State v. Martinez
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.