Appeal from the United States District Court for the District of Idaho. D.C. No. CV 89-01111-HLR. Harold L. Ryan, United States District Judge, Presiding.
Before: Alarcon, Rymer and T.g. Nelson, Circuit Judges
Donald Allen Young III, a state prisoner, appeals from the denial of his petition for a writ of habeas corpus. Young requests review of his conviction because he asserts that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendment.
We affirm because we conclude that Young has not demonstrated that his counsel's performance at trial fell below an objective standard of reasonableness.
Young contends that his representation at his state murder trial was constitutionally deficient because his counsel did not present Young's voluntary intoxication as a defense and failed to object to the introduction of Young's admissions. We review de novo the question whether a defendant received ineffective assistance of counsel. United States v. Swanson, 943 F.2d 1070, 1072 (9th Cir. 1991). A state court's factual findings are entitled to a presumption of correctness. 28 U.S.C. § 2254(d).
In order to prevail on a claim of ineffective assistance of counsel, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984). In addition, the defendant must establish that a reasonable probability exists that, absent the errors, "the result of the proceeding would have been different." Id. at 694. The Supreme Court has noted that "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689. The reviewing court must make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. Accordingly, a defendant must overcome a strong presumption that his lawyer is competent. Smith v. Ylst, 826 F.2d 872, 875 (9th Cir. 1987); cert. denied , 488 U.S. 829 (1988).
Young contends that he was denied effective assistance of counsel because his counsel, Klaus Wiebe, failed to present expert testimony that Young's intoxication at the time of the homicide negated the intent necessary for first-degree murder. Before Young's trial, Wiebe arranged for him to undergo psychiatric and psychological testing by several doctors. Several of these reports were favorable to Young. At the post-conviction hearing, Wiebe testified that he did not present these experts to testify about the effect of Young's intoxication on his mental state because he feared that the State would call Dr. Estess as a rebuttal witness. In his evaluation of Young, Dr. Estess opined that "Young was attempting to use his alcohol and drug use as an excuse for criminal behavior." Young v. State, 764 P.2d 129, 131 (Idaho App. 1988). Dr. Estess also concluded that Young had "the capacity to form the intent to commit first degree murder." Id. Wiebe testified that he believed that Dr. Estess' testimony "would have really hurt our case."
Young asserts that Wiebe's concern that Dr. Estess' testimony would have been damaging is unfounded. Dr. Estess' opinion that Young had the capacity to form an intent to kill was partially based on statements which Young made to his wife. Wiebe testified at the post-conviction hearing that the introduction of Young's statements to his wife would have "killed us." Young contends that the privileged status of marital communications under Idaho law would have barred the introduction of Young's statements to his wife. He cites no Idaho authority to support this contention.
Under Rule 504 of the Idaho Rules of Evidence, "[a] party in an action or proceeding has a privilege to prevent testimony as to any confidential communication between the party and his or her spouse made during the marriage." Idaho R. Evid. 504. Idaho Code of Civil Procedure 9-203 provides that a wife or husband cannot be "examined as to any communication made by one to the other during the marriage." Idaho Code § 9-203 (1991).
Idaho's marital privilege rule, as set forth in Rule 504, does not expressly resolve the question whether Dr. Estess would have been permitted to testify regarding Young's statements to his wife. The Idaho Supreme Court has ruled, however, that the marital communications privilege "only addresses compelled testimony from a spouse of a privileged communication." State v. Leavitt, 775 P.2d 599, 605 (Idaho 1989), cert. denied, 493 U.S. 923 (1989) (emphasis added). Here, Young's wife disclosed her husband's statements to Dr. Estess while he was gathering information in order to evaluate Young's mental state. She was not compelled to testify about her husband's marital communications. Young has failed to demonstrate that Wiebe's Conclusion, that Dr. Estess would have been permitted to rely on Mrs. Young's hearsay statements in forming his opinion of Young's mental state, fell below an objective standard of reasonableness.
Young also asserts that Wiebe should have presented rebuttal evidence to the prosecution's proof that Young's blood alcohol level was only 0.08 percent. Young argues that based on the amount of alcohol he consumed on the day of the murder, his blood alcohol level should have been higher than the test indicated.
At the post conviction hearing, Wiebe testified that he did not challenge the blood alcohol test because he could not prove the amount of alcohol that Young had consumed unless he put Young or his wife on the stand. Since Wiebe believed that allowing Young or his wife to testify would be damaging to the defense, he ...