Appeal from the District Court of Sweetwater County. The Honorable Nena James, Judge.
For Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Patricia L. Bennett, Assistant Appellate Counsel. Argument by Ms. Bennett.
For Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Darrell D. Jackson, Faculty Director, David E. Singleton, Student Director, and Eric B. Limegrover, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Limegrover.
Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.
[¶1] Appellant William McGarvey was convicted of first degree sexual assault for physically forcing a young woman to perform oral sex on him. On appeal, he alleges that his attorney was ineffective. We affirm.
[¶2] McGarvey asserts that his counsel's performance was constitutionally ineffective in the three following respects:
1. Counsel sought to introduce evidence under Wyoming's rape shield statute, Wyo. Stat. Ann. § 6-2-312 (LexisNexis 2013), without educating himself about the proper application of that statute and
the meaning of DNA evidence gathered by the State.
2. Counsel failed to investigate how much alcohol had been served to McGarvey before an interview with law enforcement.
3. Counsel failed to object to the prosecutor's misstatement of law during her rebuttal closing argument.
We must decide whether any of these claims are meritorious based on the record before us.
[¶3] Two days after Christmas of 2010, TM and three of her female friends went drinking in Rock Springs. After spending a few hours at Bomber's Sports Bar, two of the young ladies decided to go home and drove off in TM's car. TM and her remaining friend SS left Bomber's and went to the Astro Lounge. As closing time neared, TM and SS obtained a ride to SS's home with Appellant McGarvey. They did not know him, but he had been at both bars and appeared to know some of the patrons the women knew, and he also told SS that he knew her mother. Once they arrived at SS's apartment, TM asked McGarvey to drive her to Reliance, approximately five miles from Rock Springs, because she wanted to see a former boyfriend. He agreed.
[¶4] McGarvey propositioned TM twice on the way to Reliance, asking her both times to give him " head," meaning to perform fellatio on him. She refused. He then parked his car after reaching Reliance, exposed his penis, pulled her head into his lap by her hair, punched her on the top of her head, and forced her to perform oral sex. After that, he managed to get TM's clothes off, tearing her panties in the process, and despite her protests tried to have intercourse with her in the front passenger seat. Afterward he drove her through a mobile home park until she asked him to stop at a trailer where a friend of hers lived with his parents and sister. Naked and clutching her clothes, she knocked on the front door and called her friend's name.
[¶5] Her friend Joshua Bowles opened the door and encountered the sobbing, shaking, and visibly terrified TM, who immediately told him she had just been raped. Bowles called the Sweetwater County Sheriff's office while his sister, Chantayne, helped TM dress. Because TM no longer had her panties, Ms. Bowles gave her a new pair, which was still in the package. She noted that TM appeared to have hair pulled out of her scalp. A deputy briefly interviewed TM and the Bowles at the trailer, after which TM was transported by ambulance to the Rock Springs hospital. There she again explained what had happened to a sheriff's detective, and biological evidence was collected from her vagina and the panties given to her by Ms. Bowles.
[¶6] By mid-morning of December 28, detectives had identified McGarvey as the man who had given TM and SS a ride, and they began looking for him at his home and several of his customary haunts. By early afternoon they discovered him standing beside his vehicle at Joe's Liquor. The car had not been there when the detectives looked for it thirty minutes earlier.
[¶7] McGarvey was asked if he would agree to an interview. He consented and followed the detectives to the sheriff's office in his vehicle. During the interview, McGarvey admitted that he had engaged in sexual acts with TM in Reliance and that he had forced himself upon her. He consented to a search of his home and car and ...