Summary 2007 WY 89

Summary of Decision issued May 24, 2007

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Case Name: Lessard v. State

Citation: 2007 WY 89

Docket Number: 05-295

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): P. Craig Silva of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director PAP; Geoffrey L. Gunnerson, Student Director PAP; Jenny Staeben, Student Intern, PAP. Argument by Mr. Gunnerson.

Issues: Whether testimony elicited from two witnesses by prosecution and a transcribed statement of Lonnie Lessard which commented on Mr. Lessard’s right to remain silent violated his Fifth Amendment rights under the United States Constitution and the Wyoming Constitution. Whether the trial court abused its discretion when it did not sever the two sexual assault offenses against (SH) and (SG) thereby denying Lonnie Lessard his right to a fair trial. Whether Lonnie Lessard was denied his Sixth Amendment right to effective assistance of counsel by trial counsel’s deficient performance in defense of Appellant.

Facts/Discussion: Lessard appeals his convictions for burglary, first degree sexual assault and attempted first degree sexual assault.
Comments on right to silence: In analyzing right-to-silence claims, the Court considers the entire context in which the statements were made. The Court also considers whether the prosecutor asked improper questions, whether he emphasized or followed up on the silence issue and whether he attempted to exploit the issue in any way. The Court reviewed the three complaints made by Lessard and held that he did not demonstrate a transgression of a clear and unequivocal rule of law with respect to any of the challenged evidence.
Denial of motion to sever: The denial of a motion for severance is generally within the sound discretion of the district court and will not be disturbed on appeal absent a clear abuse of that discretion. An abuse of discretion occurs when joinder of separate charges deprived the defendant of a fair trial. W. R. Cr.P. 8(a) permits joinder of multiple offenses in a single information. The Court found that the sexual offenses were similar in character and so related as to constitute parts of a common scheme or plan. W.R.Cr.P. 14 allows the court to order separate trials if the defendant is prejudiced by the joinder of offenses. The Court applied the two part test for determining whether joinder prejudiced a defendant: whether the evidence relating to the similar offenses charged would be admissible in a separate trial of each offense and whether the evidence relating to the separate offenses would be so complicated that the jury could not reasonably be expected to separate them and evaluate the evidence individually on each charge. The Court stated the evidence concerning both victims would have been admissible in separate trials. The facts of the cases were uncomplicated and relatively easy to understand.
Ineffective assistance of counsel: When reviewing a claim of ineffective assistance of counsel, the Court determines whether in light of all the circumstances, trial counsel’s acts or omissions were outside the wide range of professionally competent assistance. Lessard set forth six claims of alleged ineffectiveness. However, he failed to support his various claims with a cogent legal analysis and explain how counsel’s acts or omissions fell below that of a reasonably competent attorney.

Holding: After a review of the record, the Court held that the evidence did not constitute an impermissible comment on Lessard’s right to remain silent. The Court concluded the district court did not abuse its discretion in refusing to sever the criminal charges. The Court stated Lessard’s argument was insufficient to satisfy his burden of overcoming the Court’s strong presumption that counsel rendered adequate assistance.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/24hehc .