State of Texas v. Melvin Goodspeed

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. PD-1882-03

---

MELVIN GOODSPEED, Appellant

v.

THE STATE OF TEXAS

---

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS BOWIE COUNTY

---

   Keller, P.J., delivered the opinion of the Court in which PRICE, WOMACK, KEASLER, HERVEY and COCHRAN joined. JOHNSON, J., dissented. PRICE, J., filed a concurring opinion in which COCHRAN, J., joined. HOLCOMB, J., filed a dissenting opinion in which MEYERS, J., joined.



O P I N I O N

We must determine whether the failure to ask any questions during voir dire and the exercise of two peremptory challenges on jurors who had already been excused constitute performance that is so obviously deficient that inquiry into the reasons for counsel's conduct becomes unnecessary. We hold that an inquiry into the reasons for counsel's conduct is still needed. Consequently, we reverse the judgment of the court of appeals.

I. BACKGROUND

After the State conducted its voir dire, defense counsel addressed the venire but did not ask any questions. In his comments, defense counsel stated that he had listened to the prosecutor for approximately two hours and that she had covered everything, including the defense side of the case. Although defense counsel exercised all ten of his peremptory challenges, two of those challenges were used on prospective jurors who had previously been excused by the trial court.

Appellant was convicted of aggravated sexual assault of a child under age fourteen and sentenced to ninety-nine years in prison. Although a motion for new trial was filed, and an ineffective assistance of counsel claim was raised in the motion, no complaint was made with regard to the above-discussed conduct, and no hearing was held on the motion.

But on appeal a complaint was made about the conduct. The court of appeals held that this conduct constituted deficient performance, because there was no possibility that it could have been based on legitimate trial strategy. ⁽¹⁾ The court explained the importance of voir dire and held that the failure to ask questions amounted to no assistance to the defendant and that no conceivable trial strategy would permit counsel to waive voir dire. ⁽²⁾ The court of appeals found the failure to ask questions to be deficient in light of the need for fair and impartial jurors and the tendency of questioning to elicit answers that form the basis for a challenge for cause or provide a gender or race-neutral reason for exercising a peremptory challenge. ⁽³⁾

The court of appeals further believed that the failure to examine the panel prevented the defense from ascertaining whether some members of the venire could not consider the full range of punishment. ⁽⁴⁾ The court observed that appellant was eligible for community supervision, and while the State did explain the range of punishment as being "probation up to ninety-nine years or life" and asked the prospective jurors if they could consider the full range of punishment, the court of appeals felt that the State did not clearly inquire into whether prospective jurors could consider probation as a sentencing option. ⁽⁵⁾

The court of appeals also found that its deficient performance holding was required by defense counsel's use of peremptory strikes on two previously excused prospective jurors. ⁽⁶⁾ The court of appeals characterized those strikes as "wasted" and found that they cast "extreme doubt on whether Goodspeed's counsel was actively participating in the adversarial process to ensure a just and fair trial." ⁽⁷⁾

II. ANALYSIS

Ineffective assistance of counsel claims are evaluated under the two-part test formulated by the Supreme Court in Strickland v. Washington, ⁽⁸⁾ requiring a showing of both deficient performance and prejudice. ⁽⁹⁾ A Strickland claim must be "firmly founded in the record" and "the record must affirmatively demonstrate" the meritorious nature of the claim. ⁽¹⁰⁾ Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. ⁽¹¹⁾ This is true with regard to the question of deficient performance - in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight ⁽¹²⁾ - where counsel's reasons for failing to do something do not appear in the record. ⁽¹³⁾ We have said that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." ⁽¹⁴⁾ Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." ⁽¹⁵⁾

Despite the court of appeals's characterization of counsel's conduct as "no assistance," we cannot conclude that the failure to ask any questions in voir dire constitutes conduct so outrageous that no competent attorney would have engaged in it. Defense counsel's articulated reason for declining to ask questions - that the prosecution's questioning adequately covered the defense's concerns - could be a legitimate trial strategy under the appropriate circumstances. The Supreme Court of Montana, for example, has declined to find defense counsel ineffective for asking only one question in voir dire where the record revealed an "extensive and thorough voir dire by the State." ⁽¹⁶⁾

The dissenting opinion relies on Armstrong v. State ⁽¹⁷⁾ for the proposition that defense counsel has an obligation to ask questions during voir dire, but Armstrong held no such thing. The issue in Armstrong was whether a prospective juror's failure to reveal that she and the prosecutor were close friends constituted juror misconduct. ⁽¹⁸⁾ We held that it did not, because no one had ever asked the panelists if they knew the prosecutor. ⁽¹⁹⁾ It was only in this context that we said that defense counsel has an "obligation" to ask questions. ⁽²⁰⁾ Our holding today does not conflict with precedent.

