Scott A. Galbreath

2015 WY 49, 346 P.3d 16, 2015 Wyo. LEXIS 53, 2015 WL 1393420
CourtWyoming Supreme Court
DecidedMarch 27, 2015
DocketS-14-0169
StatusPublished
Cited by18 cases

This text of 2015 WY 49 (Scott A. Galbreath) 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
Scott A. Galbreath, 2015 WY 49, 346 P.3d 16, 2015 Wyo. LEXIS 53, 2015 WL 1393420 (Wyo. 2015).

Opinion

FOX, Justice.

[11] A jury convieted Scott A. Galbreath of sexual abuse of a minor in the second degree in violation of Wyo. Stat. Ann. § 6-2-315(a)®). On appeal, Mr. Galbreath contends that he received ineffective assistance of counsel based on a number of alleged errors committed by Mr. Galbreath's trial attorney during the course of the proceedings below. *18 We find that Mr. Galbreath suffered no prejudice, and affirm the judgment and sentence of the district court.

ISSUE

[12] 1. Did Mr. Galbreath's trial counsel provide ineffective assistance? °

FACTS

[13] Mr. Galbreath was arrested and charged with sexual abuse of a minor in the second degree in violation of Wyo. Stat. Ann. § 6-2-315(a)@) (LexisNexis 2013) in May 2013. The felony information alleged that

on or between February 1, 2018 to April 15, 2018, ... [Mr. Galbreath] did commit the offense of sexual abuse of a minor in the second degree ... in that [Mr. Cal-breath], who is twenty-nine (29) years of age, did during said range of dates inflict sexual intrusion on a victim (S.V.), who was fifteen (15) years of age, and S.V. is at least four (4) years younger than [Mr. Galbreath].

The court appointed a public defender, but Mr. Galbreath later retained private counsel to defend him. A jury found him guilty, and the district court sentenced him to ten to eighteen years with credit for time served. Mr. Galbreath timely filed this appeal alleging ineffective assistance of counsel. Additional facts will be addressed in our discussion of Mr. Galbreath's ineffective assistance of counsel claim.

STANDARD OF REVIEW

[14] "'Claims of ineffective assistance of counsel involve mixed questions of law and fact.] Osborne v. State, 2012 WY 123, ¶ 17, 285 P.3d 248, 252 (Wyo.2012). We review such claims de novo." Ortega-Araiza v. State, 2014 WY 99, ¶ 5, 331 P.3d 1189, 1193 (Wyo.2014).

DISCUSSION

[T5] We have adopted the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), to determine whether a defendant has. received effective assistance of counsel. Frias v. State, 722 P.2d 135, 145 (Wyo.1986). The appellant must establish both that counsel's performance was deficient, and that the appellant was prejudiced by the deficient performance. Id.; McGarvey v. State, 2014 WY 66, ¶¶ 13-14, 325 P.3d 450, 454-55 (Wyo.2014) (disceuss-ing ineffective assistance of counsel). An attorney acts deficiently when he or she "faills] to render such assistance as would have been offered by a reasonably competent attorney." Bloomer v. State, 2010 WY 88, ¶ 18, 233 P.3d 971, 976 (Wyo.2010) (citing Dettloff v. State, 2007 WY 29, 1 18, 152 P.3d 376, 382 (Wyo0.2007)). Prejudice occurs when there is "a reasonable probability that, absent counsel's deficient assistance, the outcome of [appellant's] trial would have been different." Id. "The burden of proving that counsel was ineffective rests entirely on the appellant[,]" Pendleton v. State, 2008 WY 36, ¶ 20, 180 P.3d 212, 219 (Wyo.2008), and failure of an appellant to establish either component-deficient performance or prejudice-is fatal to the appeal. Eaton v. State, 2008 WY 97, ¶ 132, 192 P.3d 36, 92 (Wyo.2008), habeas corpus conditionally granted by Eaton v. Wilson, No. 09~CV-261-J, 2014 WL 6622512 (D.Wyo., Nov. 20, 2014). Upon review, we are therefore free to examine the two components in any order that we choose. Id.; Bloomer, 2010 WY 88, ¶ 18, 233 P.3d at 976.

I. Did Mr. Galbreath's trial counsel provide ineffective assistance?

[16] Mr. Galbreath argues that his trial attorney acted ineffectively in three ways. First, Mr. Galbreath claims that he received ineffective assistance of counsel when his attorney failed to offer a witness to provide testimony regarding DNA test results. Next, Mr. Galbreath argues that his trial attorney's performance was ineffective when he failed to perform a full investigation prior to questioning Mr. Galbreath's father on the stand. Finally, Mr. Galbreath alleges that his trial counsel was ineffective in conducting voir dire. We find that while Mr. Gal-breath's trial attorney certainly made some errors in representing Mr. Galbreath, his performance did not rise to the level of ineffective assistance of counsel because Mr. Gal-breath demonstrated no prejudice.

*19 A. DNA Results

[17] In Defendant's Updated PreTrial Disclosures of Witnesses and Exhibits, Mr. Galbreath designated a DNA Laboratory Examination Report, dated December 3, 2018, as an exhibit. Trial counsel, however, did not designate a witness who could provide the foundation required to enter the exhibit into evidence, which resulted in a motion in limine from the prosecution seeking to preclude Mr. Galbreath from entering the DNA results into evidence. The district court held a hearing on the motion immediately preceding trial, but the court did not rule on the issue at that time. During trial, the district court held an additional meeting with counsel in chambers concerning the DNA evidence. The district court pointed out that introduction of that evidence (even if it could have been introduced without a witness) would open the door for the prosecutor to discuss destruction of evidence by Mr. Galbreath's father, thus further. undermining the credibility of witnesses for the defense. Mr. Galbreath's attorney decided not to introduce the report into evidence.

[18] Regardless of whether Mr. Gal-breath's trial counsel acted deficiently in failing to notice an appropriate witness to testify regarding the results of the DNA test, we find that Mr. Galbreath suffered no prejudice. The DNA test compared a cutout from Mr. Galbreath's mattress with two oral swabs taken from Mr. Galbreath. The test resulted in a finding that "The partial DNA profile obtained from the eutout ... is not consistent with Seott Galbreath{.]" We fail to see how this evidence would have made any difference in the outcome of the trial. On appeal, Mr. Galbreath contends, "Those results would have been beneficial to Mr. Galbreath's case, as the results indicate no link between Mr. Galbreath and S.V." Contrary to Mr. Galbreath's contention, however, the DNA results do not establish that there was no sexual link between Mr. Galbreath and S.V. To derive that conclusion from the DNA report, the test would necessarily require a sample from S.V., which was conspicuously absent from these results. We cannot perceive of any way in which the introduction of this evidence to the jury would have changed the outcome of the trial. Mr. Gal-breath has failed to establish that he was prejudiced as a result of trial counsel's actions in this matter, thus defeating his ineffective assistance of counsel claim. Eaton, 2008 WY 97, ¶ 132, 192 P.3d at 92 (failure to prove either deficient performance or prejudice is fatal to an ineffective assistance of counsel claim).

B. Gary Galbreath Testimony

[19] Mr. Galbreath next contends that trial counsel acted ineffectively when examining Gary Galbreath, Mr. Galbreath's father, on the witness stand.

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Cite This Page — Counsel Stack

Bluebook (online)
2015 WY 49, 346 P.3d 16, 2015 Wyo. LEXIS 53, 2015 WL 1393420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-a-galbreath-wyo-2015.