Munden v. State, 84-156
| Decision Date | 22 April 1985 |
| Docket Number | No. 84-156,84-156 |
| Parties | James MUNDEN, aka Jim Munden, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard D. Munker, Public Defender; Martin J. McClain, Appellate Counsel; and Denise Nau, Asst. Appellate Counsel, Wyoming Public Defender Program, for appellant.
A.G. McClintock, Atty. Gen.; Gerald A. Stack, Deputy Atty. Gen.; John W. Renneisen, Sr. Asst. Atty. Gen.; and Sylvia Lee Hackl, Asst. Atty. Gen., for appellee.
Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.
Appellant was tried before a jury and found guilty of two counts of indecent liberties with a minor, in violation of § 14-3-105, W.S.1977, and found not guilty of first-degree sexual assault, § 6-4-302(a)(i), W.S.1977. He was sentenced to six to ten years on one count and eight to ten years on the other, with these sentences to run consecutively. From this conviction and sentence Mr. Munden appeals, stating the issues as follows:
1. Whether appellant was denied effective assistance of counsel;
2. Whether it was plain error to not let the jury retire for the evening;
3. Whether the prejudicial effect of the introduction of nude photographs, together with other items in the suitcase, outweighed the probative value of such evidence 4. Whether the trial court abused its discretion in the imposition of appellant's sentence; and
5. Whether the district court erred in failing to credit appellant's sentence with time served in presentence detention.
We affirm.
Appellant bases his contention of ineffective assistance of counsel on the failure of his court-appointed public defender to do the following: give an opening statement, develop a theory of the case, object to juror fatigue, and move for a new trial.
We have held that a criminal defendant is entitled to "effective" assistance of counsel. Spilman v. State, Wyo., 633 P.2d 183 (1981); Hoskovek v. State, Wyo., 629 P.2d 1366 (1981). The standard by which we determine whether the assistance is effective is one of reasonableness: If the assistance rendered by counsel is that which would reasonably be rendered by a reasonably competent attorney under the circumstances of the case, then it is effective; if it is not, it is ineffective. Spilman v. State, supra; Hoskovek v. State, supra. We apply a presumption that counsel is effective, and thus place the burden on appellant to establish the ineffectiveness of his counsel. Spilman v. State, supra.
This scheme for determining effective assistance of counsel has recently been approved by the United States Supreme Court. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), that Court said:
" * * * 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."
The Court went on to say that considerable deference must be given to counsel's performance, with every effort being made to eliminate the distorting effects of hindsight. "[C]ounsel is strongly presumed to have rendered adequate assistance." Id. 104 S.Ct. at 2066.
Going even beyond the presumption of reasonableness, the Court held that error by counsel will not warrant setting aside the judgment of a criminal proceeding if such error had no effect on the judgment.
" * * * The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. * * * " Id. 104 S.Ct. at 2068.
The Court also went on to place the burden on the defendant to show a reasonable likelihood that the decision reached would have been different without the errors.
Appellant has not met his burden of proving either that his attorney was ineffective or that the alleged deficiencies in his attorney's performance prejudiced his defense. Appellant finds fault with the failure of his counsel to present an opening statement, and asks this court to accept the proposition that such failure violates "prevailing professional norms." We agree that an opening statement may be a very useful device. However, we cannot agree that it must be given in every instance. One reason a defense attorney might choose not to give an opening statement is because to do so would commit the defense to a certain course which might prove disastrous as the case develops. In fact, it does not appear that opening statements are nearly as important as appellant would have us believe, as in Connecticut the trial court decides in its discretion whether a defendant may give an opening statement at all. United States v. Salovitz, 701 F.2d 17 (2nd Cir.1983). That court also said:
* * * " Id. 701 F.2d at 20-21.
