STATE of Utah, Appellee, v. Donovan Heath BURNSIDE, Appellant.
Opinion No. 20140400-CA
Court of Appeals of Utah.
Filed November 10, 2016
2016 UT App 224 | 386 P.3d 570
ROTH, Judge
¶6 Lawless binds our decision because “[h]orizontal stare decisis ... requires that [the] court of appeals follow its own prior decisions” under almost all circumstances. State v. Menzies, 889 P.2d 393, 399 n.3 (Utah 1994) (noting that the court of appeals may only overrule its own decision if it was “clearly erroneous or conditions have changed so as to render the prior decision inapplicable” (citation and internal quotation marks omitted)). In Lawless, we declined to reach the constitutionality of
¶7 The reasoning in Lawless is compelling and we are bound by it under the doctrine of stare decisis. As in Lawless, Anderson abandoned her initial arguments about the state statute in district court, instead focusing on the city ordinance. On appeal, Anderson changes course and attempts to resurrect her statute-based arguments in lieu of the ordinance-based arguments on which the district court ruled. We are therefore in no position to review the issues raised on appeal, Lawless controls, and we affirm.
Sean D. Reyes and Jeanne B. Inouye, Salt Lake City, Attorneys for Appellee
Judge Stephen L. Roth authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen concurred.
ROTH, Judge;
¶1 Donovan Heath Burnside appeals his convictions on three counts of aggravated sexual abuse of a child, a first-degree felony, under
BACKGROUND1
¶2 The victim (Child) lived with her Mother and Stepfather. Burnside, a friend of the family, lived intermittently in the household from approximately January 2009 through January 2011. In January 2011, Child told Stepfather that Burnside had touched Child‘s genital area. The day after this disclosure, Mother and Stepfather took Child to a doctor. After speaking with them about Child‘s disclosure, the doctor told them he was required to report the information to the authorities, which he did, and an investigation followed.
¶3 In the course of the investigation, a nurse practitioner at the Children‘s Justice Center (CJC) examined Child. Also, a CJC detective interviewed Child (the CJC Interview), which was recorded and later transcribed. During the CJC Interview, Child told the detective that Burnside had touched her genital area on multiple occasions.
¶4 The detective also separately interviewed Burnside. Burnside admitted during the interview to touching Child on three separate occasions, describing them as “inadvertent[ ]” or an “accident.” Specifically, the detective asked Burnside, “where did you touch her?” Burnside responded by describing a time when Child had her hand in her pants, and after telling her “that she shouldn‘t have her hands in her pants like that,” Burnside “pull[ed] [her hand] up.” Burnside explained to the detective that his “hands or ... fingers or something might have touched something down there, but I don‘t think that.” The detective then asked “[w]hat would [your fingers] have touched,” to which Burnside responded that “[i]t was probably like her leg or something down there.” Burnside explained that on these occasions he did not touch Child‘s vagina, but only “the top of her thighs,” to which the detective responded “[a]nd the top of her thighs meaning between her pelvis and the top of her thighs?” Burnside responded, “Yes.” In April 2011, the State charged Burnside with three counts of aggravated sexual abuse of a child. After multiple continuances, the case eventually went to trial in July 2013.
¶6 At trial, the State called Child, who testified that Burnside touched her vaginal area under her clothing “more than one time” when Stepfather and Mother were out of the home. On cross-examination, Child was asked about the CJC Interview and whether or not certain statements she made during the CJC Interview were “truthful.” The State also called Stepfather and Mother to testify. Each of their testimonies focused on changes they observed in Child‘s mood before and after January 2011, when Child disclosed the alleged abuse to Stepfather. Stepfather testified that prior to January 2011 Child had been “really happy,” “excited to go to school,” “doing really well [with her schoolwork],” and that she had only “infrequent” incidents of bed-wetting. He stated that after January 2011, however, her mood changed and, among other things, Child “went from [being] a really happy rambunctious kid to kind of subdued,” became “physically violent” with her sibling, “did not want to go to school anymore,” and “started wetting the bed every night again.” Mother testified, as Stepfather had, that Child “was very happy and very spunky,” but after her disclosure, Child began “having some problems with school” and became “feisty” and “really ornery” at home.
¶7 During cross-examination of Mother, Burnside‘s trial counsel asked a question about arguments in the home between her and Stepfather “over [Stepfather‘s] use of narcotics [and] marijuana.” The State objected on relevance grounds and a bench unrecorded conference ensued. Following the bench conference, Burnside‘s counsel did not pursue the issue of Stepfather‘s drug use, but instead asked Mother a line of questions about Stepfather‘s “excessive drinking” during December 2010 and January 2011, about how during this same time Stepfather cut some of Child‘s toys “in half with a bandsaw” for disciplinary reasons, and inquired whether these events “would have affected [Child].” Mother agreed that they could have.
