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State v. Falk6/29/2000
it might actually have been early Tuesday morning is not a significant inconsistency. Richard worked nights, four nights on and four nights off, and he testified he stayed up all night on that Monday night. He also testified at trial in response to the prosecutor's question whether he was the one who got up to feed Laura on Monday night or early Tuesday morning, "Yeah. I think I did get up with her once. I am not positive on that but I think so."
Reputation Evidence
. Richard contends trial counsel failed to discover and present evidence that Shannon had a reputation for lying and Richard had a reputation for truthfulness. He presented a number of affidavits, including those of Shannon's mother, sister and two cousins, which stated that Shannon had a reputation for dishonesty. Since the trial court did not address this issue, it made no findings on what trial counsel did and did not do-a necessary predicate for deciding whether, as a matter of law, those findings constitute deficient performance. We will therefore assume without deciding that trial counsel was deficient for not presenting such reputation evidence and consider whether Richard has shown prejudice. We conclude he has not.
. The jury heard Shannon's testimony on several important points contradicted by her or by other witnesses in instances that strongly suggested she was not truthful. The opinion of her family members, who had many other criticisms of her, and the opinion of Richard's family and friends that she had a reputation for untruthfulness would not have been a significant addition to the basis the jury already had for questioning her credibility.
. As for Richard's reputation for honesty, the affiants so averring were his family members and friends. It was clear to the jury that Richard had lied at least once on a very important matter-he was either lying when he confessed or lying at trial. We therefore conclude it was not deficient performance for trial counsel not to present testimony that he had a reputation for truthfulness. For the same reason, we conclude it is not reasonably probable that the opinions of his family and friends that he had a reputation for truthfulness would have persuaded the jury to believe his trial testimony rather than his confession. We also observe that trial counsel presented testimony concerning Richard's reputation for peacefulness, which allowed the jury to infer that he did not injure Laura because it was inconsistent with his reputation for peacefulness.
Evidence of Shannon's Consciousness of Guilt
. Richard contends trial counsel failed to ask Candis Paul, who testified at trial, about Shannon's statement to her mother just before Laura was taken to the hospital, "maybe we don't have to go to the hospital," even though the statement was in his investigator's notes. According to Richard this is important evidence of Shannon's consciousness of guilt. However, Richard does not explain why Paul's statement is not inadmissible hearsay. Moreover, Richard himself testified that Shannon wanted to take Laura to the hospital that week, but he was against it. Other omitted evidence of Shannon's guilt, Richard asserts, was contained in Candis Paul's post-conviction affidavit: Shannon dropped Laura into her car seat "because Shannon was upset that we were taking the baby to the doctor," and Shannon took Laura into the bedroom to change her, which Paul thought was "strange" because she "always had the diapers in the living room and had always changed Cody in the living room." Candis Paul's statement about Laura's state of mind is not admissible. The proper foundation for her testimony on where Shannon normally changed Laura is lacking, and ev
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