People v. Tackett, 83CA1163

• Decision Date: 09 April 1987
• Docket Number: No. 83CA1163,83CA1163
• Citation: 742 P.2d 957
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles William TACKETT, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 957

742 P.2d 957

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles William TACKETT, Defendant-Appellant.

No. 83CA1163.

Colorado Court of Appeals,

Div. II.

April 9, 1987.

Rehearing Denied May 14, 1987.

Certiorari Denied (Tackett) Sept. 8, 1987.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Curt P. Kriksciun, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Tegtmeier & Sears, P.C., Lance M. Sears, Benjamin S. Waxman, Mary G. Allen, Colorado Springs, for defendant-appellant.

BABCOCK, Judge.

Defendant, Charles William Tackett, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree sexual assault, second degree kidnapping, attempted first degree sexual assault, and crime of violence, and also appeals the trial court's order denying his motion for postconviction relief. We affirm.

The victim gave police a general description of her attacker. She moved to Arizona several months later and was subsequently contacted by a Phoenix police detective, who asked her to view a photographic lineup, from which she identified defendant as her assailant. Defendant's photo had been included in the lineup because he fit the victim's general description, and because he had been a suspect in several similar crimes. Thereafter, defendant was convicted of the above offenses and was sentenced to two concurrent 16-year terms and a concurrent four-year term.

After his motion for new trial was denied, defendant filed a motion for postconviction relief pursuant to Crim.P. 35(c), which was also denied.

I.

Defendant first contends that the trial court erred in denying his Crim.P. 35(c) motion because his trial attorneys failed to render him effective assistance of counsel. We disagree.

Defendant's allegation focuses on his attorneys' decisions not to present alibi testimony from his wife and not to present evidence that he had a mustache on the date of the offense, after the victim had described her assailant as clean-shaven. Defendant contends that his attorneys' failure to conduct a reasonably timely and thorough investigation of his alibi and the mustache aspect of his misidentification defense amounted to ineffective assistance of counsel.

The right to counsel guaranteed by the Sixth Amendment and Colo. Const. art. II, § 16, entitles the defendant in a criminal proceeding to the reasonably effective assistance of an attorney acting as his diligent and conscientious advocate. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Norman, 703 P.2d 1261 (Colo.1985). The standard of reasonableness is an objective one measured by prevailing professional norms. Strickland v. Washington, supra.

In a Crim.P. 35 proceeding, the burden rests on defendant to show not only that counsel's performance was deficient, but also that it prejudiced his defense. Strickland v. Washington, supra; People v. Dillon, 739 P.2d 919 (Colo.App.1987). To show such prejudice, defendant must demonstrate that, under the totality of circumstances, there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland v. Washington, supra; People v. Dillon, supra.

A defendant is entitled to a pretrial investigation of sufficient thoroughness to develop potential defenses and uncover facts relevant to guilt and punishment. Strickland v. Washington, supra; People v. Norman, supra. However, mere disagreement as to trial strategy will not support a claim of ineffective assistance. People v. Bossert, 722 P.2d 998 (Colo.1986). As the U.S. Supreme Court stated in Strickland v. Washington, supra:

"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic 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. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."

The issue here is thus not whether defendant's trial attorneys failed to pursue reasonable investigation of the alibi and mustache issues, but whether their decision not to present that evidence was reasonable to the extent that it made any further investigation unnecessary.

As to the alibi, defendant's attorneys interviewed his wife and mother about his activities on the night of the assault. Their stories contained discrepancies, and were inconsistent with accounts given by both defendant and his friend, who was also in his company that night. Corroborative of the credibility of their story was the wife's claim that she had been working as a waitress at a restaurant that night; however, when the attorney's investigator obtained her time card, it showed she was off work that evening. Defendant's attorneys testified that they were concerned that this evidence might damage the wife's and mother's credibility before the jury. Consequently, they reasoned the wife's testimony might impair defendant's attack on the victim's identification by enhancing her credibility and by diverting the jury's attention to collateral matters; therefore, they decided not to present the alibi testimony. They also testified that they had doubts about the veracity of the wife's and mother's stories, and were concerned about presenting perjured testimony.

Defendant argues that he received ineffective assistance because his attorneys failed to obtain documents from the restaurant's corporate headquarters which may have showed that his wife was working that night. However, these documents, admitted at the Crim.P. 35(c) hearing, were inconclusive, would not have changed the fact that the wife's and mother's credibility was still suspect, and would only have drawn attention to the inconsistencies in their testimony. Because defendant's attorneys determined, as a matter of strategy, that the alibi would have been potentially detrimental to the defense, they concluded that further investigation into matters that were, at best, tangential to the alibi was deemed unnecessary.

Concerning the mustache, the incident underlying the charges at issue occurred in February 1982, and defendant was clean-shaven in May 1982 when he was arrested on a separate sexual assault charge. Defendant claims he was denied effective assistance because his counsel failed to discover a Polaroid photograph allegedly taken in April 1982 that showed him with a mustache. Defendant's wife gave counsel the photograph shortly before trial after it was mailed to her by a relative in Ohio. The only evidence purporting to date the photo was a car rental agreement, and its relation to the photo could not be established.

Defendant's attorneys testified that when they got the photograph they had already decided not to present testimony that defendant wore a mustache at the time of the assault, since this would have permitted the prosecution to introduce evidence from his May 1982 arrest that showed him clean-shaven. They had also determined that defendant's mother's testimony as to why he had no mustache then--that he had shaved the mustache only days before that arrest because he had "nicked" it--would not be believed by the jury. Defense counsel considered defendant's wife's and mother's stories to be incredible. Because these were strategic decisions, no further investigation into the mustache matter was conducted, and the discovery of the undated photograph would not have altered that decision.

The trial court determined that the pretrial investigation did not fall below the objective standard of competence for effectiveness in the community. The court concluded that the...