¶8 The State also called a pediatric clinical psychologist (the PTSD Expert) and a clinical neuropsychologist (the Depression Expert). The testimony from both experts focused on Child‘s mental state after January 2011. The PTSD Expert testified that Child‘s symptoms “would be representative of chronic posttraumatic stress disorder” and that PTSD in children is most commonly caused by neglect or physical or sexual abuse. The PTSD Expert was asked whether the bandsaw incident or discord in the home could explain Child‘s PTSD symptoms. The expert responded that Stepfather‘s cutting of Child‘s toys “would be of insufficient trauma to generate the intensity and the length of the symptoms that [Child] ... described,” and that this incident would have been of “insufficient quality ... to generate these same symptoms across such a variety of different times and places and persons.” The PTSD Expert further testified that the verbal arguments between Mother and Stepfather did not rise to a level that would generally cause symptoms of PTSD in a child.2 The Depres-
¶9 The State also called the nurse practitioner who initially examined Child at the CJC and the detective who conducted the CJC Interview. The nurse practitioner testified that, when any child is referred to the CJC, she “obtain[s] a medical history from the parents” before speaking with the child and “ask[s] [the child] if they know why they are [at the CJC]” before conducting a physical examination. The nurse practitioner testified that she initially asked Child questions to determine if Child knew why she was at the CJC and then “proceeded ... to talk about what a good touch is and what a bad touch is.” When asked “if anybody ha[d] done any bad touches [to Child],” Child responded, “Yes, ... [Burnside] had,” and then Child “pointed to her private area.” When asked where the conduct had occurred, Child stated that it had happened in her bedroom or her sibling‘s bedroom on multiple occasions. The nurse practitioner testified that she physically examined Child, with Mother present, “from head to toe and checked her genital area” and that “[Child‘s] examination was normal.” The nurse practitioner indicated, however, that such a finding would be “consistent” with Child‘s earlier statements. The detective testified about her investigation of Child‘s allegations against Burnside. During the detective‘s direct examination, the State played the CJC Interview in its entirety to the jury; Burnside objected only to the quality of the recording.
¶10 Burnside‘s counsel called three witnesses: Burnside‘s girlfriend at the time of Child‘s disclosure, Child‘s biological father, and Burnside himself. Burnside‘s former girlfriend testified about her relationship with Burnside, as well as Mother and Stepfather‘s lack of treatment for an ongoing condition that Child had in her genital area that resulted in what the family called “spicy pee.” Specifically, the former girlfriend recounted that she had a conversation with Burnside and Mother in September 2010 about Child‘s medical condition and “how it‘s supposed to be taken care of” with “a cream [that Mother] was supposed to have for [Child].” She further testified that, in the “whole time” she knew Mother and Stepfather, she “never saw [the cream]” or “any medication” for the condition in the house. The former girlfriend also described her recollection of an encounter where Mother and Stepfather confronted Burnside about Child‘s disclosure to Stepfather.
¶11 Child‘s biological father testified about Child‘s ongoing medical condition, a urinary tract infection, and conversations he had had with Burnside and Mother with respect to Child‘s infection. Burnside testified about how he came to live in the same house as Child and about the three instances where he “had done anything with regard to inspection of the private area of [Child].” Burnside testified that in the spring of 2010 Mother had taken Child out of the bathtub and dried her off and then “asked [Burnside] to put a diaper on her and help her get some clothes,” and that it was during this time that he “noticed [Child‘s vaginal area] was red.” He also testified that at one point he walked by the doorway of Child‘s room and noticed that “her hand was in her pants, and that‘s when [he] realized she was scratching.” He responded by telling Child that “she should not be scratching, that it could make it worse and not to do it,” and then he “pulled” her hand out of her pants.
¶12 Burnside further testified that, in January 2011, he was in his bedroom and Child came into the room “to get [him] for break-
¶13 The jury convicted Burnside on all three counts of aggravated sexual abuse of a child, and the trial court sentenced him to concurrent prison terms of six years to life on each count. After trial, Burnside obtained new counsel and filed a motion to arrest judgment. The motion raised various claims of ineffective assistance of counsel and alleged several other errors by the trial court that are pertinent to this appeal. First, Burnside asserted he received ineffective assistance from his trial counsel in three respects: counsel “failed to subpoena a material witness“; “did not timely request fund[s] for trial experts“; and “did not object to inadmissible evidence.” Second, Burnside asserted that the trial court erred: (1) by failing to record and preserve a record of the in-chambers discussions during voir dire and a bench conference; (2) by preventing trial counsel from adequately questioning Child‘s biological father about whether Child was unhappy before Burnside lived in the home; (3) by preventing counsel from asking Mother during cross-examination about Stepfather‘s drug abuse, which Burnside claimed to have impaired his ability to “present relevant evidence that supported his theory of the case“; (4) by allowing the nurse practitioner‘s hearsay testimony as “an exception to the hearsay rule under statements for purposes of medical diagnosis or treatment“; and (5) by allowing the State to play the recording of the CJC Interview during the detective‘s testimony in violation of Burnside‘s due process rights.
¶14 The trial court held an evidentiary hearing in February 2014 on the motion to arrest judgment. Burnside called only one witness, his trial counsel. Burnside‘s trial counsel testified that, based on his experience, he “assumed” the in-chambers discussions with jurors during voir dire would be recorded as well as any bench conferences. He also testified that he had inquired at trial about drug use by Child‘s parents and Child‘s home life because he considered it “significant” “to show the condition and the trauma that may have existed at the time ... would have led to trauma in the child other than the alleged abuse.”
¶15 Burnside also pressed his claims of trial counsel‘s ineffective assistance, specifically questioning counsel about why he did not subpoena a particular witness and why he did not request funding for an expert witness. Regarding the subpoena, Burnside‘s trial counsel testified that the witness, a doctor who had previously treated Child, was “no longer associated” with the medical facility where Child had been treated and therefore he felt evidentiary problems may have arisen when trying to introduce Child‘s pertinent medical records. Further, trial counsel testified that he believed that he “could [still] try to get [the records] in through [Mother].” Additionally, he testified there was “no money ... available ... for ... discovery purposes and getting experts” because, although Burnside‘s family had initially stated that they would make funds available for an expert, they later—at a point close to trial—“informed [counsel] there would be none.”
