Richmond v. State

• Decision Date: 13 October 2021
• Docket Number: S-21-0053,S-20-0098
• Citation: 2021 WY 111
• Parties: CHARLES SAMUEL RICHMOND, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2021 WY 111

CHARLES SAMUEL RICHMOND, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).

Nos. S-20-0098, S-21-0053

Supreme Court of Wyoming

October 13, 2021

Appeal from the District Court of Laramie County The Honorable Catherine R. Rogers, Judge

Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee: Bridget L. Hill, Attorney General Jenny L. Craig, Deputy Attorney General; Joshua C. Eames Senior Assistant Attorney General; Catherine M. Mercer, Assistant Attorney General.

Before FOX, C.J., and DAVIS, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

FOX CHIEF JUSTICE.

[¶1] Charles Richmond was convicted of second-degree murder after he shot John Paul Birgenheier. On appeal, Mr. Richmond contends his trial counsel was ineffective in failing to adequately advise him regarding his right to testify and in failing to present a defense. We affirm.

ISSUE

[¶2] Was Mr. Richmond's trial counsel ineffective?

FACTS

[¶3] Mr. Richmond and Mr. Birgenheier were neighbors with a troubled relationship. On the afternoon of December 5, 2018, the two fought in Mr. Richmond's room over money and a missing bong. Mr. Birgenheier, a younger and larger man, ^[1] threatened Mr. Richmond with a piece of a broken chair, pushed him to the ground several times, said, "I'll wipe you out," and left the house to return to his nearby camper. A short time later, Mr. Birgenheier stepped outside of the camper to smoke. His companion heard three shots and then heard Mr. Birgenheier screaming. She opened the camper door and saw Mr. Richmond holding a smoking shotgun and Mr. Birgenheier lying on the ground.

[¶4] A passing neighbor saw Mr. Richmond walk out of the house with a shotgun and disappear behind the camper, heard three shots, and saw him walk back into the house with the gun. The neighbor called 911. When Officer Michael Webster responded, he found Mr. Birgenheier in his companion's arms. Mr. Richmond appeared at the front of the camper with his hands up and said, "I'm sorry," and Officer Webster arrested him. EMTs arrived and pronounced Mr. Birgenheier dead.

[¶5] An autopsy revealed Mr. Richmond shot Mr. Birgenheier in the chest and upper arm with buckshot, in the right side of his back with a slug, and in the perineum with a slug. The medical examiner determined the first two shots were survivable, but the shot in the perineum was fatal.

[¶6] Mr. Richmond was charged with first-degree murder under Wyo. Stat. Ann. § 6-2-101(a). He pleaded not guilty and proceeded to trial on a self-defense theory. The State presented testimony from several witnesses including Mr. Birgenheier's companion, the neighbor, and several officers, detectives, and experts. With a stipulation from Mr. Richmond's defense team, the State played Officer Webster's bodycam video, the video of Mr. Richmond's ride to the police station, and the video of Mr. Richmond's interrogation at the station. In each video, Mr. Richmond volunteered that Mr. Birgenheier had stolen from him and beaten him up, and that he shot Mr. Birgenheier because Mr. Birgenheier "charged" or "came at" him.

[¶7] When the State rested its case, the district court excused the jury and addressed Mr. Richmond. The court stated Defense Counsel had advised that Mr. Richmond did not intend to testify. The court then asked, "Do you, Charles Richmond, understand that you have the right to testify in your own defense on all claims in the charge asserted against you in this case?" Mr. Richmond responded, "I'm willing to do that, but nobody's heard my side of the story yet." Mr. Richmond's attorney said he needed a minute to confer with him and acknowledged, "[H]e has an absolute right to testify." The district court agreed and recessed until after lunch. The court then resumed its inquiry:

THE COURT: [Defense Counsel], immediately prior to the lunch break, I attempted to engage in a colloquy with your client regarding your representation that he intended not to testify, we got a little bit different information from him, and you wanted some time with him. Tell me how or if that resolved.

[DEFENSE COUNSEL]: Your honor, I do believe that Mr. Richmond is deferring to the advice of counsel and decided he will not testify.

THE COURT: Well, let me ask him about it. Mr. Richmond, if you would stand up one more time, please. You heard what [Defense Counsel] just said, Mr. Richmond, he's advised that you intend not to testify, in fact not to call any witnesses to testify. Do you understand, Mr. Richmond, you have the right to testify in your own defense in this case?

[MR. RICHMOND]: Yes, I understand.

THE COURT: Do you knowingly and voluntarily waive or give up that right to testify in your own defense in this case?

[MR. RICHMOND]: Yes, Your Honor.

THE COURT: Okay.

[MR. RICHMOND]: I've talked to the lawyers and they told me my problems with not testifying. They assured me they're going to tell my side of the story, so-

THE COURT REPORTER: I'm sorry, I can't hear.

