McCoy v. State

un- inspection. make an Mickelson’s ises to Ernst led to assault Officer

warranted with a

his conviction interference

officer, af- should be conviction may majority does hint there

firmed. probation

be an' unlawful condition employment. If the

requirements relative to affirmed, I think be

conviction be, to be that matter would have

should

addressed, majority re- has but since conviction, nothing to be

versed there question.

gained by further on that debate

I affirm conviction of Mickelson peace officer.

for interference with McCOY, Appellant

Patrick

(Defendant), Wyoming,

The STATE of (Plaintiff).

Appellee

No. 93-273.

Supreme Wyoming. Court of

Nov. 1994.

Rehearing Dec. Denied call a witness whose

4.His failure to testimony would have contradicted alleged victim. that of the #2: ISSUE Carter, Gillette, appellant. H. Nicholas reasonably probable that Whether Gen., Atty. Sylvia L. Meyer, B. Joseph perfor- but for Trial Counsel’s deficient Gen., Hackl, Atty. D. Michael Paul- Deputy trial result would have been mance the Gen., Cheyenne, Atty. Prosecu- ing, Asst. Sr. different. Lauer, E. Program, Theodore tion Assistance presents the issues as: The state Intern, Director, Blakeley, Gayle E. Student provide him Appellant’s Did trial counsel Laramie, appellee. despite counsel’s with effective assistance alleged failure: THOMAS, GOLDEN, C.J., Before (A) the court TAYLOR, To seek funds from CARDINE,* MACY,** and JJ. Appellant;

provide expert witnesses for GOLDEN, Justice. (B) Appellant’s investigate case To properly; appel- we determine whether In this case for three jury and sentences (C) lant’s conviction the tri- request To a continuance of . second-degree sexual assault counts of al; or a minor liberties with one count of indecent (D) Angela Karsky a witness To call trial counsel’s deci-

require reversal because trial; at the concerning expert violated sions those acts or omissions And did right effective assistance of his probability create a reasonable below, explained we hold For the reasons absence, trial would the result of the their required. is not that reversal Appellant? more favorable to have been ISSUES FACTS McCoy the issues as: states against appellant Patrick The #1: ISSUE wife, separation from his followed his failed to render Trial Counsel Whether July Raylene, a devout Raylene, in of 1992. guaran- of counsel as effective assistance Witness, couple’s daugh- took the Jehovah’s because of his teed the Constitution with the therapist” connected ter to a “touch following errors: therapist eval- church. The Witness Jehovah for sexual abuse uated the properly file a motion

1. A failure body. places on her touching her various payment District Court for with the mother that her daughter later told her witnesses when costs sexually she when father had touched that the was aware years old. an was four and the need for no funds for costs had expert was evident. daughter to took the Raylene then 2. His failure Wyoming Heineke, a counselor William independent possible use of an Gillette, Wyo- Counseling Regional Center prose- that the when he was aware sessions, reported to ming. After several to use cution intended a victim daughter had been that the the state trial. abuse, began and the Gillette of sexual learning Shortly investigation. request continuance 3. His failure repre- legal secured allegations, an inde- trial to obtain two weeks before child cus- for divorce and and filed report from the sentation analysis of the pendent to the alerted his counsel just tody. He later he had expert witness that State’s allegations. abuse received. **

* argument. at time of oral Chief Justice July Retired suggestion that her father physical examinations of able Two arguably were incon- were conducted which abused her. sched- clusive. March testified, denying that he sexu- evening uled with her. an interview ally his assaulted He claimed before, had her watch a video the mother wife his to make had coached daughter’s against a accusation against couple him the charges the because her for sexual molestation. father child in divorce and a engaged a police investiga- day, daughter next the told dispute daughter. the The defense over episode touching tors in addition called witnesses. no other four, her when father had sexual she conviction, jury’s Following the vaginal three intercourse with her different judgment filed a motion for eight years, years, six times when she was tidal, alleging a acquittal new insuffi- and/or her years and also stated that ten old. She ciency hearing, of the evidence. Before during the anally penetrated father her replaced. and was trial counsel withdrew episode years This when was ten old. she supplemented mo- New defense counsel bleed, and she told her assault caused her alleging ineffective assistance of counsel tion bleeding. Her mother testi-

