State v. Fee

• Decision Date: 06 August 1993
• Docket Number: No. 19748,19748
• Citation: 124 Idaho 170,857 P.2d 649
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Roy Arthur FEE, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 649

857 P.2d 649

124 Idaho 170

STATE of Idaho, Plaintiff-Respondent, v. Roy Arthur FEE, Defendant-Appellant.

No. 19748.

Court of Appeals of Idaho.

Aug. 6, 1993.

[124 Idaho 172] Robert M. Taisey, Jr., Weiser, for defendant-appellant.

Larry EchoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen., for plaintiff-respondent.

WALTERS, Chief Judge.

Roy Arthur Fee was found guilty by a jury on a charge of aggravated assault. I.C. §§ 18-901; 18-905. He appeals from the judgment of conviction, contending that he did not receive effective assistance of counsel in several respects during his trial. We affirm.

FACTS AND PROCEDURE

According to the testimony of the victim, the alleged assault occurred when Fee entered the victim's home early one morning, held a knife close to her throat and threatened to kill her if she did not tell him of the whereabouts of Fee's wife and a man with whom Mrs. Fee was then living. The victim testified that she was greatly frightened by the defendant's conduct, both for herself and for Mrs. Fee and Mrs. Fee's friend, because of Fee's expressed desire to kill those people also. In his defense, Fee testified that he confronted the victim to determine if she knew where Mrs. Fee and the man were, but that he did not hold his knife to the victim's throat or threaten to kill the victim. Other witnesses called by the state corroborated the victim's version of the confrontation by relating admissions made to them by Fee after he had left the victim's home.

In his argument on appeal, Fee's counsel ¹ asserts that Fee was afforded ineffective assistance of counsel at trial in numerous respects. All of these contentions are predicated upon trial counsel's alleged failure to do some affirmative act which Fee now argues should result in a reversal of the judgment of conviction. Because these claims have been made on a direct appeal from the judgment, no evidentiary hearing was held nor was any affidavit presented regarding the theories, tactics or strategies of Fee's trial counsel to explain why he did not perform in the manner about which Fee now complains. See, e.g., Russell v. State, 118 Idaho 65, 794 P.2d 654 (Ct.App.1990) (appeal from order denying relief on application for post-conviction relief, after evidentiary hearing, on allegations of ineffective assistance of counsel); Davis v. State, 116 Idaho 401, 775 P.2d 1243 (Ct.App.1989) (same).

STANDARDS OF REVIEW

At the outset, we note that--in order to prevail on a claim of ineffective assistance of counsel--the appellant must show that his counsel's representation was deficient and that the deficiency prejudiced him. Id., citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Aragon v. State, 114 Idaho 758, 760 P.2d 1174 (1988). In the determination of whether deficient performance occurred, there is a strong presumption that the performance by counsel was within the "wide range of professional assistance." Aragon, 114 Idaho at 760, 760 P.2d at 1176, quoting Strickland. Prejudice is presumed in a few instances, such as lack of counsel altogether or where there is a conflict of interest on the part of counsel. Id. at 761, 760 P.2d at 1177. Such circumstances do not exist in the present case, so prejudice must be established by the appellant. State v. Roles, 122 Idaho 138, 832 P.2d 311 (Ct.App.1992).

In order to establish that the deficiency prejudiced his case, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. In the determination of this issue, we "must consider the totality of the evidence before the judge or jury." Id., 466 U.S. at 695, 104 S.Ct. at 2068. Furthermore,

strategic or tactical decisions made by trial counsel will not be second-guessed on review, unless those decisions are made upon a basis of inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective evaluation.

Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct.App.1989) (citations omitted).

CLAIMS

The particulars of Fee's claims of denial of effective assistance of counsel involve ten areas of concern, according to his argument on appeal. He submits that his counsel (1) failed to advise him he would be subject to cross-examination by the state, if he chose to testify on his own behalf; (2) failed to object to certain testimony; (3) failed to object to leading questions posed by the prosecutor; (4) failed to move for a change of venue; (5) failed to require the state to prove a chain of custody of the defendant's knife before stipulating to the admission of the knife in evidence; (6) failed to move for a mistrial; (7) failed to object to comments by the court which would have served as the basis for the mistrial motion; (8) failed to object to allegedly improper comments by the prosecutor in summation to the jury; (9) failed to subpoena a mattress for introduction as evidence; and (10) failed to object--on grounds of relevancy--to testimony concerning events which occurred after the incident involving the victim. We will discuss each of these issues in turn.

a. Exposure to cross-examination.

