Failure to Have Physical Evidence Examined = Ineffective Assistance of Counsel

State of Utah v. Lenkart, 2011 UT 27 (Utah Supreme Court, May 17, 2011).

Lenkart engaged in sexual intercourse with K.H. (alleged victim) after an evening of heavy drinking.  K.H. claimed that she somehow ended up in Lenkart’s bed and awoke to Lenkart performing oral sex on her, told him to stop and passed out.  She then awoke to him penetrating her—she told him to stop and she left his home.  A code R examination was conducted.  Lenkart disputed the testimony stating that she climbed into his bed, the acts were consensual, and that there was no oral sex.

At trial, the nurse who conducted the Code R examination testified that she had to use tweezers to remove a tampon that had been lodged in K.H.  The nurse testified that the lodging of the tampon was consistent with nonconsensual intercourse.  Lenkart’s counsel never had his own expert review the Code R kit and presented no expert evidence to dispute the nurse’s testimony.

Lenkart was convicted of forcible sodomy and two counts of forcible sexual abuse.  He appealed arguing that his counsel was ineffective for failing to have the Code R kit examined by another expert.   Post-trial Lenkart had the kit examined by and expert who opined that the lodging of the tampon was consistent with consensual sex, and that the swabs in the Code R kit were negative for saliva which indicates that there was no oral sex.

The Trial court denied Lenkart’s motion for a new trial.  Lenkart appealed.

On appeal, the Supreme Court found that failure to have an expert examine the Code R kit was a failure to investigate by his counsel and that based on the proffered testimony of Defense expert that contradicts the victim’s testimony and that of the State’s expert such a deficiency was prejudicial to Lenkart.

Note: Court also address access and admission of medical records.

Full Decision available at  http://www.utcourts.gov/opinions/supopin/Lenkart051711.pdf

Failing to Make Futile Objections ≠ Ineffective Assistance of Counsel

State v. C.D.L. 2011 UT App 55 (Utah Court of Appeals, February 25, 2011).

Defendant was convicted of four counts of aggravated assault with a deadly weapon.  Defendant now asserts ineffective assistance of counsel because his attorney (1) failed to request a directed verdict, (2) failed to renew objections to admissibility of the 911 transcript and (3) failed to move for a new trial.

(1) Defendant claims that a car is not a deadly weapon, and that his attorney should have moved for a directed verdict on the enhancement.  The Court of Appeals found that because the car was used in an attempt to cause serious bodily injury to another, it is a dangerous weapon.  Further, because a motion for a directed verdict would have been futile, failing to make such a motion is not ineffective assistance.

(2) Defendant argued that the 911 call was not properly authenticated hearsay.  However, the caller identified herself and witnesses who observed the events corroborated the circumstances she described, thus it was authenticated.  Further, the statements may have been hearsay evidence, but were excited utterances and thus excepted from the hearsay exclusion.  The 911 calls are greatly probative and carry little unfair prejudice, the Court did not err in admitting, neither was it ineffective assistance when counsel chose not to object.

Lastly, Defendant asserts ineffective assistance of counsel, when his attorney failed to request a new trial based on Wife’s victim impact statement in which she describes the incident as her fault and not as serious as witnesses claim.  The Court notes that wife was not present at trial and was not a witness for either party.  Because there are so many unknown s about wife, it is impossible to overcome the strong presumption in favor of effectiveness.  Affirmed on all claims.

Full Decision available at http://www.utcourts.gov/opinions/appopin/cdl022511.pdf

2 Mischaracterizations by Prosecution + Failure to Object + Defense Counsel Embracing the Mischaracterizations as True = Cumulative Error and Reversal for Ineffective Assistance.

State v. King, 2010 UT App 396 (Utah Court of Appeals December 30, 2010).

This case has travelled between the State Supreme Court and the Court of Appeals various times on the issue of juror-bias and ineffective assistance of counsel.  The issue of juror-bias being finally resolved, the case is returned to the Court of Appeals to decide all remaining appellate claims.  The claim of prosecutorial misconduct and subsequent ineffective assistance of counsel are the pivotal issues and the only claims addressed in this summary. 

In closing argument, the Prosecutor stated that the abuse happened in seconds (contrary to the victim’s testimony, which was that the abuse continued for two – three minutes).  Admitted evidence also included a statement of the witness to a friend “What if I lied?”  The prosecutor alleged that this statement the victim’s concern about what people would think if they thought she was a liar.  Defendant’s counsel failed to object to, or contradict these statements in his closing argument; in fact, he embraced the idea that the abuse occurred in only seconds.  Because the testimony of the victim was the basis for the conviction, these cumulative errors warrant reversal.

