Opinion
No. 91CA0586
Decided September 24, 1992. Rehearing Denied October 29, 1992. Certiorari Granted March 29, 1993 (92SC788).
Certiorari Granted on the following issue: Whether the trial court erred in failing to reverse the petitioner's sentence of death and impose a sentence of life in prison on the grounds that the petitioner's rights were violated pursuant to the Sixth Amendment to the United States Constitution and art. II, § 16, of the Colorado Constitution (denial of effective assistance of counsel.
Appeal from the District Court of Adams County Honorable Harlan R. Bockman, Judge
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Robert Mark Russel, First Assistant Attorney General, Robert M. Petrusak, Assistant Attorney General, Steven Bernard, Special Assistant Attorney General, for Plaintiff-Appellee.
Dennis W. Hartley, P.C., Dennis W. Hartley, Lari J. Trogani, for Defendant-Appellant.
Defendant, Gary Lee Davis, appeals the order of the trial court denying his motion for post-conviction relief under Crim. P. 35(c) in which he alleged ineffective assistance of counsel. Defendant further appeals the trial court's denial of his motion for a continuance to obtain additional evidence for his post-conviction relief hearing. We affirm.
Defendant was prosecuted based on evidence that he and his wife had kidnapped, sexually assaulted, and then killed a woman. A jury found the defendant guilty of murder in the first degree, felony murder, conspiracy to commit murder in the first degree, second degree kidnapping, and conspiracy to commit second degree kidnapping. The jury returned a death penalty verdict pursuant to the convictions, and that verdict was affirmed on appeal. People v. Davis, 794 P.2d 159 (Colo. 1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed. 656 (1991).
Defendant murdered the victim with the assistance of his now-divorced wife, Rebecca Fincham. Fincham received a life sentence for her role in the killing. People v. Fincham, 799 P.2d 419 (Colo.App. 1990).
The evidence presented in People v. Davis, supra, demonstrated that the following events led to the charges here at issue.
Defendant and Fincham planned to kidnap a woman in order to satisfy their sexual desires. After an unsuccessful attempt to abduct a woman and the failure of a scheme in which Fincham sought to arrange that she and Davis would gain entry to the home of an acquaintance of hers while the woman was there alone, Fincham contacted the victim, also an acquaintance.
Fincham offered to bring the victim some children's clothing. The victim accepted the couple's apparent generosity, and, accompanied by her four-year-old daughter, greeted them as they drove up to her home. Fincham lured the victim toward a tool shed where defendant punched her in the face and forced her into the couple's car.
Fincham drove the car to a secluded area while the defendant held the victim in the back seat. The defendant sexually assaulted the victim and subsequently forced her to engage in sexual relations with Fincham.
The victim pleaded for her life and offered her assailants $1000 for her release. The defendant ignored her plea and struck her on the head with the rifle butt. The blow fractured the victim's skull and caused hemorrhaging; however, it apparently did not render her unconscious. Defendant then emptied his rifle into the victim's face and torso, including her breasts and pubic region, with a barrage of some fourteen hollow point bullets which exploded on impact. The defendant and Fincham then covered the corpse with a bale of hay and left.
The victim was soon reported missing, and the deputy who took the initial report began to patrol the area. He stopped a car occupied by Davis and Fincham and inquired about the whereabouts of the victim. The couple denied having seen her, and having no reason to hold them, he allowed them to leave. The officer specifically noted that there were no signs that the couple was under the influence of alcohol. Subsequent investigation lead to the couple's arrest the following morning.
After that affirmance, defendant filed a motion for post-conviction relief under Crim. P. 35(c), and a stay of execution was granted by the trial court.
A hearing on the post-conviction relief motion was set for February 4, 1991. The defendant requested a continuance of the hearing, asking for more time to prepare. The trial court granted the continuance and the hearing was reset for February 19, 1991.
Shortly before the new hearing date, defendant filed for another continuance asserting that he needed an additional sixty days to prepare. After a hearing on that request, the trial court denied the motion, but it allowed the defendant an opportunity to present an offer of proof that would justify the taking of additional evidence within sixty days of the hearing.
After the February 19, 1991, hearing, the trial court found the defendant's arguments on his ineffective assistance of counsel unconvincing and denied his motion for post-conviction relief. The defendant then filed a notice of appeal to this court and a verified motion to reopen evidence in the trial court. In response, the People filed a motion for a limited remand on the motion to reopen evidence which this court granted. Based on the defendant's offer of proof, the trial court found no new evidence and denied the motion to reopen.