¶16 Following the evidentiary hearing, the trial court issued a memorandum decision and order addressing in some detail most of the issues Burnside now raises on appeal and denying Burnside‘s motion to arrest judgment. Burnside appeals.
ISSUES AND STANDARDS OF REVIEW
¶17 Burnside raises multiple claims, generally under the rubric of plain error or ineffective assistance of counsel. Burnside contends
¶18 “In a situation such as this, in which the trial court has previously held an evidentiary hearing on a motion based on ineffective assistance of counsel, such a claim presents a mixed question of law and fact.” State v. Perry, 899 P.2d 1232, 1238 (Utah Ct. App. 1995) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). “Accordingly, Utah‘s appellate courts have deferred to the trial court‘s findings of fact, but review its application of the appropriate legal principles to its factual findings for correctness.” Id. (citing State v. Hay, 859 P.2d 1, 4-5 (Utah 1993)). Here, because Burnside has previously raised the issues on appeal in his motion to arrest judgment, we review them as mixed questions of fact and law—we review the district court‘s factual findings for clear error and its legal conclusions for correctness. See also State v. Templin, 805 P.2d 182, 186 (Utah 1990).
ANALYSIS
¶19 “Appellate courts generally will not consider an issue raised for the first time on appeal absent plain error, exceptional circumstances, or ineffective assistance of counsel.” State v. Floyd, 2014 UT App 53, ¶ 6, 321 P.3d 1170. Because the issues Burnside rais-
es on appeal were not preserved during the trial itself, Burnside invokes the plain error and ineffective assistance of counsel exceptions to the preservation rule. “[T]o establish the existence of plain error ..., the appellant must show the following: (i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). And to establish his claim of ineffective assistance of counsel, Burnside “must show that [his] counsel‘s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. Because Burnside must establish both elements in order to prevail on a claim of ineffective assistance, “a failure to prove either element defeats the claim.” State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d 769.
I. Claims Related to Burnside‘s Theory of the Case
¶20 Burnside contends that the trial court plainly erred because Burnside “was not allowed to present relevant evidence that supported his theory of the case.” Specifically, he asserts that it was “error for the court not to allow [him] to introduce other events that may have caused [Child‘s] PTSD and/or depression” while “the State was allowed to fully develop its theory with multiple witnesses and experts.” In this regard, Burnside asserts that Child “was not happy” and was “neglected” even before the abuse allegations and that “[t]his was witnessed by at least one medical doctor and her biological father.” He also asserts that “if [Child] was suffering from PTSD, then it was caused by other events in the child‘s life, such as the abuse, neglect, drinking and drug use of the stepfather and neglect of the mother,” evidence he claims that he was prevented from fully presenting to the jury. Burnside argues that errors by the trial court in sustaining two of the State‘s objections, together with his counsel‘s failure to “subpoena a necessary witness,” and his failure to “timely request funds for an expert witness” essentially pre-
A. The State‘s Objections
¶21 Burnside asserts that he was prevented from establishing that any behavior and mood problems Child exhibited predated the alleged sexual abuse. Burnside focuses on two evidentiary rulings by the trial court that he argues were in error: (1) cutting off his examination of Child‘s biological father about whether Child “suffered from a medical condition long before her contact with Burnside“; and (2) preventing his cross-examination of Mother about Stepfather‘s alleged drug use. In its memorandum decision following the motion to arrest judgment, the trial court concluded that Burnside had an adequate opportunity to present evidence in support of his theory. The court found that at trial Burnside had “presented evidence suggesting [Child]‘s PTSD was a result of something other than sexual abuse” and that Burnside had “demonstrated” that “there was fighting in the home,” that Stepfather had used a bandsaw to cut Child‘s toys, and that Child had sustained a broken leg and was “suffering from a chronic rash.” The court concluded that, as a result, “the jury was given an opportunity to consider Mr. Burnside‘s theory” that Child‘s change in mood and behavior had been the result of turmoil in the home and her health issues rather than sexual abuse, “but ultimately chose to reject it in comparison to other evidence, namely Mr. Burnside‘s own admissions.” On appeal, Burnside does not engage with the trial court‘s reasoning, often failing to even acknowledge that the trial court considered his arguments and made detailed rulings. We agree with the trial court that Burnside has not shown that the court‘s evidentiary rulings wrongfully impeded his opportunity to present his defense.
1. Direct Examination of Biological Father
¶22 During Burnside‘s direct examination of Child‘s biological father, trial counsel asked, “how did you learn about [Child‘s] medical condition,” to which the witness responded that he had “known about [it] ... for quite some time.” Trial counsel asked,
“[s]tarting when,” and the witness responded:
When she was, I want to say, six months to a year old, me and my wife at the time were documenting when she would come over for weekends—she would constantly come over with diarrhea, severe diaper rash to the point that we couldn‘t change her without hurting her. We couldn‘t bathe her without her crying.
The State objected, stating that “what happened when she was six months to a year old” is not “relevant to why we‘re here today.” The district court responded, “[t]hat very well may be,” but then directed the witness to “[j]ust respond to the question” and not continue “with additional narrative.” Child‘s biological father responded to the original question and testified that he “discovered [Child‘s medical condition] when she was very young.” Trial counsel then went on to briefly establish, without interruption from the State or the court, that the biological father was aware the medical condition persisted during the years when he was later serving in the military.