Full Decision available at http://www.utcourts.gov/opinions/appopin/king123010.pdf

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.

Full Decision available at http://www.utcourts.gov/opinions/appopin/millard121610.pdf

Deficient Appellate Counsel Can be Discharged

State of Utah v. Smith, 2010 UT App. 231, (Utah Court of Appeals August 19, 2010).

This matter came before the Court of Appeals on the Motion to Strike Appellants Brief and Appoint New Counsel.  This motion is Granted because of current counsel’s failure to adequately comply with the rules of appellate procedure.  The brief failed to supply a summary of the proceeding, had only a very brief statement of facts, failed to cite the standard of review, and failed to make citations throughout.  It contained a summary of the argument, but no full argument section.  Because it was so lacking, the brief was stricken and counsel discharged.  The case is remanded to the district court to appoint new counsel.

Additional note:  This same attorney had a previous brief stricken on similar grounds in 2008.  Generally, the Court gives an attorney time to cure the defects in the brief, however, because of this attorney’s failure to take advantage of the opportunity to cure in a prior case, no opportunity to cure was allowed in this case.

Full Decision available at   http://www.utcourts.gov/opinions/appopin/smith081910.pdf

Not Plain Error if Appellant Invited the Error

State of Utah v. Shaffer, 2010 UT App. 176, (Utah Court of Appeals July 1, 2010).  This opinion was amended and renumbered to 2010 UT App 176.  I could not determine the amendment, but the link below now links to the amended opinion.

Shaffer entered into an agreement with the State.  At the change of plea hearing, the defense misstated the agreement and agreed to further misstatements by The State.  Further, the State failed to make a recommendation to AP&P as agreed in the plea agreement.  The Judge rejected the State’s recommendation and adopted AP&P’s recommendation.

The Court of Appeals affirmed, finding that the trial court’s actions did not constitute plain error because even if the court believed that the state had breached the plea agreement, the affirmative actions by defense counsel invited the error and an invited error is not plain error, furthermore such an is irrelevant because the court rejected the agreement.

The failure of defense counsel to remedy the matter we not prejudicial for the same reasons, that the court rejected the agreement even in its misstated form.

Further, Defendant did not raise a dispute that the State had not recommended the sentence to AP&P before the trial court and so the trial court had no knowledge of any possible error, thus defendant again invited the error by failing to bring it to the court’s attention and affirmatively agreeing with the State’s statements at the hearing.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/shaffer082610.pdf

Failure to Provide Expert as to Mental Illness for Mitigation is Not Ineffective Assistance

State of Utah v. Walker, 2010 UT App. 157, (Utah Court of Appeals June 17, 2010).

Walker suffered from PSTD and shot his wife 13 or 14 times after an argument.  Police arrested Walker and questioned him without proper Miranda warnings.  Walker was convicted and appealed.  The Court of Appeals found that defense counsel’s failure to call an expert witness to testify as to Walker PSTD did not constitute ineffective assistance.  Defense counsel may have avoided the mental illness facts to avoid an adverse effect on other defenses (imperfect self-defense and voluntary intoxication).  Additionally, Defense counsel did not overly rely on the Walker’s mental illness in opening or during the trial, so it is likely that the jury did not have the unfulfilled expectation of hearing PTSD testimony.  Further, according to the Court, the absence of the defense expert was not prejudicial.

Failure to file a motion to suppress the unmirandized confession was a deficient omission by defense counsel.  However, because there was additional evidence to the content of the confession, it was not prejudicial. Affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/walker061710.pdf

If There is Any Rational Basis for Counsel’s Actions Then He is Not Ineffective

Utah v. Pedersen, 2010 UT App. 38, (Utah Court of Appeals, February 19, 2010).

Pedersen was charged and convicted of two counts of sexual assault.  He appealed.  He argued that his counsel was ineffective for failing to make several motions.  The Court affirmed that each missed motion could have been a tactical basis for each decision, and therefore there was a rational basis for the actions taken by counsel.  Further, the Court of appeals affirmed that there was no showing of actual prejudice as a result of counsel’s actions.  Next, Defendant challenged the trial court decision allowing testimony of another alleged victim because it is a prior bad act and therefore improper character evidence.  However, the Court of Appeals affirmed the trial court, finding the testimony to be appropriate evidence for a non-character purpose to show absence of mistake and intent.

Full Decision available at http://www.utcourts.gov/opinions/appopin/pedersen021910.pdf