Thursday, February 09, 2012

Summary 2012 WY 17

Summary of Decision February 9, 2012

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Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name:  Peterson v. State of Wyoming

Citation:  2012 WY 17

Docket Number: S-10-0104

Appeal from the District Court of Campbell County, The Honorable Michael N. Deegan, Judge

Representing Appellant (Defendant):  Diane M. Lozano, Wyoming State Public Defender; Tina N. Olson, Appellant Counsel; David E. Westling, Senior Assistant Appellate Counsel.  Argument by Mr. Westling.

Representing Appellee (Plaintiff):  Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Joshua Beau Taylor, Student Director, and Anthony Barton, Student Intern, of the Prosecution Assistance Program.  Argument by Mr. Taylor.

Date of Decision: February 9, 2012

Facts:  Appellant was charged with second degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-315(a)(iii) (LexisNexis 2011)3 (Count I), two counts of first degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-314(a)(ii) (LexisNexis 2011)4 (Counts II and III), and soliciting a minor to engage in sexual relations under Wyo. Stat. Ann. § 6-2-318 (LexisNexis 2011) (Count IV).  Appellant’s jury trial began after several continuances.  The jury found Appellant guilty on Counts I and IV but acquitted him on Counts II and III.  The district court sentenced Appellant to eighteen to twenty years on the sexual abuse count and to a consecutive term of four to five years on the soliciting count.  Appellant then initiated this appeal. 

Contemporaneously with the filing of the appellate brief, Appellant filed a motion seeking a partial remand to the district court to develop evidence concerning the effectiveness of his trial counsel.  This Court granted the remand motion and directed the district court to consider the following four issues:  (1) whether trial counsel failed to conduct a proper investigation and failed to interview the witness SP prior to trial; (2) whether trial counsel was ineffective with regard to the competency/taint hearing involving the minor victim and with regard to a Daubert hearing; (3) whether trial counsel was ineffective because he did not dedicate his full attention to the trial; and (4) whether trial counsel was ineffective with regard to his cross-examination of the victim.  The district court held an evidentiary hearing and determined that trial counsel was not ineffective in his representation of Appellant.  The case then returned to this Court for briefing and argument. 

Issues:  Did the cumulative effect of trial counsel’s general lack of preparation, failure to investigate, failure to propose jury instructions and general incompetence amount to ineffective assistance of counsel?

Holdings:  As to the issue of whether counsel failed to investigate and interview the witness SP, the Court found Appellant failed to demonstrate that counsel’s investigation and evaluation of SP’s likely testimony was flawed and outside the realm of professionally competent assistance.

As to the competency hearing, the Court observed that Appellant made no showing that presenting his slight evidence of taint at the competency hearing would have prevented the child from testifying, or that presenting the evidence only at trial lessened his chances of acquittal.  The Court found Appellant’s failure to make the required showing of deficient performance and resulting prejudice defeated his ineffectiveness claim.

The Court concluded that throughout the trial, defense counsel vigorously represented Appellant and challenged the State’s evidence.  Appellant failed to sustain his burden of proving that he was deprived of his constitutional right to the effective assistance of counsel. 


J. Golden delivered the opinion for the court.

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