Eustice v. State

Decision Date05 October 2000
Docket NumberNo. 99-237.,99-237.
Citation11 P.3d 897
PartiesMichael T. EUSTICE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Defendant).
CourtWyoming Supreme Court

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina M. Hughes, Assistant Appellate Counsel. Argument presented by Ms. Hughes.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Senior Assistant Attorney General. Argument presented by Ms. Cooley.

Before LEHMAN, C.J., and THOMAS, MACY1, GOLDEN, and HILL, JJ.

HILL, Justice.

Michael Eustice (Appellant) appeals his conviction for aggravated assault and battery alleging that his trial counsel failed to provide effective assistance of counsel. Appellant also claims that the jury's observation of him in restraints resulted in prejudice, and that the jury improperly considered punishment in reaching its verdict. We do not find any deficiency in counsel's performance or any other error and affirm Appellant's conviction.

Appellant presents six issues:

1. Did Appellant's pretrial counsel's failure to adequately and timely explain the offered plea bargain to Appellant constitute ineffective assistance of counsel?
2. Did the failure of Appellant's trial counsel to object to repeated hearsay, failure to offer an opening statement, and failure to object to improper closing argument and request a mistrial constitute ineffective assistance of counsel?
3. Did the failure of Appellant's trial counsel to interview and call witnesses at trial in Appellant's defense constitute ineffective assistance of counsel?
4. Did the jury's view of Appellant in handcuffs and shackles during deliberations prejudice Appellant, and result in reversible error?
5. Did the failure of Appellant's trial counsel to request a mistrial after the jury viewed Appellant in handcuffs and shackles constitute ineffective assistance of counsel?
6. Was the jury's consideration during deliberations of possible sentences and punishment reversible error?

The State responds with these issues:

I. There is no evidence in the record that the jury considered matters extrinsic to the evidence in reaching a verdict. However, even if there was such evidence in the record, there is no evidence of prejudice requiring reversal.
1. There is no evidence the jury saw Appellant in restraints. Even if it had, there is no evidence of prejudice and thus, no reversible error.
2. There is no evidence the jury considered punishment or sentences in reaching a verdict. Even if it did, there is no evidence of prejudice and thus, no reversible error.
II. Appellant was not denied effective assistance of counsel.
1. Appellant was adequately and timely notified of the offered plea agreement and declined the same.
2. Appellant's counsel was not ineffective in failing to object to hearsay testimony.
3. Appellant's counsel was not ineffective in waiving opening statements.
4. Appellant's counsel was not ineffective in failing to object to allegedly improper closing argument.
5. Appellant's counsel was not ineffective in failing to interview and call witnesses at trial.
6. Appellant's counsel was not ineffective in failing to request a mistrial after the jury allegedly viewed Appellant in restraints.
FACTS

On the evening of September 22, 1998, the victim was leaving the Lakeside Bar in Gillette, Wyoming, when she encountered Appellant, her "on-again/off-again" boyfriend, driving into the bar's parking lot. Appellant became angry with the victim when she denied having any drugs in her possession. Appellant followed the victim to her car, where he savagely assaulted her. The victim sustained numerous bruises on her arms, legs, back, and face. In addition, she suffered a basal skull fracture when Appellant slammed the back of her head into the car window at least three times. After leaving the victim unconscious in her vehicle, Appellant went into the bar. Appellant was subsequently arrested and charged with aggravated assault and battery.2

A jury trial was held April 19 through April 21, 1999. The jury returned a verdict of guilty, and Appellant was sentenced to a term of not less than 100 months and not more than 120 months in the Wyoming State Penitentiary. On appeal, Appellant challenges the performance of his trial counsel and alleges that he was prejudiced when the jury observed him in restraints and when it considered the punishments associated with the crime charged and the lesser-included offense of simple battery in reaching its verdict. Additional facts related to the issues raised by Appellant in this appeal will be further developed in the discussion below.

DISCUSSION
A. Jury observation of Appellant in restraints.