¶23 Burnside seems to argue that the court‘s instruction to the witness to “[j]ust respond to the question” is equivalent to the court having sustained the State‘s objection and therefore, according to Burnside, “the trial court did not allow this line of questioning.” Burnside then argues that “[t]his evidence is relevant because it rebutted the testimony of [Mother] and [Stepfather] that [Child] was happy and had a pleasant childhood. It showed that [Child] was suffering from a medical condition long before Burnside lived in the house. Further, it showed that [Child] was unhappy for years.” But in response to the State‘s relevance objection, the trial court did not rule that the evidence was irrelevant or place any restrictions on trial counsel‘s questions. Rather, the court merely told the witness to avoid giving narrative testimony—to respond to trial counsel‘s specific question but not volunteer additional information. Thus, there was nothing in the court‘s response that prevented trial counsel from continuing that line of inquiry had he believed it was important. But counsel apparently did not think it important to focus
¶24 Moreover, the record reveals that the jury heard substantial evidence from other witnesses that Child had suffered from a painful rash when she was very young and that the rash had continued to trouble her both before and after the alleged sexual abuse. For example, the biological father‘s testimony both before and after the court‘s comment to “just respond to the question” established that Child had a painful rash beginning at a very young age, and Mother had already testified that Child began complaining of pain caused by the rash “around two,” which caused Mother to seek help from “a specialist.” Stepfather had also testified that when Child was “[p]robably five,” he and Mother had taken Child to “several specialists,” one who prescribed an ointment, but that Child still would “whine a lot if she had to urinate” because it “stung when she urinated.”
¶25 Thus, Burnside has not persuaded us that the trial court erred in its response to the State‘s objection or, even if it did, that Burnside‘s presentation of his case was prejudiced. See State v. Norton, 2003 UT App 88, ¶ 24, 67 P.3d 1050 (concluding that it was not an abuse of discretion when the trial court did not allow the defendant to provide “further testimony,” which the court determined was among other things, “cumulative“).
2. Cross-Examination of Mother
¶26 During cross-examination, trial counsel asked Mother whether she and Stepfather had “arguments ... over [Stepfather]‘s use of narcotics, [and] marijuana.” The State objected on relevance grounds, and the court called both counsel to the bench. The recording of the bench conference was cut short
after trial counsel‘s statement that “[t]he relevance is I‘m going to introduce into evidence....” The court apparently sustained the objection, however, because following the bench conference, trial counsel did not pursue questions about Stepfather‘s drug use. Counsel instead asked questions regarding “significant arguments” between Mother and Stepfather that Mother conceded had occurred, and Mother ultimately agreed that these arguments “would have affected” Child.
¶27 Burnside argues that the trial court should have allowed trial counsel to question Mother about Stepfather‘s drug use. Burnside asserts that “the adverse effects of [Child‘s] stepfather‘s drug use, criminal arrest and the stress these activities were causing in the home” were part of the environment of “abuse and neglect [by] her step-father and mother,” rather than sexual abuse, that could have caused any “change in [Child‘s] behavior.” But he provides no more than conclusory statements about drug use on Stepfather‘s part without identifying any basis in fact for those allegations. Cf. State v. Emmett, 839 P.2d 781, 786-87 (Utah 1992) (“Generally, it is error to ask an accused a question that implies the existence of a prejudicial fact unless the prosecution can prove the existence of the fact. Otherwise, the only limit on such a line of questioning would be the prosecutor‘s imagination.” (footnote omitted)). Nor is there any indication that during the bench conference trial counsel proffered that he would establish an appropriate factual foundation for such questions. And without factual support for this claim, we can do no more than speculate that, had the trial court allowed questioning regarding Stepfather‘s alleged drug use, that “there [would be] a reasonable likelihood of a more favorable outcome.” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993); see generally State v. Kirkwood, 2002 UT App 128, 47 P.3d 111 (explaining that speculative assignments of error unsupported by the record do not constitute grounds for reversal).
¶28 Indeed, even if Burnside had established that Stepfather and Mother argued about Stepfather‘s alleged drug use, we are not persuaded that the outcome would have
¶29 Accordingly, we conclude that Burnside has not demonstrated that the trial court erred when it sustained the State‘s objection to Mother‘s question.
B. The Former Doctor‘s Testimony
¶30 Burnside argues on appeal that his trial counsel was ineffective for failing to subpoena Child‘s former doctor to testify about Child‘s preexisting medical condition in order to counter the State‘s claim that Child‘s PTSD stemmed from sexual abuse. Burnside alleges that this former doctor could have testified about a medical appointment with Child during which she was so upset by the effects of her rash that he could not complete his examination. According to Burnside, the testimony of Child‘s former doctor was necessary to show that Child “had been a very unhappy child long before Burnside was in her life.” But Burnside has provided no more than conclusory statements about what the doctor would have said at trial had he been called. Although the trial court held an evidentiary hearing on Burnside‘s motion to arrest judgment, Burnside presented no evidence even identifying the doctor, much less showing what the doctor‘s testimony would have been if called. Nor has he sought a remand under appellate rule 23B to develop an appropriate record.3
¶31 Instead, Burnside cites State v. Templin, 805 P.2d 182 (Utah 1990), for the proposition that trial counsel‘s performance was deficient under Strickland “because [he] did not make a reasonable investigation into the possibility of procuring [a] prospective defense witness[].” We have previously discussed Templin in the context of whether an attorney‘s failure to investigate potential witnesses prejudiced a defendant. In State v. Curtis, 2013 UT App 287, 317 P.3d 968, we stated:
In Templin, the Utah Supreme Court reversed a rape conviction because defense counsel failed to interview a witness “who would have testified that she saw defendant and the victim kissing passionately for over fifteen minutes ... at the address of and within an hour of the rape reported by the victim.” This testimony, the court noted, would have contradicted the victim‘s testimony, which was “the only direct evidence of [the defendant‘s] guilt.” But the court also mentioned in a footnote that failing to interview and call another witness was not ineffective assistance because even though the defendant “provided ... an affidavit stating that [the witness] was never contacted by trial counsel,” he did not provide “any evidence concerning what [the witness] would have testified to ... [at] trial.” “Therefore,” the court held, the defendant could not show “a reasonable probability that the result of his trial would have been different” had the witness testified.
