State v. Burnside
2016 UT App 224
| Utah Ct. App. | 2016Background
- Victim (a child) lived with mother and stepfather; Donovan Burnside intermittently lived in the household (2009–2011). In Jan 2011 the child disclosed that Burnside had touched her genital area; medical and law-enforcement referrals followed. Burnside later admitted in a detective interview to touching the child on three occasions, describing the touches as inadvertent and referring to the area as the top of her thighs.
- The State charged Burnside with three counts of aggravated sexual abuse of a child; trial occurred July 2013. The jury convicted on all counts; court imposed concurrent 6 years–life sentences and Burnside subsequently sought to arrest judgment raising multiple trial errors and ineffective-assistance claims.
- Trial evidence: live testimony from the child, parents, experts (a PTSD expert and a depression expert), a nurse practitioner who examined the child at the Children’s Justice Center (CJC), and the CJC recorded interview (played for the jury). Defense called Burnside, his former girlfriend, and the child’s biological father; defense theory emphasized preexisting medical issues, family discord, and other nonsexual causes for the child’s symptoms.
- Posttrial motion and evidentiary hearing: Burnside alleged counsel failed to subpoena a treating doctor, failed to timely seek funding for expert assistance, did not preserve objections, and did not ensure certain in-chambers voir dire and bench conferences were recorded. Trial court held a hearing, credited trial counsel’s testimony explaining strategic choices and funding problems, and denied relief.
- Appellate posture: Burnside appealed, framing most arguments as either plain error or ineffective assistance of counsel; the Utah Court of Appeals reviewed the trial-court factual findings for clear error and legal conclusions for correctness and affirmed.
Issues
| Issue | Burnside’s Argument | State’s Position | Held |
|---|---|---|---|
| Trial counsel ineffective for failing to subpoena child’s former treating doctor | Doctor would have testified child was unhappy and had a chronic rash before Burnside lived in the home, supporting defense theory | Trial counsel reasonably investigated; doctor not identified at evidentiary hearing; any testimony would be cumulative | No prejudice shown; claim speculative because Burnside failed to identify the doctor or proffer expected testimony; no relief granted |
| Trial counsel ineffective for failing to timely request county funds for defense expert | Needed expert to rebut State’s PTSD expert; counsel filed motion late and was denied | Counsel attempted to obtain funds; family originally promised funding then withdrew; no specific expert or expected testimony identified | No prejudice shown; appellant failed to identify/explain what expert would have said or how outcome would differ |
| Admission of nurse practitioner’s testimony (hearsay) | Nurse practitioner acted as de facto law-enforcement interviewer; her statements to the jury were inadmissible hearsay | Nurse practitioner performed medical evaluation; child's statements were for medical diagnosis/treatment and thus admissible under the medical-treatment hearsay exception; defense may have strategically used the testimony | Court found testimony admissible under hearsay exception and that defense strategically elicited related testimony; no plain error or ineffective-assistance shown |
| Playing CJC recorded interview after child testified | Playing the tape after live testimony amounted to cumulative/repetitive testimony and undue emphasis; counsel should have objected | Defense stipulated to use of the tape and referenced it on cross-examination; counsel’s choice was strategic | No plain error due to invited error/stipulation; trial strategy explained lack of objection; no relief |
| Failure to record in-chambers voir dire and bench conference | Missing record deprived Burnside of reviewable record and possibly of fair jury selection; counsel ineffective for not ensuring recording | The court erred in failing to record, but appellant bears burden to preserve an adequate record; no nonspeculative prejudice shown; counsel testified about voir dire strategy | Although court erred in not recording, Burnside failed to show prejudice or seek available remedies (Rule 11/R.23B remand); presumptions favor regularity; claims fail |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standards for ineffective assistance of counsel review)
- State v. Dunn, 850 P.2d 1201 (Utah 1993) (plain-error test requirements)
- State v. Templin, 805 P.2d 182 (Utah 1990) (failure to investigate witnesses can be prejudicial when proffered testimony would have contradicted sole direct evidence)
- State v. Curtis, 317 P.3d 968 (Utah Ct. App. 2013) (denying remand where defendant failed to proffer what uncalled witnesses would have testified)
- Litherland v. State, 12 P.3d 92 (Utah 2000) (appellant bears burden to assure record is adequate when alleging ineffective assistance on direct appeal)