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People v. Frye7/30/1998
onclude counsel's decision to raise a mental defense in the manner presented fell outside the range of professionally reasonable representation.
Defendant further contends counsel was ineffective because he insulted the jurors during closing remarks by referring to their community as "a little Podunk area." This claim is unsupported by the record.
A portion of Hawk's closing argument focused on discrepancies in the physical evidence presented by the prosecution and the mismanagement of the crime scene processing by the Department of Justice. In making these points, counsel explained that he frequently calls on Dr. John Thorton for his expert opinion in matters of physical evidence because of Thorton's integrity. Comparing Thorton to members of the Department of Justice who processed the crime scene in the case, counsel said of the latter, "Those guys don't care. They didn't care one way or the other. They are up here in a podunk rural area and they wanted to go back to Sacramento City. They didn't spend any more time in the woods than they had to."
Counsel's resort to the vernacular in an attempt to cast doubt on the adequacy of the crime scene investigation and the credibility of the prosecution's physical evidence constitutes appropriate argument to the jury. Viewed in the context of counsel's entire argument, the complained-of remarks could not reasonably be construed as an insult to the jurors' community.
Defendant contends finally that counsel provided deficient representation by conducting meaningless cross-examination of prosecution witnesses. The cross-examination of witnesses is a matter falling within the discretion of counsel, and rarely provides an adequate basis on appeal for a claim of ineffective assistance of counsel. (Williams, supra, 16 Cal.4th at pp. 216-217; Cox, supra, 53 Cal.3d at p. 662.) Because defendant fails to disclose what evidence, if any, counsel might have elicited had he subjected prosecution witnesses to more rigorous cross-examination, his claim of inadequate assistance does not succeed.
1. Failure to file suppression motions
Defendant argues counsel was ineffective for failing to file motions to exclude defendant's statements to police following his arrest in South Dakota. He also faults counsel for not seeking the exclusion of a tape-recorded conversation between defendant and Jennifer Warsing. Defendant asserts that the suppression motions were likely to have been granted and that, because he did not testify, the challenged statements would not have been admissible for impeachment purposes. We address his specific claims mindful that " he Sixth Amendment does not require counsel ` "to waste the court's time with futile or frivolous motions." ' " (People v. Memro (1995) 11 Cal.4th 786, 834 (Memro).)
a) Defendant's statements to police in South Dakota
The record indicates that around 2:30 a.m. on July 6, 1985, Belle Fourche police responded to a report of domestic violence at the Hanna Apartments where defendant and Jennifer Warsing resided together. One of the four responding officers, Officer Jepsen, testified at trial that the woman who lived in the apartment directly below defendant's residence told the officers she believed the disturbance was coming from the apartment above hers. All four officers went upstairs to the top landing and noticed light coming from the back of defendant's apartment. Officer Smith opened the screen door, pointing out to the other officers what appeared to be blood on the inside door. Smith then knocked on the closed door and Warsing answered, her face injured and swollen. When Smith asked Warsing who had hurt her, Warsing stepped back and point
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