People v. Gandiaga, No. 01CA0791.

• Decision Date: 07 November 2002
• Docket Number: No. 01CA0791.
• Citation: 70 P.3d 523
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carlos GANDIAGA, Defendant-Appellant.
• Court: Colorado Court of Appeals

70 P.3d 523

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carlos GANDIAGA, Defendant-Appellant.

No. 01CA0791.

Colorado Court of Appeals, Div. IV.

November 7, 2002.

Certiorari Denied June 2, 2003.

Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

E. Richard Toray, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Carlos Gandiaga, appeals from the trial court's order denying his Crim. P. 35(c) motion to vacate his convictions for attempted first degree murder and second degree kidnapping. We affirm.

The evidence presented at trial revealed that, at the behest of a reputed drug lord, defendant and two other men kidnapped the victim and drove him to a remote spot in the mountains. There, defendant and his cohorts got out of the car, which defendant had left running with the key in the ignition. Defendant ordered one of the men to kill the victim, and the man put a rifle to the victim's head and pulled the trigger. The rifle malfunctioned, however, and while the three men were attempting to fix it, the victim moved into the driver's seat and drove the car away.

Defendant elicited evidence at trial that he told police officers that he acted out of fear of the drug lord and that he intentionally left the car running with the key in the ignition. The jury rejected his duress defense, and the court sentenced him to twenty years incarceration.

On appeal, a division of this court affirmed his convictions. People v. Gandiaga, (Colo. App. No. 98CA1198, July 15, 1999)(not published pursuant to C.A.R. 35(f)).

Thereafter, defendant filed a Crim. P. 35(c) motion to vacate his convictions, alleging that his two trial attorneys had been ineffective in: (1) failing to adequately consult with him and investigate the case; (2) allowing him to be subjected to a police interview without either the presence of counsel or receipt of a tangible benefit; (3) failing to discuss a plea offer with him; (4) failing to object to inappropriate evidence and to move for a mistrial; and (5) failing to recognize, research, plead, and present to the jury an additional affirmative defense to the charge of attempted murder.

After conducting an evidentiary hearing, the trial court denied defendant's motion.

I. Standards of Review

The constitutional right to effective assistance of counsel "is not a guarantee against mistakes of strategy or exercise of judgment in the course of a trial as viewed through the 20-20 vision of hindsight following the return of a verdict in a criminal case." Dolan v. People, 168 Colo. 19, 22-23, 449 P.2d 828, 830 (1969); see Davis v. People, 871 P.2d 769, 773 (Colo.1994)

("Mere disagreement as to trial strategy ... will not support a claim of ineffectiveness.").

To prevail on a claim of ineffective assistance of counsel, a defendant must establish that: (1) counsel's performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 694 (1984); see Davis v. People, supra, 871 P.2d at 772

.

In assessing the first prong of the Strickland test, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland v. Washington, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955)); see Davis v. People, supra, 871 P.2d at 772

.

To establish prejudice under the second prong of the Strickland test, the defendant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; see Davis v. People, supra, 871 P.2d at 772

.

To obtain relief, the defendant must prove, by a preponderance of the evidence, each prong of the Strickland test. People v. Russell, 36 P.3d 92, 95 (Colo.App. 2001). If a court determines that counsel's performance was not constitutionally deficient, it need not consider the prejudice prong of the ineffective assistance of counsel test. People v. Sparks, 914 P.2d 544, 547 (Colo.App.1996). Similarly, if a court determines that a defendant failed to affirmatively demonstrate prejudice, it may resolve the claim on that basis alone. People v. Garcia, 815 P.2d 937, 941 (Colo.1991).

The trial court determines the weight and credibility to be given the testimony of witnesses in a Crim. P. 35(c) hearing. And when evidence in the record supports the court's findings, its ruling will not be disturbed on review. Kailey v. Colorado State Department of Corrections, 807 P.2d 563, 567 (Colo.1991).

