Roy Arthur Fee was found guilty by a jury on a charge of aggravated assault. I.C. §§ 18-901; 18-905. He appeals from the judgment of conviction, contending that he did not receive effective assistance of counsel in several respects during his trial. We affirm.
*173 FACTS AND PROCEDURE
According to the testimony of the victim, the alleged assault occurred when Fee entered the victim’s home early one morning, held a knife close to her throat and threatened to kill her if she did not tell him of the whereabouts of Fee’s wife and a man with whom Mrs. Fee was then living. The victim testified that she was greatly frightened by the defendant’s conduct, both for herself and for Mrs. Fee and Mrs. Fee’s friend, because of Fee’s expressed desire to kill those people also. In his defense, Fee testified that he confronted the victim to determine if she knew where Mrs. Fee and the man were, but that he did not hold his knife to the victim’s throat or threaten to kill the victim. Other witnesses called by the state corroborated the victim’s version of the confrontation by relating admissions made to them by Fee after he had left the victim’s home.
In his argument on appeal, Fee’s counsel
1
asserts that Fee was afforded ineffective assistance of counsel at trial in numerous respects. All of these contentions are predicated upon trial counsel’s alleged failure to do some affirmative act which Fee now argues should result in a reversal of the judgment of conviction. Because these claims have been made on a direct appeal from the judgment, no evidentiary hearing was held nor was any affidavit presented regarding the theories, tactics or strategies of Fee’s trial counsel to explain why he did not perform in the manner about which Fee now complains.
See, e.g., Russell v. State,
STANDARDS OF REVIEW
At the outset, we note that — in order to prevail on a claim of ineffective assistance of counsel — the appellant must show that his counsel’s representation was deficient and that the deficiency prejudiced him.
Id., citing Strickland v. Washington,
In order to establish that the deficiency prejudiced his case, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland,
strategic or tactical decisions made by trial counsel will not be second-guessed on review, unless those decisions are made upon a basis of inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective evaluation.
Davis v. State,
CLAIMS
The particulars of Fee’s claims of denial of effective assistance of counsel involve ten areas of concern, according to his argument on appeal. He submits that his counsel (1) failed to advise him he would be subject to cross-examination by the state, if he chose to testify on his own behalf; (2) failed to object to certain testimony; (3) failed to object to leading questions posed *174 by the prosecutor; (4) failed to move for a change of venue; (5) failed to require the state to prove a chain of custody of the defendant’s knife before stipulating to the admission of the knife in evidence; (6) failed to move for a mistrial; (7) failed to object to comments by the court which would have served as the basis for the mistrial motion; (8) failed to object to allegedly improper comments by the prosecutor in summation to the jury; (9) failed to subpoena a mattress for introduction as evidence; and (10) failed to object — on grounds of relevancy — to testimony concerning events which occurred after the incident involving the victim. We will discuss each of these issues in turn.
a.Exposure to cross-examination.
Fee argues first that his counsel failed to advise him with regard to the procedure involved in a criminal case and of the potential consequence if he chose to testify. In particular, Fee contends that counsel failed to inform him that if he testified the state would have an opportunity to cross-examine him. It is well established in Idaho that a defendant who takes the stand to testify on his own behalf is subject to cross-examination, just as is any other witness, subject to certain constitutional protections and constraints.
State v. White,
b. Inconsistent testimony.
Next, Fee maintains that his trial counsel failed to object to testimony which was inconsistent with testimony given at the preliminary hearing. However, Fee does not direct our attention to any particular portions of the testimony about which he now complains. It is well settled that we will not search a trial record for unspecified errors.
State v. Kelling,
c. Leading questions.
Third, Fee asserts that his attorney failed to object to leading questions asked by the prosecutor. Again, Fee does not point to any particular question posed by the prosecutor which would have been subject to such an objection. As stated, we will not search the record for unspecified errors, State v. Kelling, supra; State v. *175 Crawford,, supra, and we hold that Fee has failed to show any deficient performance in this respect.
d. Change of venue.
As his fourth proposition that his counsel was ineffective, Fee argues that his attorney failed to file a motion for change of venue. The reasons for a change of venue, as set forth in Idaho Criminal Rule 21(a) and 21(b), are that a fair and impartial trial cannot be had in the county where the case is pending or that the convenience of the parties and the witnesses would best be served by a change of the venue. Case law teaches that where a defendant did not challenge for cause any juror seated in the case on trial and the record demonstrates that none of the jurors had formed an opinion of the defendant’s guilt or innocence based on pretrial publicity, the defendant has failed to show that the setting of the trial was inherently prejudicial or that the jury-selection process permitted any inference of actual prejudice; as a result, the trial court did not err in denying the defendant’s motion for change of venue.
State v. Winn,
e. Chain of custody.
Next, Fee challenges his counsel’s decision to stipulate to the admission in evidence of the knife used during the alleged assault without first requiring the state to establish a chain of custody. Again, we are persuaded that no error has been shown. The record does not demonstrate that there was any basis for raising a chain of custody question; there is no indication of alteration, modification or any change of condition of the knife as an exhibit. The only foundation necessary was that the exhibit must be shown to be in substantially the same condition as when the crime was committed — proof through a chain of custody is not a separate requirement for admissibility.
