State v. McKay

• Decision Date: 22 October 1975
• Docket Number: No. 517,517
• Citation: 234 N.W.2d 853
• Parties: STATE of North Dakota, Plaintiff, Appellee, v. Floyd McKAY, Defendant, Appellant. Crim.
• Court: North Dakota Supreme Court

Page 853

234 N.W.2d 853

STATE of North Dakota, Plaintiff, Appellee, v. Floyd McKAY, Defendant, Appellant.

Crim. No. 517.

Supreme Court of North Dakota.

Oct. 22, 1975.

Rehearing Denied Nov. 4, 1975.

Syllabus by the Court

1. The right to counsel guaranteed by the Sixth Amendment of the United States Constitution does not mean errorless counsel nor counsel judged ineffective by hindsight, but counsel reasonably likely to render, and rendering, reasonably effective assistance.

2. Where identification of the defendant is made by the victim-witness during routine police investigation and identification procedures prior to indictment or its equivalent, such identification will not be subject to the exclusionary rule.

3. The defendant has failed to show that, under the current standard for effective counsel, the failure of his counsel to object to the identification procedure used here has deprived him of his right to effective counsel.

4. Counsel is resumed to be competent and adequate and the burden of proof to show inadequacy or incompetency of counsel lies upon the defendant.

5. Where the facts show that an incourt identification of the defendant was based on a previous viewing by the victim-witness, independent of a police station identification in conjunction with police investigatory processes, pre-indictment or its equivalent, at which the defendant was not reepresented by counsel, admission of the in-court identification is not reversible error.

6. An individual accused of a crime may voluntarily, knowingly, and understandingly plead guilty to a crime even if he is unable to admit his participation in the acts constituting the crime, provided evidence is introduced from which it can be concluded that defendant committed the crime.

7. Where the record shows that the court complied with Rule 11, N.D.R.Crim.P., in insuring that the plea of guilty was knowingly and voluntarily made and that the evidence showed that there was a factual basis for the plea, the decision of the trial court to accept the plea of guilty will be affirmed on appeal.

Ralph R. LePera (on the briefs and pleadings), and Jane Bickford, Bismarck, for defendant, appellant, argued by Jeffrey Edelman, Bismarck (appearance permitted by special motion).

Lewis C. Jorgenson, Asst. State's Atty., Devils Lake, for plaintiff, appellee.

SAND, Judge.

The defendant-appellant, Floyd McKay, pleaded guilty to robbery in the second degree and was sentenced by the district court of Ramsey County on June 21, 1974, to not less than eight years nor more than ten years in the State Penitentiary.

Thereafter, defendant applied to the same trial court for post-conviction relief under Chapter 29--32, North Dakota Century Code. The defendant made a motion, which was granted, to amend and supplement the original application. The State responded to both the original and the amended or supplemental application. The trial court considered the matter without holding a hearing and, on October 16, 1974, issued its order dismissing the application, from which the defendant appeals.

The defendant was originally charged with robbery in the first degree. He was represented at the trial by court-appointed counsel. The defendant pleaded not guilty to the charge of first degree robbery but offered to plead guilty to robbery in the second degree. Before accepting the plea of guilty, the trial court, pursuant to Rule 11, North Dakota Rules of Civil Procedure, questioned the defendant to determine if the plea was voluntarily and knowingly given. Defendant claimed that because of his state of intoxication at the time of the alleged robbery he could remember none of the events of that day. Because the defendant did not remember any of the acts constituting the crime to which he was offering to plead guilty, the court conducted an Alford ¹ hearing to determine if there was a factual basis for accepting the plea by the court and to ensure that the defendant's plea was knowingly and intelligently made, and to give defendant an opportunity to judge for himself if he should plead guilty to second degree robbery.

After the presentation of evidence, McKay was again asked if he wished to plead guilty to robbery in the second degree. He reaffirmed his plea of guilty. The plea of guilty was accepted by the court and sentence was passed.

