Robinson v. State
| Decision Date | 28 March 1986 |
| Docket Number | No. 85-187,85-187 |
| Citation | 716 P.2d 364 |
| Parties | Leslie Carl ROBINSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Robert W. Horn, Jackson, for appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Thomas A. Maurer, Asst. Atty. Gen. (argued), for appellee.
Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.
After a jury trial, appellant Leslie Robinson was convicted of delivering marijuana and cocaine. On appeal he claims that he was denied effective assistance of counsel and that the drugs were admitted into evidence without adequate foundation.
We affirm.
On May 24, 1984, Agent Dan Kelsey of the Wyoming Division of Criminal Investigation purchased marijuana from Catherine Randolph at the Mission Bar in Sheridan. Several weeks later, on June 6, Agent Kelsey and Miss Randolph completed a similar transaction involving cocaine. Prior to the actual deliveries by Miss Randolph, Agent Kelsey and his partner, Agent Dennis Ross, saw her speak with appellant. On each occasion appellant left the bar, returned a short while later, and met privately Appellant was arrested on February 8, 1985, pursuant to a criminal complaint and warrant. He was charged with two counts of delivery of a controlled substance in violation of § 35-7-1031(a)(i) and (ii), W.S.1977. Appellant pled not guilty, and the case went to trial.
with Miss Randolph. Then Miss Randolph delivered the drugs. Miss Randolph testified at trial that she obtained the drugs from appellant.
Seven witnesses testified. Agents Kelsey and Ross recounted their observations during the drug buys, and Agent Ross testified that he delivered the drugs to the state crime laboratory. Jeffrey Benson, a crime lab chemist, stated that he marked, stored, and analyzed the drugs, and that they were indeed marijuana and cocaine. Appellant's lawyer examined Mr. Benson on the details of the chain of custody and objected to the admission of the evidence because of insufficient foundation.
Miss Randolph testified that appellant had delivered the drugs to her. On cross-examination, appellant's lawyer attempted to show that Miss Randolph had ulterior motives for statements she made to the police which incriminated appellant. The following exchange took place:
Appellant's lawyer spent most of his remaining cross-examination trying to minimize the impact of Miss Randolph's surprise testimony, and Miss Randolph eventually admitted that she did not know whether the person who threatened her life was one of appellant's friends.
Appellant called Mrs. Becky Harris to impeach Miss Randolph's testimony. Mrs. Harris said that she overheard a conversation in which Miss Randolph told appellant that she had signed a statement implicating him in the drug deal because she wanted to get even with him--not because he was actually involved.
The other two defense witnesses were a bartender at the Mission bar and appellant. The bartender's testimony has no bearing on this appeal, but appellant's testimony is relevant. On direct examination by his attorney, appellant denied that he delivered the cocaine and marijuana to Miss Randolph. He also corroborated Mrs. Harris' testimony about his conversation with Miss Randolph in which Miss Randolph allegedly admitted that she implicated him solely because she thought he had implicated her. Finally, appellant described his prior criminal convictions for burglary and explained that he avoided any involvement with drugs because he was afraid to go back to prison. The prosecution cross-examined appellant on his prior convictions.
The jury found appellant guilty on each count, and the court sentenced him to concurrent terms of three to six years in the state penitentiary and fined him $2,000.
We presume that counsel is effective, and thus place the burden on the criminal defendant to prove the ineffectiveness of his attorney. Munden v. State, Wyo., 698 P.2d 621, 623 (1985); United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984). In order to carry his burden, the defendant must Appellant's first claim of ineffectiveness involves Miss Randolph's testimony about death threats. Appellant argues that his lawyer should not have elicited that testimony and should have moved for a mistrial once it was heard by the jury. He claims the testimony was devastating because the jurors would assume that he ordered the death threat and was, therefore, guilty of the drug crimes.
show that his attorney failed to render the assistance that a reasonably competent attorney would have rendered under the circumstances. Munden v. State, supra. Second, he must show that his attorney's deficient performance prejudiced the defense. Spilman v. State, Wyo., 633 P.2d 183, 185 (1981); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
Appellant has not explained how his attorney could have avoided Miss Randolph's death-threat testimony. It occurred when appellant's attorney was inquiring into the statement which Miss Randolph was alleged to have made to appellant in the presence of Mrs. Harris. He assumed she would either admit or deny the statement. If Miss Randolph admitted telling appellant that he did not sell her the drugs, then she would have impeached her own testimony. If, instead, she denied making that admission, then appellant and Mrs. Harris would impeach her credibility by testifying to the contrary later in the trial. It is perfectly understandable that appellant's attorney would examine the witness in this area. Miss Randolph's statement about the death threat was simply one of those surprises that occur in trials without fault of anyone. It is a rare trial that something unexpected does not occur; and litigants, being so involved, magnify these incidents out of all proportion to their real impact upon the total trial. But, as is often the case, it is improbable that a single isolated incident such as this one, when measured against the voluminous testimony and proceedings of the total trial, will affect the outcome of the case.
Once it was before the jury, appellant's attorney had essentially two approaches for dealing with the death-threat testimony. First, as appellant suggests in 20/20 hindsight, he could have moved for a mistrial or to strike the testimony. Second, he could have questioned Miss Randolph further, forcing her to admit that she could not connect the death threat with appellant. He chose the second course, and Miss Randolph admitted that she could not connect the death threat to appellant. Appellant claims that his attorney's choice of the second approach was grievous error. He contends that the better course of action would have been a motion for mistrial or to strike. Such a motion, however made, 1 would have focused attention on the threat and disclosed appellant's deep concern over it. It might then have appeared as though appellant were responsible for the threat. Attorneys always consider how their trial actions will affect the jury. It seems to us that a denial of the motion would have been more damaging than the admission that there was nothing to connect appellant with the death threat. 2 We find that appellant's Appellant also claims that his trial counsel was ineffective because he "brought out that the [appellant] had been in prison for burglary" and because he allowed evidence of appellant's prior burglary convictions to be admitted without objection. Appellant argues that this evidence was "clearly excludable" under Rule 404(b), W.R.E., "and one must conclude that would have been done had the appropriate motion been made."
attorney made a reasonable tactical decision to obtain Miss Randolph's admission that she could not connect the death threat to appellant.
The argument fails because appellant relies on the wrong rule of evidence. Once appellant became a witness, the admissibility of his prior convictions was governed by Rule 609(a), W.R.E., rather than Rule 404(b). Rule 609(a) states:
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