I.
Defendant first contends that the trial court erred in concluding that the representation he had received was not a violation of his constitutional right to effective assistance of counsel. We disagree.
The right to counsel guaranteed by the Sixth Amendment and Colo. Const. art. II, § 16, entitles a defendant in a criminal proceeding to the reasonably effective assistance of an attorney acting as his diligent and conscientious advocate. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Tackett, 742 P.2d 957 (Colo.App. 1987).
The standard of reasonableness is an objective one measured by prevailing professional norms, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, supra.
In a Crim. P. 35(c) proceeding, the burden rests on the defendant to show not only that counsel's performance was deficient, but that it also prejudiced his defense. Strickland v. Washington, supra; People v. Tackett, supra.
In assessing a claim of ineffective assistance, a reviewing court should focus on two issues. First, it must determine whether the defendant has established that particular acts or omissions of his counsel fell outside the wide range of "reasonably competent assistance demanded of attorneys practicing criminal law." Strickland v. Washington, supra; People v. Dillon, 739 P.2d 919 (Colo.App. 1987). However, while so doing, the reviewing court:
"[m]ust indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action `might be considered sound trial strategy.' [ Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158; 100 L.Ed. 83 (1955)]."
Strickland v. Washington, supra.
Second, the reviewing court must ascertain whether the accused has demonstrated in a tangible manner that the acts or omissions of his counsel prejudiced him. To show such prejudice, defendant must demonstrate that under the totality of circumstances there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, supra; People v. Tackett, supra.
A.
Defendant asserts that his counsel's decision not to investigate and present limited, mitigating evidence during the penalty phase of his trial was based upon an uninformed opinion that was outside the range of professionally reasonable judgment. We reject this contention.
After discussions with defendant, defendant's counsel, an experienced criminal attorney, devised a strategy to present evidence that Fincham was equally if not more culpable than defendant in the commission of the crime. Because the wife had received a life sentence instead of the death penalty, defendant's counsel believed he could save defendant's life based on such a theory.
Defense presented this theory in his opening argument at trial; however, during the guilt phase, against his counsel's advice, defendant changed his mind and testified before the jury and accepted full responsibility for the crime. Accordingly, counsel could no longer reasonably pursue his theory of lesser culpability.
Defendant's allegations focus on his counsel's ineffective representation during the penalty phase of trial. In particular, the defendant alleges that: 1) an inadequate social history was taken from the defendant; 2) no specific efforts were made to locate friends, family, ex-counselors, and ex-employers to testify on behalf of the defendant; 3) alcoholism was not explored adequately as a mitigating factor; and 4) there was an insufficient investigation as to the effect of a closed-head injury sustained by defendant in 1965.
As to his allegations that an insufficient social and psychiatric history was taken by his counsel, the defendant presented expert testimony that his counsel's performance was below professional standards because he failed to do a thorough investigation into defendant's social and psychological history. The trial court, however, found that defendant's counsel did sufficient investigation into the defendant's family and relevant medical records to make an informed tactical decision not to use the evidence. It further determined that counsel decided not to use such evidence because of its potential detrimental effect. We perceive no error in that finding.
A defendant is entitled to a pretrial investigation of sufficient thoroughness to develop potential defenses and uncover facts relevant to guilt and punishment. Strickland v. Washington, supra; People v. Tackett, supra. And, an attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence. Middleton v. Dugger, 849 F.2d 491 (11th Cir. 1988).
However, mere disagreement as to trial strategy will not support a claim of ineffective assistance. People v. Tackett, supra. In Strickland v. Washington, supra, the court stated:
"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."
A decision not to present evidence of character or evidence of mental or emotional problems may constitute a reasonable strategic choice well within the realm of reasonable professional judgment. If counsel is confronted with overwhelming aggravating circumstances, he may reasonably conclude that such character and psychological evidence would be of little help. See Strickland v. Washington, supra. This is particularly true if such evidence of character or psychological or emotional backgrounds would open the door to presentation of potentially damaging evidence by the prosecution. Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987).
The record supports the trial court findings that defendant's counsel made an informed tactical decision not to present such evidence based on its potentially damaging nature. After careful review, we are satisfied with this finding.
