McCoy v. State, 93-273
| Decision Date | 30 November 1994 |
| Docket Number | No. 93-273,93-273 |
| Citation | 886 P.2d 252 |
| Parties | Patrick R. McCOY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Nicholas H. Carter, Gillette, for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., D. Michael Pauling, Sr. Asst. Atty. Gen., Cheyenne, Prosecution Assistance Program, Theodore E. Lauer, Director, Gayle E. Blakeley, Student Intern, Laramie, for appellee.
Before GOLDEN, C.J., and THOMAS, CARDINE, * MACY, ** and TAYLOR, JJ.
In this case we determine whether appellant's jury conviction and sentences for three counts of second-degree sexual assault and one count of indecent liberties with a minor require reversal because trial counsel's decisions concerning expert testimony violated his right to effective assistance of counsel. For the reasons explained below, we hold that reversal is not required.
McCoy states the issues as:
ISSUE # 1:
Whether Trial Counsel failed to render effective assistance of counsel as guaranteed by the Constitution because of his following errors:
1. A failure to properly file a motion with the District Court for the payment of necessary costs for expert witnesses when trial counsel was aware that the Appellant had no funds for costs and the need for an expert was evident.
2. His failure to properly investigate the possible use of an independent expert witness when he was aware that the prosecution intended to use expert testimony at trial.
3. His failure to request a continuance two weeks before trial to obtain an independent analysis of the report from the State's expert witness that he had just received.
4. His failure to call a witness whose testimony would have directly contradicted that of the alleged victim.
ISSUE # 2:
Whether it is reasonably probable that but for Trial Counsel's deficient performance the trial result would have been different.
The state presents the issues as:
Did Appellant's trial counsel provide him with effective assistance despite counsel's alleged failure:
(A) To seek funds from the court to provide expert witnesses for Appellant;
(B) To investigate Appellant's case properly;
(C) To request a continuance of the trial; or
(D) To call Angela Karsky as a witness at the trial;
And did those alleged acts or omissions create a reasonable probability that, in their absence, the result of the trial would have been more favorable to Appellant?
The charges against appellant Patrick R. McCoy followed his separation from his wife, Raylene, in July of 1992. Raylene, a devout Jehovah's Witness, took the couple's daughter to a "touch therapist" connected with the Jehovah Witness church. The therapist evaluated the daughter for sexual abuse by touching her in various places on her body. The daughter later told her mother that her father had touched her sexually when she was four years old.
Raylene then took the daughter to Dr. William Heineke, a counselor at Wyoming Regional Counseling Center in Gillette, Wyoming. After several sessions, he reported to the state that the daughter had been a victim of sexual abuse, and the Gillette police began an investigation. Shortly after learning of the allegations, McCoy secured legal representation and filed for divorce and child custody. He later alerted his counsel to the sexual abuse allegations.
Two physical examinations of the daughter were conducted which arguably were inconclusive. In March of 1993, the police scheduled an interview with her. The evening before, the mother had her watch a video concerning a daughter's accusation against her father for child sexual molestation. The next day, the daughter told police investigators that in addition to the touching episode when she was four, her father had sexual vaginal intercourse with her three different times when she was six years, eight years, and ten years old. She also stated that her father had anally penetrated her during the episode when she was ten years old. This assault caused her to bleed, and she told her mother of the bleeding. Her mother testified that she remembered the incident because her daughter cried over what the mother believed was menstruation. This caused the mother to consult the school nurse to receive literature and advice for the daughter. The school nurse testified and confirmed that the mother had contacted her four years ago for the literature and advice. Both the mother and daughter testified that the daughter, now age 12, has not menstruated.
Following the daughter's police interview, charges were filed against McCoy. A third physical examination of the daughter was conducted by Dr. Susan Reichert of Children's Hospital in Denver, a pediatrician and member of the hospital's Child's Advocacy and Protection team. Dr. Reichert testified at trial that the results of her physical examination caused her to conclude the physical evidence showed repeated sexual intercourse over a long period of time and past sexual abuse. Dr. Heineke testified that in his opinion the daughter had been sexually abused. The state also presented testimony from the mother, daughter, and police investigator, Shane Shaw.
As its strategy, defense relied upon cross-examination of state witnesses to point the finger at another possible perpetrator and also to establish that the daughter's accusation against her father arose from anger at her father over the divorce. The defense contended that this anger, maternal coaching, and suggestive therapy made her vulnerable to the suggestion that her father had sexually abused her.
McCoy testified, denying that he had sexually assaulted his daughter. He claimed that his wife had coached his daughter to make the charges against him because the couple was engaged in a divorce and a custody dispute over the daughter. The defense called no other witnesses.
Following the jury's conviction, McCoy's trial counsel filed a motion for judgment of acquittal and/or a new trial, alleging insufficiency of the evidence. Before the hearing, trial counsel withdrew and was replaced. New defense counsel supplemented the motion alleging ineffective assistance of counsel and an evidentiary hearing was held.
After hearing testimony, the trial court denied the motions for a judgment of acquittal and for a new trial. This appeal followed.
To establish that he has been denied effective assistance of counsel, a defendant is required to show that counsel's performance was deficient and that, but for this deficient performance, it is reasonably probable that the trial result would have been different. Frias v. State, 722 P.2d 135 (Wyo.1986) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
In Gist v. State, 737 P.2d 336 (Wyo.1987), we noted:
'[T]here are countless ways to provide effective assistance in any given case,' Strickland [466 U.S.] at 689, 104 S.Ct. [at] 2065, unless consideration is given to counsel's overall performance, before and at trial, it will be 'all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.' Strickland [466 U.S.] at 689, 104 S.Ct. [at] 2065.
Gist at 343 (quoting Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 2589, 91 L.Ed.2d 305 (1986)).
We said in Gist that this court does not evaluate the identified actions or omissions of
counsel in hindsight but in light of all the circumstances; strongly presumes that counsel rendered adequate and reasonable assistance making all decisions within the bounds of reasonable professional judgment; and views each case in the total context of the representation afforded to determine if the defendant was denied his right to a fair trial. Gist, 737 P.2d at 342.
McCoy contends on appeal that his trial counsel's performance was so deficient the adversarial process "broke down in this case." McCoy lists counsel's errors as:
4) failing to call a witness whose testimony would have directly refuted the testimony of the alleged victim.
McCoy's first two listed errors are a contention that trial counsel failed to reasonably investigate the availability and necessity of expert testimony. This court has previously adopted the following with respect to the duty to investigate:
[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. * * * [W]hat investigation decisions are reasonable depends critically on such information. (Emphasis added).
Frias v. State, 722 P.2d at 145 (quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 692).
McCoy, in his appellate brief, contends that trial counsel had reason to know that McCoy lacked funds for the necessary expense of investigation and expert witnesses and should have acted in one of three ways:
1) Filed a motion with the District Court pursuant to WYO.STAT. § 7-6-104 for the payment of costs necessary to obtain an expert to determine whether the appellant was a "needy person,"
2)...
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