mother evidentiary hearing held. and an fied the incident be- that she remembered hearing testimony, After the trial court daughter cause her cried over what judgment acquit- a denied the motions for This mother believed was menstruation. appeal tal and a new trial. This followed. to consult the school caused mother and for the nurse to receive literature advice and The school nurse testified DISCUSSION mother her confirmed had contacted Review Standard years ago four the literature advice. and establish that has been denied To Both the mother and testified counsel, effective assistance of a defendant is 12, age has not now menstruat- required show that ed. was deficient and but for this deficient interview, Following daughter’s police probable performance, reasonably McCoy. against A third were filed the trial result would have been different. physical examination (cit State, (Wyo.1986) Frias v. 722 P.2d 135 by Dr. Reichert of Chil- conducted Susan 668, ing Washington, v. Strickland 466 U.S. Hospital Denver, pediatrician in a dren’s 2052, (1984)). 80 L.Ed.2d 104 S.Ct. 674 Advocacy hospital’s member of Child’s State, (Wyo.1987), P.2d Gist v. 737 336 team. Dr. Reichert testified Protection we noted: physical at of her exami- trial that results ‘[Tjhere ways provide are countless ef- physical nation caused her to conclude case,’ any given fective assistance in repeated sexual intercourse evidence showed 689, Strickland at 104 S.Ct. [466 U.S.] [at] past long period over of time and 2065, given to unless consideration is coun- opin- testified that Heineke performance, sel’s overall before and at ion the abused. court, easy it will be ‘all too presented also from the state examining counsel’s defense it has mother, daughter, police investigator, unsuccessful, proved that a conclude Shane Shaw. particular act or omission of counsel was strategy, cross- As its defense relied unreasonable.’ at [466 U.S.] Strickland point examination of witnesses state 689, 2065. [at] 104 S.Ct. finger possible perpetrator and at another Morrison, (quoting at Gist 343 Kimmelman also establish that accusa- 365, 2574, 2589, 77 106 U.S. S.Ct. 4 anger father at

tion arose (1986)). 91 L.Ed.2d 305 divorce. The her father over the anger, this maternal coach- We said in Gist that court does not contended ing, suggestive therapy made her vulner- evaluate the identified actions or omissions of depends critically on such infor- reasonable light of all the hindsight but added). circumstances; (Emphasis that coun- mation. strongly presumes assis- adequate and reasonable sel rendered State, (quoting at Frias v. 722 P.2d within the bounds making all decisions tance Strickland, 691, 104 at 466 U.S. at S.Ct. professional judgment; of reasonable 692). 80 L.Ed.2d context of the in the total views each case brief, McCoy, appellate in his contends if the representation afforded to determine had reason to know that that trial counsel right to a fair trial. was denied his defendant ex- lacked funds for Gist, 737 P.2d pense witnesses ways: have acted in one of three and should Investigate FAILURE to 1) Filed a motion with the District Court appeal on that his contends Wyo.Stat. § pursuant to 7-6-104 for performance was so deficient the counsel’s necessary to an payment of costs obtain process “broke down adversarial expert appellant to determine whether McCoy lists counsel’s errors as: case.” “needy person,” was a 1) payment a motion for the failing to file 2) withdrawn as counsel for the expert retention and aid of of costs for the public him defender’s and referred witnesses, Appellant could not afford office since the 2) reasonably investigate the failing to pay trial counsel’s fee and for needed to necessity expert wit- possible use or of witnesses, expert or nesses, 3) paid expert witnesses out of his fee. 3) failing make a motion to continue Danley, upon People relies 758 investigate reports that order to (Colo.App.1988) authority P.2d 686 prosecution close to received from the he ineffective assistance of coun- this failure is the date of However, Danley we do not read sel. 4) failing call a witness whose particular by tri- characterizing this omission refuted the would have of al counsel to be ineffective assistance alleged per se. Danley charged attempting to errors are a con- was with first two listed reasonably heating equipment to others counsel failed to sell unneeded tention that trial necessity engineered by availability following “sting operation” of investigate the Danley paid a substan- testimony. previously This court has his counsel expert state. all believing the fee would include adopted respect tial fee he investigation and witness fees. When duty investigate: included, expenses not learned these were [Strategic made after less than choices Danley which caused his made statements pre- complete investigation are reasonable inquiry respecting fail to make counsel to profes- cisely that reasonable to the extent securing availability or of favorable cost support limitations on judgments sional testimony. it came to the expert Even after words, In counsel has investigation. had re- attention of counsel that investigations duty make reasonable the furnaces involved ported that one of decision that to make a reasonable or defective, Danley’s failed to deter- particular investigations 'unneces- makes Danley prepared to whether would be mine sary. expert’s testimony. of that pay for the cost of counsel’s actions The reasonableness prejudicial because the failure was substantially influ- This may or be determined Danley in the case was whether basic issue by the defendant’s own statements enced furnace was misrepresented whether the usually actions are or actions. Counsel’s available based, properly, on informed strate- defective quite “sting opera- the furnace involved by and on that the defendant gic choices case involv- In a similar tion” was defective. supplied the defendant. information n * n furnace, charge ing and the same are an identical decisions [W]hat However, testimony, only is presented omission ineffective such guilty of not was returned. of if has met his a verdict facts, the court determined showing Based on these of this omission Danley made representation of performance counsel’s he amounted to deficient reasonably probable inef- but prejudiced. Danley, McCoy’s As assistance, Danley’s of fective the outcome specifi- proof performance must deficient Danley, trial would have been different. availability necessity cally show P.2d at 688. expert testimony. McCoy admits that such specific showing make this he does not Danley’s conviction reversed because “it left unknown facts when states is availability necessity without this consultation as to whether the specifically be- shown and methods that used the state’s ex- Prejudice prejudice to him. cause of appropriate possibly perts were or even det- component test. the second the Strickland in this rimental to the victim case.” prejudice If deficient did defendant, re- a conviction will not be versed. Deficient Performance effect, McCoy argued without factu- has agree with

