McCloud v. State
440 P.3d 775
Utah Ct. App.2019Background
- Larry McCloud was convicted by a jury of sexual offenses based on his daughter's testimony; this court affirmed on direct appeal.
- At trial, defense counsel declined to consult or call false-memory or psychosexual experts and relied on calendar entries, a videotape, and cross-examination to impeach the victim.
- Appellate counsel limited issues to the trial record and did not file a Utah R. App. P. 23B motion to develop extra-record ineffective-assistance claims.
- McCloud filed a post-conviction petition alleging trial counsel was ineffective for not consulting experts and for not obtaining all of the victim’s medical records; the State moved to dismiss as procedurally barred.
- The post-conviction court initially treated the trial-counsel claims as barred but allowed amendment to claim ineffective assistance of appellate counsel; after evidentiary hearing it denied relief on the merits.
- The Court of Appeals held the procedural-bar ruling was erroneous (some extra-record claims may proceed in PCRA), but affirmed denial on the merits: trial counsel’s choices were reasonable strategy and any withheld medical record was cumulative, so no prejudice shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial-counsel ineffective-assistance claims that could have been raised via rule 23B on direct appeal are procedurally barred on post-conviction | McCloud: Some extra-record ineffective-assistance claims should be allowed in PCRA when the record would not have reasonably suggested that developing them on appeal would likely lead to reversal | State: Claims were available on direct appeal via rule 23B and thus are barred on post-conviction unless appellate counsel was ineffective | The court: PCRA bar does not apply in all cases; when the record would not have indicated a reasonable probability that developing the extra-record claim on appeal would lead to reversal, the claim may proceed in post-conviction (post-conviction court erred to the extent it mechanically applied the bar) |
| Whether trial counsel was ineffective for not consulting or calling expert witnesses | McCloud: Trial counsel should have consulted false-memory and psychosexual experts; they could have undermined the victim’s testimony and plausibly changed the outcome | State: Trial counsel made a reasonable, strategic decision after investigation; experts could have diluted the defense or provoked prosecution experts; no deficient performance or prejudice | The court: No deficient performance — decision against experts was within strategic judgment; even if experts might have helped, counsel reasonably concluded they could be harmful or distracting |
| Whether trial counsel was ineffective for failing to obtain all of the victim’s medical records | McCloud: Additional medical records contained material, potentially exculpatory information that would have undermined the victim's credibility | State: Trial counsel either knew of the substance or the records would be cumulative; no reasonable probability of a different outcome | The court: No prejudice — the one disclosed record was consistent with testimony and largely cumulative of what the jury heard; absence did not undermine confidence in verdict |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard)
- Harrington v. Richter, 562 U.S. 86 (strategic choices by counsel entitled to wide deference)
- Litherland v. State, 12 P.3d 92 (Utah 2000) (rule 23B remand mechanism for ineffective-assistance claims on direct appeal)
- Gregg v. State, 279 P.3d 396 (Utah 2012) (appellate counsel must not ignore obvious errors that would likely affect outcome)
- Ross v. State, 293 P.3d 345 (Utah 2012) (standard for appellate counsel's reasonableness in failing to find arguable issues)
- State v. Hales, 152 P.3d 321 (Utah 2007) (when prosecution’s expert is central, defense must investigate and, if necessary, retain rebuttal experts)