King v. State, 810 P.2d 119

King v. State

810 P.2d 119

Wyo.

1991

Check Treatment

*1 H9 steadily him, he has been and that an hour. earning and $6.00 employed, $5.00 money support furnish some

His inadvertence, carelessness due to

was not knew of thoughtlessness. He children. and his of E.M.T.

whereabouts excuse any justifiable present

He did support to contribute

for failure err in did not The trial court

his children. “willful.”

finding failure to be such

ABANDONMENT sufficient evidence was as the

Inasmuch willfully E.R. finding that support the support of the to the

failed to contribute year prior period of one

children for a mak- adoption, filing petition of the adop- to the unnecessary his consent

ing

tion, the issue con- need not address

cerning abandonment.

Affirmed. KING, Appellant

Jeffrey Allen

(Defendant), Wyoming, STATE (Plaintiff). Appellee

No. 90-176.

Supreme Court of

April Munker, Defend- Public D. State

Leonard Director, Gallivan, Wyoming er, M. Gerald F. Car- Program, and Donald Aid Defender Intern, appellant. ey, Student *2 Gen., II. Sylvia FACTS Atty. L. Meyer, Joseph B. Gen., Byrne, A.

Hackl, Atty. Karen Deputy King Thompson (Thompson) and Pamela Lauer, Gen., Atty. Theodore E. Asst. Senior sexually sever- with one another for related Program, Director, Assistance Prosecution Thompson ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍their had considered al months. Intern, Darlow, for Daniel L. Student and lovers, King relationship as one but said of appellee. a male more akin to he considered himself than her lover. Whatever