We support plausible duty acting al that there was included defense, expert testimony. Applying of upon line information that client had become his indigent reviewing of and not afford the our standard counsel’s overall could expenses performance If to if de- of the trial. trial counsel actual determine was reliable, ly prived knew or had reason to believe his client of a fair trial whose result is record, indigent, carefully was not have it is deficient we reviewed the investigate options the support McCoy’s to the available to find it we that does not (1987). § Air client under 7-6-104 contention. Wyo.Stat. attorney presumed to applicable is know the The trial record shows that until However, McCoy’s law. claim that this omis given physical report the evidence from sion ineffective assistance of counsel bur is Reichert, planned strategy Dr. the defense making showing specific dens him with the physical towas discredit the other two evi- showing requires indigent. that he was The inconclusive, argue reports dence as the indigency. It factual evidence of is insuffi daughter’s allegations resulted from mater- prove performance by cient con- deficient coaching ploy couple’s nal devised as clusory appellant indigent that statements battle over the by McCoy has unsupported which are facts. report, receipt After of Dr. the Reichert’s only indigent supplying us he is without told gyne- defense counsel consulted with a local

.any not support. factual He has met his Zolessi, cologist, if Dr. Leonel to determine showing performance. of deficient plausible. strategy that defense could still be post-trial hearing, At the opinion, parts report In Dr. the Zolessi’s of that consult testified he did not presence concluded that the of which scar attempt in an psychologists or counselors cysts tissue and indicated sexual abuse could expert testimony. McCoy counter the state’s upon be attacked cross-examination force complete this omission is a failure contends actually they an admission that were incon- because child sexual However, clusive it his highly cases are so technical and there abuse opinion reported the that condition ranging thought exist such wide schools hymen clearly repeated in- indicated evaluation, investigation, tercourse and that was a correct conclusion. abuse, determination of child sexual that hearing, McCoy produced At the post-trial expert vital retain consultation to deter testimony expert from an who chal- experts’ mine methods whether state’s investigation again lenged protocol appropriate. argues then meth- employed in preparing that omission was ineffective assistance ods Dr. Reichert’s However, report. per physical evidence state se. expert “parental syndrome” was alienation from the defense’s elicited explained the state’s as sexual that discredited his own assertions which against allegations parent as a abuse protocol and scientific proper coaching encouragement by result of physi- preparing been followed in had not counseling parent. Based essence, report. it was dis- cal evidence with the the state’s sessions during testimony that expert’s covered the notion discredited that the report. he had misunderstood coaching. McCoy the result fabricated or post-trial Trial testified and, against showing no this conclusion hearing clari- that Zolessi’s information earlier, requi- still as noted has not made the physical not be that the evidence could fied showing specific site to cast on whether sexual attacked doubt to show is incor- was available this conclusion occurred, actually but estab- penetration rect. the basic involved at lished issue agree with the conclusion We trial court’s who be whether was the defendant would demonstrating coaching anger both responsible for the sexual intercourse. employed strategy as the defense strategy anticipated The defense placed and that evidence was before would perpetrator evidence of the direct empha- jury through cross-examination and accusation, meaning it be the during closing argument de- sized would be defendant’s word inef- Appellant has demonstrated fense. daughter’s. developed and exe- counsel, just an unsuc- fective assistance strategy which a cross-examination cuted strategy speculating cessful defense and is daughter and produced from the have ex-wife that first told advantageous strategy. a more counseling sexual abuse session Other Witnesses therapist.” with the “Jehovah’s Witness touch McCoy also that witnesses contended that also revealed Cross-examination concerning testify not called to at trial daughter told of the assaults prior in including crucial evidence a counseling Dr. Heineke of months daughter, statement state consistent Center, and Wyoming Regional Counseling