McCoy v. State

886 P.2d 252, 1994 Wyo. LEXIS 154, 1994 WL 665763
CourtWyoming Supreme Court
DecidedNovember 30, 1994
Docket93-273
StatusPublished
Cited by15 cases

This text of 886 P.2d 252 (McCoy v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCoy v. State, 886 P.2d 252, 1994 Wyo. LEXIS 154, 1994 WL 665763 (Wyo. 1994).

Opinions

GOLDEN, Justice.

In this case we determine whether appellant’s jury conviction and sentences for three counts of second-degree sexual assault and one count of indecent liberties with a minor require reversal because trial counsel’s decisions concerning expert testimony violated his right to effective assistance of counsel. For the reasons explained below, we hold that reversal is not required.

ISSUES

McCoy states the issues as:

ISSUE #1:
Whether Trial Counsel failed to render effective assistance of counsel as guaranteed by the Constitution because of his following errors:
1. A failure to properly file a motion with the District Court for the payment of necessary costs for expert witnesses when trial counsel was aware that the Appellant had no funds for costs and the need for an expert was evident.
2. His failure to properly investigate the possible use of an independent expert witness when he was aware that the prosecution intended to use expert testimony at trial.
3. His failure to request a continuance two weeks before trial to obtain an independent analysis of the report from the State’s expert witness that he had just received.
4.His failure to call a witness whose testimony would have directly contradicted that of the alleged victim.

ISSUE #2:

Whether it is reasonably probable that but for Trial Counsel’s deficient performance the trial result would have been different.

The state presents the issues as:

Did Appellant’s trial counsel provide him with effective assistance despite counsel’s alleged failure:
(A) To seek funds from the court to provide expert witnesses for Appellant;
(B) To investigate Appellant’s case properly;
(C) To request a continuance of the tri- . al; or
(D) To call Angela Karsky as a witness at the trial;
And did those alleged acts or omissions create a reasonable probability that, in their absence, the result of the trial would have been more favorable to Appellant?

FACTS

The charges against appellant Patrick R. McCoy followed his separation from his wife, Raylene, in July of 1992. Raylene, a devout Jehovah’s Witness, took the couple’s daughter to a “touch therapist” connected with the Jehovah Witness church. The therapist evaluated the daughter for sexual abuse by touching her in various places on her body. The daughter later told her mother that her father had touched her sexually when she was four years old.

Raylene then took the daughter to Dr. William Heineke, a counselor at Wyoming Regional Counseling Center in Gillette, Wyoming. After several sessions, he reported to the state that the daughter had been a victim of sexual abuse, and the Gillette police began an investigation. Shortly after learning of the allegations, McCoy secured legal representation and filed for divorce and child custody. He later alerted his counsel to the sexual abuse allegations.

[254]*254Two physical examinations of the daughter were conducted which arguably were inconclusive. In March of 1993, the police scheduled an interview with her. The evening before, the mother had her watch a video concerning a daughter’s accusation against her father for child sexual molestation. The next day, the daughter told police investigators that in addition to the touching episode when she was four, her father had sexual vaginal intercourse with her three different times when she was six years, eight years, and ten years old. She also stated that her father had anally penetrated her during the episode when she was ten years old. This assault caused her to bleed, and she told her mother of the bleeding. Her mother testified that she remembered the incident because her daughter cried over what the mother believed was menstruation. This caused the mother to consult the school nurse to receive literature and advice for the daughter. The school nurse testified and confirmed that the mother had contacted her four years ago for the literature and advice. Both the mother and daughter testified that the daughter, now age 12, has not menstruated.

Following the daughter’s police interview, charges were filed against McCoy. A third physical examination of the daughter was conducted by Dr. Susan Reichert of Children’s Hospital in Denver, a pediatrician and member of the hospital’s Child’s Advocacy and Protection team. Dr. Reichert testified at trial that the results of her physical examination caused her to conclude the physical evidence showed repeated sexual intercourse over a long period of time and past sexual abuse. Dr. Heineke testified that in his opinion the daughter had been sexually abused. The state also presented testimony from the mother, daughter, and police investigator, Shane Shaw.

As its strategy, defense relied upon cross-examination of state witnesses to point the finger at another possible perpetrator and also to establish that the daughter’s accusation against her father arose from anger at her father over the divorce. The defense contended that this anger, maternal coaching, and suggestive therapy made her vulnerable to the suggestion that her father had sexually abused her.

McCoy testified, denying that he had sexually assaulted his daughter. He claimed that his wife had coached his daughter to make the charges against him because the couple was engaged in a divorce and a custody dispute over the daughter. The defense called no other witnesses.

Following the jury’s conviction, McCoy’s trial counsel filed a motion for judgment of acquittal and/or a new tidal, alleging insufficiency of the evidence. Before the hearing, trial counsel withdrew and was replaced. New defense counsel supplemented the motion alleging ineffective assistance of counsel and an evidentiary hearing was held.

After hearing testimony, the trial court denied the motions for a judgment of acquittal and for a new trial. This appeal followed.

DISCUSSION

Standard of Review

To establish that he has been denied effective assistance of counsel, a defendant is required to show that counsel’s performance was deficient and that, but for this deficient performance, it is reasonably probable that the trial result would have been different. Frias v. State, 722 P.2d 135 (Wyo.1986) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

In Gist v. State, 737 P.2d 336 (Wyo.1987), we noted:

‘[Tjhere are countless ways to provide effective assistance in any given case,’ Strickland [466 U.S.] at 689, 104 S.Ct. [at] 2065, unless consideration is given to counsel’s overall performance, before and at trial, it will be ‘all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.’ Strickland [466 U.S.] at 689, 104 S.Ct. [at] 2065.

Gist

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McCoy v. State
886 P.2d 252 (Wyoming Supreme Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
886 P.2d 252, 1994 Wyo. LEXIS 154, 1994 WL 665763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccoy-v-state-wyo-1994.