Id. ¶ 40 (alterations and omissions in original) (citations omitted). Like Templin, Curtis asserted that his attorney “was aware of other potential witnesses,” but that he “failed to investigate and interview [them].” Id. ¶ 41 (citation and internal quotation marks omitted). But, like Templin, Curtis gave “no description” regarding what one of the witnesses “would have testified to at trial,” and his description of the potential testimony of the other witness was limited to “a single line” from an affidavit. Id. ¶ 42. In denying Curtis‘s request for remand under rule 23B
Without nonspeculative evidence establishing what each witness could have testified to at trial, Curtis has not shown that any deficient performance by trial counsel in failing to interview them was “so serious” that it “deprive[d] [him] of a fair trial,” and “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different[.]”
Id. ¶ 42 (alterations in original) (quoting State v. Lenkart, 2011 UT 27, ¶ 38, 262 P.3d 1).
¶32 Burnside‘s claim suffers from the same deficiencies. Even if trial counsel acted unreasonably in failing to ensure the doctor was available to testify at trial, by failing to identify the doctor and present nonspeculative evidence—more than a simple proffer—of what he would have testified to if called, Burnside has failed to demonstrate that trial counsel‘s deficiencies were “so serious that [he was] deprive[d] ... of a fair trial.” See id. (second alteration in original) (citation and internal quotation marks omitted); State v. Hales, 2007 UT 14, ¶ 51, 152 P.3d 321 (“If a defendant claims prejudice because a certain document or a previously available witness is now missing or unavailable, the defendant must provide the ‘expected content’ of the document or the witness‘s testimony and indicate how that document or witness would have aided the defense.“). The importance of the requirement for more than just conclusory statements about a witness‘s likely testimony is underscored in this case because, as the court noted, “Mr. Burnside‘s trial counsel confirmed during oral argument he had explored [the] theory during trial.” Indeed, as we have discussed in more detail above, considerable evidence about Child‘s medical condition was presented at trial. As the district court found, other witnesses testified that Child was suffering from a recurring rash and there was additional evidence to support Burnside‘s theory that her PTSD could have been caused by factors unrelated to sexual
abuse, including serious discord in the home, disturbing parental discipline, and Child‘s chronic rash.
¶33 Without providing concrete information identifying Child‘s former doctor and his potential testimony, Burnside cannot persuade us that the trial court was wrong in its conclusion that the doctor‘s purported testimony about a single incident regarding Child‘s rash “would merely be cumulative and reaffirm what the jury already knew.” In other words, by failing to demonstrate that “the evidentiary picture and the inferences drawn therefrom would not have been significantly different” if trial counsel had called this unidentified doctor and if the doctor would have testified as Burnside now asserts that he would have, Burnside has failed to demonstrate that any error of counsel prejudiced him. (See State v. Idrees, 2014 UT App 76, ¶ 16, 324 P.3d 651 (internal quotation marks omitted)); see also Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (explaining that in order to demonstrate that counsel‘s error prejudiced the defendant, “[t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceedings would have been different“).
C. Expert Witness Funding
¶34 Burnside also contends that his trial counsel was ineffective for not timely requesting funding for an expert witness to counter the State‘s PTSD Expert. On appeal, Burnside‘s entire argument on this issue is as follows:
Burnside‘s attorney knew that an expert was necessary to assist him in preparing for a complete and adequate defense. However, he did not make timely preparation to hire an expert to get funds from the county to pay for such expert services.
The State of Utah gave Burnside notice that it intended to call several witnesses. Burnside‘s attorney knew that a necessary part of the defense would be to call his own expert that could testify consistent with Burnside‘s theory of the case. On or about July 11, 2013, Burnside‘s attorney filed a Motion for Funds for Experts and
Private Investigator. The motion was denied because it was not timely. Consequently, Burnside had no witness to rebut the State‘s expert witnesses, especially [the PTSD Expert].
(Citations omitted.)
¶35 The briefing on this issue is inadequate because it does not “contain the contentions and reasons of the appellant with respect to the issues presented ... with citations to the authorities, statutes, and parts of the record relied on.”
