Tyrell RAMSEY, Petitioner-Appellant, v. STATE of Idaho, Respondent.
No. 41834.
Court of Appeals of Idaho.
Dec. 31, 2015.
Review Denied March 17, 2016.
367 P.3d 711
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
SUBSTITUTE OPINION
THE COURT‘S PRIOR OPINION DATED SEPTEMBER 11, 2015 IS HEREBY WITHDRAWN
GUTIERREZ, Judge.
Tyrell Ramsey appeals from the district court‘s judgment summarily dismissing his petition for post-conviction relief. Specifically, Ramsey requests his convictions be vacated based on the alleged denial of thе right to effective assistance of counsel. Alternatively, Ramsey requests that this Court reverse the district court‘s order granting summary dismissal and remand the case for an evidentiary hearing. For the reasons discussed below, we affirm the judgment summarily dismissing Ramsey‘s petition for post-conviction relief.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Ramsey with two counts of attempted rape, two counts of bat-tery
The jury found Ramsey not guilty of one count of attempted rape and one count of battery with intent to cоmmit rape. However, the jury found him guilty of one count of battery with intent to commit rape, sexual penetration with a foreign object, and an included offense of misdemeanor battery. Ramsey appealed, and this Court affirmed the judgment of conviction. State v. Ramsey, Docket No. 38228, 2012 WL 9494167 (Ct.App. Aug. 1, 2012) (unpublished). Ramsey then filed the current petition, challenging his convictions. Specifically, he alleged the above inactions by trial counsel amount to ineffective assistance of counsel. Ramsey also alleged he was denied the right to a fair trial undеr the cumulative error doctrine. The State moved for summary dismissal, which the district court granted. Ramsey filed a motion for relief from judgment, which the district court denied. Ramsey appeals from the entry of judgment dismissing his petition for post-conviction relief.
II.
ANALYSIS
A petition for post-conviction relief initiates a proceeding that is civil in nature.
Conversely, if the petition, affidavits, аnd other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct.App. 2008). If a genuine issue of material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. Goodwin, 138 Idaho at 272, 61 P.3d at 629.
On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner‘s admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct.App.2001).
A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. To prevail on an ineffective assistance of counsel claim, the petitioner must show that the attorney‘s performance was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674, 686-87 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995). To establish a deficiency, the petitioner has the burden of showing that the attorney‘s representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To estаblish prejudice, the petitioner must show a reasonable probability that, but for the attorney‘s deficient performance, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177. Concerning the deficiency of performance component, there is a strong presumption that counsel‘s performance falls within the wide range of professional assistance. Id. at 760, 760 P.2d at 1176.
A. Hearing Impairment
Ramsey first argues he was constructively denied his right to effective assistance of counsel because his trial counsel, due to a heаring impairment, was unable to hear all the evidence at trial, failed to make knowing and informed objections to inadmissible testimony, and frequently asked witnesses to repeat what they said. Such an impairment, Ramsey maintains, creates a presumption of prejudice. The United States Supreme Court articulated three circumstances that create a presumption of prejudice: (1) the complete denial of counsel; (2) when counsel entirely fails to subject the prosecutor‘s case to meaningful adversarial testing; and (3) when, although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. United States v. Cronic, 466 U.S. 648, 659-60, 104 S.Ct. 2039, 2047-48, 80 L.Ed.2d 657, 667-69 (1984).