Fee argues first that his counsel failed to advise him with regard to the procedure involved in a criminal case and of the potential consequence if he chose to testify. In particular, Fee contends that counsel failed to inform him that if he testified the state would have an opportunity to cross-examine him. It is well established in Idaho that a defendant who takes the stand to testify on his own behalf is subject to cross-examination, just as is any other witness, subject to certain constitutional protections and constraints. State v. White, 97 Idaho 708, 551 P.2d 1344 (1976); State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967); State v. Storms, 84 Idaho 372, 372 P.2d 748 (1962); State v. Hargraves, 62 Idaho 8, 107 P.2d 854 (1940). Fee does not cite any authority for the proposition that the failure of an attorney to advise his client of this status of the law constitutes ineffective assistance of counsel. Moreover, we note that there is no evidence in the record on this point, either to substantiate or to refute Fee's claim that his attorney failed in fact to provide him with such advice. There is also no evidence, or even a contention, that if Fee had been apprised of the risk of cross-examination he would have elected not to testify in his own defense, or that if he had declined to testify the result of the trial would have been different. Under these circumstances, we conclude Fee has not established that his counsel was deficient with regard to the alleged failure to inform Fee of the state's right to conduct cross-examination or that Fee suffered prejudice from the alleged deficiency.

b. Inconsistent testimony.

Next, Fee maintains that his trial counsel failed to object to testimony which was inconsistent with testimony given at the preliminary hearing. However, Fee does not direct our attention to any particular portions of the testimony about which he now complains. It is well settled that we will not search a trial record for unspecified errors. State v. Kelling, 108 Idaho 716, 719, 701 P.2d 664, 667 (Ct.App.1985); State v. Crawford, 104 Idaho 840, 663 P.2d 1142 (Ct.App.1983). Further, Fee has not specified what objections his counsel could have raised that would have persuaded the court to exclude the evidence. Testimony is not necessarily objectionable merely because the witness has made prior inconsistent statements. Indeed, as a tactical matter, counsel may well prefer to allow inconsistencies in testimony to be developed, in order to provide a basis for argument to the jury concerning credibility and impeachment of particular witnesses. Under that circumstance, an objection to the testimony, on the ground of inconsistency, clearly would be unwise. Because of Fee's lack of specificity as to what evidence his attorney should have objected to, and what objections should have been raised, and in view of the presumption flowing from the wide range of professional assistance and tactical strategy accorded counsel, we hold that Fee has not established his attorney's alleged deficient performance in this regard.

c. Leading questions.

Third, Fee asserts that his attorney failed to object to leading questions asked by the prosecutor. Again, Fee does not point to any particular question posed by the prosecutor which would have been subject to such an objection. As stated, we will not search the record for unspecified errors, State v. Kelling, supra; State v Crawford, supra, and we hold that Fee has failed to show any deficient performance in this respect.

d. Change of venue.

As his fourth proposition that his counsel was ineffective, Fee argues that his attorney failed to file a motion for change of venue. The reasons for a change of venue, as set forth in Idaho Criminal Rule 21(a) and 21(b), are that a fair and impartial trial cannot be had in the county where the case is pending or that the convenience of the parties and the witnesses would best be served by a change of the venue. Case law teaches that where a defendant did not challenge for cause any juror seated in the case on trial and the record demonstrates that none of the jurors had formed an opinion of the defendant's guilt or innocence based on pretrial publicity, the defendant has failed to show that the setting of the trial was inherently prejudicial or that the jury-selection process permitted any inference of actual prejudice; as a result, the trial court did not err in denying the defendant's motion for change of venue. State v. Winn, 121 Idaho 850, 828 P.2d 879 (1992). It further has been held that the issue of whether a change of venue should be requested is a matter of trial strategy and tactical choice, not subject to review as a claim of...