The court of appeals opinion indicates that defense counsel's failure to ask questions was not a valid trial strategy in this particular case because the court believed that the veniremembers were not adequately questioned on whether they could fairly consider the issue of probation. But appellant's trial counsel has not been afforded the opportunity to respond to this articulated concern. A number of valid trial strategies could prompt counsel to refrain from asking questions regarding a prospective juror's ability to fairly assess a certain punishment, including probation. In the capital murder context, in which a jury is called upon to choose between life and death, and where a juror's ability to fairly consider the entire range of punishment is at least as important as it is here, several courts have stated that the failure to ask "life-qualifying" questions (whether a prospective juror can fairly consider a life sentence) does not necessarily constitute deficient performance. ⁽²¹⁾ According to the Sixth Circuit, counsel may have validly refrained from asking such questions because he did not want prospective jurors to hear each other's answers, because he was afraid death-leaning jurors might influence other jurors, because he was satisfied with the composition of the jury and its ability to honestly and ably perform its duties, or because he did not want to aid the prosecution in deciding how to exercise its own peremptory challenges. ⁽²²⁾ The Supreme Court of Tennessee has suggested that defense counsel could validly refrain from asking such questions on the ground that the focus of the defense was on guilt and "[t]oo intense an inquiry" regarding punishment "may be perceived by potential jurors as a concession that credible evidence of guilt exists." ⁽²³⁾

All of these reasons are potentially applicable in a case such as this one. Counsel might have been afraid that more punishment-oriented jurors could influence others jurors; he may have been satisfied with the composition of the panel; he may have refrained from asking questions about probation to avoid giving the State more information on which to exercise peremptory challenges; he may have believed that such questioning would be perceived as admitting there was credible evidence of guilt; or he may have had any combination of these reasons. Counsel might also have believed that the facts of this aggravated assault of a child case were so severe that there was little or no possibility of appellant receiving probation upon conviction. These proposed reasons are speculative, but as discussed above, that is the problem with trying to evaluate an ineffective assistance claim in which defense counsel has not been given an opportunity to respond, and why such claims are usually rejected.

Finally, the court of appeals contends that counsel's deficient performance is revealed by his use of two peremptory challenges on jurors who had already been excused. Again, counsel has not been afforded the opportunity to respond. ⁽²⁴⁾ But even if the strikes constitute deficient performance, appellant must show that they harmed him. This he has not done.

The judgment of the court of appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

KELLER, Presiding Judge

Date delivered: April 6, 2005

Publish

1. Goodspeed v. State, 120 S.W.3d 408 (Tex. App.-Texarkana 2004).

2. Id. at 410-411.

3. Id. at 411.

4. Id. at 411-412.

5. Id. at 412.

6. Id.

7. Id.

8. 466 U.S. 668 (1984).

9. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

10. Id. at 813.

11. Id. at 813-814

12. Id. at 813.

13. Id. at 814.

14. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).

15. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003).

16. State v. Kolberg, 241 Mont. 105, 108, 785 P.2d 702, 704 (1990).

17. 897 S.W.2d 361 (Tex. Crim. App. 1995).

18. Id. at 363-364.

19. Id. at 364.

20. Id. at 363-364.

21. Stanford v. Parker, 266 F.3d 442, 453-454 (6^th Cir. 2001), cert. denied, 537 U.S. 831 (2002); Commonwealth v. Morris, 546 Pa. 296, 307-309, 684 A.2d 1037, 1042-1043 (1996), cert. denied, 521 U.S. 1106 (1997); Harman v. State, 896 S.W.2d 94, 105 (Tenn. 1995).

22. Stanford, 266 F.3d at 454.

23. Hartman, 896 S.W.2d at 105.

24. See People v. Lewis, 50 Cal. 3d 262, 290, 786 P.2d 892, 851 (1990)(defense counsel not automatically ineffective for failing to exercise all of his allotted peremptory challenges).