Ramsey relies on a Ninth Circuit case that concluded, “[W]hen an attorney for a criminal defendant sleeps through a substantial portion of the trial, such conduct is inherently prejudicial and thus no separate showing
Ramsey also notes that at the conclusion of Ramsey‘s direct examination, his trial counsel informed the court, “Your Honor, I had this thing off all through Ramsey‘s examination. It‘s getting difficult. So, anyway, what will be will be.” Looking solely at this language, it seems that trial counsel‘s hearing impairment prevented him from effectively conducting a direct examination of Ramsey, but the trial transcript indicates otherwise. For instance, when the court sustained objections from the prosecutor on several occasions during Ramsey‘s direct examination, Ramsey‘s trial counsel asked different questions to try and get to the same point. Moreover, trial counsel asked follow-up questions in response to Ramsey‘s answers throughout the entire examination and asked questions about various exhibits he displayed. Finally, while trial counsel had more difficulty hearing some witnesses than others, counsel only suggested difficulty in hearing Ramsey‘s answers during direct and redirect examination on approximately three occasions. Thus, while trial counsel had “this thing off” (his hearing aid) during Ramsey‘s examinаtion, he was still able to develop meaningful testimony through questions and exhibits. The record of the criminal proceedings therefore disproves Ramsey‘s claim that his trial counsel‘s hearing impairment denied Ramsey effective legal assistance.
This case is similar to a Seventh Circuit case where the court held that a hearing impairment, without a showing of prejudice, is insufficient for an ineffective assistance of counsel claim.1 United States v. Limehouse, 950 F.2d 501, 503 (7th Cir.1991). In Limehouse, the defendant alleged that her trial counsel, “as a result of his hearing impairment, permitted the admission of damaging and prejudicial hearsay” and “caused him to conduct lengthy cross-examinations that were essentially repetitious of the government‘s case.” Id. The court analyzed her claims under the Strickland prongs because a hearing impairment in and of itself was insufficient to create a presumption of prejudice. Id. Because the defendant in Limehouse failed to demonstrate how her defense was prejudiced, as required under the Strickland test, her claims for ineffective assistance of counsel failed. Limehouse, 950 F.2d at 503.
Ramsey failed to raise a genuine issue of material fact as to any one of the three circumstances that create a presumption of prejudice. The district court therefore properly summarily dismissed this claim. Ramsey argues in the alternative that, but for trial counsel‘s hearing impairment, the result of the trial would have been different, which would establish a deficiency in trial counsel‘s performance that prejudiced Ramsey. Specifically, Ramsey maintains that his trial counsel failed to object to inadmissible testi-mony
B. Failure to Object to Inadmissible Testimony
At trial, the prosecutor‘s witness on direct examination stated that “Tyrell likes to fight” and “if Tyrell tried it with two girls just in that one night, who knows how many times he‘s done it—you know, succeeded in doing it.” Ramsey argues that these statements are inadmissible. Thus, Ramsey argues, trial counsel‘s failure to object to the introduction of the statements and failure to move to strike the statements prejudiced his case and amounts to ineffective assistance of counsel.
This Court has lоng held that if “an objection would not have been successful, its absence will not constitute ineffective assistance of counsel.” State v. Aspeytia, 130 Idaho 12, 15, 936 P.2d 210, 214 (Ct.App.1997); State v. Pugsley, 128 Idaho 168, 175, 911 P.2d 761, 768 (Ct.App.1995). Accordingly, in order to determine whether trial counsel‘s failure to object fell below a reasonable standard, this Court must first determine whether the evidence is admissible. A failure to object to inadmissible evidence does not automatically constitute ineffective assistance of counsel—the petitioner must still demonstrate a deficient performance that prejudiсed his or her defense. Pugsley, 128 Idaho at 175, 911 P.2d at 768.
The first statement, “Tyrell likes to fight,” implicates
While there was some testimony that Ramsey allegedly wanted to fight one of the witnesses at a party, this is insufficient evidence that Ramsey likes to fight. Moreover, while fighting is relevant to the crimes charged, since the crimes charged are of a violent nature, the testimony is only relevant for propensity purposes. The testimony that Ramsey likes to fight is inadmissible under
As noted above, the trial attorney‘s failure to object to inadmissible evidence does not automatically constitute ineffective assistance of counsel—Ramsey must still demonstrate a deficient performance that prejudiced his defense. Ramsey argues that the testimony about fighting could lead a jury to convict based solely on what he may have done in the past. However, the remark that Ramsey likes to fight was unresponsive to the prosecution‘s question, and it was an offhand and isolated accusation. The witness made the remark while he answered a question about Ramsey‘s аppearance after the alleged attempted rape, and the prosecutor did not ask a follow-up question about fighting. In fact, the prosecutor indicated during his closing statement, “there was some word or some talk that Kirk—that Tyrell wanted to fight Kirk or Kirk wanted to fight Tyrell. Does any of that really matter? It doesn‘t make sense that [the victim] would put herself through all of this, make this kind of accusation, simply over some boyfriend drama?” Because the offhand remark was not otherwise emphasized at trial, Ramsey failed to raise a genuine issue of material fact that trial counsel‘s failure to object to move to strike amounted to deficient performance and prejudiced Ramsey‘s defense.
