Frias v. State , 1986 Wyo. LEXIS 578 ( 1986 )

THOMAS, Chief Justice,

dissenting.

I would affirm Frias’ conviction in this case. The majority concludes that Frias’ statements were inadmissible because the district judge failed to make a finding of voluntariness. The majority also holds that although the claimed newly-discovered evidence did not meet the standards previously articulated by this court the failure to earlier obtain the evidence constituted ineffective assistance of counsel, and the defendant is entitled to a new trial for that reason.

In addressing the voluntariness of Frias’ statement and the conclusion that error occurred, a further analysis of the record is appropriate. Counsel for Frias insisted that the tapes be played to the jury rather than reading a transcript to them. Then counsel for Frias waived any in-chambers hearing of the tapes by the trial judge and insisted that the trial judge listen to the tapes at the same time as the jury. Counsel argued that the court then could rule upon the admissibility of the statements by Frias, and the prosecutor ultimately agreed to this plan. No objection was lodged by defense counsel until after the first tape was played, but the trial judge then decided to let the other tape be played for the jury as well. Following the playing of both tapes for the jury defense counsel argued that the interview recorded on the tapes was coercive and that the investigators were exaggerating their proof against Fri-as during the course of the interrogation. At that time defense counsel requested the trial judge to suppress the statement or instruct the jury with respect to it, and the trial judge advised counsel that he would be happy to give a cautionary instruction. The instruction which was requested in chambers was, “What you heard is an example of interrogation that has gone over the line. Pm asking you to disregard it.” The court then advised:

“I think what I’m going to do is just let the tape go with some cautionary instruction at the end maybe along the lines both of you suggested without going quite as far as Mr. Munker would have me go, but maybe a little further than you would suggest too. But we’ll all have to work on that instruction.”

During the conference in chambers, when the prosecution moved for admission of the tapes, counsel for the defendant stated:

“I would renew the objection. The Court heard our objection and has indicated its ruling. In the event the Court allows the tapes to stand as being admissible, they have been heard by the jury, I would ask that the Court give a cautionary instruction.”

The instruction conference was not reported, but the district judge said:

“We have agreed upon the instructions and there has been no objection to the instructions.”

The instruction which was given is quoted at page 141 of the majority opinion. It does not caution the jury to disregard the statements of the investigators made on the tapes which indicated that they had stronger proof than was introduced at trial. This seems to be the focus of one of Frias' main contentions with respect to the introduction of the tapes. The record, however, is silent with respect to the offering of any such instruction by Frias and also is silent with respect to any objection to the instruction which was given on the grounds that it did not caution the jury to disregard the statements of the investigators on the tapes. Under well-documented authority Frias has waived this claim on appeal. Furthermore, in my judgment the strategy of defense counsel also resulted in a waiver of error. For me the record is clear that defense counsel wanted the tapes played to the jury. In fact, defense counsel said:

“I think it’s coercive and I think this jury who’s heard it — and that was one of the reasons why I didn’t feel uncomfortable with the jury hearing it. I think they can understand it.”

Certainly I would trust the jury in that regard.

There is only one aspect of Frias’ statement that could be perceived as incriminatory. At one point he said that on the fatal night he arrived home shortly before Ernestine and the children although on that night he had told the coroner he arrived home after Ernestine and the children already were in bed. He then explained in the statement how he had helped Ernestine get the children ready for bed. This seems to be the only information which Frias gave in his statement that might incriminate him. In this regard the district judge observed about the tapes:

“Gentlemen, you know, that [agent] is terrible. I think it is — I think it’s coercive as hell. I think, unfortunately, the one part of it that wasn’t coercive is where he admitted that he lied where [the agent] questioned him, and very casually admits that he lied about the time that he got home and that they got home together.”

The materiality of this discrepancy escapes me, but I cannot believe that any juror would attribute any particular significance to it.

The majority opinion recognizes the totality of the circumstances test. It then discusses the question of whether there was a valid waiver of the appellant’s constitutional right to be interrogated without the presence of counsel. I do not understand that Frias asserted such an error in this appeal. Because of my perception of Frias’ statement as essentially exculpatory, I do not see any purpose in inquiring into volun-tariness. It appears that the district judge was, and to a degree this court is, concerned with the coercive nature of the interrogation. However one might perceive or describe the degree of duress involved it was unsuccessful. “[Ajppellant steadfastly denied killing Ernestine despite repeated accusations and threats by his interrogators.” Consequently, the tactics of the interrogators do not rise to the level of reversible error, and I believe that any fair observance of the separation of powers doctrine inhibits this court from furnishing direction as to the manner in which investigative agents for the executive branch do their work unless it reaches the level of error of law.

There were two tapes involved in Frias’ statement, and after the first had been played counsel for Frias requested that the court rule that the interrogation was involuntary and that the second tape not be played. The second tape contained the information changing the time of arrival home. I do not understand that the attorneys employed by the Wyoming Public Defender’s office are anything other than skilled and dedicated practitioners. In my view the goal that was sought was to play the first tape with Frias’ repeated denials of killing his wife for the purpose of presenting his position to the jury, achieving sympathy for Frias because of the overreaching manifested by the interrogators, and preserving an option for Frias not to testify. I think the strategy was sound but the tactics did not evolve as counsel had hoped. Nevertheless, I am persuaded that the approach taken when later coupled to a complaint with respect to the admissibility of the statement is a manifestation of gamesmanship to which the majority of the court has yielded. While we all recognize that defendants in criminal trials are afforded many prerogatives not available to other litigants, I am very reluctant to reward gamesmanship.