prostitute C.J., URBIGKIT, and relationship, abruptly it of their quality Before CARDINE, Thompsоn and THOMAS, April MACY in of 1989 when ended King person. another GOLDEN, bed with JJ. found later, charged Thompson was One month delivery of substance. with a controlled URBIGKIT, Chief Justice. sting agreed in a quickly participate to She (King) claims he was King Allen Jeffrey friends, targeted that her former operation of to effective assistance denied King and Grant Judd. point of error. reversible attorney came jail, she was While and remand. agree and reverse We represеnt arranged get her her and Pineridge Hospital jail and into the out of attorneys appear treatment. Two other I. ISSUES felony charges handled her and to have error oc- argues reversible King that plea bargain agreement negotiated a have in his trial because: curred required cooperate Thompson King and to sting operation targeted I against coopera ARGUMENT him. full testify For her tion, prosecution of she rеceived deferred effective as- The defendant was denied her, then charges against which could guaranteed of counsel as sistance prin Thompson dismissed. became Amendment. Sixth against King. Her initial at cipal witness argu- three supported This claim was arrangements torney, who had made the ments: jail, freed her then became Defense failure to effect A. counsel’s King’s other coun while witness, process eye service оf on an sel, public defender’s apparently from the alternative, request a continu- office, representation. See continued her eye com- ance until that witness could be In and For Tenth Allen v. District Court testify, se pelled per Dist., is P.2d 351 Judicial Colo. Sharpe, counsel. At Steinberg and See also The Need torney Interest: failure to invoke B. Defense counsel’s Conflicts Framework, Dame 66 Notre a Coherent to obtain compulsory process the use of Webster, (1990); The Public L.Rev. and on defendant is a witnesses behalf of Amendment, and Defender, Sixth ef- provide the defendant with Responsibility: The Code fective assistance of counsel. Professional Interest, The Resolution aof Conflict of as- Defendant denied effective C. 12 Am.Crim.L.Rev. the trial court sistance of counsel when to one During Thompson testified investigate possible failed to conflicts of cooperа- began her of events. She version may which affected de- interest have operation against King by sting tion provide a de- ability fense counsel’s Her police station. going to the Riverton fense. and an electronic vehicle was searched placed purse. She into transmitter II ARGUMENT King went she then in search said King, him in the home of Linda found The State interfered with the defendant’s ex-wife, two chil- along their right to effective assistance cоunsel. reported that several un- department iff’s King if she asking described dren. She and, made to serve attempts his di- were marijuana successful buy some could her, lights were on and although into the kitchen the house rection, King went Linda canning jar filled with on the date appeared no one door brought her a *3 to Following agreement attempted. King When Linda illegal plant. was service trial, attorney ounce and to per quarter apрear King’s at did pay dollars did not $40 marijuana for six Consequently, of buy quarter pound a continuance. a not move for left, dollars, saying she would alleged she potential eye hundred witness to the return, King found Upon she return later. illegal was not made available transaction alone, alley. in the She working on his car testify King’s at trial. There is no indi- to before they talked for awhile related that King’s in the record that defense cation a towel tо retrieve returning to his car tried, advance, to interview attorney had marijuana for containing baggies sixteen availability King Linda to determine him paid $750. she which appearance or even what her for a trial testimony might be. between Although conversations all King said to have been Thompson and were King subpoenaed also not to Ike was police, apparently secretly by the recorded testify. King probation Ike was on Colo- point that recording garbled to the was Waldron, Wyo- when he called Bud a rado The ab- useless as trial