¶36 At the evidentiary hearing, the court heard testimony from Burnside‘s trial attorney. Trial counsel testified that he had spoken with two experts about Burnside‘s case, but ultimately the funding, which had previously been assured by Burnside‘s family, was not made available. Trial counsel testified he therefore filed a motion asking the trial court to make funding available for an expert witness, which the trial court denied as being
untimely. In its ruling on Burnside‘s motion to arrest judgment, the trial court found that, Mr. Burnside fail[ed] to show how [his trial counsel‘s] failure to request funding for trial experts fell below [Strickland‘s] objective standard. The only witness called during the evidentiary hearing was [Burnside‘s trial counsel]. In order to sufficiently support his ineffective assistance of counsel claim, Mr. Burnside would need to call an additional witness, or present some other satisfactory evidence, demonstrating that expert testimony would be essential to his defense. Without that evidence for comparison, the Court cannot evaluate the likelihood the trial proceeding would have been any different. The Court cannot simply take Mr. Burnside‘s word alone.
¶37 The trial court concluded that “[e]ven if the Court were to determine the alleged errors fell below Strickland‘s objective standard, Mr. Burnside has failed to demonstrate how those errors would have changed the result of the proceeding, especially in light of Mr. Burnside‘s own admission to touching [Child] in her vaginal area.”
¶38 We agree with the trial court. Neither in the trial court nor on appeal4 has Burnside identified any expert that his trial counsel should have called or established what such an expert‘s testimony would have been. As a consequence, even if we assume that trial counsel‘s failure to timely move the court for expert witness funding was unreasonable, Burnside has not shown prejudice. He has not identified an expert or shown what that expert would have testified to that would have been reasonably likely to make a difference in the outcome, nor has he shown how a particular expert‘s advice to counsel would have resulted in more effective cross-examination of the State‘s expert witnesses. Accordingly, Burnside‘s claims of ineffective representation are speculative, and “proof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality.” Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993); see also State v. Millard, 2010 UT App 355, ¶ 31, 246 P.3d 151
II. Burnside‘s Remaining Claims
¶39 Burnside raises three other issues, claiming all three were plain error by the trial court. He claims two issues amounted to ineffective assistance of counsel as well. He contends that the court should have stricken the “entire testimony” of the nurse practitioner as “inadmissible hearsay” and that trial counsel should have objected to her testimony; that the court should not have allowed the State to play Child‘s CJC Interview during the detective‘s testimony because Child was thereby “allowed to testify twice during the trial“; and that “[t]he court did not properly record the proceedings in order for an adequate record to be preserved,” an error abetted by trial counsel‘s own failure to ensure that a proper record was made.
A. The Nurse Practitioner‘s Testimony
¶40 Burnside contends that it was plain error for the trial court to allow the nurse practitioner‘s testimony to be presented to the jury because it was inadmissible hearsay. He also argues that his counsel was ineffective for failing to object to her testimony. Burnside asserts on appeal, just as he did in his motion to arrest judgment, that the
nurse practitioner was “acting as a de facto law enforcement officer and not a medical health professional” and therefore her testimony did not qualify for admission under the hearsay exception for a statement made for purposes of medical diagnosis or treatment.
¶41 In its memorandum decision, the district court ruled that it was not plain error to allow the nurse practitioner to testify because her testimony “was admissible as an exception to the hearsay rule because the statements were pertinent to medical diagnosis or treatment.”5
During cross-examination, [the nurse practitioner] was asked whether or not she had inquired if anyone had “suggested bad or good touch terminology” to [Child] prior to the examination. [The nurse practitioner] testified that others had indeed talked to [Child] about good and bad touch. Mr. Burnside appears to have elicited the information in order to support an overarching defense theory that [Child‘s] statements may have been improperly influenced by outside sources. Thus, the Court was not called upon to make a determination as to admissibility because
Mr. Burnside decided to use the information in support of his defense.
(Citation omitted.)
¶42 On appeal, Burnside again argues that “it was plain error to admit [the nurse practitioner‘s] testimony” and that his counsel acted deficiently in not objecting to it. But an attorney‘s decision to forgo an objection as a matter of trial strategy cuts strongly against a finding of either plain error or ineffective assistance of counsel. See State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162 (concluding that trial counsel‘s failure to object to testimony was not ineffective assistance because it could have been part of a reasonable strategy); State v. Morgan, 813 P.2d 1207, 1211 (Utah Ct. App. 1991) (refusing to consider the merits of appellant‘s plain error argument because “it was within counsel‘s professional discretion to not object to testimony that would aid [trial] strategy“). Burnside has failed to address (or even acknowledge) the trial court‘s decision on this issue. See Allen v. Friel, 2008 UT 56, ¶ 4, 194 P.3d 903 (recognizing that the appellant has the obligation to challenge the basis of the trial court‘s decision and the burden to show error in that decision).
¶43 Nor has Burnside attempted to show that the court‘s factual findings in support of its decision were clearly erroneous. See R.B. v. L.B., 2014 UT App 270, ¶ 26, 339 P.3d 137 (“An appellant challenging a finding of fact bears the heavy burden of demonstrating that the finding is clearly erroneous and must do so by showing that the finding is without adequate evidentiary support or was induced by an erroneous view of the law.“). In particular, he has not challenged the court‘s factual findings that support a conclusion that in examining Child, the nurse practitioner was acting as a health-care professional and that Child‘s statements to her fell within the medical treatment hearsay exception. Nor has he challenged the trial court‘s finding that his trial counsel had a strategic basis for not objecting to the nurse practitioner‘s testimony. As a consequence, we are not persuaded either that the trial court committed plain error or that trial counsel acted contrary to reasonable professional stan-
dards in allowing nurse practitioner to testify as she did. See Morgan, 813 P.2d at 1211.