Appellant alleges that the jury observed him in restraints, and that this prejudiced the jury against him. At the time of the alleged incident, Appellant was being taken back into the courtroom because the jury, which was in deliberations, had sent a note to the judge asking what the punishments were for aggravated assault and battery and for simple battery. Appellant claims that, as he was being transported to the courtroom, several jurors saw him in restraints, and that one juror even made eye contact with him. The jury returned its verdict before the court returned an answer to their question. Appellant alleges that the sight of him in restraints created a perception that he was a dangerous individual and, hence, was the precipitating factor leading to the jury's decision.

Jurors' observation of a handcuffed or restrained defendant does not constitute grounds for a mistrial based on a fundamental constitutional error absent a showing of prejudice. Smith v. State, 773 P.2d 139, 141 (Wyo.1989). A brief or incidental viewing by the jury of the defendant in restraints is not necessarily prejudicial; a defendant must make some showing of actual prejudice. Id.

Assuming that Appellant's characterization of the incident is true, he has failed to make a showing of actual prejudice. First, the viewing was brief and incidental in nature, apparently occurring while Appellant was being escorted into the courtroom. Second, the record shows that about 24 minutes elapsed from when the parties concluded the conference on the reply to the jurors' question and when the jury informed the court that it had reached a verdict. It is extremely unlikely that the jury could have observed Appellant in restraints, returned to the deliberation room, discussed the incident, and made a determination that simply because Appellant was in restraints he must be dangerous and that all of the jury instructions and two days of trial evidence should be ignored in order to reach a conviction solely on that basis—all in less than 24 minutes. Appellant is merely engaging in speculation and has fallen far short of demonstrating any actual prejudice.

B. Jury consideration of punishment in reaching verdict.

During their deliberations, the jury referred a question to the court regarding the possible punishments for aggravated assault and battery and the lesser-included offense of simple battery. Appellant claims that this demonstrates that the jury was improperly considering punishments during its deliberations.

Assuming that it would have been error for the jury to consider the punishments attendant to the crimes charged in its deliberations, there is no evidence that the jury, in fact, actually considered punishment in reaching its verdict. Although the jury did inquire as to the applicable punishments, a verdict was reached before the court could respond. Clearly, the jury did not know what the punishments were since they had to ask the court the question. Thus, we are at a loss to see how the jury could have considered something about which it had no knowledge. Appellant's argument presents no evidence, only conjecture.

C. Assistance of counsel.

The remaining issues raised by Appellant concern an allegedly deficient performance by his trial counsel. Claims of ineffective assistance of counsel are reviewed under the standard set by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984):

"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."
We invoke a strong presumption that counsel rendered adequate and reasonable assistance making all decisions within the bounds of reasonable professional judgment. Jackson v. State, 902 P.2d 1292, 1295 (Wyo.1995).

Beadles v. State, 984 P.2d 1083, 1085-86 (Wyo.1999) (quoting Mapp v. State, 953 P.2d 140, 143 (Wyo.1998)).

The first claim advanced by Appellant is that his trial counsel's failure to adequately and timely explain the details of an offered plea bargain constituted ineffectiveness. Appellant, who had changed counsel after the preliminary hearing, filed an affidavit days before his trial alleging the following:

3. That while represented by his previous attorney, "Andy" an investigator for the public defenders [sic] office came to the jail and after a brief conversation asked if he [Appellant] wanted a reckless endangerment, no explanation of any sort, your affiant [Appellant] not knowing what it was or the penalties that went with it;
4. That this was not even explained to your affiant as being a plea
...

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  • Duke v. State
    • United States
    • Wyoming Supreme Court
    • October 25, 2004
    ...Court has stated that it will not consider arguments that are not cogent or supported by citation to pertinent authority. Eustice v. State, 11 P.3d 897, 904 (Wyo.2000); Blumhagen v. State, 11 P.3d 889, 897 (Wyo.2000). We apply that rule [¶ 50] Duke next claims that counsel should have objec......
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    ...Onishi , 64 Haw. 62, 636 P.2d 742, 744 (1981). Brock v. State , 2012 WY 13, ¶ 13, 272 P.3d 933, 937 (Wyo. 2012) (quoting Eustice v. State , 11 P.3d 897, 904 (Wyo. 2000) ).[¶93] Mr. Byerly does not identify the witnesses that should have been called or the facts to which they would have test......
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