evidence. it was Officer, leaving message a ming Probation recording par- made sence of a mechanical he wanted to Waldron’s recorder that on credibility be- ticularly critical the issue called the to Waldron return prosecution and defense witnesses. tween in Colorado to Department of Correсtions trial, entirely King should not be allowed to King testified to tell them Ike At Among said he of events. other Riverton. Mr. Waldron different version return to Thompson Depart- that when call the things, he testified asked an associate to had King’s house he was out to tell came to Linda in Colorado back ment of Corrections King, Ike Ross with his brother return once he discov- King back them Ike could Moore, Jewart, and Judd. testify. Melvin Grant But he King wanted to ered Ike King others hаd said that Ike and He also if that had been said he was unaware also working on his car with him attorney been never issued a The defense done. Thompson came He indi- alley when back. King appear compel Ike subpoena to he had avoided non-alco- cated at trial that he move for a continuance testify, nor did being drug use since his urine holic compelled. testimony could be until that drug weekly of federal tested because eye potentially the second witness This was Thomp- he tried to avoid charges and that illegal transaction who did alleged to the an infor- since she was known son is also no testify King’s trial. There that she tried un- mant. He also testified in the record indication baggies him sixteen successfully to sell King Ike who attorney had interviewed pulled up alley marijuana she when very significant witness have been a could his car. worked on as he others conflict. the clear testimonial to address testified defense witnesses Two other trial, court to King asked the trial At alley and pulled into the Thompson attorney. King ar- appoint a new defense to her car King for to come over motioned attorney procured had gued that his began yell at her. that he soon there and that in his behalf eye witnesses gone King had Thompson had testified his de- interest because a conflict of con- get green a towel back to his car to Thompson represented had fense wit- taining marijuana, both defense but jail she was transferred when King went back testified that never nesses court refused Hospital. The trial Pineridge his car. convict- King was trial continued. and the years ten for to six to and sentenced King’s attor- ed Only days four before counts, concurrently with to be served the Sheriff’s both ney subpoena issued other to all but consecutive King. The one another on Linda Sher- office to serve reliability previous- mary focus remains on the convictions entered sentences reviewing permissible by process law. when extent adversarial claim ly to the counsel, of ineffective assistance of wheth- King appealed. through incompetency through er con- Cronic, flicts of interest. III. DISCUSSION 21, 104 657 n. S.Ct. at 2046 n. In guarantees Amendment Sixth effec- counsel, addressing effective assistance оf of counsel. tive protect person’s one of a “most funda- Cronic, 648, 654, Ohio, Penson v. rights.” mental of (1984). The L.Ed.2d 657 United 75, 84, 346, 351-52, claims Supreme reviews Court States L.Ed.2d 300 ‘“The need for de- counsel due in- ineffective assistance of *4 completely free fense counsel be from a competency under standard of review the great importance conflict of interest is of Washington, v. Strickland adopted 466 bearing quality and has a direct on the 668, 2052, 674, L.Ed.2d 104 S.Ct. 80 U.S. ” justice system.’ McCall v. our criminal 1267, 3562, 104 reh’g denied 467 U.S. S.Ct. Twenty-First District Court For Judicial (1984) claims 864 and reviews 82 L.Ed.2d Dist., 1223, (Colo.1989) 783 P.2d (quot- 1227 assistance of counsel due con- Allen, 352-53). See also ing 519 P.2d at interest the standard of flicts of under Martinez-Serna, v. 423, State 166 Ariz. Sullivan, adopted in Cuyler v. review 446 Clow, (1990) and Richards v. 803 P.2d 416 335, 1708, 100 S.Ct. 64 L.Ed.2d 333 14, 4, (1985). N.M. 702 7 103 P.2d Strickland, 692, (1980). at See 466 U.S. Jenkins, v. at 2067 and State 104 S.Ct. 148 111(A). CLAIM (1986). OF INEFFECTIVE AS- 463, 716,

