State v. Swavola

• Decision Date: 04 August 1992
• Docket Number: No. 12990,12990
• Citation: 840 P.2d 1238,1992 NMCA 89,114 N.M. 472
• Parties: STATE of New Mexico, Plaintiff-Appellant/Cross-Appellee, v. Christine SWAVOLA, Defendant-Appellee/Cross-Appellant.
• Court: Court of Appeals of New Mexico

Page 1238

840 P.2d 1238

114 N.M. 472

STATE of New Mexico, Plaintiff-Appellant/Cross-Appellee, v. Christine SWAVOLA, Defendant-Appellee/Cross-Appellant.

No. 12990.

Court of Appeals of New Mexico.

Aug. 4, 1992.

Certiorari Denied Oct. 22, 1992.

[114 N.M. 474] Tom Udall, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant/cross-appellee.

Nancy Hollander, Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg, P.A., Albuquerque, Carmen Garza, Las Cruces, for defendant-appellee/cross-appellant.

OPINION

HARTZ, Judge.

On July 14, 1989, Defendant killed her husband, from whom she was separated, at her home. She was convicted of second degree murder with a firearm enhancement. She claimed self-defense and raised a battered-woman-syndrome defense. She appeals her conviction primarily on the ground of ineffective assistance of her trial counsel. She also argues that the district court erred in admitting certain evidence. She abandons other issues she listed in the docketing statement but did not argue in her Brief-in-Chief. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App. 1985). We affirm on Defendant's appeal. The State also filed an appeal from the decision of the district court but subsequently abandoned its appeal. See id.

ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL

The parties agree that Defendant is not entitled to a new trial on the basis of ineffective assistance unless trial counsel's representation fell below that of a reasonably competent attorney and that this prejudiced the defense. See State v. Taylor, 107 N.M. 66, 752 P.2d 781 (1988), overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 779 P.2d 99 (1989).

Recent decisions by this court have expressed our reservations about deciding claims of ineffective assistance of counsel in the absence of a district court evidentiary hearing on the matter. See State v. Powers, 111 N.M. 10, 800 P.2d 1067 (Ct.App.1990); State v. Stenz, 109 N.M. 536, 787 P.2d 455 (Ct.App.1990). We have also expressed concern that for us to remand a case to the district court for an evidentiary hearing on an ineffective-assistance claim may circumvent SCRA 1986, 5-802 (Repl.1992). See Powers, 111 N.M. at 12, 800 P.2d at 1069. We thus limit remand to those cases in which the record on appeal establishes a prima facie case of ineffective assistance. See Stenz, 109 N.M. at 539, 787 P.2d at 458. Such a prima facie case is not made when a plausible, rational strategy or tactic can explain the conduct of defense counsel. See State v. Dean, 105 N.M. 5, 727 P.2d 944 (Ct.App.1986). We placed this case on the general calendar because it appeared that there could be no rational basis for some of defense counsel's actions at trial. After full briefing and review of pertinent portions of the record, however, we now hold that Defendant has not established a prima facie case of ineffective assistance of counsel.

1. References to Religious Beliefs.

In his opening statement, the prosecutor mentioned the victim's "born again" Christian religious beliefs. Four prosecution witnesses referred to those same beliefs. Defendant claims on appeal that such evidence is not admissible to bolster the victim's credibility in making out-of-court declarations. She also states that the evidence is not appropriate proof of a peaceful character or that the victim acted in conformity with his beliefs. She points out the district court's willingness to sustain a late objection to this evidence as an indication that trial counsel was ineffective in failing to object earlier. We can agree with Defendant's contentions regarding the inadmissibility of evidence of the victim's religious beliefs for the above-stated purposes, however, without necessarily concluding that trial counsel erred in not objecting to its admission. After all, acquiescence to the introduction of inadmissible evidence may sometimes be tactically advantageous. See State v. Crislip, 110 N.M. 412, 417, 796 P.2d 1108, 1113 (Ct.App.1990).