B. The CJC Interview
¶44 Burnside next contends that the trial court plainly erred by permitting the State to play the CJC Interview for the jury during the detective‘s testimony, when Child had already testified. Burnside asserts that “once the victim testified, the State of Utah [could not] use the video as a sword and have the ability to testify twice.” Burnside notes that “[r]ules of evidence prohibit the admissibility of repetitive and cumulative evidence” and argues that permitting the CJC Interview to be played after Child had already testified “place[d] an undue emphasis” on her “testimony over other witnesses.” (Citing
¶45 At the end of the first day of trial and after the jury was excused, the trial court asked each side to state how long they expected the presentation of any additional witnesses to take. It was at this point that the State responded, “I guess the final witness is going to be the detective, and the longest part of her testimony is going to be playing the approximately hour-long tape of [Burnside‘s] interview and possibly playing an 18-minute clip of [the CJC Interview]. That‘s our case.” Burnside‘s trial counsel responded, “We can still stipulate to that [CJC Interview] testimony.” To which the State replied, “Yeah, I think we‘re going to move to admit the CJC tape.”
¶46 In its decision on the motion to arrest judgment, the trial court concluded that it “need not determine whether or not the admission of the video in addition to [Child‘s] live testimony was plain error because Mr. Burnside stipulated to its use at trial.” The court went on to explain that it “will not entertain a plain error argument when Mr. Burnside stipulated to the very error he claims denied him of due process.” Further, the court found that the stipulation was “a strategic choice,” because
prior to the video even being shown to the jury, Mr. Burnside‘s trial counsel cross-examined [Child] and tried to elicit inconsistencies by referencing the video interview. Mr. Burnside cannot now reverse his
position after a verdict has been rendered against him and argue it was plain error for the Court to allow the video.
We agree with the trial court.
¶47 First, trial counsel invited any error by stipulating to admission of the CJC Interview. Accordingly, plain error review is not available to Burnside for this claim. See State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 (“[U]nder the doctrine of invited error, we have declined to engage in even plain error review when ‘counsel, either by statement or act, affirmatively represented to the [trial] court that he or she had no objection to the [proceedings].‘” (second and third alterations in original) (quoting State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111)).
¶48 And even if Burnside were entitled to plain error review, he has failed to prove that any error that might have occurred was obvious. See State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (“To prevail under plain error review, a defendant must demonstrate that [1] an error exists; [2] the error should have been obvious to the trial court; and [3] the error is harmful....” (alterations in original) (citation and internal quotation marks omitted)). As we have noted, the trial court found that counsel had used the video to demonstrate inconsistencies between Child‘s testimony and her prior statements at the CJC: “[P]rior to the video even being shown to the jury, Mr. Burnside‘s trial counsel cross-examined [Child] and tried to elicit inconsistencies by referencing the video interview.” The court therefore found that counsel‘s failure to object was not simply an inadvertent omission, but “a strategic choice,” a finding that Burnside has not challenged on appeal. It is not obvious error for a court to decline to intervene where there is a plausible strategic basis for counsel‘s decision to refrain from objecting to given evidence. See State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (“A district court is not required to constantly survey or second-guess [a] nonobjecting party‘s best interests or trial strategy and is not expected to intervene in the proceedings unless the evidence would serve no conceivable strategic purpose.” (alteration in original) (citation and internal quotation marks omitted)); State v. Hall, 946 P.2d 712, 716 (Utah Ct. App. 1997) (“We ... will decline to consider a defendant‘s plain-error arguments if the alleged errors reasonably resulted from defense counsel‘s conscious decision to refrain from objecting, or if defense counsel led the trial court into error.” (citation and internal quotation marks omitted)); see also State v. Brown, 948 P.2d 337, 343 (Utah 1997) (“If trial counsel intentionally fails to object, the trial judge is put in the untenable position of deciding whether to intervene and potentially interfere with trial counsel‘s strategy or face review for plain error.“).
¶49 Accordingly, we conclude that Burnside has not demonstrated that the trial court plainly erred in permitting the State to play the CJC Interview for the jury during the examination of the detective.6
C. The Inadequate Record
¶50 Burnside finally contends that the trial court erred when it “did not properly record the proceedings in order for an adequate record to be preserved” of the in-chambers voir dire of individual jurors and of a bench conference following the State‘s objection to trial counsel‘s question to Mother about Stepfather‘s alleged drug use. As these issues were not preserved by objection
¶51 There can be no question that the trial court erred in this respect. The responsibility of a trial court in what is expressly designated a court of record to ensure that proceedings are properly recorded is a point we made in the first year of this court‘s existence. Briggs v. Holcomb, 740 P.2d 281, 282-83 (Utah Ct. App. 1987). Since then, we have repeated time and again that all district court proceedings must be recorded, a precept that applies to conferences in chambers and at the bench, not just to more formal proceedings in open court. State v. Suarez, 793 P.2d 934, 936 n.3 (Utah Ct. App. 1990); see also Birch v. Birch, 771 P.2d 1114, 1116 (Utah Ct. App. 1989) (“As we have previously held, a record should be made of all proceedings of courts of record.“). In addition, though maintaining a record is primarily the obligation of the court, arguably trial counsel also has some responsibility to ensure that court proceedings are properly recorded to facilitate an effective appeal. Cf. State v. Litherland, 2000 UT 76, ¶ 16, 12 P.3d 92 (“[W]here, on direct appeal, defendant raises a claim that trial counsel was ineffective ..., defendant bears the burden of assuring the record is adequate.“) Thus, the failure to ensure a complete record of proceedings meets the standard for obvious error by the trial court and could amount to deficient performance by counsel, as well. Nevertheless we conclude that Burnside has not met his burden on appeal to show prejudice. See State v. Garcia, 2016 UT App 59, ¶ 29, 370 P.3d 970 (“Because both deficient performance and prejudice are requisite elements of a claim of ineffective assistance of counsel, failure to prove either element necessarily defeats the claim.“).