Ariz. 715 P.2d 718 SISTANCE OF BASED COUNSEL criminal defendant’s Sixth Amend ON INCOMPETENCY right ment to effective assistance of coun compelling normally While the test Strickland sel coincides the state’s assuring prosecutor appellant requires interest that a is demonstrate the at torney’s performance at trial a defense that was countered deficient aggressive enough prejudice by that who is and effective and the occasioned defi single process perform performance, make the adversarial there are as cient defi State, 135, See Frias v. designed. performance 722 P.2d “can so preju ciencies that Crоnic, (Wyo.1986) right 147 466 U.S. at dice the of a defendant to a fair trial 655-56, [they] support 104 S.Ct. at 2044-45. The adver will serve to conclu process produce designed reasonably sarial is to both sion that effective assistance State, v. 737 Gist the truth reveal what methods the was not afforded.” P.2d Strickland, 336, government employing attempt (Wyo.1987). is in its 343 466 Cronic, life, 693, deprive liberty, an or 104 2067 and individual of S.Ct. at 659, property. process When the adversarial at 2047. an 466 U.S. Once down, the appellant per breaks results are unreliable and demonstrates such deficient Frank, v. formance, See White tragic. can be there need to 855 is no demonstrate Wade, prejudice. (2nd Cir.1988); v. Charles F.2d 956 We consider “whether counsel’s (5th Cir.1982), cert. denied ‘measurably 665 F.2d 661 fell below that which conduct might expected ordinary 103 75 an S.Ct. L.Ed.2d fallible (1983); and, so, Kemp, and Ross v. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍lawyer,’ if 787 260 Ga. whether conduct (1990). 244 See also ‘likely deprived 393 Bedau the defendant of an other S.E.2d & аvailable, Miscarriages in Poten Radelet, Justice ground de wise substantial ” Cases, Blake, tially Capital Com. v. 21 409 Mass. 40 Stan.L.Rev. fense.’ — Zant, U.S.-, (1991) (quoting Burden v. Com. N.E.2d 564 1016 Cf. 89, 96, Saferian, 112 962 366 Mass. 315 N.E.2d L.Ed.2d (1974)). guarantee of ef- Because defendant’s Gist, Frias, fective is a ro- In 737 P.2d at 343 and protected best pri- the convictions of process, bust adversarial this court’s P.2d at reversed 345-50, 100 Cuyler, 446 U.S. at mulated due to ineffective appellants standard, cases, at 1716-19. Under defense at S.Ct. In both of counsel. alleged eye objection at trial who raised no interviewed defendant had not torneys was available of inter- justification must show that an actual conflict and no witnesses why per- no interview explain adversely lawyer’s affected his record to est pursue an presumed. “The pursued. prejudice is formance before eye con alleged an witness] interview [with interest, demonstrate a conflict To duty of counsel’s abrogation stitute[s] that some appellant may “demonstrate * * * investigation conduct a reasonable strategy or plausible alternative obtained in any information utilize and to * * * pursued might have tactic been [and] Gist, 737 defense.” providing a reasonable defense was establish that the alternative deficiency is dem When this P.2d at 343. attorney’s inherently in conflict with the demon onstrated, need not appellant interests.” Brien v. loyalties other prе it is resulting prejudice, strate (1st States, F.2d Cir. United is “Prejudice in circumstance] sumed. [this 1982). inquiry prej into case-by-case likely that so Strickland, not worth the cost.” udice is effect, the an adverse To demonstrate *5 693, 104 at 2067. See also at S.Ct. to show that only would have “defendant (S.D. Sullivan, F.Supp. 701 996 v. Sanders reduced his effective- attorney’s conflict his N.Y.1987), to secure involving a failure also Jenkins, 715 P.2d at ness.” trial; v. at and Richardson attendance re- effect is a less burdensome “[A]dverse 113, State, 375 59 Ga.App. S.E.2d 189 quirement prejudice.” than Id. (1988), witnesses were proposed where alibi subpoenaed. nor neither interviewed King objections his Because raised request the denial of his at we review se attorney failed to The defense of discre under an abuse for new counsel potential testimony of two cure the trial determining “In whether standard. tion and, failed even apparently, eyewitnesses discretion, the аbuse of there has been an Strategic justi the witnesses. to interview or not the court is whether ultimate issue to the failure be extended fication cannot as it did.” Mar reasonably conclude could Gray, 878 investigate. v. 831, State, (Wyo. P.2d 838 Welborn, v. 611 Cir.1989); tinez (3rd parte 702 Ex F.2d compli 1980). trial court seen Had the (Tex.Cr.App.1990); v. 391 State 785 S.W.2d Rules of Profes (Tex.Cr.App.1989). Wyoming Thomas, ance with 768 S.W.2d 335 Law, King at Attorneys con such course of Conduct for Having demonstrated sional as attorney, King need of ineffective by the defense had no claim duct would have prejudice presumed. upon is conflicts of demonstrate of counsel based sistance —it 304, Williams, Ill.App.3d 139 192 Profes People v. the Rules of Rule 1.7 of interest. (1989). 353, The N.E.2d 738 King’s attorney Ill.Dec. 548 prohibited sional Conduct inef prejudice in a claim of presumption of representa King if his representing from mandates reversal. Lo fective by responsi materially limited his tion — 860, U.S.-, Deeds, 111 S.Ct. zаda v. the Rules Rule 1.9 of Thompson. bilities to (1991); Strickland, 466 L.Ed.2d 956 112 prohibited him Professional Conduct of Kaiser, 2052; 668, v. Abels consulting King without representing (10th Cir.1990); v. Unit F.2d 821 Estes 913 right to effective Thompson. with “[T]he Cir.1989). (8th States, F.2d 645 883 ed violated counsel has been assistance of a defen represented both lawyer when 111(B). INEFFECTIVE AS- CLAIM OF witness prosecution and the chief dant * * *>> BASED OF COUNSEL SISTANCE 652, Ortiz, 76 N.Y.2d People v. INTEREST OF ON CONFLICTS (1990) 630, 20, 633 N.E.2d 564 563 N.Y.S.2d 951, Wandell, N.Y.2d 75 (citing People v. Strickland, 104 466 U.S. at N.E.2d 1274 554 555 N.Y.S.2d continuing vitali 2067 indicated the S.Ct. at (1990)). interest standard for- ty the conflict of of