The defendant asserts as error the following:

(1) The defendant was denied effective assistance of counsel due to the failure to object at the hearing to a suggestive in-court identification based on a prejudicial out-of-court identification and the failure to 'probe, impeach, and investigate.'

(2) The guilty plea entered into by defendant should not have been accepted by the court as it was based on misleading, conflicting, and contradictory testimony.

(3) There was not sufficient evidence to substantiate a factual basis for acceptance of such a guilty plea.

(4) The guilty plea is in fact void because the defendant was not made entirely aware of all the consequences of entering such a plea.

The defendant asks that the charges be dismissed and that a hearing be held to determine the issues presented, or that a trial by jury be ordered.

The defendant's first contention is that he was denied effective counsel at the hearing.

The proceeding or hearing held by the trial court before the plea was accepted was not a trial to determine guilt or innocence. Its purpose was to present evidence so that defendant could understandingly, knowingly, and intelligently make his plea, and to provide evidence for the court to determine if it should accept a plea. Defendant claims that because his counsel failed to object to certain testimony and to further probe and investigate, he was not given an accurate picture of the evidence against him; therefore, his guilty plea was not knowingly made.

The right to effective counsel at trial is granted by the Sixth Amendment of the United States Constitution, and applies to State courts through the Fourteenth Amendment of the United States Constitution. Gideon v. Wainwright, 372 U.S. 335, 85 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Lack of counsel at trial will render a judgment void and require reversal of a conviction. State v. Magrum, 76 N.D. 527, 38 N.W.2d 358 (1949).

Ineffective, incompetent, or inadequate representation is the same as no counsel at all, and, as such, will equal a denial of due process. State v. Keller, 57 N.D. 645, 223 N.W. 698 (1929).

This court in State v. Bragg, 221 N.W.2d 793 (N.D.1974), set the following standard, as stated in West v. State of Louisiana, 478 F.2d 1026, 1033 (5th Cir. 1973):

'We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.'

Defendant points to discrepancies in the testimony which counsel failed to object to or to probe into, and claims these affected his decision to plead guilty. The fact that counsel did not object to the introduction and admission of several items of evidence does not show incompetency. Under the circumstances it could have been considered good strategy. As the State pointed out in its brief, one of the purposes of the hearing was to present evidence for the benefit of the defendant. In such a situation, counsel for the defendant is concerned with discovering as much of the State's case as he can. Objections to testimony would not serve any purpose. Counsel can better determine the strength of the State's case by letting it present everything it has. After the presentation he can evaluate the evidence and inform his client what the best course would be. Counsel's decision in this situation not to object to the discrepancies in the testimony does not constitute a showing that defendant has been deprived of effective counsel.

Counsel is presumed to be competent and adequate and the burden of proof to show inadequacy or incompetency of counsel lies upon the defendant. State v. Berger, 148 N.W.2d 331 (N.D.1966). Defendant has not met that burden.

Defendant claims, however, that under Saltys v. Adams, 465 F.2d 1023 (2d Cir. counsel's failure to object to the in-court identification of the defendant shows lack of effectiveness of counsel. The court in Saltys found reversible error in counsel's failure to object to the admission of an incorrect identification based upon an illegal out-of-court identification, without which the defendant could not have been convicted. Victim Wilson had first pointed out McKay as his robber at the police station and later identified him at the trial.

Defendant claims that under the holding of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), such an identification would not be allowed at trial, and that counsel's failure to object to it at the hearing influenced the defendant in his decision to plead guilty. Wade held that courtroom identification of the accused would be excluded from evidence whenever the accused was exhibited to the witness before trial at a post-indictment lineup conducted for identification purposes without notice to and in the absence of the accused's counsel. The Court in Wade also said that the government must be given an opportunity to establish by clear and convincing evidence that the in-court identification was based upon observation of the suspect under other than lineup identification. In the instant case there is ample evidence that the victim's identification of the defendant was based upon his personal observation, which will be stated later, and was not the result of identification at the police station. The Court in Wade listed as factors to be considered in application of the test the prior opportunity of the witness to observe the crime, the existence of any discrepancy...