Grainey v. State, 98-271.

Citation997 P.2d 1035
Decision Date03 March 2000
Docket NumberNo. 98-271.,98-271.
PartiesDennis John GRAINEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Representing Appellant: Ethelyn (Lynn) Boak, Cheyenne, WY. Argument by Ms. Boak.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Cathleen E. Reed, Student Intern. Argument by Ms. Reed.

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

LEHMAN, Chief Justice.

Dennis Grainey appeals his conviction for destruction of property in violation of Wyo. Stat. Ann. § 6-3-201(a) and (b)(iii) (Lexis 1999) on the ground that he was denied effective assistance of counsel. Finding that Grainey has not met his burden of proof, we affirm his conviction.

ISSUE

We discern the following issue for our review:

I. Whether the defendant was denied effective assistance of counsel.
FACTS

On December 10, 1997, Dennis Grainey rented room 118 at the Wyoming Motel in Buffalo, Wyoming. Later that evening, Grainey went to the Crossroads Inn Bar in Buffalo where he ordered a beer or two and perhaps a shot. Approximately one-half hour later, he was escorted out of the bar by the manager for being loud and obnoxious and causing problems with other customers.

A short time thereafter, a guest in an adjoining room at the Wyoming Motel reported that she heard the sound of breaking glass from the room next door and asked the motel's owner to come and investigate. The owner observed glass broken from the window of room 118 and heard loud crashes from inside the room. He returned to the office and called the police.

When law enforcement officers arrived, room 118 was dark, and all was quiet. As the officers approached the room, the owner went around to the back to make sure no one was going out the back window. Upon entering the room, Grainey was found slumped down behind the door. The room and nearly everything in it had been destroyed. The officers attempted to rouse Grainey; and, when he did not respond, they picked him up and carried him outside. Four empty beer cans and a half empty bottle of whiskey were found in the room. Grainey was charged with destruction of property.

On December 11, 1997, the public defender was appointed to represent Grainey. A preliminary hearing was held on December 19, 1997, and Grainey was bound over for trial in district court. Trial was set for April 20, 1998.

At the arraignment on January 13, 1998, Grainey was asked whether he was satisfied with the representation of counsel. He said that he was. Three weeks later, Grainey wrote the first of many letters to the court complaining that the public defender's office was "just going through the motions for appearance and not adequately handling this matter" and requested that private counsel be appointed to represent him pro bono. A hearing was immediately set to address Grainey's concerns. Prior to the hearing, trial counsel filed a motion to withdraw from representation of Grainey, stating that "the attorney-client relationship has deteriorated to the point of no return."

At the hearing, the court gave Grainey a full opportunity to explain his concerns. Although two months remained before trial, Grainey complained that no investigation had been done. Grainey also complained that he was being railroaded, counsel had in mind a "flimsy" defense, counsel had not responded within ten days to a letter he had written, his civil rights were being violated by the "120" day speedy trial rule, his case may not have been filed properly, the public defender's office would now be prejudiced against him, and he would not receive a fair trial.

Grainey's counsel told the court that her investigator had been apprised of the facts of the case and would begin investigating as soon as he could, certainly by sometime in March. She expressed confidence that if someone besides Grainey was in room 118 and did the damage, that person would be found by her investigator. She also said that Grainey's complaints and lack of cooperation had impeded her ability to represent him.

After listening to Grainey and counsel, the court stated that in its view Grainey had created the conflict with counsel. The court informed Grainey that, while he had the right to representation, he did not have the right to a lawyer of his choosing. The court recommended that Grainey cooperate with counsel but also advised him of his right to represent himself. Finally, the court denied counsel's motion to withdraw but indicated substitute counsel from the public defender's office would be permitted.

Grainey continued to complain about his counsel. Thus, with a month still to go before trial, the public defender's office attempted to obtain Grainey's consent to substitute counsel. Grainey refused to consent and sent a letter to the court stating that substituting counsel at that point would be "detrimental to his appealable issues." In a subsequent writing to the court, Grainey accused the public defender's office of attempting to "sabotage" his case by offering substitute counsel.

On April 20, 1998, Grainey's case went to trial. Two attorneys from the public defender's office appeared on his behalf. In chambers prior to jury selection, the court gave Grainey another opportunity to discuss his complaints about his attorney and go forward without the assistance of counsel. Grainey declined to comment further on his dissatisfaction with counsel and declined to proceed pro se.

Following the in-chambers proceedings, jury selection began. During her voir dire of the panel members, defense counsel addressed, among other issues, Grainey's concern about being an outsider, the prosecution's burden of proving each element of the crime charged beyond a reasonable doubt, a defendant's right to remain silent, and the jury's duty to give equal weight to the testimony of all witnesses, including that of law enforcement officials. All jurors who gave answers which might be construed as adverse to Grainey or his case were excused following peremptory challenges by defense counsel.

At trial, defense counsel cross-examined each of the State's witnesses. Consistent with Grainey's claim that someone else may have been in room 118 that night, counsel established that the owners of the motel did not see Grainey nor anyone else come or go from the room during the evening, that it would have been possible for someone to enter room 118 without being seen from the room next door or the motel office, that someone could have left room 118 through the back window without being seen before law enforcement arrived, and that no one saw Grainey wrecking the room. Also consistent with Grainey's wishes, trial counsel presented evidence through cross-examination to support an intoxication defense, despite the dubious applicability of a voluntary intoxication defense to a general intent crime.

At the close of the State's case, trial counsel moved for a judgment of acquittal on the ground that the State failed to present a prima facie case that it was Grainey who destroyed room 118. Counsel argued that there were no eyewitnesses to what occurred in the room and that the only evidence implicating Grainey was that he was found in the room after the fact. The court denied the motion.

Trial counsel argued in her closing that there were no eyewitnesses to what occurred in room 118 and there was no one who could establish that Grainey was alone in the room prior to the officers' arrival. She argued that the circumstantial evidence presented was insufficient to support a finding beyond a reasonable doubt that Grainey destroyed the room. The jury returned a verdict of guilty; and, following a hearing on June 9, 1998, Grainey was sentenced to not less than two nor more than four years in the Wyoming State Penitentiary. This appeal followed.

STANDARD OF REVIEW

The law of ineffective assistance is well established and was articulated in Jackson v. State, 902 P.2d 1292, 1295 (Wyo.1995):

When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 793, 796 (Wyo.1995); Starr v. State, 888 P.2d 1262, 1266-67 (Wyo. 1995); Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Frias v. State, 722 P.2d 135, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Herdt, at 796; Starr, at 1266; Arner, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
Under the two-prong standard articulated in Strickland and Frias, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to "render such assistance as would have been offered by a reasonably competent attorney" and that "counsel's deficiency prejudiced the defense of [the] case." Lower v. State, 786 P.2d 346, 349 (Wyo.1990). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686,104 S.Ct. at 2064.
DISCUSSION

Grainey complains that counsel failed to consult him about the objectives of representation and that couns...

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