preliminary hearing and trial testimony....