II. Pretrial Contact with Defendant/Pretrial Investigation

Defendant first argues that he was denied the effective assistance of counsel because trial counsel: (1) met with him only one time at the jail prior to trial; and (2) failed to conduct any pretrial investigation. We are not persuaded.

As to the first claim, trial counsel testified, without contradiction, that they met with defendant before and after pretrial hearings at the courthouse and that they contacted defendant by telephone fairly often. In light of this testimony, the trial court's determination that defendant failed to show deficient performance as a result of trial counsel's communication with him is supported by the record.

As to the other claim, a defendant is entitled to a pretrial investigation sufficient to reveal potential defenses and the facts relevant to guilt or penalty; a less than comprehensive investigation is reasonable only to the extent that reasonable professional judgment supports the limits of the investigation. Davis v. People, supra, 871 P.2d at 773; People v. Apodaca, 998 P.2d 25, 29 (Colo.App.1999).

Here, the record reflects that trial counsel reviewed the witness statements and police reports and met often with the lead detective. They did not, however, conduct an independent investigation. Consequently, they did not attempt to find or interview the reputed drug lord or another alleged witness to the kidnapping. Nor did trial counsel attempt to discover the reputed drug lord's criminal history prior to trial.

Trial counsel explained that they decided not to interview the reputed drug lord based on their assumption that he would only invoke his Fifth Amendment privilege against self-incrimination if contacted. This assumption was based on information from the police that the drug lord would not speak to the police except through retained counsel. Trial counsel also testified that defendant had already made them aware of the drug lord's criminal history.

Even if we assume that trial counsel's performance was deficient in limiting their investigative efforts solely to obtaining information from the police and their client, we would nonetheless conclude that defendant is not entitled to relief.

At the Crim. P. 35(c) hearing, defendant did not produce any evidence of the willingness of the drug lord or the other witness to testify. Nor did defendant produce any evidence or make an offer of proof with respect to the substance, credibility, or admissibility of their anticipated testimony. Consequently, he has failed to demonstrate how counsel's failure to investigate resulted in any prejudice to him. See People v. Chambers, 900 P.2d 1249, 1252 (Colo.App.1994)

.

III. Uncounseled Police Interrogation

Next, defendant contends that the trial court erred in not finding trial counsel ineffective for allowing the police to interrogate him in trial counsel's absence and without gaining a benefit in exchange. We disagree.

The trial court determined that, although allowing an uncounseled interview would generally fall below the normal standards of competence, there was no showing of prejudice because the police did not learn anything substantially new or different from what they had learned during two previous interrogations of defendant.

It is the appellant's duty to provide those portions of the record necessary to substantiate the claims of error on appeal. Absent such a record, we must presume that the trial court's ruling was correct. See People v. Bishop, 7 P.3d 184, 188 (Colo.App. 1999)

.

Here, none of the tapes or transcripts of the interrogations was designated as part of the record on appeal. Consequently, we are unable to determine whether the statement obtained during the uncounseled interview was used at trial to discredit defendant. And, without the ability to independently review the statements, we must presume that the trial court correctly ruled that nothing substantially new or different was uncovered in the uncounseled interrogation. Moreover, from the limited record before us, it appears that defendant provided police his exculpatory version—namely, that he intentionally left the car running—only during the uncounseled interview. Thus, he may have benefited from that event.

IV. Plea Offer

Defendant also argues that trial counsel were ineffective for failing to advise him of a plea offer. We are not persuaded.

Defense counsel's failure to convey a plea offer to a defendant constitutes deficient performance even though the defendant otherwise receives a fair trial. People v. Perry, 68 P.3d 472, 2002 WL 220850 (Colo.App. No. 98CA2122, Feb. 14, 2002).

Here, while trial counsel could not specifically recall discussing the plea offer with defendant, they felt certain they had done so. Further, at one point in his testimony, one attorney recalled convincing the prosecution to keep the plea offer open longer to allow defendant more time...