Next, the statement “[b]ecause if Tyrell tried it with two girls just in that one night, who knows how many times he‘s done it—you know, succeeded in doing it” also implicates
However, this Court has recognized that “counsel has broad discretion when formulating strategy and tactics prior to and during trial.” State v. Roles, 122 Idaho 138, 148, 832 P.2d 311, 321 (Ct.App.1992). Thus, we will not second-guess trial counsel‘s decisions absent evidence of “inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective evaluation.” Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct.App.1989).
Here, Ramsey has not created a genuine issue of material fаct concerning inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective evaluation. While Ramsey points to trial counsel‘s hearing impairment, a hearing impairment is not a shortcoming capable of objective evaluation. The record demonstrates trial counsel‘s ability to develop meaningful testimony throughout the trial. Ramsey also points to an affidavit from trial counsel asserting that “preparation for trial is impairеd by the shortness of time and the Holiday and Year end business commitments of counsel for Defendant.” The affidavit reflects the time challenge that many criminal trial attorneys face. But an impairment caused by time is not necessarily inadequate preparation, ignorance of the law, or a shortcoming. This evidence, without more, does not create a genuine issue of material fact that Ramsey‘s trial attorney was inadequately prepared or demonstrated shortcomings capable of objective review. Rather, the trial attorney likely chose not to object and move to strike the testimony about the suggested other rapes because such an objection and motion to strike would only serve to emphasize the testimony to the jury.
In Roles, the defendant, who was convicted of rape, sexual penetration with a foreign object, and other crimes, claimed that his trial counsel was ineffective in failing to object to the victim‘s testimony. Roles, 122 Idaho at 147, 832 P.2d at 320. While on the stand, the victim made “a brief and passing referencе implicating [the defendant] in an unexplained incident characterized as a ‘sexual assault.‘” Id. Defense counsel did not object. Id. This Court noted, “Trial counsel for [the defendant] may well have made the tactical decision not to object and move to strike, so as not to draw further attention to the passing reference. We will not second-guess trial counsel‘s decision not to object to and move to strike this testimony.” Id. We reach the same conclusion in this case. Trial counsel‘s decision not to object or move to strike and emрhasize the testimony to the jury falls within the broad discretion afforded counsel to formulate trial strategy and tactics and is inapposite to a conclusion of ineffective assistance of counsel.
We recognize that Roles is another direct appeal case. However, the procedural posture makes no difference in analyzing Ramsey‘s failure to object. Roles stands for the proposition that counsel has broad discretion when formulating strategy and tactics prior to and during trial. The Idaho Supreme Court has held the same in post-conviction proceedings when the district court summarily dismissed an ineffective assistance of counsel claim without an evidentiary hearing. See, e.g., State v. Payne, 146 Idaho 548, 561, 199 P.3d 123, 136 (2008). Furthermore, this Court held the same in Murphy v. State, 143 Idaho 139, 145, 139 P.3d 741, 747 (Ct.App. 2006), another post-conviction case where the district court summarily dismissed the petitioner‘s
Regardless, Rаmsey failed to raise a genuine issue of material fact here. Considering our refusal to second-guess trial counsel‘s decisions without evidence of inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective review, the presumption that counsel‘s performance fell within the acceptable range of professional assistance controls.