Defense counsel at trial made a strategic decision to present a defense based on the battered woman syndrome. Defendant on appeal does not challenge the rationality of that decision. Yet it is apparent from the testimony of the two trial experts on the syndrome that a professional conclusion as to whether Defendant suffered from the syndrome required a profound examination into the lives of both Defendant and her victim--an examination that encompassed matters that would otherwise ordinarily be improper subjects of inquiry in a criminal trial. The defense expert on the syndrome, Dr. Lenore Walker, found substantial support for her conclusions in the religious beliefs of the victim, going so far as to say at one point, "[T]he religious values covered up the abuse and were used as an excuse for using violence." Even if the prosecutor had improper purposes in offering evidence of the victim's religious beliefs, it would be far from irrational for defense counsel to agree to let the evidence in for the defense's own very substantial purposes. We will not second-guess trial counsel on this point. See Dean, 105 N.M. at 8, 727 P.2d at 947.

2. Transcript of the Victim's Surreptitious Tape Recordings.

The victim secretly recorded a conversation with Defendant on June 16, 1989. Defendant portrays trial counsel's handling of the transcript of the recording as that of an attorney without a plan. Defendant notes that trial counsel had successfully excluded the transcript, only to open the door for the prosecution's use of the transcript and her trial counsel's ultimate introduction of it into evidence. This, she states, is such inconsistent strategy that it must be ineffective assistance.

Nevertheless, we would be reluctant to hold that any shift in strategy must be ineffective assistance. Rigid allegiance to one strategy may actually be less effective assistance. A decision to offer previously excluded evidence could be the result of (1) noting the jury's reaction to the evidence already admitted, (2) reevaluation of the evidence in light of the admission of unexpected evidence or an interview with a witness who can establish that the previously excluded evidence can be useful, or (3) simply rethinking one's case. We agree that the jury could draw inferences adverse to Defendant from the transcript. On the other hand, Dr. Walker explained the conduct revealed by the transcript as being consistent with her diagnosis of battered woman syndrome. Moreover, the transcript suggests that the victim admitted prior beatings of Defendant. In this circumstance it would be rational defense strategy to offer the transcript into evidence.

3. References to Defendant as an Actress, etc.

The prosecutor stated in opening, "The evidence in this case is going to show that the woman on trial before you today is an actress. She's a fraud, a performer." On appeal Defendant contends that her trial counsel was ineffective in not objecting to this statement because the statement was an expression of personal opinion, was argumentative, and was based on evidence that should not have been admitted at trial. We disagree.

The statement was clearly intended to express a conclusion based on the forthcoming evidence. That is not an improper expression of opinion by counsel. See State v. Ferguson, 111 N.M. 191, 194, 803 P.2d 676, 679 (Ct.App.1990). The prosecutor's colorful choice of words may make the statement improperly argumentative, but we would defer to a trial judge on whether to permit the comment. Competent defense counsel could rationally decide that an objection complaining about the language could antagonize the jury more than it would assist Defendant.

As for the claim that no admissible evidence would support the prosecutor's statement, it would be a rational tactic for defense counsel at trial not to object to an unfounded statement because of the prospect that the jury will devalue the prosecutor's credibility when no supporting evidence is presented at trial. We should also note that the supporting evidence specifically mentioned by Defendant's Brief-in-Chief as being inadmissible was, as explained below, probably admissible as relevant to the battered-woman-syndrome issue.

4. Evidence of Prior Bad Acts.

Defendant argues that her trial counsel should have objected to evidence of several prior bad acts. She claims that the evidence was inappropriate character evidence because the State sought merely to prove that she acted in conformity with past behavior. We disagree. We consider the items of evidence individually.

Testimony by Kevin Fannin that Defendant had slapped the victim a week before his death rebutted the contention that Defendant suffered from "learned helplessness," a component of battered woman syndrome. Defendant's expert suggested that the syndrome could not be diagnosed unless it was present for more than a month. There would be no purpose in trial counsel's objecting to the evidence being admitted in the State's case-in-chief if it could later be admitted (perhaps with greater impact) on rebuttal.

Also permissible as rebuttal of the battered-woman-syndrome defense was Bob Peterson's testimony that when he stuck his finger into Defendant's chest she acted hurt and dramatic and said, "I don't need this." The State's expert, Dr. Ned Siegel, found the incident significant as inconsistent with the conduct of one suffering from battered woman syndrome.

Defendant does not complain on appeal of the admission of testimony by Lorraine Cano concerning an incident in which the victim used physical force on Defendant (this use of force could support Defendant's battered-woman-syndrome defense) but does complain that trial counsel did not object to the portion of the testimony characterizing Defendant as drunk and hysterical. That testimony was probably admissible simply to provide the circumstances surrounding the incident, but in any case it was...