124 if his Id. 704. See Rosenwald

Additionally, we do not know likewise v. while (7th necessarily States, Cir.1990) King of would 898 F.2d 585 United representation responsibilities materially Law, limited his Developments in Conflicts of “[tjhere presumption is a Thompson, Legal Profession, Interest Harv. attorney receives confidential com- L.Rev. of his representa- in the course munications attorney’s scope “If of a defense cross- Shep- a client.” United States v. tion of key prosecution examination of a witnеss is (8th Cir.1982). Be- ard, F.2d possible to avoid violation of the restricted attorney may misuse confiden- “the cause witness, privileges attorney-client from ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the former tial information obtained major then the defendant has claims of client, may fully cross-examine fail assistance of counsel and lack misusing confidential informa- for fear If is fair trial. the examination tion,” reliability of the adver- id. restricted, attorney-client then the witness’ confidently relied рrocess cannot be sarial may privilege be violated.” Petition of upon. 245 Kan. P.2d 732-33 Hoang, difficulty repre- specific The conflict — U.S.-, (1989), denied cert. presented here discussed sentation judge 108 L.Ed.2d 792 “The Supreme Rodriguez Court the Colorado duty integrity has a maintain City County v. District Court justice system.” of the administration Id. (Colo.1986). Denver, 719 P.2d 699 “Since judge 781 P.2d at 733. trial should [prosecution witness and defense counsel] King’s put have evaluated claim and into attorney-client relationship, it in an were rejecting reasons record the reposed presumed she confi- must be claim for ineffectiveness of based attorney." in her Id. at 704. dences upon conflict of interest. Wood Geor *6 public a might At defender well 261, 272, 1097, gia, 450 U.S. 67 any [pros restricted in examination of (1981); Martinez-Serna, 220 L.Ed.2d 803 duty ecution because of the to witness] 416; Wash.App. P.2d Hatfield, State v. 51 confidentiality the maintain informa (1988); 754 P.2d 136 Matter Rich by received tion from [defense сounsel] ardson, 100 Wash.2d 675 P.2d 209 [prosecution See Allen Dis witness]. [v. The do so constituted an Court], 519 trict 184 Colo. P.2d 351 of discretion. abuse hand, [(1974)]. On public the other Reversed and remanded. might tempted defender also be to use certain confidential information obtained [prosecution impeach from to Justice, THOMAS, witness] specially concurring. Thus, testimony. her trial an inherent I agree that this case must be reversed public arose the fact of confliсt the and for a I would remanded new trial. prior attorney defender’s dual role as reversal, however, grounds limit for the present [prosecution and coun witness] witness, subpoena the failure to the Ike petitioner. sel for the See United States King, the trial court to and to failure of the (8th Cir.), Agosto, 675 F.2d 965 cert. apparent interest an conflict of on resolve denied, 459 103 74 S.Ct. part the of defense counsel. (1982); 74

