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Bobby Jack Jenkins v. the State of Wyoming

October 12, 2011

BOBBY JACK JENKINS, PETITIONER,
v.
THE STATE OF WYOMING, RESPONDENT.



Original Proceeding Petition for Writ of Review District Court of Goshen County The Honorable Keith G. Kautz, Judge

The opinion of the court was delivered by: Voigt, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

[¶1] The petitioner, Bobby Jack Jenkins, was charged with misdemeanor animal cruelty after a horse he owned was discovered in very dire physical condition. He was convicted in circuit court and the district court affirmed that conviction. He now brings the matter to this Court on a petition for review, asserting that his trial counsel was ineffective and therefore the decision should be reversed. Finding no prejudicial error, we affirm.

ISSUES

[¶2] 1. Was the petitioner denied effective assistance of counsel as a result of trial counsel's failure to object to testimony and argument regarding the arrest and incarceration of both the petitioner and his brother?

2. Was the petitioner denied effective assistance of counsel as a result of trial counsel's failure to object when the prosecutor elicited improper witness comment on another witness's testimony?

3. Was the petitioner denied effective assistance of counsel as a result of trial counsel's failure to object to the prosecutor's questions relating to irrelevant evidence?

FACTS

[¶3] On August 15, 2009, L.N. went with the petitioner's mother to an uninhabited ranch in Goshen County to look at a pickup truck that was for sale. At the ranch, L.N. looked over some horses that were also for sale. He was aghast to find a paint filly with a halter ingrown into her head, between her nostrils and eyes. Upon L.N.'s return home, he described to his wife what he had seen and she insisted that they return to the ranch to care for the filly, which they did. L.N. separated the filly and her mother from the other horses, roped the filly, and cut the halter from its head. The filly's breathing was labored and pus ran from its nose. When L.N. cut the halter to remove it, blood gushed from the horse's head and bone was exposed. L.N. and his wife took the mare and the filly to a veterinarian and called the sheriff's office. When the petitioner arrived at L.N.'s house the following day to pick up the horses, he was arrested for animal cruelty.

[¶4] A circuit court jury found the petitioner guilty of animal cruelty, a misdemeanor, in violation of Wyo. Stat. Ann. § 6-3-203(b) (LexisNexis 2011). The petitioner appealed his conviction to the district court, where the conviction was affirmed. This Court granted a petition for writ of review. Finding no error appearing in the record, we also affirm.*fn1 See W.R.A.P. 13.08.

STANDARD OF REVIEW

[¶5] Our standard of review when considering claims of ineffective assistance of counsel is well known to Wyoming litigants:

An appellant claiming ineffective assistance of counsel must demonstrate on the record that: 1) counsel's performance was deficient and 2) prejudice resulted. Hirsch v. State, 2006 WY 66, ¶ 15, 135 P.3d 586, 594 (Wyo. 2006), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, [2064], 80 L.Ed.2d 674 (1984). Both components of the ineffectiveness inquiry are mixed questions of law and fact. Strickland, 466 U.S. at 698, 104 S.Ct. [at 2070]. Our review, therefore, is de novo. United States v. Owens, 882 F.2d 1493, fn. 16 (10th Cir. 1989).

Dettloff v. State, 2007 WY 29, ¶ 17, 152 P.3d 376, 382 (Wyo. 2007).

DISCUSSION

[¶6] The petitioner points to three separate instances in which he alleges his trial counsel was ineffective. Before addressing these issues, however, we will articulate certain general principles of law that guide our analysis and govern the petitioner's claims.

When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Hirsch, ¶ 15, 135 P.3d at 593. We indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. Under the two-prong standard articulated in Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)], to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to render such assistance as would have been offered by a reasonably competent attorney and that counsel's deficiency prejudiced the defense of the case. Id. "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." Id., quoting Strickland, 466 U.S. at 686, 104 S.Ct. [at 2064].

The burden of proving that counsel was ineffective rests entirely on the appellant. Martinez v. State, 2006 WY 20, ¶ 23, 128 P.3d 652, 663 (Wyo. 2006). The appellant must also demonstrate the existence of a reasonable probability that, absent the deficiency in counsel's performance, the result of the proceedings would have been different. Id. A failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Id. An ineffectiveness claim may be disposed of solely on the ground of lack of sufficient prejudice. Id.