2.
Defendant next contends that ineffective assistance is revealed by the fact that his trial counsel failed to contact, or consider the use of, certain friends and family members, ex-employers, and ex-counselors as character witnesses for defendant. Again, we find no deficiencies in counsel's performance.
The record shows that defendant's counsel did consider areas of mitigation such as sympathy-evoking testimony from family members, friends, and neighbors. But, in doing so, counsel was exposed to a number of unfavorable potential witnesses who likely would have been called by the prosecution to counter any favorable character testimony.
For example, counsel learned that after defendant's previous conviction for first degree sexual assault of a 15-year-old girl, his mother had regarded him as an embarrassment to the family who was no longer welcome in her home. Similarly, one of defendant's former wives indicated that she had been abused by defendant and that he had held a gun to her head during some apparent differences over sexual matters. Lastly, defendant's counsel received reports from the public defender's office concerning interviews with a brother, as well as two tenants in an apartment complex the defendant had once managed. In both situations, the reports were unfavorable to the defendant's character.
Although defendant's counsel decided not to have certain witnesses testify concerning defendant's character, he did produce two other witnesses to testify that defendant was remorseful, redeemable, and that it was not necessary to execute defendant to protect society. Also, he questioned these witnesses in a manner which did not open the door to questions on cross-examination into unfavorable areas of defendant's character.
At the Crim. P. 35(c) hearing, defendant's counsel also testified that producing other character evidence would have undermined his equitable argument that Fincham's culpability was at least equal to that of the defendant and that she was the dominant figure in directing the murder of the victim.
We agree with the trial court's determination that counsel's actions were not prejudicial based on a "thorough investigation" of the case and tactical decisions made by counsel.
Failure to present mitigating evidence at a capital sentencing hearing is not always defective performance. Deutshcer v. Whitley, 884 F.2d 1152 (9th Cir. 1989), vacated, other reasons, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73. When overwhelming evidence of guilt and aggravating factors exist, testimony that the defendant is a "good" person is unlikely to alter the outcome. Colman v. Brown, 802 F.2d 1227 (10th Cir. 1986) cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383.
We are unpersuaded that the additional character witnesses would have been sufficient to change the outcome. It was reasonable for defendant's counsel to conclude that the risk of potentially damaging character testimony outweighed the benefit of presenting evidence that defendant displays likeable characteristics to certain friends and family members. Thus, the trial court's determination that defendant's counsel was not ineffective in this regard will not be disturbed.
3.
Next, defendant challenges the failure of his counsel to explore and present defendant's alcoholism as a mitigating factor. Again, we agree with the trial court that defense counsel acted appropriately as to this issue.
Evidence was presented at the hearing that trial counsel was aware of, and had records about, defendant's prior treatment for alcoholism. Furthermore, counsel had a psychiatrist examine the defendant to analyze the possible use of alcoholism as a mitigator, but he testified at the hearing that he had specifically decided not to use alcohol as a mitigator for two reasons.
First, as an experienced criminal defense attorney, he had found that alcoholism is seldom an effective defense and that a reliance on intoxication would only have lessened defendant's credibility. His other reason was that the sheriff's deputy, who had contacted defendant shortly after the victim's disappearance, did not perceive any evidence of intoxication. Also, there was no blood test or other chemical test indicative of intoxication.
The record provides sufficient evidence to support the trial court's conclusion that defendant's counsel had adequately explored the possibility of using alcoholism and made a reasonable tactical decision not to use it.
4.
Defendant next argues that there was insufficient investigation into a head injury defendant received in an automobile accident in 1965. He argues that a mild concussion, not requiring hospitalization, had caused his drinking problem to escalate and could have resulted in organic brain disease. However, defendant's counsel testified he was not told of the head injury by the defendant, and the trial court found no physical evidence of organic brain disease, nor any other evidence to support the defendant's theory that his prior brain injury would have been an effective mitigating factor. Accordingly, there is no basis for a finding of ineffective assistance in this regard.
B.
Besides the above allegations concerning the evidence presented in the penalty phase of the trial, defendant also contends that his counsel was ineffective because he abandoned defendant by giving no closing argument at the end of the guilt phase and separated himself from defendant during closing argument at the end of the penalty phase. We disagree.
