Smizer v. State

GOLDEN, Justice,

dissenting, in which CARDINE, Justice, joins.

I have reviewed the record and Smizer’s appellate argument and have concluded that no reason exists to conduct an eviden-tiary hearing to determine why trial counsel did not call Ken Jones as a witness and why appellate counsel did not raise the issue.

Smizer alleges all manner of things that Jones would have testified. His allegations are, however, speculative at best. Smizer’s allegations are not supported by affidavits or other competent showing. No showing is made that the pistol in question would have been recovered as evidence; or, that it would have been the murder weapon; or, if it were found and determined to be the murder weapon that Jones could be placed at or near the scene of Volcic’s murder. In striking contradiction to Smizer’s allegations about Jones and the pistol, Smizer also alleges that he told his trial counsel where to locate a gun which was introduced into evidence and that his trial counsel then improperly reported this information to the prosecutor. As the majority appropriately recognizes, Smizer abjectly fails to find anything in the record to support this strange claim. The gun was not introduced into evidence. It readily appears to me that one desperate allegation follows another.

Smizer’s theory of defense was simple: I did not do it and I do not know who did. He put the prosecution to its proof. His trial counsel tactically decided that that theory would not be well served by unsubstantiated finger-pointing at Jones or others.

Smizer has failed to present a substantial claim with specificity; therefore, he is not entitled to an evidentiary hearing. Alberts v. State, 745 P.2d 898, 901 (Wyo.1987) (citing Pote v. State, 733 P.2d 1018 (Wyo.1987)).