[DEFENSE COUNSEL]: He said, "They assured me they're going to tell my side of the story."

THE COURT: Okay. Thank you, [Defense Counsel]. And, Mr. Richmond, do you understand that right now is the last opportunity that you're going to have to make a decision about testifying?

[MR. RICHMOND]: I understand.

THE COURT: Okay. And you talked with [your defense team] about that decision?

[MR. RICHMOND]: Yes, I did.

THE COURT: Okay. Thank you, Mr. Richmond.

[MR. RICHMOND]: They assured me they're going to do the right thing and-

THE COURT: They assured you they were going to do the right thing. Is that what you just said?

[MR. RICHMOND]: Yes.

THE COURT: Thank you.

[¶8] The jury acquitted Mr. Richmond of first-degree murder, but convicted him of the lesser included offense of second-degree murder. Mr. Richmond was sentenced to twenty-five to twenty-eight years incarceration.

[¶9] Mr. Richmond appealed and then filed a W.R.A.P. 21 motion, in which he made several arguments, two of which he raised on appeal. He alleged his trial counsel was deficient first, for denying him the ability to make a knowing and voluntary waiver of the right to testify; and second, for failing to develop and prepare a defense. This Court stayed briefing on the appeal, and the district court held a hearing on the W.R.A.P. 21 motion.

[¶10] Mr. Richmond testified that his counsel never prepared him to testify, that he agreed not to testify because his attorneys promised to present his case, and that he did not believe they ever presented his case. Mr. Richmond called an expert in criminal defense trial litigation who testified that, based on Mr. Richmond's account and his review of parts of the trial transcript, he "wasn't really comfortable that Mr. Richmond made his decision [not to testify] knowingly." The district court concluded that Mr. Richmond did not present sufficient evidence that his trial counsel's advice to him was anything but strategic and competent, and therefore he failed to show ineffective assistance of counsel. The district court denied Mr. Richmond's motion for a new trial, and he appealed. We consolidated the appeals.

STANDARD OF REVIEW

[¶11] "Ineffective assistance of counsel claims 'involve mixed questions of law and fact.'" Jendresen v. State, 2021 WY 82, ¶ 36, 491 P.3d 273, 284 (Wyo. 2021) (quoting Sides v. State, 2021 WY 42, ¶ 34, 483 P.3d 128, 137 (Wyo. 2021)). "We review the district court's findings of fact for clear error and its conclusions of law de novo." Jendresen, 2021 WY 82, ¶ 36, 491 P.3d at 284 (citing Sides, 2021 WY 42, ¶ 34, 483 P.3d at 137).

[¶12] The Sixth Amendment to the Constitution of the United States, applicable to the states through the Fourteenth Amendment, guarantees a criminal defendant assistance of counsel. Herdt v. State, 891 P.2d 793, 796 (Wyo. 1995); Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) ("[T]he right to counsel is the right to the effective assistance of counsel."), reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); see also Yazzie v. State, 2021 WY 72, ¶ 20, 487 P.3d 555, 562 (Wyo. 2021) (right to counsel also guaranteed by Wyo. Const. art. 1, § 10). We apply the two-prong Strickland test to determine whether a defendant received ineffective assistance of counsel. Yazzie, 2021 WY 72, ¶ 20, 487 P.3d at 562 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). First, we ask whether counsel's performance was substantially below that of a reasonably competent attorney. Yazzie, 2021 WY 72, ¶ 20, 487 P.3d at 562 (quoting Neidlinger v. State, 2021 WY 39, ¶ 53, 482 P.3d 337, 351-52 (Wyo. 2021)); Dixon v. State, 2019 WY 37, ¶ 56, 438 P.3d 216, 236 (Wyo. 2019) (citing Wall v. State, 2019 WY 2, ¶ 39, 432 P.3d 516, 527 (Wyo. 2019)). Second, we ask whether, absent that deficient performance, there is a reasonable probability the outcome of the trial would have been more favorable to the appellant. Yazzie, 2021 WY 72, ¶ 20, 487 P.3d at 562; Fairbourn v. State, 2020 WY 73, ¶ 61, 465 P.3d 413, 428 (Wyo. 2020) (quoting Bittleston v. State, 2019 WY 64, ¶ 31, 442 P.3d 1287, 1295 (Wyo. 2019)).

[¶13] "A failure to establish one of the two prongs dooms an ineffective assistance of counsel claim." Yazzie, 2021 WY 72, ¶ 20, 487 P.3d at 562 (citation omitted). Because a defendant must establish both prongs, "a court can decide an ineffective assistance claim on the prejudice prong without considering the deficient performance prong." Id. at ¶ 21, 487 P.3d at 563 (citing Wall, 2019 WY 2, ¶ 39, 432 P.3d at 527). We conclude that Mr. Richmond has not met his burden of establishing either prong.

DISCUSSION

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