Robinson v. State, 01-61.

• Decision Date: 05 March 2003
• Docket Number: No. 01-61.,01-61.
• Citation: 64 P.3d 743,2003 WY 32
• Parties: Kevin James ROBINSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

64 P.3d 743

2003 WY 32

Kevin James ROBINSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-61.

Supreme Court of Wyoming.

March 5, 2003.

Representing Appellant: John M. Burman; Diane E. Courselle, Director, Defender Aid Program; Paul R. Flick and Lindsay A. Hoyt, Student Directors; and Amanda Wilson (Intern).

Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Sean W. Scoggin, Special Assistant Attorney General.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] This is an appeal from the trial court's denial of a motion for new trial. Finding no abuse of discretion in the trial court's initial denial of the motion or in its subsequent denial of the motion after a limited remand, we affirm.

PROCEDURAL HISTORY

[¶ 2] In 1998, the appellant, Kevin James Robinson, was convicted of voluntary manslaughter, soliciting to engage in illicit sexual relations with a minor, and taking indecent liberties with a child. Those convictions were affirmed on direct appeal to this Court in Robinson v. State, 11 P.3d 361 (Wyo.2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1620, 149 L.Ed.2d 483 (2001). While that appeal was pending, the appellant filed in the trial court a Motion for New Trial Pursuant to W.R.Cr.P. 33(c). Proceedings on the motion were stayed pending the appeal. This Court's mandate affirming the appellant's convictions issued October 16, 2000. The trial court subsequently heard and denied the new trial motion. On February 9, 2001, the appellant appealed that decision.

[¶ 3] During his trial and initial appeal, the appellant was represented by attorneys from the Office of the State Public Defender. On May 15, 2001, those attorneys were allowed to withdraw because of allegations of ineffectiveness in regard to the new trial motion. The Defender Aid Program from the University of Wyoming College of Law then entered its appearance on behalf of the appellant. Later that year, this Court granted new counsels' Motion for Limited Remand for an Evidentiary Hearing. The order granting that motion directed the trial court "to conduct a hearing and make a ruling on appellant's claim of ineffective assistance of counsel [pursuant to] Calene v. State, 846 P.2d 679, 692 (Wyo.1993) ...."¹ The order also stayed the appeal. After the evidentiary hearing, the trial court issued a decision letter and an order denying the claim of ineffective assistance of counsel.²

ISSUES

[¶ 4] Before listing the issues that will be discussed in this opinion, we find it appropriate to explain how those issues have arisen. Issues raised in the first appeal included sufficiency of the evidence, evidentiary rulings, ineffective assistance of counsel, prosecutorial misconduct, a photographic lineup, and alleged trial court error during voir dire. Robinson, 11 P.3d at 365. Those issues, all of which concerned the jury trial, are settled and gone. The present appeal is taken from the trial court's denial of the appellant's new trial motion, which motion raised only the issue of newly discovered evidence. In developing that issue, however, appellate counsel obtained the remand to the trial court for an evidentiary hearing to determine whether prior counsel was ineffective in regard to that motion and hearing. During the evidentiary hearing, and in later briefing, the appellant raised as a particular question whether prior counsel was ineffective for having failed to raise a "Brady issue."³

[¶ 5] Perhaps due to this somewhat complex procedural history, the parties do not exactly agree as to what issues are before this Court. Surprisingly, inasmuch as this appeal is actually from the trial court's denial of the new trial motion, the appellant does not specifically list that as an issue. Instead, the appellant lists two issues: (1) the alleged ineffective assistance of counsel in regard to the new trial motion; and (2) whether the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The State lists all three issues, and adds in its briefing that the Brady issue, not having been raised in the new trial motion, should not be heard.

[¶ 6] From the arguments made during the hearing on the motion for a new trial, from the arguments made during the evidentiary hearing on remand, and from the briefs, we discern the following issues that require resolution:

1. Whether the trial court abused its discretion in concluding that the appellant received effective assistance of counsel in regard to the motion for a new trial?