Dettloff, 2007 WY 29, ¶¶ 18--19, 152 P.3d at 382--83. We have also stated that when assailing counsel's assistance, an appellant must provide more than mere speculation or equivocal inferences. Duke v. State, 2004 WY 120, ¶ 36, 99 P.3d 928, 943 (Wyo. 2004), cert. denied, 544 U.S. 1062, 125 S.Ct. 2513, 161 L.Ed.2d 1113 (2005).

Was the petitioner denied effective assistance of counsel as a result of trial counsel's failure to object to testimony and argument regarding the arrest and incarceration of both the petitioner and his brother?

[¶7] The petitioner's first ineffective assistance claim involves his trial counsel's failure to keep out of evidence comments about his arrest and his brother's incarceration. Regarding his arrest, the petitioner complains that several witnesses"his mother, L.N., and the Livestock Board investigator"all mentioned his arrest in some form during their testimony. L.N. testified, "When [the petitioner] showed up to take the horse, he and his significant other, I guess you'd call it, they showed up with a pickup and a trailer, and he showed up to pick them up. Well, he wound up getting handcuffed, arrested and hauled off." The Livestock Board investigator testified:

Q. So did you as part of your investigation make any attempt to contact [the petitioner]?

A. Yes, we did find out where he was -- where he was at.

Q. And did you go to that location and speak with him?

A. Yes, sir.

Q. You and [another investigator]?

A. Yes.

Q. Okay. Where was that?

A. The detention center at Goshen County Sheriff's Office.

The prosecutor, after questioning the investigator about the contents of his interview with the petitioner, stated, "All right. Did that fairly conclude what you spoke of in your interview at the jail with [the petitioner]?" Also, the prosecutor referred to the Livestock Board investigator's interview with the petitioner during his opening statement, "So once

[L.N.] notified the sheriff's office, the animal was taken to the veterinarian, then the Livestock Board was notified, and they conducted an investigation. As part of their investigation they interviewed the defendant while he was incarcerated at the Goshen County Detention Facility . . . ." The petitioner's mother, when being questioned about the order of events stated, "I didn't. Wait a minute. I don't think I saw him, not till he was arrested." Finally, the prosecutor mentioned the petitioner's incarceration in his closing argument when he said,

When did [the petitioner's] brother Pete thing come about? I think the first mention of [it] was when [the Animal Board investigators] went down and interviewed on the 21st, came up here rather and interviewed him in the jail, then all of a sudden there's talk of brother Pete. . . . .

Did [the petitioner] simply make up this story of Pete supposedly taking care of the horses? Well, we heard him change one story. When [the Animal Board investigators] talked to - - talked to him in the jail, they said, "How long did you have the halter on there?"

[¶8] Citing W.R.E. 402*fn2 , the petitioner asserts that his trial counsel should have objected to the above-quoted testimony because it was irrelevant. The relevance and admissibility of the statements, however, are immaterial inasmuch as we can discern no material prejudice arising from the statements. Dettloff, 2007 WY 29, ¶ 19, 152 P.3d at 382 ("An ineffectiveness claim may be disposed of solely on the ground of lack of sufficient prejudice."). "Indeed, 'if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.'" Martinez v. State, 2006 WY 20, ¶ 23, 128 P.3d 652, 663 (Wyo. 2006) (quoting Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984)).

To show prejudice, Appellant must prove that "counsel's errors were so serious as to deprive [appellant] of a fair trial, a trial whose result is reliable." [Pendleton v. State, 2008 WY 36, ¶ 20, 180 P.3d 212, 219 (Wyo. 2008)]. Stated differently, prejudice means that there is "a reasonable probability that, absent the deficiency in counsel's performance, the result of the proceedings would have been different." Id. at ¶ 21, 180 P.3d at 219.

Montez v. State, 2009 WY 17, ΒΆ 3, 201 P.3d 434, 436 (Wyo. 2009). As noted above, it is the petitioner's burden to ...


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