State v. Gallegos; State v. Martinez; State v. Nunes; In re Estate of John Clifford Heater presented by The Appellate Group
State v. Gallegos, 2020 UT 19 (Pearce, J.)
One night, a group of men attacked the victim. One of the men stabbed the victim several times. Several eyewitnesses saw the attack and identified the defendant as the stabber. The State charged the defendant with attempted murder. The defendant had several attorneys. One attorney retained an eyewitness expert who opined that the witness’s identification testimony was unreliable. But the attorney who took the case to trial did not use the expert. The jury convicted the defendant. On appeal at the Utah Court of Appeals, the defendant filed a Rule 23B motion, seeking to bring in extra-record evidence about the eyewitness expert’s report and claiming ineffective assistance of counsel. The Utah Court of Appeals denied the motion and upheld the defendant’s conviction. The Utah Supreme Court affirmed, holding:
- The Utah Court of Appeals correctly denied the Rule 23B motion. The evidence against the defendant was substantial, and the expert’s testimony was far from likely to have tipped the balance of the evidence towards a more favorable outcome for the defendant. Although the expert would have cast doubt on the eyewitness testimony, the physical evidence against the defendant—the fact that he was found with the knife and had the victim’s blood on him—was substantial.
- The Strickland inquiry is objective, not subjective; while an attorney’s subjective thinking may inform what an objectively reasonable attorney may have done when presented with the same circumstances, the attorney’s subjective understanding is not the standard by which his actions are judged.
- The phrase “no conceivable tactical basis” means nothing more than the Strickland reasonableness standard: a reviewing court must always base its deficiency determination on the ultimate question of whether an attorney’s act or omission caused her representation to fall below an objective standard of reasonableness.
State v. Martinez, 2020 UT App 69 (Harris, J.)
The defendant was convicted of sodomizing his wife’s granddaughter. After trial, the defendant filed a motion to arrest judgment alleging three instances of ineffective assistance of counsel. The trial court determined that trial counsel had committed one of three alleged errors, but that there was no prejudice. The Utah Court of Appeals affirmed his convictions, holding:
- Trial counsel performed deficiently when he did not seek to suppress the defendant’s police interview on Miranda grounds. The defendant was told that he “will” have counsel provided for him, suggesting that counsel would be available at some future time—not presently. But because the interview did little to further the State’s case, no prejudice arose from this error. What’s more, the defendant’s recanted claim that the granddaughter had never been in his room alone with him was explained by trial counsel to the jury as an “immediate clarification.”
- Trial counsel was not ineffective when he decided not to call Grandmother as a witness. A court of appeals may only second guess trial counsel’s reasons for not calling a witness only if counsel’s strategies have no basis in reason. Trial counsel articulated three reasonable strategic explanations—any one of which could defeat defendant’s claim—why he chose not to call Grandmother as a witness:
- First, he was concerned about her credibility due to her extreme statements. Trial counsel had met with Grandmother weekly and had discussed the case at length with her. He was well positioned to know what she would say on the stand.
- Second, he was concerned in a child sex case about the optics of the age disparity between defendant, in his thirties, and Grandmother (his wife), in her sixties. The jury, seeing the great age disparity, might wonder about the defendant’s sexual proclivities.
- Third, he felt that defendant might be acquitted after the jury heard victim’s inconsistent testimony. The fact that he later turned out to be wrong is not something an appellate court may hold against him.
- The trial court’s decision to credit trial counsel’s testimony was not clearly erroneous. And the defendant never claimed on appeal that trial counsel’s strategies were uninformed.
- Trial counsel was not ineffective when he did not call the defendant to testify as a witness and when he did not obtain a waiver of the right to testify. Counsel had discussed the issue of defendant testifying multiple times with defendant, and defendant never disagreed with him or asserted his right to testify. He did not act improperly in assuming from defendant’s silence on the matter that he agreed with trial counsel’s advice not to testify. What’s more, trial counsel’s concern about the State cross-examining defendant about his police interview and time alone with victim was not unreasonable.
State v. Nunes, 2020 UT App 71 (Christiansen Forster, J.)
The defendant was accused by Victim of rape and forcible sodomy. At trial, counsel either did not object or withdrew his objections to the following testimony: Victim twice testified that the sexual activity happened after Nunes got out of “jail.” Victim’s Mother testified that she did not think Victim was “faking” when Victim claimed she had been raped. Victim’s school Counselor recounted what Victim had told her concerning the sexual encounter, including stating that Victim had said the defendant hit and scratched her as hard as he could, which Victim did not testify to at trial. The jury convicted Nunes of rape but acquitted him of forcible sodomy. The Utah Court of Appeals affirmed, holding:
- Assuming without deciding that trial counsel performed deficiently in failing to object to Mother vouching for Victim’s credibility in violation of rule 608(a) of the Utah Rules of Evidence, the defendant did not show prejudice because the comment was relatively isolated and it was unlikely the jury would have been surprised that Mother believed Victim.
- Assuming without deciding that trial counsel performed deficiently in withdrawing a valid hearsay objection to Counselor’s testimony, the defendant did not show prejudice because Victim’s testimony contained all the facts necessary to establish the elements and the court deemed Counselor’s recounting of what Victim told her no more inflammatory than Victim’s own account although it contained additional details.
- Where trial counsel did not object to Victim’s comments that the defendant had been in jail because he “didn’t want to draw attention to it,” the court of appeals held that “[t]his could well have been a reasonable strategic choice.”
- Orme, J., dissented: The dissent believed that trial counsel was deficient in withdrawing his objection to the hearsay recounted by Counselor and failing to object to the bolstering testimony from Mother. Given the lack of corroborating evidence and the doubts the jury had about Victim’s credibility, where they had rejected her claim of sodomy and acquitted Nunes on that charge, the dissent held that both Mother’s vouching and Counsel’s hearsay testimony “are prejudicial to Nunes in their own right—and all the more so in combination—and they entitled him to a new trial.”
In re Estate of John Clifford Heater, 2020 UT App 70 (Orme, J.)
Father died, leaving two known children who were his heirs. Several years after his death, a previously unknown child—Son—intervened in Father’s probate action to assert his right as an heir in the case. Son was born to the mother while the mother was married to another man. The district court allowed Son to intervene. Son filed a summary judgment motion seeking a determination that Father was his biological father, and he supported that motion with a DNA test. The court granted Son’s summary judgment motion. An heir appealed. The Utah Court of Appeals affirmed, holding:
- The Utah Uniform Parentage Act, Utah Code § 78B-15-203, is subordinate to other statutes that provide their own definition of a parent-child relationship for specific purposes. The Probate Code is one of those statutes, and it governs the definition of the parent-child relationship for intestate succession purposes. Utah Code § 75-2-114(1). Unlike the Uniform Parentage Act, the Probate Code defines the parent-child relationship irrespective of marital status.
- The one-set-of-parents rule does not apply here. The Probate Code establishes a one-set-of-parents rule that operates to prohibit adopted children from taking by intestacy from both their natural parents and their adoptive parents. Utah Code § 75-2-114(2). But there is no statutory language suggesting that the one-set-of-parents rule is applicable where the decedent is the descendant’s biological—but not legal—parent. Rather, the one-set-of-parents rule only applies to limited adoption scenarios. Although the conclusion that a child can inherit from two sets of parents—the legal presumptive parents and the biological parents—is bizarre, the Uniform Law Commission has proposed a revision to the Probate Code that would resolve this issue, but the Utah Legislature has not yet adopted that revision. Thus, Son can inherit from both his legal father (the husband of his mother) and his biological father (Father).