Murray v. State

• Citation: 776 P.2d 206,1989 WL 67582
• Decision Date: 21 June 1989
• Docket Number: No. 87-177,87-177
• Parties: Peter Kole MURRAY, Appellant (Petitioner), v. The STATE of Wyoming, Appellee (Respondent).
• Court: United States State Supreme Court of Wyoming

Page 206

776 P.2d 206

Peter Kole MURRAY, Appellant (Petitioner), v. The STATE of Wyoming, Appellee (Respondent).

No. 87-177.

Supreme Court of Wyoming.

June 21, 1989.

Martin J. McClain, Deputy State Public Defender, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and David K. Gruver, Asst. Atty. Gen. (argued), for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT and MACY, JJ., and BROWN, J. Ret. ^*

CARDINE, Chief Justice.

Appellant, Peter Kole Murray, seeks review of the district court's order dismissing his petition for post-conviction relief. We affirm.

On January 18, 1983, a jury found Murray guilty of the crime of attempted sexual assault felony murder. Murray appealed that conviction, and we affirmed in Murray v. State, 671 P.2d 320 (Wyo.1983). The facts of the case are set out in that opinion. On August 19, 1986, Murray filed, pro se, a petition for post-conviction relief which raised three issues:

"[I] The petitioner was denied his rights under the Sixth Amendment to a fair and impartial jury in Lincoln County, Wyoming, due to extensive pretrial publicity.

"[II] The petitioner was denied his rights under the Sixth Amendment: and, the due process and equal protection clauses of the Fifth and Fourteenth Amendments: and, his rights under the Sixth Amendment to effective assistance of counsel when he was not provided the best defense available, a complete defense, and when the trial court repelled his right to assert complete defense which defense was best defense available.

"[III] The petitioner was denied his rights under the due process and equal protection clauses of the Fifth and Fourteenth Amendments when the prosecution knowingly entered fraudulent evidence."

In addition to raising these issues, Murray asked that counsel be appointed to represent him and that he be permitted to amend his petition and raise additional issues after consultation with counsel.

An attorney was appointed to represent Murray and an amended petition for post-conviction relief was filed on December 2, 1986. The amended petition incorporated by reference the pro se petition and raised five issues:

i. Refusal of Murray's Motion for Change of Venue denied him his right to a fair and impartial jury.

ii. The evidence presented to the jury was insufficient to sustain the jury's finding of guilt beyond a reasonable doubt.

iii. Wyoming's felony murder statute operates in such a manner as to allow a conclusive presumption on the issues of malice and premeditation and thus violates the rule of law enunciated in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) iv. The trial court's refusal of an involuntary intoxication instruction denied Murray his constitutional right to a fair trial.

v. Murray was denied the effective assistance of counsel both at the trial stage and in the prosecution of his appeal to the Wyoming Supreme Court.

On June 16, 1987, the district court entered its order denying relief. On June 26, 1987, Murray filed a timely notice of appeal, and in his brief in this court he raised eight issues:

"1. Whether Appellant was afforded effective assistance of counsel during his trial or his appeal to the Wyoming Supreme Court.

"2. Whether the trial court erroneously denied Appellant's challenge for cause when eight jurors stated they would disregard the Court's instruction concerning the presumption of innocence and impose burden to prove his innocence on Appellant.

"3. Whether the introduction of Appellant's statements to law enforcement personnel was reversible error.

"4. Whether the use of a conclusive presumption to convict Appellant of first degree murder is plain error and requires reversal of the conviction.

"5. Whether it was error to allow the testimony of Dr. Cline.

"6. Whether the trial court's refusal to instruct the jury upon the defense of involuntary intoxication deprived Appellant of his constitutional right to have all questions of fact resolved by the jury.

"7. Whether Appellant was denied his right of confrontation by the admission of numerous statements made by the decedent.

"8. Whether Appellant was denied the effective assistance of counsel when neither Sonya Martin was called to testify nor her out of court statements introduced into evidence pursuant to Rule 804 of the Wyoming Rules of Evidence."

