McGarvey v. State

• Decision Date: 28 May 2014
• Docket Number: No. S–13–0124.,S–13–0124.
• Parties: William Lane McGARVEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

325 P.3d 450

William Lane McGARVEY, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–13–0124.

Supreme Court of Wyoming.

May 28, 2014.

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Patricia L. Bennett, Assistant Appellate Counsel. Argument by Ms. Bennett.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Darrell D. Jackson, Faculty Director, David E. Singleton, Student Director, and Eric B. Limegrover, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Limegrover.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.

DAVIS, Justice.

[¶ 1] Appellant William McGarvey was convicted of first degree sexual assault for physically forcing a young woman to perform oral sex on him. On appeal, he alleges that his attorney was ineffective. We affirm.

ISSUE

[¶ 2] McGarvey asserts that his counsel's performance was constitutionally ineffective in the three following respects:

1. Counsel sought to introduce evidence under Wyoming's rape shield statute, Wyo. Stat. Ann. § 6–2–312 (LexisNexis 2013), without educating himself about the proper application of that statute and the meaning of DNA evidence gathered by the State.

2. Counsel failed to investigate how much alcohol had been served to McGarvey before an interview with law enforcement.

3. Counsel failed to object to the prosecutor's misstatement of law during her rebuttal closing argument.

We must decide whether any of these claims are meritorious based on the record before us.

FACTS ¹

[¶ 3] Two days after Christmas of 2010, TM and three of her female friends went drinking in Rock Springs. After spending a few hours at Bomber's Sports Bar, two of the young ladies decided to go home and drove off in TM's car. TM and her remaining friend SS left Bomber's and went to the Astro Lounge. As closing time neared, TM and SS obtained a ride to SS's home with Appellant McGarvey. They did not know him, but he had been at both bars and appeared to know some of the patrons the women knew, and he also told SS that he knew her mother. Once they arrived at SS's apartment, TM asked McGarvey to drive her to Reliance, approximately five miles from Rock Springs, because she wanted to see a former boyfriend. He agreed.

[¶ 4] McGarvey propositioned TM twice on the way to Reliance, asking her both times to give him “head,” meaning to perform fellatio on him. She refused. He then parked his car after reaching Reliance, exposed his penis, pulled her head into his lap by her hair, punched her on the top of her head, and forced her to perform oral sex. After that, he managed to get TM's clothes off, tearing her panties in the process, and despite her protests tried to have intercourse with her in the front passenger seat. Afterward he drove her through a mobile home park until she asked him to stop at a trailer where a friend of hers lived with his parents and sister. Naked and clutching her clothes, she knocked on the front door and called her friend's name.

[¶ 5] Her friend Joshua Bowles opened the door and encountered the sobbing, shaking, and visibly terrified TM, who immediately told him she had just been raped. Bowles called the Sweetwater County Sheriff's office while his sister, Chantayne, helped TM dress. Because TM no longer had her panties, Ms. Bowles gave her a new pair, which was still in the package. She noted that TM appeared to have hair pulled out of her scalp. A deputy briefly interviewed TM and the Bowles at the trailer, after which TM was transported by ambulance to the Rock Springs hospital. There she again explained what had happened to a sheriff's detective, and biological evidence was collected from her vagina and the panties given to her by Ms. Bowles.

[¶ 6] By mid-morning of December 28, detectives had identified McGarvey as the man who had given TM and SS a ride, and they began looking for him at his home and several of his customary haunts. By early afternoon they discovered him standing beside his vehicle at Joe's Liquor. The car had not been there when the detectives looked for it thirty minutes earlier.

[¶ 7] McGarvey was asked if he would agree to an interview. He consented and followed the detectives to the sheriff's office in his vehicle. During the interview, McGarvey admitted that he had engaged in sexual acts with TM in Reliance and that he had forced himself upon her. He consented to a search of his home and car and agreed to have biological evidence collected. He was not arrested at the time.

[¶ 8] Two days after the interview, McGarvey was arrested and charged with two counts of first-degree sexual assault, one for forcing TM to perform oral sex on him, and one for forcing her to engage in intercourse. Wyo. Stat. Ann. § 6–2–302(a)(i).²McGarvey eventually entered into a plea agreement with the State and on May 12, 2011, pled guilty to the charge relating to the forced oral sex. He appealed to this Court from the judgment and sentence entered on that plea. While the appeal was pending, he moved the district court for leave to withdraw his plea. The district court granted his motion, McGarvey voluntarily dismissed his appeal, and a new attorney was assigned to represent him.