State v. Wilson,
f.Court’s comments and mistrial.
The next two points raised by Fee are interrelated. They concern the question of whether his counsel should have objected to certain comments by the court and whether he should have moved for a mistrial because of those comments. The situation came about as follows. The state had introduced four exhibits: the knife (Exhibit A); two bedsheets from the victim’s bed, where the assault had occurred (Exhibits B and C); and the scabbard or sheath from the defendant’s belt where he carried the knife (Exhibit D). After these exhibits were admitted, the defendant testified on his own behalf. He explained that certain cutmarks appeared on the sheets as a result of the handling of the knife by the victim, not the defendant. He also related that the knife was extremely sharp, observ *176 ing that “It will shave the hairs off your arm.” In the course of direct examination of Fee by his counsel, Fee's attorney asked leave to have Fee conduct an in-court demonstration of his version of the use of the knife during the incident involving the victim. In response to this request, the court said
Well, I will let him make a demonstration with — Well, let me find out first what the prosecution’s position is. But, quite candidly, he is not going to be allowed to make a demonstration with Exhibit A. We can substitute something. He can borrow the gavel or some other object or a pen or something, but I don’t think it’s wise under the circumstances to allow Exhibit A to be used in that fashion at this point.
The state expressed no objection to the demonstration, and Fee proceeded to show the jury — using the sheath instead of the knife — how the victim had cut the sheets while handling the knife.
On appeal, Fee argues that the court’s comments portrayed him as a person who could not be trusted with the knife. He argues that his counsel should have objected to the comments, and also should have moved for a mistrial, based on those comments.
We do not find the court’s comments to be as objectionable as argued by Fee. In the interest of safety and courtroom security, we can understand the trial judge’s reluctance to permit the defendant to handle the weapon with which he had been charged to have assaulted the victim. The testimony in the record convinces us that Exhibit A was a very dangerous weapon. Nor are we persuaded that, under the circumstances, the jury reasonably would have ascribed any particular degree of dangerousness to the defendant independent of the fact that the knife itself was not a harmless instrument. We do not agree with Fee’s conclusion that the court’s comments rose to a level that would have precipitated a successful motion for mistrial. At the point in time when the comments were made by the court, the victim had testified as to her version of the events surrounding the alleged assault and the state had presented testimony from other witnesses (which we later shall discuss) concerning corroborative admissions made to them by the defendant after the incident with the victim. Viewing the court’s comments in light of all the evidence presented in the case, we are not persuaded that those comments establish reversible error.
State v. Urquhart,
g. Prosecutor’s summation.
Fee next contends his counsel acted improperly by failing to object to comments made by the prosecutor in summation to the jury at the close of the evidence, which Fee now argues were overzealous or assumed facts not in evidence or were irrelevant. We have reviewed all of the statements made by the prosecutor about which Fee complains. We conclude that none of the cited instances involved overzealousness, assumption of facts not reasonably supported by the evidence or assertion of irrelevant matters. Having found no error in the prosecutor’s comments, we hold that the objections presently asserted would not be well-taken and, as such, their absence would not constitute ineffective assistance of counsel.
State v. Kelling,
h. Mattress.
As his ninth claim, Fee points to his counsel’s failure to subpoena — for introduction into evidence during the trial— the mattress from the bed upon which the victim was laying when the alleged assault occurred. He argues that this item would have been helpful to show whether there were any stab cuts on the bed. Notably, during the trial, Fee admitted that the sheets on the bed had been cut, but he *177 testified that they were cut by the victim while she was handling his knife. Also, the victim never testified that the defendant ever stabbed the mattress and, in fact, Fee testified he did not ever stab the knife into the mattress. 2 In light of the testimony in the record, we conclude that the failure of defendant’s counsel to obtain the mattress for introduction into evidence did not constitute ineffective assistance.
1. Post-assault events.
Finally, Fee avers that his counsel failed to object to testimony about events and conversations involving the defendant at another house after the incident at the victim’s home. Fee poses a generalized argument that all of this evidence was irrelevant. However, the occupants of the house testified that Fee stated he had just come from the victim’s home, where — referring to the victim — he had “scared the [expletive deleted] out of her and threatened her with a knife.” He also told the occupants he was going to kill Mrs. Fee and her male friend. One of these witnesses related that Fee produced a pistol, explaining which of the bullets in the gun he would use to shoot Mrs. Fee and her friend. In addition, this witness also identified the defendant’s knife during the trial, as having been displayed by Fee in her home and also later by the police when law enforcement officers showed it to her during their investigation of the case. These revelations, and particularly the admissions by the defendant, served to corroborate the victim’s version of the incident in her house. The evidence was clearly relevant. Thus, an objection on the ground of irrelevance would not have been well-taken and properly would have been overruled by the court. Accordingly, the failure of counsel to make the objection claimed would not constitute ineffective assistance of counsel because, as we have noted earlier, counsel need not make futile or needless objections.
State v. Kelling,
CONCLUSION
Having concluded that Fee has not established he was deprived of the effective assistance of counsel, we affirm the judgment of conviction for aggravated assault.