L.Ed.2d v. Pro United States agree justifies ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍I that сannot the record venzano, (3d Cir.), 620 F.2d 985 cert. that counsel ineffective conclusion was be- denied, 449 101 66 apparently cause interview he failed to the (1980); 129 L.Ed.2d v. Toc witness, King. subpoena Linda A fact co, (N.D.Ill.1983). F.Supp. issued, I am Lowenthal, and satisfied that ineffec- generally Rep G. Successive tive is not demon- by resentation Lawyers, Criminal subpoe- failure the (1983); strated the to secure Developments Yale L.J. in the days prior na than four to trial. The Legal Interest more the Law—Conflicts of subpoena leads Profession, 94 fact that the was issued Harv.L.Rev. had interviewed inference that counsel event, as strategy any testi- decision not. In her King and wished to secure Linda record, just of the state of this because mony. why not know she was not called. do Furthermore, the of the record state Again appellant present does us with a witness, King, Ike that the suggest would that tells what would record the witnessеs to come to and wanted been contacted had to if and that such have testified called proba- his He was deterred testimony changed would the result have situation, but those circumstances tion of the of the trial. burden is that he had been to an inference that would lead Having the appellant, not State. failed of coun- The ineffectiveness interviewed. burden, it was justification that the subpoena lies in the failure to sel herе reversal. done even which could have been witness Finally, suggestion there is of con- the in Colorado. though that witness resided public rep- interest in this defender flict of resenting appellant at trial. Some con- Justice, CARDINE, dissenting. time before of the in- siderable occurrence of this case agree I cannot to reversal gave charges, rise cident which to these new There is no remand for trial. provided had public defender his services by appellant justifies presented record Thompson, having serious Pamela then as- unjustified assertions of treat- drug problems needing care and example, counsel. For sistance of ment, a treat- to obtain admission to “[tjhere is no indication court states persons drug prob- ment center for record that Thompson placed in a lems. Pamela advance, tried, in interview Linda had center, any drug treatment and that ended And, Maj.op. at 121. later King.” had with her. contact defense counsel defense at- opinion, the court states: “The subsequent to defense counsel Sometime * * * torney apparently, failed even Thompson’s placement in Pamela assisting Maj.op. at 123. interview the witnesses.” treatment, drug incident which is, in- may have The fact defense counsel They gave charges rise to these occurred. The record is terviewed all witnesses. that had totally anything unrelated to are silent, and this silence simply court takes to this There was prior incident. occurred inter- the witnesses were not mean *7 absolutely why public no reason de- upon appellant to viewed. The burden is represent appellant in not this fender could demonstrating a record ineffec- establish charges against him. defending the made must Appellant tive assistance of counsel. First, re- I would Rather than affirm. interviewed, show that witnesses were not verse, I would proposes, the court now as he has failed to do that in this case. pro- case to in the alternative remand this wit- respect to the failure to call With appellant’s proper present record duce a nesses, may repeatedly we have said that appeal. it clear issues on When becomes strategy of defense counsel. have been of interest рossibility a a conflict this record We are unable tell from exists, duty make trial court has a nonappear- it was or not. Ike’s whether Georgia, 450 inquiry. further Wood as explained an honest misunder- ance I am standing which was later corrected. Cuyler v. also L.Ed.2d say lied. prepared that the witness Sullivan, 100 S.Ct. days four subpoena, potential A issued the wife The 64 L.Ed.2d trial, was The wife was before sufficient. the court’s brought here was conflict present county subрoena. First, King’s subject ways. attor- in two attention may she representation have decided his ney Defense asked about former poor might a not stand when was cross-exam- would be witness or of the witness she they Second, up when he King brought clear it up on cross-examination. It is ined. time, the At that produced The fact for new counsel. could have her. asked con- inquire potential as a into the produce counsel did not court did King for basically admonished likely her is an intended flict but witness or call as time. The at such a late bringing up this re- Supreme Court Wood court back to district the matter

manded hearing determine evidentiary existed. 450 actual conflict

whether an 273-74, Remand at 1104. surely be a better hearing would

for such a than reversal. rather

route to take here assump- makes an majority opinion attorney did not investi-

tion that presumed

gate to reach a conclusion

ineffectiveness, suggests conflict and also any counsel without

of interest of defense any appellate defense support

record proper record.

counsel effort to make be no there is no record and will

Because supports a reversal of this con-

record that

viction, And I I at this time affirm. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍would object to this kind of defi-

will continue to appeal appellants until under-

ciency on they must come forth with

stand that now assert- supports the claims

record by conjecture and innuendo.

In the Matter of the ESTATE OF Zona LOOMIS,

R. Deceased. WHITING, Ray Whiting,

Gerald James Deremo, Whiting, Merrel

Jack Wallis Lutterman, Hugh K.

Bonnie J.

Loomis, (Petitioners), Appellants VINES, Representa- H. Personal

William Loomis, of Zona R.

tive of Estate

Appellee (Respondent).

No. 90-231.

Supreme Court of

3,May