In a number of recent Utah appellate court opinions, appellants have alleged clams of ineffective assistance of counsel in varying degrees. Under Utah law, in order to prove a claim for ineffective assistance, a defendant must prove that his or her counsel’s representation fell below an objective standard and that there is a reasonable probability that, but for his or her counsel’s unprofessional errors the result of the proceeding would have been different. Thus, not only must a defendant show his or her counsel’s performance was below that of a reasonable attorney, but that the attorney’s error impacted the result of the relevant proceeding. This is no small task for a criminal defendant to prove, as evidenced by four recent Utah Court of Appeals and Supreme Court cases. While criminal defense attorneys would do well to avoid any claims by their clients of ineffective assistance, such claims are a reality among the criminal defense bar. The opinions discussed below give insight into several types of ineffective assistance claims that may be brought, and how Utah appellate courts are handling such claims at present.
Met v. State: Ineffective Assistance for Failure to Pursue a Motion for Mistrial
In the most recent case, Met v. State, the defendant appealed his convictions for aggravated murder and child kidnapping. In his appeal, the defendant raised, among other things, a claim of ineffective assistance of counsel arising the defendant’s counsel’s failure “to pursue a mistrial motion related to the State’s failure to test and preserve certain evidence.” According to the Utah Supreme Court’s opinion, on the eighth day of trial, the prosecution informed the defendant’s counsel that it had just become aware of potentially exculpatory testimony. The prosecution indicated that although it had been under the impression that there had not been any blood found in the upstairs part of the apartment, a crime scene investigator had in fact reported that a spot of blood had been found on the upstairs carpet. The prosecution admitted that the blood spot had only been preliminarily tested, but said it did not perform further testing because it believed that the upstairs portion of the apartment was not relevant to the crime scene.
Trial Counsel Withdraws Motion for Mistrial
Trial counsel for the defendant informed the prosecution that he was disappointed that the blood spot had not been preserved and tested because the blood spot “could have changed the case dramatically.” The defendant’s counsel further stated to the prosecution that he would deal with the blood spot the best way he could on cross-examination given the late notice. During cross-examination of the state’s crime scene investigator, defendant’s counsel moved for a mistrial as it related to the state’s failure to identify and preserve the blood spot. However, later in the trial day before the court had the opportunity to rule, defense counsel withdrew his motion. The attorney explained to the court that he ad spent most of the day researching the issue on his computer, and he believed that he could not meet the standard for a mistrial based on prosecution’s failure to identify and preserve exculpatory evidence under Brady v. Maryland. The defendant was ultimately convicted of aggravated murder and child kidnapping, and was sentenced to life in prison without the possibility of parole.
Defense Counsel Given Wide Latitude in Determining Sound Trial Strategy
On appeal, the defendant claimed his counsel’s performance was deficient based on his counsel’s decision to withdraw the motion for mistrial. After articulating the two part test for ineffective assistance of counsel, the Utah Supreme Court noted that it “indulge[s] in a strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance, and that, under the circumstances, the challenged action might be considered sound trial strategy.” The court said that the aforementioned presumption accounts the wide variety of situations and circumstances faced by defense counsel, as well as the full range of legitimate decisions regarding how to most effectively represent a criminal defendant. While the court never addressed whether defense counsel’s decision to withdraw the motion was sound, the court did imply as much.
Supreme Court Holds That, Even if Deficient, Failure to Pursue Mistrial Did not Prejudice Defendant
Next, the court set forth that, even if defense counsel’s failure to pursue the mistrial motion was deficient, the defendant was not prejudiced by his counsel’s error. The court explained that there was “[s]ubstantial evidence” tying the defendant to the murder, and that the unpreserved spot of blood was located “far away from the other evidence” of the murder. The court concluded that the defendant had “not provide[d] us with the argument that he would have made had he known about the blood spot nor does he attempt to explain how this evidence would have changed his approach at trial or the trial‘s outcome. And we are not convinced— given the entirety of the evidentiary picture presented at trial—that the proceedings in this case would have been impacted. Thus, even assuming that Met‘s trial counsel provided ineffective assistance, our confidence in the jury‘s verdict is not undermined.”
State v. Samulski: Ineffective Assistance For Failure to Object to Breach of Plea Agreement
In the next case, State v. Samulski, the defendant claimed his counsel’s performance based upon the fact that his attorney failed to articulate a proper objection to the state’s alleged breach of a plea agreement. Following plea negotiations on his charges of domestic violence, retaliation against a witness, and possession of a dangerous weapon by a restricted person, the defendant agreed to plead guilty to the retaliation charge in exchange for the prosecution’s dismissal of the possession charge, the recommendation that he receive no prison time, and the reduction of the retaliation felony to a misdemeanor if he stayed out of trouble.
The district court requested a pre-sentence investigation (“PSI”) report from Adult Probation and Parole (“AP&P”), which report recommended incarceration. At sentencing, defense counsel indicated to the court that there were corrections that needed to be made to the PSI. Additionally, defense counsel objected to the PSI’s conclusion that the defendant had a drug addiction and was a gang member. After hearing from defense counsel, the court asked the prosecution to respond. The prosecution noted that he was bound by the plea agreement, but that victim was present and she was “on board with AP&P’s recommendation and supports the prison sentence.” Defense counsel replied that he was concerned that the prosecution was “stepping away from [the] stipulated sentence.” Ultimately, the court decided to imprison the defendant for a period of zero to five years, stating that it was not bound by the plea agreement.