¶52 During voir dire, the State asked all potential jurors: “Are there any of you who
have either been a victim or[,] have ever been accused[,] or do you have a close friend or family member[s], someone close to you, who has been a victim or has been accused of sexual abuse of a child?” After a show of hands, the court stated, “I think under the circumstances because it is such a sensitive question in a person‘s background, I would invite each one of you to come in with the attorneys present in chambers, and we‘ll ask you a few questions and then follow through with that.” Venire members who had raised their hands were then called into chambers to be questioned individually. Apparently by inadvertence, no record was made of this part of the voir dire. Similarly, the State‘s objection to trial counsel‘s question to Mother regarding Stepfather‘s drug use led to a bench conference that was not recorded.
¶53 Burnside asserts that because of these missing portions in the record he is prejudiced in two ways. With regard to the jury voir dire, Burnside argues that “his due process rights have been violated because an adequate record was not preserved.” Specifically, he contends that, because the district court “did not properly record the proceedings,” “an adequate record was not preserved in order for him to know which potential jurors were objected to and whether potential problem jurors ended up on the jury panel.” And regarding the bench conference, Burnside claims that the lack of a record prejudiced “his ability to raise that issue on appeal.” He notes that, although “[o]ne can conclude that the ruling was against [him] because there were no additional questions asked regarding drug use and [Stepfather]‘s criminal activity,” the incomplete record “does not reflect what evidence [trial counsel] wished to introduce.”
¶54 Burnside is correct that “[d]ue process requires that there be a record adequate to review specific claims of error already raised.” State v. Prawitt, 2011 UT App 261, ¶ 8, 262 P.3d 1203 (citation and internal quotation marks omitted). “However, the ultimate burden is on a defendant to make certain that the record he compiles will adequately preserve his arguments for review.” Id. (citation and internal quotation marks omitted); see id. (“One who fails to
¶55 Burnside acknowledges that the absence of a record poses a hurdle for his claims on appeal. He concedes that because he does not have a record of the in-chambers voir dire he is unable to know whether he had a fair and impartial jury and that the incomplete record “does not reflect what evidence [trial counsel] wished to introduce” about Stepfather‘s purported drug use.7 But the burden is on the appellant to provide an adequate record, see State v. Davis, 2013 UT App 228, ¶ 92, 311 P.3d 538, and given the presumptions that apply in the absence of a complete record, Burnside simply cannot show that he was harmed by any error of court or counsel in the jury selection or by the court‘s sustaining the State‘s evidentiary objection.
¶56 And although on its face this may appear to create a Catch-22 for an appellant, the law does not leave a defendant helpless in a situation like this. For instance,
of the Utah Rules of Appellate procedure provides for supplementation of an inadequate record. See
¶57 Here, Burnside did not move for a remand under either rule in order to fill the gaps in the record. And when he did have the opportunity to do just that at the evidentiary hearing following his motion to arrest judgment, the result did not support his position on appeal. During that hearing, Burnside called only one witness, his former trial counsel. Counsel testified that he understood the importance of a fair and impartial jury and that he made his best efforts to select a jury that met those criteria. In fact, counsel testified that during the in-chambers proceeding, he and the prosecutor agreed that certain venire members would be stricken for cause. And when asked if he would have objected to any potential jurors he felt could not fairly hear the case, he responded, “Oh, yeah. Certainly.” With regard to the bench conference, he stated that although the State‘s objection to questioning about Stepfather‘s drug use had been sustained, he was able to introduce other evidence to support his argument that Child‘s PTSD could be accounted for by aspects of her life other than sexual abuse.
¶58 In its written decision, the trial court concluded with respect to the in-chambers voir dire, that Burnside “ha[d] failed to demonstrate that he was unfairly prejudiced,” and although “the Court [was] unable to
¶59 We agree with the district court. Burnside did not take advantage of the available means to ensure a record adequate for his appeal. Because Burnside has the ultimate responsibility to make sure that “the record he compiles will adequately preserve his arguments for review,” see State v. Johnson, 2006 UT App 3, ¶ 13, 129 P.3d 282 (internal quotation marks omitted), and because he failed to take any reasonable steps to meet that burden, we must presume the regularity of the proceedings and the effective performance of counsel.
¶60 Accordingly, because Burnside cannot show that he was actually prejudiced by the failure to make a record of either the in-chambers voir dire or the bench conference on the State‘s evidentiary objection, his related claims of plain error and ineffective assistance of counsel fail.
CONCLUSION
¶61 Burnside‘s claims on appeal largely mirror his claims in his motion to arrest judgment. After reviewing each, we hold that the trial court did not err in denying the motion. Specifically, we are not persuaded that trial counsel provided ineffective representation or that the court plainly erred in a way warranting relief for the judgment of conviction. Accordingly, we affirm.
STATE of Utah, Appellee, v. Jacob Lawrence CHRISTENSEN, Appellant.
No. 20140720-CA
Court of Appeals of Utah.
Filed November 10, 2016
2016 UT App 225 | 386 P.3d 588