In the case at bar, the victims' mother testified that they had known appellant for several years, and that the children had visited appellant at his residence for several days prior to Christmas of 1982. Susan, who was twelve years old at the time of trial and ten years old at the time of the incident, testified that while at appellant's home, with her seven-year-old brother (eight years old at the time of trial), appellant gave her beer to drink, then took her into the bedroom and took his clothes, and then her clothes, off. She said that he then forced her to pose on the bed while he took pictures of her, and that he then brought her brother into the room, removed his clothes, posed him on the bed with Susan, and took more pictures. She also said that her brother left the bedroom, and appellant tied her to the bed, fondled her, and forced his penis into her mouth. Five Polaroid pictures were introduced into evidence. Four of these pictures were of Susan, naked and posed on a bed, and one was of Susan and her brother posed naked on the bed. The pictures had been found in a suitcase by the side of a country road. The suitcase also contained several other items which appellant admitted were his.
Appellant's defense at trial was that he had not taken these particular five photographs, even though other photographs that he admitted were his were in the suitcase. Appellant also testified that he did not know how his belongings had gotten into the suitcase, which he disclaimed, and he did not know how the suitcase came to be by the side of the road. The decision by appellant's counsel to not emphasize these inconsistencies in an opening statement can easily be viewed as a legitimate trial strategy.
Appellant complains that his counsel was ineffective by not formulating a theory of the case and presenting it to the jury. This also does not rise to the level of ineffective assistance of counsel. If there is no defense to present, counsel cannot be condemned for not presenting more than he or she has. Appellant testified that he did not take the objectionable pictures and that he did not know how his belongings came to be found in the suitcase with the pictures. His counsel, in closing argument, repeated these things, reviewed the evidence, and reminded the jury that the State carried the burden of proving the offenses charged beyond a reasonable doubt. Counsel also told the jury that the case boiled down to whom the jury believed, Mr. Munden or the victims. What else could he do?
Appellant's brief indicates that his trial counsel should have identified the setting of the photographs, should have explained why the suitcase and its contents were left by the side of the road, and should have come up with an explanation for all the questions left unanswered by the case. We do not agree. First, if in fact the defendant was telling the truth at trial, and he was innocent, how could he possibly know how those lewd photographs ended up on the road in a suitcase with many of his belongings? And, thus, how could his counsel explain these questions to the jury? Secondly, if the defendant was lying at trial, as the jury found, then his counsel could not just fabricate a completely untrue scenario to explain the facts presented at trial. It certainly is not the duty of defense counsel to make up a defense where none exists. Counsel denied his client's guilt, and the jury found otherwise. "[T]he Constitution * * * commands a battle, but not a victory." Odom v. United States, 377 F.2d 853, 859, 22 A.L.R.3d 705 (5th Cir.1967).
Appellant contends lastly that his counsel was ineffective for failing to object to juror fatigue, and failing to file a motion for a new trial on the basis that juror fatigue had affected the deliberation. This contention rests on the fact that the jury began its deliberation at 4:20 p.m. after a full day of trial, and continued until past midnight. At 11:00 p.m., the jury...
To continue reading
Request your trial
-
Gezzi v. State
...(1988). Obvious examples frequently litigated but almost never with success include objections to photographs of the victim, Munden v. State, 698 P.2d 621 (Wyo.1985); State v. Leavitt, 116 Idaho 285, 775 P.2d 599 (1989), autopsy reports and granting or denying of a request to view the site ......
-
Renfro v. State
...and credit against the minimum was not required without regard for appellant's indigency. Hedge was rapidly followed by Munden v. State, 698 P.2d 621, 627 (Wyo.1985), where again the court required credit against the maximum in As to the credit for presentence detention, we have recently se......
-
Harlow v. State
...(1986); Tompkins v. State, Wyo., 705 P.2d 836 (1985), cert. denied 475 U.S. 1052, 106 S.Ct. 1277, 89 L.Ed.2d 585 (1986); Munden v. State, Wyo., 698 P.2d 621 (1985); Westmark v. State, Wyo., 693 P.2d 220 (1984); Hampton v. State, Wyo., 558 P.2d 504 (1977). The adverse effect upon a substanti......
-
Whitney v. State
...in admitting this single photograph into evidence. See generally also People v. Viduya, 703 P.2d 1281, 1291 (Colo. 1985); Munden v. State, 698 P.2d 621, 626 (Wyo.1985); Collins v. State, 589 P.2d 1283, 1291 (Wyo.1979); and Seyle, 584 P.2d at PROSECUTOR'S REMARKS DURING OPENING STATEMENT AND......