Thursday, January 6, 2011

Defendant Must Demonstrate Prejudice to Prevail on a Claim of Ineffective Assistance

State v. Millard, 2010 UT App 355 (Utah Court of Appeals December 16, 2010).

Millard, convicted of conspiracy to commit aggravated murder, requested a new trial because of ineffective assistance of counsel.  A 23B hearing was held and the request denied.  Millard appealed.  To prevail on an ineffective assistance claim a defendant must show deficient work by the attorney and that there is a reasonable probability that but for counsel’s mistake a different outcome would have resulted (i.e. the attorney acts prejudiced his case).

Millard asserted five claims of ineffective assistance.  (1) Counsel promised to call certain witnesses whom were never called.  However, Defendant failed to show the significance of the omitted testimony or any prejudice from the unfulfilled promise.  (2) Counsel failed to make certain objections to keep out otherwise inadmissible evidence.  Defendant again failed to show how it prejudiced his case.  (3) Counsel failed to inform him of his right to testify.  In a 23B hearing for a new trial, the trial court found that Counsel had informed Defendant, and that he decided not to testify.  (4) Counsel failed to investigate possible witnesses.  However, in the 23B hearing, it was determined that counsel had investigated many of the witnesses and claims that Defendant asserts on appeal; and based on counsel’s investigations ,they made strategic decisions not to call certain witnesses.  Lastly, (5) Defense counsel admitted to certain allegations damaging defendant’s case.  On this matter, Defendant fails to demonstrate how the admission damaged his case.

Because defendant failed to show that attorney error prejudiced his case and his failure to properly brief other allegations the ruling of the trial court is affirmed.

Wednesday, January 5, 2011

Probable Cause for One = Probable Cause for All

State v. Talbot, 2010 UT App 352 (Utah Court of Appeals December 9, 2010).

Talbot was suspected to be in possession of a controlled substance with intent to distribute.  This suspicion was based on statements made to the Garfield County Sheriff.  The Sheriff contacted a deputy and authorized him to stop Talbot, if he was sighted.  The deputy sighted Talbot, stopped him, patted down, hand-cuffed and placed in a patrol car.  The deputy was then authorized to arrest Talbot.  The deputy then conducted a search incident to arrest of Talbot and his vehicle.  Talbot moved to suppress the discovered drug evidence because the search and seizure were unconstitutional.

Note: Talbot did not contest the initial detainment and pat-down; nor did he refer to the Utah State Constitution in his appeal, but appealed under the U.S. Constitution.

The Court of Appeals found that the Sheriff had probable cause to search and arrest Talbot and his knowledge is imputed to his deputies when they act on his instruction.  As such, the arrest was lawful under the Federal Constitution.   Therefore, the search incident thereto was also lawful, and evidence seized is not subject to the exclusionary rule.  Affirmed.

Additional note: Talbot also appeals because of he was not provided with the jury voir dire.  However, because he fails to provide the trial record necessary to address the issue, the Court did not reach this issue

Prosecutorial Misconduct Alone is Insufficient for Dismissal and Past Conviction Show Current Intent

State v. Doyle, 2010 UT App 351 (Utah Court of Appeals December 9, 2010).

Doyle was convicted of possession of controlled substance.  During trial a witness denied receiving a plea deal in exchange for testimony.  On cross-examination, it was shown that the witness had in fact received a plea agreement in exchange for her testimony.  Doyle's subsequent motion to dismiss was denied.  She appealed.

The Court of Appeals, while stating that the prosecutor’s failure to correct the testimony and its failure to provide the plea deal during discovery clearly constituted prosecutorial misconduct.  However,  the misconduct did not prejudice Defendant’s case.  Indeed, the cross-examination was so effective that the witnesses failure to disclose may have proved more detrimental to the State’s case than a simple admission. The trial court was affirmed.

An additional issue on appeal was the admission of prior crimes evidence.  The Court of Appeals found that a previous conviction for possession of a controlled substance is admissible to show current “intent” to possess a controlled substance.  The trial court was affirmed.


:: By using this blog site you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog site should not be used as a substitute for competent legal advice from a licensed attorney in your state. This blog site is not intended to be advertising and D. Grant Dickinson does not wish to represent anyone desiring representation based upon viewing this blog site in a state where this blog site fails to comply with all laws and ethical rules of that state.::


:: (c) 2009-2011 D. Grant Dickinson some rights reserved ::