State v. Pettibone

626 So. 2d 66, 1993 La. App. LEXIS 3344, 1993 WL 448445
CourtLouisiana Court of Appeal
DecidedNovember 3, 1993
DocketNo. CR93-334
StatusPublished
Cited by1 cases

This text of 626 So. 2d 66 (State v. Pettibone) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pettibone, 626 So. 2d 66, 1993 La. App. LEXIS 3344, 1993 WL 448445 (La. Ct. App. 1993).

Opinion

STOKER, Judge.

Defendant, Edmund Bruce Pettibone, was charged with and convicted by a jury of the aggravated rape of his four-and-one-half-year-old son under LSA-R.S. 14:42(A)(4). Defendant was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence, as mandated by LSA-R.S. 14:42(C). Defendant appeals his conviction. The sole issue presented on appeal is defendant’s claim that he had ineffective assistance of counsel at trial. We affirm.

OPINION

Effective Assistance of Counsel

A defendant’s constitutional right to effective assistance of counsel, and the examination of claims of ineffectiveness, was recently discussed by the supreme court in State v. Peart, 621 So.2d 780 (La.1993). The court first noted that, although ineffective assistance of counsel claims are generally raised in applications for post conviction relief, an appellate court may decide the issue when the record discloses sufficient evidence to make a determination. See, also, State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Gay, 616 So.2d 1290 (La.App. 2d Cir.1993).

The court in Peart also discussed the right to effective assistance of counsel, as follows:

“[tjhose accused of a crime are of course entitled to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759 [90 S.Ct. 1441, 25 [69]*69L.Ed.2d 763] (1970); State v. Ross, 410 So.2d 1388, 1390 (La.1982).
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“We begin with the proposition that because there is no precise definition of reasonably effective assistance of counsel, any inquiiy into the effectiveness of counsel must necessarily be individualized and fact-driven. See Strickland v. Washington, supra, 466 U.S. at 697-89, 104 S.Ct. at 2064-65 (“specific guidelines not appropriate” in assessing defendants’ ineffectiveness of counsel claims). See also Lincecum v. Collins, 958 F.2d 1271 (5th Cir.1992) (range of attorney conduct that constitutes reasonably effective assistance of counsel “is extremely wide and highly dependent on the necessities of a given case”). In different contexts, Louisiana courts have found a wide variety of attorneys’ failings to constitute ineffective assistance. These courts, in evaluating the ineffective assistance claim, have undertaken a detailed examination of the specific facts and circumstances of the case. This is necessary precisely because effectiveness of counsel cannot be defined in a vacuum, but rather requires an individual, fact-specific inquiry. Strickland, supra.”
(Footnote omitted.)

There is a two prong test for determining whether counsel has been effective. The defendant must show (1) that counsel’s performance was deficient, and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State ex rel Busby v. Butler, 538 So.2d 164 (La.1988); State v. Gay, supra; State v. Hunter, 614 So.2d 332 (La.App. 4th Cir.1993). The defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Hunter, supra at 334. The basic principle in such an analysis is that judicial scrutiny of counsel’s performance must be highly deferential since it is “all too tempting” to second guess counsel’s assistance after an adverse sentence and “all too easy” for a court examining an unsuccessful defense to conclude that an act or omission of counsel was unreasonable. Butler, supra at 167. Effective counsel has been defined to mean “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render effective assistance.” Gay, supra at 1293. Therefore, it is only if counsel’s acts or omissions were outside the wide range of professionally competent assistance that he will be deemed to have been ineffective. Butler, supra at 167. There is a strong presumption that the conduct of counsel falls within the wide range of responsible professional assistance. Gay, supra at 1293.

1.

First, defendant alleges that his trial counsel failed to file any “substantive” pretrial motions other than a Motion for a Bill of Particulars. We note, however, that the Bill of Particulars was lengthy and exhaustive. An attorney is not required to file unnecessary motions. State v. Harris, 540 So.2d 1226 (La.App.3d Cir.), writ denied, 550 So.2d 626 (La.1989).

Defendant specifically alleges that his trial counsel should have filed a motion to suppress certain statements made by defendant which the state notified him of its intent to use at trial. However, the record shows that the statements were made voluntarily after receiving Miranda warnings. Defendant has not suggested on appeal how the statements could have been suppressed or how they prejudiced him at trial. We note that those statements were not clearly incul-patory.

Finally, defendant argues that his trial counsel should have requested an independent psychiatric or physical examination. However, trial counsel did, in fact, request an independent psychiatric evaluation of the victim, which was denied by the trial judge. Defendant has not suggested that the examinations made by the coroner were incomplete or suspect in any way. We see no prejudice to the defendant.

2.

Defendant next claims that his trial counsel conducted an inadequate voir dire of [70]*70prospective jurors, asking them each only five or six questions and accepting without challenge two state prison employees. We note that one “state prison employee” is actually only the daughter of an employee (a guard) and the other employee is a food service supervisor. Defense counsel could conceivably have accepted them because they are of the same minority race as defendant. Both of these jurors expressed an ability and willingness to be fair and impartial. We note that the questions asked by defense counsel were pertinent and that the trial judge also questioned each juror, before the attorneys did, as to their possible prejudices and biases. We see no bias or prejudice toward defendant which can be reasonably attributed to these jurors’ relationships with law enforcement. Contrast, State v. Alexander, 620 So.2d 1166 (La.1993). Finally, we note that defense counsel did excuse several potential jurors who were connected to law enforcement. Defendant has not alleged any specific prejudice to him from the acceptance of any particular juror and we see none. This assignment lacks merit.

3.

Finally, defendant alleges that his trial counsel was a poor advocate in his behalf at trial.

Defendant specifically contends his counsel’s opening and closing statements prejudiced him at trial; however, these statements are not evidence. Trial counsel’s clear line of defense was that the charges against him were lies used by the victim’s aunt to enable her to gain permanent custody of the victim. This defense was emphasized by the defendant’s trial counsel in the opening and closing statements.

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Bluebook (online)
626 So. 2d 66, 1993 La. App. LEXIS 3344, 1993 WL 448445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pettibone-lactapp-1993.