Dickeson v. State, 91-105

• Decision Date: 11 December 1992
• Docket Number: No. 91-105,91-105
• Citation: 843 P.2d 606
• Parties: Elizabeth DICKESON, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 606

843 P.2d 606

Elizabeth DICKESON, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 91-105.

Supreme Court of Wyoming.

Dec. 11, 1992.

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, David Gosar, Appellate Counsel, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., and Michael K. Kelly, Asst. Atty. Gen., for appellee.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

THOMAS, Justice.

The dispositive issue in this case is whether Elizabeth Dickeson (Dickeson) was denied the effective assistance of counsel at her trial. This issue was not raised in the trial court and, of course, there is no ruling by the trial court on this claim. Other issues are identified and argued relating to the suppression of statements made by Dickeson following the seizure of her diary; the sufficiency of the evidence to sustain a conviction; and the deprivation of a fair trial because of a plethora of evidentiary errors. We conclude that the record in this case demonstrates that Dickeson did not receive effective assistance from her attorney in the trial court as required by both the Wyoming and federal constitutions. We reverse her conviction and remand the case for a new trial. Because of the premise for our decision, we do not consider the other claims of error presented, assuming they will not recur in the trial court.

In her Brief of the Appellant, Dickeson states the issues to be:

I. Should the statements made by the appellant following the illegal seizure of her diary have been suppressed?

II. Is the verdict supported by sufficient evidence?

III. Was the appellant deprived of a fair trial because of the many evidentiary errors that occurred during the trial?

IV. Was the appellant denied the effective assistance of counsel?

The State of Wyoming restates those issues, in the Brief of Appellee, as follows:

I. Can appellant now object to the seizure of her diary when no motion to suppress the seizure was made prior to trial and no objection was made at trial?

II. Did sufficient evidentiary errors occur such that the cumulative effect can be said to have denied appellant her right to a fair trial?

III. Whether trial counsel's representation of appellant was deficient?

IV. Was there sufficient evidence to support the verdict?

Dickeson was found guilty by a jury of a charge of arson in the first degree in violation of Wyo.Stat. § 6-3-101 (1988). ¹ Dickeson then was sentenced to a term of not less than four, nor more than six, years to be served in the Wyoming Women's Center. The sentence was made to run consecutively to sentences for two counts of credit card fraud imposed in another case. Dickeson appeals from that portion of the judgment and sentence relating to the conviction for arson in the first degree.

The arson charge alleged setting a fire discovered in the storeroom of Noland Feed, Inc. in Casper, Wyoming on August 9, 1989. Kathy Flowers (Flowers), a store employee and the daughter of the owners, reported she arrived at work at 7:30 A.M. with her three children, ages one, three and five, and began to work on the firm's books. She testified there were three other employees at the store that morning, two of whom were working in the warehouse, and one who was working at the front counter. The Flowers children went into the storeroom about 8:30 A.M. to get some popsicles and, from that time on, the children were either with Flowers or with her brother, one of the other employees, for the rest of the morning.

Flowers observed only two customers, a male and a female, who entered the store that morning prior to the fire. She did not know either of those customers, but the male customer reported the fire, and the female customer later was identified by Flowers as Dickeson. Dickeson entered the store between 9:30 and 9:45 A.M., and Flowers looked at her for approximately twenty to thirty seconds. Flowers was unable to tell where the person she identified as Dickeson was going in the store. After finishing a deposit she had been working on, Flowers attempted to find the female customer to determine if she needed any assistance. She was unable to find her, and she then gathered up her children and returned to the store area so her son could try on some boots. As they were engaged in trying the boots on the son, the male customer ran in and said they had a fire. Flowers ran to the warehouse to alert her brother, called the fire department, and took her children outside. Two of the employees successfully extinguished the fire before the arrival of the fire department personnel.

After a photographic identification of Dickeson by Flowers, an officer and a detective approached Dickeson at her place of employment, the El Diablo Supper Club in Glenrock, on February 8, 1990. The officer testified Dickeson agreed to accompany the investigators to the Casper police department building for questioning. When Dickeson attempted to leave her purse behind, locked in her car, the officer advised her to bring her purse, and then insisted that she do so.

Upon arrival at the Casper police department building, Dickeson was read her Miranda rights, and she then was questioned for approximately three hours concerning the arson charge and an unrelated offense she also was suspected of committing. Dickeson first denied being in Casper on August 9, 1989 but, after she was confronted with an entry from the diary she carried in her purse, she changed her story. It is important to note that, during the course of the interview, the investigating officer took her diary, and it was at his suggestion that she refreshed her recollection from the diary. Upon refreshing her memory, Dickeson admitted that at 9:30 A.M., on August 9, 1989, she had an interview at the Casper Job Service. The statement based upon the entry in the diary was the only evidence, other than Flowers' identification, placing Dickeson in Casper on the day of the fire. When Dickeson testified at trial, she denied going to the Noland Feed store August 9, 1989, and she also denied setting the fire. The inconsistency in her stories was used for impeachment purposes at trial.

At the conclusion of the three-hour interview, Dickeson was arrested on the charge of first-degree arson. A criminal complaint was filed along with an affidavit from the arresting officer, and a criminal arrest warrant was obtained for Dickeson. On February 14, 1990, an assistant public defender was appointed as counsel for Dickeson, but that attorney withdrew on April 18, 1990, and a privately employed attorney entered his appearance as counsel. Dickeson's trial began on December 3, 1990 and, after two days, the jury returned the verdict of guilty of the charge of arson in the first degree.

With respect to the primary and dispositive issue, the denial of the effective assistance of counsel, Dickeson argues she did not receive effective assistance prior to and during her trial and, therefore, her conviction was not constitutionally obtained. The right of a criminal defendant to the assistance of counsel is guaranteed by the Sixth Amendment of the Constitution of the United States, ² made applicable to the states through the Fourteenth Amendment, and by Wyo. Const. art. 1, § 10. ³

The concept of "effective" counsel was articulated by the Supreme Court of the United States in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). In that case, the court held the mere assignment of counsel does not meet the constitutional mandate, but the counsel must provide effective assistance in the preparation of the case for trial. The standard with respect to effective assistance of counsel requires the criminal defense to satisfy two criteria:

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.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).

We adopted this standard in Frias v. State, 722 P.2d 135 (Wyo.1986). See also, Barron v. State, 819 P.2d 412 (Wyo.1991); Engberg v. Meyer, 820 P.2d 70 (Wyo.1991); Gist v. State, 737 P.2d 336 (Wyo.1987), appeal after remand, 766 P.2d 1149 (Wyo.1988).

We examine the conduct of defense counsel in light of all the circumstances in determining whether the identified acts or omissions fall outside the ambit of professionally competent assistance, bearing in mind the function of counsel is to make the adversarial testing process work in every case. Strickland; Gist. We do not evaluate the efforts of counsel from a perspective of hindsight but, rather, we endeavor to reconstruct the circumstances surrounding counsel's challenged conduct and evaluate the professional efforts from the perspective of counsel at the time. Strickland. "We invoke a strong presumption that counsel rendered adequate and reasonable assistance making all decisions within the bounds of reasonable professional judgment." Gist, 737 P.2d at 342 (citations omitted). The burden is upon the defendant to overcome this presumption that, in light of the circumstances, the challenged action or failure of the attorney might be considered sound trial strategy. Strickland.

We heretofore have reversed convictions in four criminal cases because of the ineffective assistance of counsel. In King v. State,...