Defendant asserts his trial counsel's actions resulted in aiding the prosecution. In particular, defendant argues that his counsel separated himself from defendant by conveying to the jury that he had reluctantly represented a defendant whom he not only "hated" but who had committed a reprehensible crime, thus dehumanizing him. In other words, defendant argues that his counsel turned against him and that such a conflict in loyalty unquestionably affected his representation.
Defendant relies on King v. Strickland, 714 F.2d 1481 (10th Cir. 1983), in which the court found defendant's counsel did not merely neglect to present available mitigating evidence, but also made a closing argument that may have done more harm than good. In King, the court determined that:
"Counsel's arguments at the sentencing hearing stressed the brutality of the crimes and the difficulty his client had presented to him . . . . Counsel described the crimes as horrendous [and] analogized his client and the co-defendants to `sharks feeding in the ocean in a frenzy; something that's just animal in all aspects.'"
The court in King, thus, described counsel's failure to fulfill his duty of loyalty to his client as being most striking during the sentencing trial. A similar situation was present in Osborn v. Shillinger, 861 F.2d 617, 629 (10th Cir. 1988). However, such is not the case here.
In People v. Wade, 44 Cal.3d 975, 750 P.2d 794 (1988), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988), the court stated, in words apropos here:
"In light of the overwhelming evidence of his client's guilt, trial counsel had little choice but to candidly acknowledge guilt, concede the heinous nature of the offense, and concentrate instead on [tactics and theory]. . . . [I]t is entirely understandable that trial counsel, given the weight of incriminating evidence, made no sweeping declarations of his client's innocence but instead adopted a more realistic approach . . . . [G]ood trial tactics demanded complete candor with the jury . . . . Under the circumstances we cannot equate such candor with incompetence."
The record indicates, upon a full reading of counsel's closing argument, that while he conceded to the gruesomeness of the crime and his distaste for his client, he was making a concerted effort to maintain his candor and credibility with the jury. Mere admissions that were already obvious to the jury could not outweigh the tactical choice defendant's counsel was making during his closing argument. Hence, again, counsel's representation was not below constitutional standards.
C.
Lastly, defendant contends that his trial counsel failed to address or object to several issues including faulty instructions, proportionality of the sentence imposed, jury selection, and the doubling of aggravating factors in the penalty phase. We find no merit in this contention.
The record shows defendant's counsel made numerous objections and acted properly in addressing various issues of law. In particular, the trial court made a specific finding that the decision by counsel not to attack the prior convictions of the defendant was based upon his tactical decision to argue before the jury that defendant could receive two life sentences and that, thus, society would be protected even if defendant was not put to death. The court further found that although this tactic did not work, it was based upon sound logic. We, like the trial court, find no error in counsel's conduct. See People v. Davis, supra.
As to the issues of faulty instructions, proportionality of the sentence, doubling of aggravating factors, and jury selection, the Colorado Supreme Court has addressed each one and found there was no reversible error. People v. Davis, supra.
D.
In summary, we find substantial support in the record for the trial court's conclusion that the representation defendant received did not fall below the standard of reasonably competent assistance and that the defendant was not prejudiced by that representation. Hence, that conclusion will not be disturbed.
III.
The defendant next contends that the trial court erred in denying his motion for a continuance and refusal to reopen evidence. We disagree.
The granting or denying of a motion for continuance lies within the sound discretion of the trial court, and a conviction will not be overturned on appeal unless an analysis of the totality of the circumstances shows the trial court's denial of the continuance to be an abuse of discretion. Miller v. People, 178 Colo. 397, 497 P.2d 992 (1972).
Abuse of discretion occurs only when, under the circumstances, a ruling is manifestly arbitrary, unreasonable, or unfair. People v. Crow, 789 P.2d 1104 (Colo. 1990).
Here, although the trial court denied the defendant's motion for a continuance, it gave him the opportunity to present an offer of proof of additional evidence within sixty days of the hearing. When the defendant filed his motion to reopen evidence, it was accompanied by one affidavit from the expert who testified at trial. The affidavit expounded on the issues that the expert testified at the hearing, but no new witnesses were presented.
Under these circumstances, the trial court gave the defendant a reasonable option, and its denial of the motion to reopen evidence is supported by the record. Thus, we find no abuse of discretion.
Accordingly, both the order denying post-conviction relief and the order denying a continuance are affirmed.
JUDGE SMITH concurs.
JUDGE TURSI dissents.