Herdt v. State
| Citation | 891 P.2d 793 |
| Decision Date | 14 March 1995 |
| Docket Number | No. 93-209,93-209 |
| Parties | Michael HERDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | United States State Supreme Court of Wyoming |
Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Director, Defender Aid Program, Peter S. Christiansen, Student Intern, and Michael Herdt, pro se, representing appellant.
Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., D. Michael Pauling, Sr. Asst. Atty. Gen., and Mary Beth Wolff, Sr. Asst. Atty. Gen., representing appellee.
Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.
Michael Herdt appeals a jury conviction for first degree sexual assault. Through counsel, he presents a single issue concerning whether he was denied the constitutional right to effective assistance of counsel in the context of whether statements made during trial constituted a waiver of his right to testify on his own behalf. Herdt additionally filed a pro se brief in which he raises a We affirm.
number of additional issues concerning whether or not he received a fair trial.
In the brief prepared by counsel, Herdt raises the following issue:
I. Whether the appellant's statements made during trial and at sentencing were sufficient to operate as a waiver of the fundamental right for a criminal defendant to testify on his own behalf, or at minimum to prompt further inquiry by the trial court.
Herdt, writing pro se, raises additional issues, paraphrased:
I. Whether the trial court abused its discretion in limiting the defense on voir dire and in doing so violated appellant's constitutional rights.
II. Whether the appellant was denied the effective assistance of counsel under the Sixth Amendment.
III. Whether prosecutorial misconduct occurred, violating appellant's right to due process under the Fifth and Sixth Amendments to the United States Constitution and Article 1 § 6 of the Wyoming Constitution.
IV. Whether the trial court erred in allowing into evidence the testimony concerning prior allegations against appellant and the circumstances surrounding those allegations.
V. Whether the trial court abused its discretion at sentencing by:
a. Allowing the State's expert witness who evaluated appellant pursuant to W.S. 7-11-303 to testify regarding his evaluation of appellant.
b. Using the appellant's court ordered presentence investigation, which included statements from appellant.
c. Considering as evidence testimony regarding allegations of a crime of which appellant had been acquitted.
The State rephrases the issues:
I. Whether appellant voluntarily waived his right to testify.
II. Whether appellant received a fair trial.
Appellant Michael Herdt chose as his victim a 21-year-old woman of borderline intelligence. Herdt knew the victim because she had previously dated his brother.
Herdt awoke the victim with a telephone call in the early hours of July 8, 1992. During that phone call, the victim declined Herdt's invitation to come to his house. Subsequently Herdt paid an uninvited and unannounced visit to the victim's home where he repeatedly assaulted her, both physically and sexually. Herdt made the victim shower and told her if he went to prison again, he would be reading about the victim's murder. The victim was afraid she was going to die.
The victim reported the sexual assault on the afternoon of the day it occurred. The sexual assault examination revealed a rectal tear, vaginal bacterial infection, and bruises on her arms, legs and throat. Charges were brought against Herdt, and a warrant issued. Herdt was arrested two months later in the state of Washington. On his return, a trial was held wherein Herdt did not testify. A jury convicted Herdt of first degree sexual assault, and this appeal followed.
Appellate counsel made an effort to narrow the issue in this appeal to one aspect of ineffectiveness of trial counsel. That effort was made to preserve, if possible, collateral attack of the broader issues involving ineffectiveness of counsel through post-conviction relief or habeas corpus proceedings. Appellate counsel's efforts were thwarted by Herdt. Herdt motioned this court to file a pro se brief. We granted his motion. Herdt thereafter filed a pro se brief raising issues in addition to appellate counsel's brief. The State responded to both briefs. We decline to ignore Herdt's pro se brief. If this has not been clear before, we now wish to make it absolutely clear: If an appellant submits a motion to this court to file a pro se brief in addition to appellate counsel's brief and this court grants the motion, appellate counsel's
brief and appellant's pro se brief both will be considered by this court in reviewing an appeal. Accordingly, we will consider all aspects of ineffective assistance of counsel raised in both briefs.
In this appeal, Herdt first argues that he was denied effective assistance of counsel because his trial counsel was not prepared to have him testify. Thus, he argues, he did not, and was not able to, testify at trial, which amounted to an involuntary waiver of his right to testify. Herdt further argues that he did not waive his right to testify and that an evidentiary hearing should have been held to supplement the record in order to substantiate his allegation that his failure to testify at trial was a result of trial counsel's unpreparedness for his testimony.
The right of a criminal defendant to assistance of counsel is guaranteed by the Sixth Amendment of the Constitution of the United States, made applicable to the states through the Fourteenth Amendment and Wyoming Constitution Art. 1, § 10. Our standard for reviewing claims of ineffective assistance of counsel is well established and is comprehensively described by the following passage:
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 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 [v. State, 737 P.2d 336, 343 (Wyo.1987) ]. 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.
Arner v. State, 872 P.2d 100, 104 (Wyo.1994) (quoting Dickeson v. State, 843 P.2d 606, 609 (Wyo.1992)); see also Starr v. State, 888 P.2d 1262, 1265-67 (Wyo., 1995). We adopted the Strickland standard in Frias v. State, 722 P.2d 135, 145 (Wyo.1986).
Our review begins with the first prong of the Strickland test. Herdt has the burden of demonstrating that his attorney's performance was deficient. Appellate counsel's claim rests upon the allegation that trial counsel was not prepared for Herdt's testimony, resulting in an involuntary waiver of his right to testify. Appellate counsel, therefore, alleges that Herdt's waiver of his right to testify was constitutionally insufficient. The following took place on the record at trial regarding Herdt's right to testify on his own behalf [COUNSEL]: Okay. Present is myself, * * * the defendant, Michael Herdt * * *.
Okay. Sorry about that. We had been in--I guess, what was it, 15 minutes--conference with the defendant in the holding cell, concerning his, whether he shall testify or not.
Do you think we talked enough about it?
Mr. Herdt, the court's been informed by your counsel that when the jury is brought back in, you will be resting your case and not be calling any other witnesses.
You will recall at the end of the state's case, I informed you that you had the right to testify. You still have that right. If the case...
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