People v. Stroup

624 P.2d 913, 1980 Colo. App. LEXIS 814
Colorado Court of Appeals·Decided November 20, 1980·No. No. 79CA0246·Published·Cited by 1 cases

Opinion

STERNBERG, Judge.

The defendant, Donald Stroup, appeals the denial of his Crim.P. 35(b) motion for post-conviction relief. We affirm in part and remand to the trial court for resentenc-ing.

On April 17, 1977, Stroup assaulted his ex-wife. She suffered multiple stab wounds, knife cuts, and contusions. Following a jury trial Stroup was convicted of first degree assault and a crime of violence. In his request for post-conviction relief, Stroup contends that he was denied the effective assistance of counsel and that the trial court erred in failing to require the jury to make specific findings of fact regarding the violent crime sentencing allegation.

I.

Stroup first claims that he was denied effective assistance of counsel because his retained attorney failed adequately to investigate the facts of the case, did not [915] present affirmative evidence in favor of one theory of defense at trial, and advised him not to appeal. We reject this contention.

The constitutional right to counsel, U.S.Const. Amend. VI; Colo.Const. Art. II, Sec. 16, requires that defense counsel render reasonably effective assistance. People v. White, 182 Colo. 417, 514 P.2d 69 (1973); People v. Gonzales, 37 Colo.App. 8, 543 P.2d 72 (1975). In order to meet the constitutional requirement of effective assistance of counsel, the level of representation furnished to a defendant must be “within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); People v. Blalock, 197 Colo. 320, 592 P.2d 406 (1979). This does not mean that the defendant is constitutionally guaranteed such assistance as will result in his acquittal at trial. See Steward v. People, 179 Colo. 31, 498 P.2d 933 (1972). Nor does it mean that there is a right to an errorless trial. People v. White, supra. However, “[wjhenever defense counsel commits errors at trial which are a direct result of inadequate pre-trial investigation or self-imposed ignorance of the law, his representation is incompetent and relief must be granted.” People v. White, supra.

The measure of reasonably effective assistance in investigation prior to trial is set out in ABA, Standards Relating to the Defense Function § 4.1 which provides that: “It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty.” See also People v. White, supra. Stroup asserts that his attorney’s failure to consult an independent medical expert regarding the extent of the victim’s injuries constituted breach of this duty because, as a result of inadequate pre-trial investigation, counsel was not prepared to show the victim had not suffered “serious bodily injury," a necessary element of first degree assault. Section 16-11-309, C.R.S. 1973 (1978 Repl. Vol. 8).

We conclude that the pre-trial investigation undertaken was adequate under the standard set forth above. Stroup’s attorney conducted a diligent inquiry prior to trial. This investigation included interviews with attending doctors, inspection of medical records, and review of police reports. Based on his findings, he concluded that the prosecution would not be able to prove first degree assault and pursued this avenue of defense at trial.

Failure to call an expert witness to testify, under the facts presented here, did not amount to the ineffective assistance of counsel at trial. See ABA, Standards Relating to the Defense Function § 5.2(b); Steward v. People, supra. The determination of what witnesses to call, as with all other strategic and tactical decisions, is generally within the province of the lawyer. While the attorney’s decision here not to call medical witnesses may have been incautious, nevertheless, considering the circumstances, we cannot second guess that tactical decision. People v. Gonzales, supra. Nor is the constitutional right to effective assistance of counsel a guarantee against mistakes in judgment regarding trial tactics and strategy. Steward v. People, supra. Where, as here, counsel made an informed decision regarding trial strategy and offered several theories of defense, only one of which is challenged as having been ineffectively presented at trial, a tactical error does not provide the basis for post-conviction relief. But see People v. Herrera, 188 Colo. 403, 534 P.2d 1199 (1975); and People v. Moya, 180 Colo. 228, 504 P.2d 352 (1972).

The right to effective assistance of counsel extends to the appeal process. See People v. Stephenson, 187 Colo. 120, 528 P.2d 1313 (1974). Under ABA, Standards Relating to the Defense Function § 8.2(a), counsel is obligated to advise the defendant concerning an appeal. That standard requires, in pertinent part, that: “The lawyer should give the defendant his professional judgment as to whether there are meritorious grounds for appeal, and as to the probable results of appeal.” Although counsel believed reversible error occurred at trial, he advised Stroup not to appeal his convic[916] tion. He told Stroup that, if the Court of Appeals believed what was in the record, it would conclude that he was a “bad person” and, on that basis, not reverse. This advice is clearly erroneous. It is unnecessary for us to cite cases where convictions of obviously guilty defendants have been reversed on legal grounds even when the record is replete with evidence of violent anti-social behavior.

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People v. Stroup, 624 P.2d 913, 1980 Colo. App. LEXIS 814 (Colo. Ct. App. 1980).

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