Lead Opinion
11After a jury trial, Alvin Fukunaga was convicted of rape and sentenced to ten years in prison. He contends that he received ineffective assistance of counsel when his defense attorney failed to object to testimony that allegedly bolstered the victim’s credibility. The circuit court rejected this claim. We affirm the circuit court’s judgment.
In March 2012, Mvin Fukunaga was charged with rape. His step-granddaughter had alleged that Fukunaga started sexually abusing her when she was twelve years old. At trial, the victim, then twenty-three, repeated these allegations and also testified that Fukunaga had raped her multiple times when she was sixteen. The victim also identified a mole on Fukunaga’s upper thigh, something she noticed in the course of the abuse.
A sheriffs deputy also testified. The deputy described, briefly, his experience investigating “hundreds” of sexual-abuse allegations. The deputy testified that it was “very, very difficult for [the victims] to bring out whát has occurred to them because it was very traumatic to them.” The deputy stated that, in his experience, abuse victims sometimes ^disclose the abuse long after the fact for fear of breaking up a family unit. Finally, in response to the prosecutor’s inquiry whether “someone who suffers sexual abuse has repressed or they just bury deep down,” the deputy responded as follows:
They do bury deep down. And, you know, during the interview process, I may mention something that will cause them to click and say, okay ... you know what, that reminds me of something else. And so it depends on the interview also on how that is going.... My questions may cause them to recall something else that, you know, they have been held way deep down inside.
Fukunaga’s defense counsel never objected to this line of questioning. However, on cross-examination, the deputy admitted that he was neither a psychologist nor an expert on “the nature of memory.”
The jury found Fukunaga guilty. On direct appeal, our court of appeals affirmed his conviction. See Fukunaga v. State,
The circuit court issued a written order denying Fukunaga’s claim of ineffective assistance of counsel. Among other things, the circuit court held that defense counsel’s failure to object was based on trial strategy and that his performance was therefore not deficient. Because this finding is not clearly erroneous, we affirm on this basis alone. See State v. Lacy,
Under the two-prong standard from Strickland v. Washington,
Counsel testified during the postconviction hearing that his decision not to object to the deputy’s testimony was based on trial strategy. He stated the following: “[R]egardless of its admissibility I didn’t think it was damaging in any way that couldn’t be addressed on cross-examination.” Indeed, at trial, counsel followed-up and addressed the issue on cross-examination by having the deputy admit that he was neither a psychologist nor an expert in | ¿memory-retrieval; the deputy also admitted that some rape allegations were fabricated, which advanced the defense’s theory of the case. Counsel further explained his general preference, as a matter of trial strategy, to withhold objections on direct examination and instead attack the testimony on cross-examination: “[Rjather than objecting in front of a jury who wonders what sort of testimony I am scared of or trying to hide from them, I’d much rather do that. I think the client is better served that way.” Counsel’s strategy was within the realm of reasonable professional judgment.
The deputy’s testimony, moreover, played a small role in the present case. Most of his testimony was based on his own experience investigating sexual-abuse allegations. Even beyond this, counsel pointed out on cross that the deputy was not an expert, so the jury had no special reason to give his testimony undue credit. Cf. United States v. Rosales,
We note that this case is unlike Montgomery v. State, where we found ineffective assistance after counsel failed to object to explicit bolstering testimony.
|flThere are two key distinctions between this case and Montgomery. First, the State here never asked the deputy whether the victim’s allegations were “believable” or to otherwise assess the victim’s credibility; rather, the deputy simply reflected on his experience investigating abuse allegations. Second, counsel in Montgomery never testified that his decision to withhold objections was based on trial strategy; here, though, counsel withheld an objection because he did not want the jury to think he was afraid of the deputy’s testimony.
In conclusion, we affirm the circuit court’s ruling that counsel’s failure to object was based on trial strategy. Because we can affirm on this basis, we decline to address Fukunaga’s argument that he suffered prejudice because “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Henington v. State,
Affirmed.
Concurrence Opinion
concurring.
I agree with the majority’s decision to affirm the denial of appellant’s petition for postconviction relief. I would, however, affirm on a different basis than that relied on by the majority.
The majority affirms the circuit court’s order denying the petition for postconviction relief on the basis that the decision not to object to the deputy’s testimony was one of trial strategy by appellant’s trial counsel. As recited by the majority, counsel testified at the hearing on the petition that he did not object to the testimony at issue because he did not | fiwant the jury to think he was afraid of the deputy’s testimony. Decisions regarding trial strategy must be based on reasonable professional judgement. See Stewart v. State,
However, in addition to a showing of deficient performance, a petitioner must show that counsel’s deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. See Adams v. State,