during a with police interview' ments day suggestive just watching a McCoy, McCoy’s support, character. from The defense elicited admissions movie. a McCoy produced testimony indicated which at one time Raylene that physician’s assistant could have disclosed 22-year daughter had accused her now prior inconsistent statement where perpetrating abuse. old brother of the sexual her; her daughter denied father assaulted in McCoy’s police son could have revealed Prejudice to clear vestigator promising statements McCoy if he would admit to the assaults post-trial hearing, contend- At the coach the threatening that would if the basic “who had done ed that issue was admit; and if he did not so it,” why his explain critical it was that he McCoy’s employer have stated could accusing him of the sexual McCoy’s job as an electrician for the school McCoy attacked the cross-examina- placed with frequently him in contact district insufficient, arguing it was strategy as tion been re girls complaints and no young not have assistance counsel to ineffective concerning his conduct. ceived variety in a testimony from a defense showed, however, physi- on on focuses The state appeal, areas. Now physical ex- assistant conducted testimony produced from the state’s cian’s complete her coaching “pa- of the parental is called amination witness testimony have her examina- syndrome” argues it would been that alienation rental confirm denial not to did not assistance of counsel tion was ineffective pen- alien- her examination indicated expert regarding “parental because produce an digital penetration. The than etration other syndrome.” ation testimony telephone with from consisted of a few conferences state also elicited Shane Shaw, investigator present another his client and two or three consulta- office McCoy, during the with who denied upon knowledge interview Relying tions. his own promises had made that the other officer undergraduate psychology during obtained McCoy, and assertions indicated college work in and one brief conversation upon out of were based statements context. sought a gynecologist, with defense counsel McCoy’s in preparing no assistance in McCoy’s involved There was no error defense. Defense counsel relied mater- the facts final two contentions since indicate coaching, recognized psychology nal in independent that trial counsel did obtain “parental syndrome,” alienation as the cor- Further, analysis report involved. strategy have nerstone of his defense. appears to been trial to avoid damaging cross-examination Defense counsel failed call as a witness the state have elicited which would professional who was the counselor first physician’s had she assistant testified. alleged to interview the victim deficiency prejudice. There was no and no allegations of sexual abuse. Had the coun- witness, selor as a been called CONCLUSION alleged would have revealed that the victim’s met his has not at trial inconsistent with in constitut- omissions incriminating origi- far more than what was ed ineffective assistance of nally related to the Defense counselor. Affirmed. calling counsel was remiss this witness have whose contra- TAYLOR, J., dissenting opinion filed a dicted that of the J., CARDINE, joined. which utterly failed to investi- Defense TAYLOR, Justice, dissenting, with whom gate and evaluate case. Defense CARDINE, Retired, Justice, joins. any expert to consult declined respectfully I dissent. professional witness or seek evaluating the witnesses. De- State’s Several months before sexual assault fense also failed to call Patrick filed McCoy, other than whose fate was a fore- (McCoy), he and wife were in a involved gone pre- conclusion the face of the case in- bitter divorce and battle which unopposed sented Defense State. During pendency volved retainer, accepted a substantial custody proceeding, McCoy’s the divorce calling any then rested without witnesses wife took their to a “touch thera- support theory. pist” associated with the Jehovah Witness opinion church who offered the I would reverse and remand based on inef- sexually Shortly abused. fective regarding before a scheduled interview assault, sexual the victim watched depicting a movie child abuse. The

following day, the victim stated to

investigators Charges

abused her. were filed jury and a trial was held. during pre-

Defense was advised proceedings that the State would call a witnesses, of which

number two were ex-

perts psychology. field Defense

counsel listed as his witness. preparation

Defense of this case

Case Details

Case Name: McCoy v. State

Court Name: Wyoming Supreme Court

Date Published: Nov 30, 1994

Citation: 886 P.2d 252

Docket Number: 93-273

Court Abbreviation: Wyo.