With respect to the reversal granted Fri-as because of ineffective assistance of counsel I have the same fundamental reaction. The public defender’s office endeavored to structure an interesting fork in arguing that a new trial should have been ordered because of newly-discovered evidence or alternatively the court must find that a new trial should be granted because of ineffective assistance of counsel. I am inclined to question the wisdom of yielding to the importunities of Frias in this regard. I know of no other area of the law in which one is permitted to confess error in order to achieve an advantage. I am highly suspicious of structuring any opportunity for counsel for a defendant to claim error in the record; and if that claim is discounted, as it is here, then say, “Well, this must have happened because I was a bad lawyer.”

On review courts accommodate to a broad range of professional competence when the question of ineffective assistance of counsel is raised. In this instance, I do not find that the suicide defense was “all but abandoned.” Evidence was introduced with respect to the victim’s past suicide attempts. Defense counsel got the experts for the State to agree that an entry wound might be larger than an exit wound. Counsel for Frias went into the inconsistencies between the State’s theory and the position of the body and the blood spatters all during the course of this trial. It was clear that the initial impression of the investigating officers was that the victim had committed suicide. Frias took the stand and denied killing Ernestine, and he said that he first thought and still thought that she had killed herself.

The claimed newly-discovered evidence would have strengthened these propositions. It was thus cumulative of what already had been placed before the jury by evidence, impeachment or justifiable inference. Furthermore, it was not necessarily solid evidence. Only one of the experts did not equivocate in his conclusion that the shot was fired from the front of the victim. The additional evidence in toto was not as conclusive as the majority would indicate.

Furthermore, the record demonstrates that defense counsel relied upon the defense investigator’s conclusion that the shot was fired into the back of the victim when the decision was made not to pursue further investigation. This was the individual who was the former director of the State crime lab. In his affidavit in support of the motion for new trial he advises that he did not interview Dr. Stahl, the pathologist, but that independently he had determined that the victim was shot in the back. With this information it was not unreasonable for defense counsel to conclude not to pursue any additional investigation or expert testimony in this regard. Frias still was able to mount his suicide defense in spite of his own investigator’s conclusion that the victim was shot in the back.

In Opie v. State, Wyo., 422 P.2d 84 (1967), this court justified the stance it took on newly-discovered evidence in part based upon a social need for finality even in criminal cases. See Grable v. State, Wyo., 664 P.2d 531 (1983). I cannot approve a decision which adheres to the concepts of Opie v. State, but in the same breath grants a new trial because of a conclusion that the failure to present the evidence initially manifests ineffective assistance of counsel. In effect the rule espoused by this court with respect to newly-discovered evidence has been completely undermined.

I do not understand that counsel for the defendant failed in any way to make an adequate investigation or to make rational and appropriate choices based upon the information derived from the investigation. In my judgment the test posed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), was satisfied. The majority seem to agree that the claimed newly-discovered evidence was cumulative, impeaching or simply contradictory of the other evidence submitted at trial. I then remain unpersuaded that the second prong of the Strickland test was satisfied by any showing that the errors were so serious as to deprive Frias of a fair trial.

With respect to the other matters relied upon as demonstrating ineffective assistance of counsel, I do not agree that this is true. As I indicated I think the defense wanted the jury to hear how Frias was badgered during the interrogation. Consequently, the waiver of the voluntariness hearing was not a mistake but a matter of trial tactics. There was no error with respect to the handling of the juror, and his bias was not demonstrated by the in-chambers hearing. Again, it may have been a well-calculated decision to leave that individual on the jury. Finally, I am not satisfied that the outcome of the trial would have been different if the new evidence had been admitted. There is no reason to believe that this expert testimony would have been swallowed hook, line and sinker by the jury.

I am satisfied about one proposition, however, and that is that it is a fundamental mistake to attempt to test those issues by simply examining the trial record and applying the subjective responses of an appellate court. In my judgment effective assistance of counsel can only be tested upon a motion for post-conviction relief at which a hearing can be held to determine what the facts were with respect to the efforts of defense counsel. What counsel did in this case is largely a matter of speculation, conjecture and opinion. I suggest that if Frias at any point admitted to his counsel his involvement in his wife’s death what was done becomes much more readily understandable. It is very difficult to set out to produce evidence of a proposition that one knows is not true. Normally that effort is fruitless. Consequently, I believe that an evidentiary hearing is the only appropriate way to test the effective assist-anee of counsel, and in my judgment wisdom dictates that it be dealt with only in that context.

For these reasons, I would find no error in the admission into evidence of Frias’ exculpatory statement, nor would I find that there was ineffective assistance of counsel. I would affirm the conviction.

The majority concluded that it was not necessary to deal with the sufficiency of the evidence argument. Because I would vote to affirm, perhaps it is helpful to explain that there certainly was sufficient evidence in this case to support the jury’s finding of guilty. Consequently, if addressed, that claim of error would not have produced any affirmative relief for Frias.