2. Whether the trial court abused its discretion in denying the motion for a new trial?

FACTS

[¶ 7] Part of the appellant's trial strategy was to suggest that there were other people with a possible motive to kill the victim. One of those "suspects" was Xavier Lopez, who had been convicted for having a sexual relationship with the victim. Robinson, 11 P.3d at 374. The district court limited the appellant's attempt to delve into the sexual relationship between Lopez and the victim because the appellant could not show contact between the two in the year before the victim's death. During the trial, however, defense counsel was sufficiently successful in advancing Lopez as a suspect that, during deliberations, the jury sent out a note inquiring about him.⁴

[¶ 8] During its investigation of the homicide, the State had learned of a man named David Bartlett, who allegedly had told a woman named Shelly Strauser that Lopez, not the appellant, had killed the victim. When a sheriff's investigator interviewed Bartlett, Bartlett admitted that he had made the statement implicating Lopez, but claimed that he had been lying and was just trying to "sound like a big guy." The sheriff's investigator made no notes or other record of the interview. Bartlett was, however, included on the State's "interview list," so he was interviewed by the defense investigator. In that interview, Bartlett flatly denied having made any statements about Lopez. Not knowing of Bartlett's contrary assertion to the sheriff's investigator, the defense investigator did not confront Bartlett with the inconsistency. This situation is the basis for the appellant's present Brady argument.⁵

[¶ 9] After the trial, Bartlett and Lopez came back to the attention of defense counsel and became the basis for the new trial motion. On March 19, 1999, a private attorney who had once represented the appellant took sworn statements from Aaltje Lessard and her mother, Kristine Unger-Lessard. The relevant gist of those statements was that sometime in the late summer of 1998, while Bartlett was dating Lessard, Bartlett told Lessard that Lopez, not the appellant, had killed the victim and that he, Bartlett, had helped Lopez dispose of the body. Unger-Lessard stated that Bartlett had later repeated that information to her in telephone conversations. The appellant now presents these statements as the newly discovered evidence justifying a new trial.

STANDARD OF REVIEW

INEFFECTIVE ASSISTANCE OF COUNSEL

[¶ 10] In the first appeal of this case, we reiterated our standard for the review of claims of ineffective assistance of counsel:

A claim of ineffective assistance of counsel is reviewed under the well known standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984):

"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

We invoke a strong presumption that counsel rendered adequate and reasonable assistance making all decisions within the bounds of reasonable professional judgment. Jackson v. State, 902 P.2d 1292, 1295 (Wyo.1995).

Robinson, 11 P.3d at 367-68 (quoting Mapp v. State, 953 P.2d 140, 143 (Wyo.1998)).

[¶ 11] We have identified and applied this standard many times. See, for example, Becker v. State, 2002 WY 126, ¶ 12, 53 P.3d 94, 98 (2002); Weidt v. State, 2002 WY 74, ¶ 22, 46 P.3d 846, 855 (2002); and Lancaster v. State, 2002 WY 45, ¶¶ 56-57, 43 P.3d 80, 101-02 (2002). In doing so, however, we have not clearly explained how the test is applied by this Court after it has already been applied in the trial court. There are three scenarios: (1) the issue was raised, heard, and decided in the trial court before the appeal was filed; (2) the issue was first raised as part of the appeal and was decided by this Court on the record presented; and (3) the issue was first raised as part of the appeal, there was a remand to the trial court for a Calene hearing and a decision by the trial court, and that decision was then addressed on appeal. The third situation exists in the present case.

[¶ 12] In Calene v. State, 846 P.2d 679, 692-93 (Wyo.1993), Justice Urbigkit described these varying situations and the need for a remand to the trial court when the ineffectiveness claim requires development of the record. The purpose of the remand is not solely to adduce evidence; rather, the trial court "will provide a specific decision addressing separate contentions by examination and resolution of the validity of any trial court ineffectiveness of counsel contentions." Id. at 692. Calene does not go on, however, to explain the nature of this Court's review of the trial court's decision.

[¶ 13] A somewhat similar situation occurred in McCoy v. State, 886 P.2d 252, 254 (Wyo.1994),...