[¶ 9] New counsel filed a motion to suppress the statements McGarvey made during his interview because he received no Miranda warnings until ten to eleven minutes into it. He also filed a motion supported by his affidavit, seeking permission to introduce certain evidence of TM's sexual conduct under Wyo. Stat. Ann. § 6–2–312, the rape shield statute. He had gleaned from police and lab reports that SS saw TM sitting with a man in a car with her pants down to mid-thigh shortly after she arrived at the Astro. DNA from seminal fluid found inside TM was not identified as McGarvey's, and he came to the conclusion that it came from some other man, although TM denied that she had had sex for four or five days prior to her encounter with McGarvey. Counsel contended this evidence suggested that TM might have had sex with someone other than McGarvey on the evening in question, thereby giving her a motive to lie about what had occurred in order to conceal consensual sexual conduct from her current boyfriend.

[¶ 10] Following a series of hearings, the district court granted McGarvey's suppression motion with respect to the portion of his interview that preceded the administration of Miranda warnings. Although the court found the testimony of the sheriff's deputies and detectives as to what occurred in the interview to be more consistent and credible than McGarvey's, it concluded that he was in custody from the beginning of the interview, and should have been given those warnings. As for the proposed § 6–2–312 evidence, the court found that the motion and supporting affidavit did not establish that the proffered evidence required a hearing. The court concluded that the evidence had not been shown to be arguably relevant and that it would be improper to admit it.³

[¶ 11] On October 26, 2012, a jury returned a verdict finding McGarvey guilty of forcing TM to give him oral sex, but acquitted him of forcibly having intercourse with her. The district court sentenced him to imprisonment for a term of fourteen to eighteen years, and he timely appealed from the court's judgment and sentence.

STANDARD OF REVIEW

[¶ 12] An appellant claiming that his attorney provided ineffective assistance must demonstrate from the record some deficiency in counsel's performance that prejudiced him. Because examining both aspects of his proof raises mixed questions of law and fact, we review such claims de novo.Moore v. State, 2013 WY 120, ¶ 13, 309 P.3d 1242, 1245 (Wyo.2013); Jenkins v. State, 2011 WY 141, ¶ 5, 262 P.3d 552, 555 (Wyo.2011); Dettloff v. State, 2007 WY 29, ¶ 17, 152 P.3d 376, 382 (Wyo.2007); Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984) (both components of ineffectiveness inquiry involve mixed questions of law and fact); United States v. Owens, 882 F.2d 1493, 1501 n. 16 (10th Cir.1989).

DISCUSSION

[¶ 13] To prevail on his claims, McGarvey must prove that his counsel did not function as a reasonably competent attorney would have in some particular respect. There must be proof of deficient performance, and mere speculation or equivocal inferences will not suffice. Proof of defective performance must overcome the strong presumption that the attorney rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. Jenkins, ¶ 6, 262 P.3d at 555;Hirsch v. State, 2006 WY 66, ¶ 15, 135 P.3d 586, 593 (Wyo.2006); Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

[¶ 14] We do not evaluate counsel's efforts in hindsight. Rather, we evaluate them in light of the surrounding circumstances from counsel's perspective at the time of the challenged acts or omissions, and we determine whether the choices made could be considered sound trial strategy. Robison v. State, 2011 WY 4, ¶ 7, 246 P.3d 259, 263 (Wyo.2011); Sincock v. State, 2003 WY 115, ¶ 35, 76 P.3d 323, 336 (Wyo.2003). Appellant must also prove that he was prejudiced by his attorney's deficient performance, and must therefore demonstrate that, absent the alleged deficiency, it is reasonably probable that the result of his trial would have been more favorable to him. Jenkins, ¶ 6, 262 P.3d at 555;Martinez v. State, 2006 WY 20, ¶ 23, 128 P.3d 652, 662–63 (Wyo.2006).

[¶ 15] An appellant's failure to make the required showing of either deficient performance or sufficient prejudice will defeat his ineffectiveness claim. Thus, we may reject such a claim solely on the ground that the record reveals an insufficient probability of prejudice. Moore, ¶ 14, 309 P.3d at 1245;Jenkins, ¶ 6, 262 P.3d at 555;Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

The Motion to Allow Evidence Arguably Covered by the Rape Shield Law

[¶ 16] As...