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Allen v. State4/2/2002
bson, 158 F.3d 1085, 1092 (10 th Cir. 1998), cert. denied, 526 U.S. 1093 (1999).
[ ] The burden of proving that counsel was ineffective rests on the appellant. Sorensen v. State, 6 P.3d 657, 660 (Wyo. 2000), cert. denied, 531 U.S. 1093 (2001). A failure to "make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700. Indeed, if "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697.
A. Discovery of Medical Records
[ ] Appellant contends that his defense counsel was ineffective because, despite recognizing the importance of Mary Fink's medical records in determining "the actual cause of her death," counsel did not subpoena the records after the district court denied a motion to compel their production because the records were not within the prosecution's "possession, custody, or control." According to appellant, there "can be no tactical reason for such an action (or inaction)" and in light of "what little was known about Mrs. Fink's condition," the records "could" have provided "the additional evidence Appellant needed." The State merely argues, without citation to pertinent authority, that the record does not indicate that these medical records "were helpful" to appellant's case.
[ ] Appellant is quite unspecific as to the nature and extent of the medical records his defense counsel purportedly failed to subpoena. Our review of the record indicates that on September 10, 1999, appellant's defense counsel filed a demand for discovery requesting that the prosecution provide Mary Fink's "medical records, including records of any prescribed medications." Defense counsel elaborated at a subsequent hearing that hospital and/or doctor's records prior to, and immediately after, the collision with appellant might indicate whether Mary Fink had pre-existing conditions or was taking medication (coagulants/anticoagulants) that "would have made this type of incident more likely in her than in anybody else."
[ ] It is appellant's burden to establish the requisite prejudice. Appellant does not articulate precisely how his defense counsel's failure to formally subpoena medical records significantly prejudiced his defense nor does appellant cite to pertinent authority in advancing this argument. We recognize that it "is neither possible nor appropriate to establish a rigid formula or a single, absolute criterion to measure whether this burden has been met." United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1015 (7 th Cir. 1987), cert. denied, 498 U.S. 842 (1990). Yet, appellant cannot expect to satisfy his burden absent some showing or allegation as to how the absence of this information rendered the jury's verdict fundamentally unfair or unreliable. See generally Marberry v. State, 686 S.W.2d 31, 32 (Mo.App. 1984) (quoting Rice v. State, 585 S.W.2d 488 (Mo. 1979)).
[ ] Considering the purpose for which defense counsel sought the medical records, and in response to appellant's characterization that "little was known about Mrs. Fink's condition," the record does indicate that appellant's defense counsel possessed Mary Fink's autopsy report, which was introduced as an exhibit during the cross-examination of the county coroner, Dr. Thorpen. The substance of Dr. Thorpen's testimony will be set forth in detail later in this opinion. Dr. Thorpen relied on the autopsy report in establishing Mary Fink's cause of death, and appellant's defense counsel utilized the report extensively to cross-examine Dr. Thorpen, particularly regarding Mary Fink's pre-existing risk factors for de
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