No Breach of the Plea Agreement, No Ineffective Assistance
In its opinion, the Utah Court of Appeals stated that is analysis of the defendant’s ineffective assistance counsel hinged on whether the prosecution breached the plea agreement. As it related to the plea agreement, the court of appeals held that “[a]lthough the prosecutor accurately observed that AP&P and the victim supported a prison sentence, the statements [did] not rise to a level of breach.” The court said that “[b]y confirming that it had stipulated to recommend ‘no prison time,’ and by repeatedly acknowledging the State’s obligation to abide by the agreement, the State fulfilled its contractual obligations.” Because there was no breach of the plea agreement, the court of appeals concluded that defense counsel’s failure to object “was objectivey reasonable.”
State v. Burnside: Ineffective Assistance for Failure to Subpoena Witness and Request Expert Fees
In State v. Brunside, the defendant sought to appeal his convictions on three counts of aggravated sexual abuse of a child, contending in part that his counsel had provided ineffective of assistance by failing to subpoena a material witness and by not timely requesting funds for a trial expert. Following the defendant’s conviction, the defendant filed a motion to arrest judgment, stating various claims of ineffective assistance. At a hearing on the motion, the defendant called his trial counsel to testify, pressing counsel on the claims of ineffective assistance. Regarding the subpoena, the defendant’s trial counsel testified that the witness the defendant wanted subpoenaed no longer had any association medical facility at issue in the case. Following the hearing, the trial court denied the defendant’s motion to arrest the judgment.
Court of Appeals Asks “Where is the Prejudice?”
As it related to defense counsel’s failure to subpoena what the defendant termed a material witness, the court of appeals determined, much like the Utah Supreme Court ruled in Met, that “[e]ven if trial counsel acted unreasonably in failing to ensure the doctor was available to testify at trial, by failing to identify the doctor and present nonspeculative evidence—more than a simple proffer—of what he would have testified to if called, [the defendant] has failed to demonstrate that trial counsel’s deficiencies were ‘so serious that [he was] deprive[d] . . . of a fair trial.’” The court said that “[w]ithout providing concrete Child’s former doctor and his potential testimony, [the defendant] cannot persuade us that the trial court was wrong in its conclusion that the doctor’s purported testimony about a single incident regarding Child’s rash ‘would merely be cumulative and reaffirm what the jury already knew.’ In other words, by failing to demonstrate that ‘the evidentiary picture and the inferences drawn therefrom would not have been significantly different’ if trial counsel had called this unidentified doctor and if the doctor would have testified as Burnside now asserts that he would have, [the defendant] has failed to demonstrate that any error of counsel prejudiced him.”
Defendant Failed to Identify Expert He Said His Counsel Should Have Called to Testify
Turning to the expert witness issue, the court of appeals determined that the defendant had failed to identify any expert that his trial counsel should have called or established what such expert’s testimony would have been. As a result, the court said that, “even if we assume that trial counsel’s failure to timely move the court for expert witness funding was unreasonable, [the defendant] has not shown prejudice. He has not identified an expert or shown what that expert would have testified to that would have been reasonably likely to make a difference in the outcome, nor has he shown how a particular expert’s advice to counsel would have resulted in more effective cross-examination of the State’s expert witnesses.”
State v. Christensen: Ineffective Assistance for Failure to Object to Victim’s Testimony and Otherwise
In the final ineffective assistance case, State v. Christensen, the defendant appealed his conviction of object rape. On appeal, the defendant claimed in part that his trial counsel’s assistance was deficient as it related his counsel’s failure to object to testimony from the victim. The defendant also took issue with his counsel’s performance regarding the defendant’s own expert. Because the defendant raised these issues for the first time on appeal, the court of appeals was required to analyze the defendant’s claims under a plain error standard of review.
Court of Appeals Says Lack of Objection Deemed to be a Reasonably Sound Trial Strategy
As it related to the defendant’s claim of ineffective assistance as it related to defense counsel’s failure to object to the victim’s testimony, the court of appeals held that defense counsel “could have reasonably decided to refrain from objecting to [the victim’s] testimony so as to discredit it during cross-examination. This is a ‘conceivable tactical basis for counsel’s actions.’” Accordingly, the court of appeals said that, “Because Defendant has not overcome ‘the strong presumption that “under the circumstances the challenged action might be considered sound trial strategy,”’ Defendant has not shown that his counsel’s performance was deficient.”
Court Declines to Address Expert Witness Issue as Inadequately Briefed
As it relates to defense counsel’s treatment of defendant’s own expert, the court of appeals agreed with the state that the defendant’s argument on this point was inadequately briefed. Based on the defendant’s inadequate briefing on the issue, the court concluded:
In a single paragraph, Defendant raises three different claims of ineffective assistance of counsel. Although Defendant cites the relevant authority under which we decide such claims, he has not developed any meaningful legal analysis of his arguments, nor has he provided citations to the record. Defendant only lists the alleged deficiencies of trial counsel regarding the expert testimony and asserts that these decisions appear to have no rational basis. Because Defendant’s ineffective assistance of counsel claim is inadequately briefed, we decline to address this contention.
Deficient Performance Not Enough, Must Also Show Prejudice
The above cases represent a number of situations that can arise within the arena of ineffective assistance. However, there appears to be a common thread among them, which is that absent prejudice, an ineffective assistance claim is likely without merit. Or, put differently, even if a defendant can show his trial counsel’s performance was deficient, a defendant will likely not succeed on his or her ineffective assistance claim unless they can show the deficient performance impacted the outcome of the proceeding. Therefore, it is important to remember that a claim for ineffective assistance requires prejudice to merit consideration by courts in Utah.
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