C. Dynamite Instruction
Ramsey next argues that his trial counsel rendered ineffective assistance of counsel by failing to object to the judge‘s “dynamite instruction” given to the jury. A judge gives a dynamite instruction when it directs a deadlocked jury to continue deliberating and exhorts minority view-holders to reconsider their positions. State v. Gomez, 137 Idaho 671, 676, 52 P.3d 315, 320 (2002); State v. Hernandez, 133 Idaho 576, 586, 990 P.2d 742, 752 (Ct.App.1999). Idaho prohibits dynamite instructions to protect against jury coercion. State v. Flint, 114 Idaho 806, 812, 761 P.2d 1158, 1164 (1988). However, in prohibiting the use of dynamite instructions, the Supreme Court specifically disclaimed any intent to prohibit instructions directing further deliberations where the jury is not definitely deadlocked. Id. at 813, 761 P.2d at 1165.
In Gomez, the jury asked, “what happens if the jury cannot unanimоusly agree to either a guilty or not guilty verdict?” Gomez, 137 Idaho at 676, 52 P.3d at 320. The district court answered that the jury would become a hung jury or a deadlocked jury, and the court would declare a mistrial. Id. A juror then inquired, “if we do not come to a conclusion, sir, in the next hour or two or three or four hours, is there any arrangement for our time and energy?” Id. In response, the judge indicated that the system depended on their deliberations and that the goal of a jury trial is to reach a unanimous verdict. Id. The Supreme Court concluded that the district court‘s comments “did nоt direct any jurors to change their minds or attempt to coerce a verdict,” and thus did not amount to a dynamite instruction.3 Id. at 676-77, 52 P.3d at 320-21.
Here, similarly, the jury asked the judge, “What happens if we do not have a unanimous decision on Instruction 28?”4 The jury was not definitely deadlocked for purposes of a dynamite instruction—the jury merely asked what would happen if it was deadlocked. In fact, after Ramsey‘s trial attorney expressed belief that the jury might be deadlocked, the judge replied:
I entertained also the notion that this might be a deсlaration of deadlock. . . . My sense is that it‘s premature to get too far afield on assumptions and further questions, and I don‘t want to open a dialogue with the jury at this point unless and until they more unequivocally declare deadlock.
Accordingly, the judge answered, “The jury is to continue deliberations under the direction of the instructions that have been given.” While the judge directed the jury to continue deliberating, he never exhorted minority view-holders to change their positions, similar to the judge in Gomez. We conclude that the district cоurt judge did not give a dynamite instruction to the jury. Ramsey failed to raise a genuine issue of material fact that his trial counsel was ineffective in failing to object to this instruction.
D. Right to Fair Trial
Finally, Ramsey claims that even if this Court concludes that the above alleged errors were individually harmless or not prejudicial, the aggregated errors amount to cumulative error pursuant to the cumulative error doctrine, and he should be entitled to
As explained above, we find two possible errors here—trial counsel‘s failure to object and move to strike the inadmissible testimony pertaining to Ramsey‘s speculated sexual past and his alleged propensity to fight. However, these errors do not demonstrate the absence of a fair trial, nor do the errors contravene Ramsey‘s constitutional right to due process. The testimony about fighting is not prejudicial. And we will not second-guess trial counsel‘s decision to not object to or move to strike the testimony about prior sexual acts. An objection or motion to strike would have further drawn the jury‘s attention to the testimony. Therefore, the cumulative error doctrine does not apply.
III.
CONCLUSION
Ramsey failed to raise a genuine issue оf material fact that his trial counsel‘s hearing impairment amounts to ineffective assistance of counsel, that trial counsel‘s failure to object to inadmissible testimony was prejudicial and/or fell outside trial counsel‘s discretion to formulate trial strategy and tactics, and that trial counsel‘s failure to object to the trial judge‘s instruction constitutes ineffective assistance of counsel. We therefore affirm the district court‘s judgment summarily dismissing Ramsey‘s petition for post-conviction relief.
Chief Judge MELANSON and Judge HUSKEY concur.