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Frias v. State6/26/1986
justified the stance it took on newly-discovered evidence in part based upon a social need for finality even in criminal cases. See Grable v. State, Wyo., 664 P.2d 531 (1983). I cannot approve a decision which adheres to the concepts of Opie v. State, but in the same breath grants a new trial because of a conclusion that the failure to present the evidence initially manifests ineffective assistance of counsel. In effect the rule espoused by this court with respect to newly-discovered evidence has been completely undermined.
I do not understand that counsel for the defendant failed in any way to make an adequate investigation or to make rational and appropriate choices based upon the information derived from the investigation. In my judgment the test posed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), was satisfied. The majority seem to agree that the claimed newly-discovered evidence was cumulative, impeaching or simply contradictory of the other evidence submitted at trial. I then remain unpersuaded that the second prong of the Strickland test was satisfied by any showing that the errors were so serious as to deprive Frias of a fair trial.
With respect to the other matters relied upon as demonstrating ineffective assistance of counsel, I do not agree that this is true. As I indicated I think the defense wanted the jury to hear how Frias was badgered during the interrogation. Consequently, the waiver of the voluntariness hearing was not a mistake but a matter of trial tactics. There was no error with respect to the handling of the juror, and his bias was not demonstrated by the in-chambers hearing. Again, it may have been a well-calculated decision to leave that individual on the jury. Finally, I am not satisfied that the outcome of the trial would have been different if the new evidence had been admitted. There is no reason to believe that this expert testimony would have been swallowed hook, line and sinker by the jury.
I am satisfied about one proposition, however, and that is that it is a fundamental mistake to attempt to test those issues by simply examining the trial record and applying the subjective responses of an appellate court. In my judgment effective assistance of counsel can only be tested upon a motion for post-conviction relief at which a hearing can be held to determine what the facts were with respect to the efforts of defense counsel. What counsel did in this case is largely a matter of speculation, conjecture and opinion. I suggest that if Frias at any point admitted to his counsel his involvement in his wife's death what was done becomes much more readily understandable. It is very difficult to set out to produce evidence of a proposition that one knows is not true. Normally that effort is fruitless. Consequently, I believe that an evidentiary hearing is the only appropriate way to test the effective assistance of counsel, and in my judgment wisdom dictates that it be dealt with only in that context.
For these reasons, I would find no error in the admission into evidence of Frias' exculpatory statement, nor would I find that there was ineffective assistance of counsel. I would affirm the conviction.
The majority concluded that it was not necessary to deal with the sufficiency of the evidence argument. Because I would vote to affirm, perhaps it is helpful to explain that there certainly was sufficient evidence in this case to support the jury's finding of guilty. Consequently, if addressed, that claim of error would not have produced any affirmative relief for Frias.
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