State v. Curtis
2013 UT App 287
| Utah Ct. App. | 2013Background
- Curtis lived with a family; a minor (M.V.) testified that Curtis supplied her cocaine and raped her on four occasions in 2008. He was charged with four counts of rape and four counts of distribution in a drug-free zone.
- At trial M.V. described repeated intravenous cocaine use with Curtis and visible marks on her arms; defense theory contested credibility.
- Bench conferences occurred after some testimony about other drug use; the court excluded evidence of unrelated drug use but later gave curative instructions when sidebar discussions might have been audible.
- Mother denied knowledge of drug use in the home on direct, but on cross admitted marijuana use; Curtis testified he smoked marijuana but denied cocaine use with M.V.
- Sister testified in rebuttal that she saw Curtis and M.V. use cocaine several times; the jury convicted Curtis on all counts.
- On appeal Curtis sought (1) remand under Utah R. App. P. 23B to supplement the record with photographs, a hair-follicle test, and a DCFS report and uncalled-witness affidavits, and (2) reversal based on ineffective assistance of counsel for multiple alleged errors at trial.
Issues
| Issue | Curtis's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Rule 23B remand was warranted to supplement the record with photographs, drug test, DCFS report, and witness affidavits | Remand needed because trial counsel failed to use those materials and they would show counsel was ineffective | Curtis failed to attach the actual evidence or nonspeculative affidavits; remand requires concrete, non-speculative facts/evidence | Denied — remand not warranted because key evidence and detailed affidavits were not provided |
| Whether counsel was ineffective for failing to introduce photographs, hair-follicle test, and DCFS report | These items would impeach M.V. and create reasonable doubt | Evidence not in record; counsel may have reasonably declined to introduce evidence that could open damaging inquiry; appellate record construed in favor of counsel when evidentiary gaps exist | Denied — no deficient performance shown and claim speculative without the evidence |
| Whether counsel failed to investigate or call witnesses (Jonathan Rowley, M.B.) | Counsel did not interview/call witnesses whose testimony would undermine M.V. | No affidavits from those witnesses showing what they'd testify to; no nonspeculative proof of prejudice | Denied — insufficient, nonspecific evidence of uncalled testimony and no shown prejudice |
| Whether counsel erred by opening the door to other-drug evidence, and by seeking curative instruction rather than mistrial after audible sidebars | Opening the door led to damaging impeachment and rebuttal testimony; audible sidebars tainted jury and witnesses | Sister’s rebuttal testimony and cross about marijuana were admissible or harmless in context; counsel reasonably chose curative instruction; affidavits did not show witnesses changed testimony or juror bias | Denied — opening the door did not cause material prejudice and curative instruction was a plausible strategy; no demonstrated prejudice from sidebars |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing two-part ineffective assistance test)
- State v. Lenkart, 262 P.3d 1 (Utah 2011) (applying Strickland and discussing deference to counsel)
- State v. Johnston, 13 P.3d 175 (Utah Ct. App. 2000) (rule 23B remand requires nonspeculative affidavits and evidence)
- State v. Gonzales, 125 P.3d 878 (Utah 2005) (no prejudice where evidence was admissible independent of counsel's error)
- State v. Hales, 152 P.3d 321 (Utah 2007) (prejudice requires reasonable probability result would differ)
- State v. Munguia, 253 P.3d 1082 (Utah 2011) (ineffective assistance claims must be demonstrable, not speculative)