Sorensen v. State

• Decision Date: 16 June 2000
• Docket Number: No. 99-96.,99-96.
• Citation: 6 P.3d 657
• Parties: Glenn Wayman SORENSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

6 P.3d 657

Glenn Wayman SORENSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 99-96.

Supreme Court of Wyoming.

June 16, 2000.

Representing Appellant: Sylvia Lee Hackl, Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Hughes, Assistant Appellate Counsel. Argument by Ms. Hughes.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Darin D. Smith, Student Intern. Argument by Mr. Smith.

Before LEHMAN, C.J., and THOMAS, MACY,¹ GOLDEN, and HILL, JJ. LEHMAN, Chief Justice.

A Hot Springs County jury found Glenn Wayman Sorensen guilty of one count of first degree sexual assault. Claiming he was denied effective assistance of counsel, he appeals. We affirm.

ISSUES

Sorensen presents the following issues for review:

1. Did trial counsel provide ineffective assistance of counsel in the process of jury selection, when he failed to (a) adequately question the panel; (b) object to or have removed a juror who could not hear the evidence; and (c) make an objection or an adequate record for appeal concerning the apparently deliberate exclusion of male jurors, resulting in violation of Appellant's right to due process and equal protection?

2. Did trial counsel provide ineffective assistance of counsel in that he had a conflict of interest from having previously represented the alleged victim on drug charges?

3. Did trial counsel provide ineffective assistance of counsel in his failure to adequately cross-examine the victim of the sexual assault?

FACTS

Sorensen was charged with one count of first degree sexual assault and tried before a jury on May 14 and 15, 1998. That trial resulted in a mistrial, and the State subsequently filed a Notice of Intention to Retry Jury Trial. Sorensen was tried again, where the following evidence was produced.

On November 19, 1997, Sorensen telephoned the victim, a Thermopolis resident, and invited her to come to his trailer house in Kirby and "party" with him. The victim and Sorensen had partied on several prior occasions. Their "partying" consisted of drinking and doing illegal drugs. After stopping at a liquor store to purchased a bottle of wine, the victim ventured to Sorensen's home. Upon arriving around 9:30 or 10 p.m., the victim noticed Sorensen had been drinking heavily, and an empty whiskey bottle and empty beer cans cluttered the floor.

The victim testified that, after some time spent drinking, Sorensen pulled out a rusty knife and ordered her to take off her clothes, claiming she "owed him." The victim presumed Sorensen meant she owed him for illegal drugs he had given her in the past for which she had not paid. The victim pleaded with Sorensen not to hurt her and to let her go home, but she proceeded to undress after he hit her on the head. The victim testified that Sorensen then preformed oral sex on her against her will. Sorensen then ordered the victim to preform oral sex on him. The victim asserted that, during the course of the sexual contact, Sorensen was repeatedly hitting her on the head with a closed fist any time she resisted. After Sorensen was unable to become aroused, the victim donned her jacket and shoes, grabbed the rest of her clothes, and left the house sometime between 1:30 and 2:00 a.m. The victim stated she drove home without her eye glasses because Sorensen would not give them back to her.

Friday, November 21, 1997, the victim reported the incident to law enforcement. Later that day, she sought medical treatment for bruising on her hands, face and shins; swelling across the bridge of her nose; and abrasions on her neck. She was given pain killers and muscle relaxers, but no further medical treatment was required beyond an "as needed" basis.

Sorensen testified in his defense. Although he admitted slapping the victim, he claimed he did not strike her until after he failed to become aroused. Thus, it was his theory at trial that, although he may have battered the victim, the incident did not amount to a forcible sexual assault because any battery that occurred did not occur until after the sexual acts were completed. Sorensen also denied threatening the victim with a knife.

After deliberations, the jury found Sorensen guilty of one count of first degree sexual assault. Judgment and sentence was entered accordingly. This timely appeal followed.

DISCUSSION

Sorensen's claims of error all revolve upon his claim that counsel was ineffective. The law and standards of ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) were adopted by this court in Frias v. State, 722 P.2d 135, 145 (Wyo.1986) and articulated in Jackson v. State, 902 P.2d 1292, 1295 (Wyo. 1995):

When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 793, 796 (Wyo.1995); Starr v. State, 888 P.2d 1262, 1266-67 (Wyo. 1995); Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Frias v. State, 722 P.2d 135, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable judgment. Herdt, at 796; Starr, at 1266; Arner, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).

Under the two-prong standard articulated in Strickland and Frias, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to "render such assistance as would have been offered by a reasonably competent attorney" and that "counsel's deficiency prejudiced the defense of [the] case." Lower v. State, 786 P.2d 346, 349 (Wyo.1990).

The burden of proving that counsel was ineffective rests on the defendant, who must overcome a "strong presumption that counsel rendered adequate and reasonable assistance making all decisions within the bounds of reasonable professional judgment." Gist v. State, 737 P.2d 336, 342 (Wyo.1987) (citing Strickland, supra); Dickeson v. State,

843 P.2d 606, 609 (Wyo.1992). For assistance of counsel to be deemed deficient, the defendant must show "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Dickeson, 843 P.2d at 609 (quoting Strickland, supra). Prejudice to the defense can be shown by demonstrating "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. "Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." Id.

Voir dire

Although Sorensen claims his trial counsel did not adequately question prospective jurors during the voir dire process, nothing leads us to believe trial counsel's questioning was outside the wide range of professionally competent assistance. The purpose of voir dire "is to seek to establish grounds for challenge for cause; assess any individual bias as to each member of the panel; and to arrive at a determination of the potential jurors' ability to decide a case fairly." Vit v. State, 909 P.2d 953, 960 (Wyo. 1996). Because voir dire questioning techniques are diverse, any inadequacy in voir dire questioning must be egregious and obvious to fall below the line of competence. Arner v. State, 872 P.2d 100, 105 (Wyo.1994). In performing our review for ineffectiveness, this court does "not evaluate the efforts of counsel from a perspective of hindsight but, rather, we endeavor to reconstruct the circumstances surrounding counsel's challenged conduct and evaluate the professional efforts from the perspective of counsel at the time." Dickeson, 843 P.2d at 609 (citing Strickland, supra); Arner v. State, 872 P.2d at 104.

In voir dire, the district court instructed the attorneys to avoid asking questions of individual jurors that could be asked of the panel, not to repeat questions that had been asked by opposing counsel, and not to argue the law or the facts during jury selection. See W.R.Cr.P. 24(c). The prosecutor was given the first opportunity to examine for cause, and defense counsel was allowed to interject questions in the process. Sorensen's trial counsel took advantage of this opportunity several times, especially during individual voir dire in chambers. When the prosecutor completed his examination for cause, defense counsel was permitted to examine for cause.

Obviously, trial counsel could have asked more questions during voir dire. However, both attorneys were to avoid repeating questions that had already been asked. In addition, defense counsel's questioning followed the prosecutor's thorough examination for cause. Viewing counsel's performance from this perspective, we find nothing improper in his questioning of the panel. As for Sorensen's complaints that defense counsel should have endeavored to remove a number of jurors who eventually sat on the jury, it must be remembered that "[v]oir dire and the exercise of challenging jurors is trial strategy." Arner v. State, 872 P.2d at 105. From our review of the record, Sorensen has not shown any error that was so egregious and obvious as to fall below the line of competence.

Hearing-impaired...