Post-conviction relief, governed by W.S. 7-14-101 et seq., performs the same limited function as did the writ of coram nobis. It is not a substitute for direct appeal and is limited to review of specific types of error. 18 Am.Jur.2d Coram Nobis § 45, at 673 (1985). Post-conviction relief is an extraordinary authorization to seek relief under circumstances which suggest a "miscarriage of justice." Cutbirth v. State, 751 P.2d 1257, 1261 (Wyo.1988). The substance of a fair trial must be missing in order to justify its application. Id.; State ex rel. Hopkinson v. District Court, Teton County, 696 P.2d 54, 64 (Wyo.1985); Johnson v. State, 592 P.2d 285 (Wyo.1979).

Because the relief intended to be provided by the post-conviction procedure is extraordinary, we have imposed some rather strict limitations on the issues which may be raised in the procedure. Issues which have been or could have been raised on appeal are not open to challenge by a petition for post-conviction relief because they are foreclosed by the doctrine of res judicata. Cutbirth, 751 P.2d at 1261; Hopkinson, 696 P.2d at 64. Moreover, W.S. 7-14-103 provides that any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.

We proceed to apply these rules to the issues raised by appellant in this court. Issues enumerated 2, 3, 5, 7 and 8 were not raised in the trial court and were thus waived. W.S. 7-14-103. We will not consider these issues on appeal. Issue enumerated 2 is really a variation of an issue raised in his original appeal which asserted that the trial court erroneously denied his motion for change of venue. Murray v. State, 671 P.2d at 325-27. We explored the issue in detail in that opinion, including the variation raised as issue 2 in this appeal. Although appellant's failure to raise the issue in the district court is dispositive, we note this additional reason why issue 2 must be rejected.

Appellant asserts ineffective assistance of trial counsel in the first half of issue enumerated 1. The issue of effective assistance of counsel at the trial level and issues enumerated 4 and 6 are issues which could have been raised in appellant's original appeal to this court, and we will, therefore not consider them in the context of a post-conviction procedure. Cutbirth, 751 P.2d at 1261-62.

As in Cutbirth, we are finally left with the issue of ineffective assistance of appellate counsel. Cutbirth was decided after this case had been processed through the trial court. The trial court, therefore, did not have the benefit of the test we formulated for determining claims of ineffective assistance of appellate counsel, that test being:

"In submitting a claim of deficient representation by appellate counsel, the petitioner in the post-conviction proceeding must demonstrate to the district court, by reference to the record of the original trial without resort to speculation or equivocal inference, what occurred at that trial. The particular facts upon which the claim of inadequate representation by appellate counsel rests must be presented. The petitioner must then identify a clear and unequivocal rule of law which those facts demonstrate was transgressed in a clear and obvious, not merely arguable, way. Furthermore, the petitioner must show the adverse effect upon a substantial right in order to complete a claim that the performance of appellate counsel was constitutionally deficient because of a failure to raise the issue on appeal. The adverse effect upon a substantial right in the context of ineffective assistance of appellate counsel is shown by demonstrating a ' * * * reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' In this regard the test does address the fairness and integrity of the judicial proceedings. The reasonable probability must be one that demonstrates a more favorable result to the appellant if the omitted issue had been pursued." (Citations omitted.) Cutbirth, 751 P.2d at 1266-67.

We have held that ineffective assistance of appellate counsel is not subject to the waiver doctrine. We therefore must consider on review appellant's claim of ineffective assistance of counsel and resolve that issue. Three matters were presented to the trial court that could be the basis for the assertion of ineffective assistance of appellate counsel. They are:

1. Should a competent appellate counsel have raised as an issue on appeal the assertion that Wyoming's felony murder statute operates in such a manner as to allow a conclusive presumption as to the issues of malice and premeditation?

2. Should a competent appellate counsel have raised as an issue on appeal the refusal of the trial court to give an involuntary intoxication instruction?

3. Should a competent appellate counsel have raised as an issue on appeal an assertion that Murray was denied the effective assistance of trial counsel?

When these three questions are tested against our holding in Cutbirth, it is clear that no viable issue of ineffective assistance of appellate counsel could be sustained by the record in this case.

With regard to Wyoming's felony murder statute, appellant can point to no clear and unequivocal rule of law which would have prompted an appellate counsel to raise that issue. Rather it is clear that such a rule would plow wholly new ground. No jurisdiction has held that a felony murder statute violates the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61...