STATE of Utah, Plaintiff and Appellee, v. Dwaine Attila COSEY, Defendant and Appellant.
No. 930131-CA
Court of Appeals of Utah
April 21, 1994
1177
CONCLUSION
The Agreement between the parties in this case—whether a lease or a sale—was a secured transaction by operation of statute. Accordingly, the remedies for breach of the parties’ agreement are found in UUCC article 9. We therefore remand for further proceedings consistent with this opinion.
BENCH and DAVIS, JJ., concur.
cured party who retains chattel for excessive period of time without disposing of it is not permitted to profit by failure to furnish requisite notice).
We do not decide these issues today as we remand this case for further proceedings.
Jan Graham and Joanne C. Slotnik, Salt Lake City, for plaintiff-appellee.
Before ORME, Associate P.J., and BENCH and RUSSON, JJ.1
ORME, Associate Presiding Judge:
Defendant Dwaine Cosey appeals his conviction for rape, a first degree felony, in violation of
FACTS
We recite the facts in the light most favor-able to the jury‘s verdict. State v. Hamilton, 827 P.2d 232, 233-34 (Utah 1992). In the early hours of March 20, 1992, the victim in this case answered a knock at her door. Outside the door was defendant Cosey, an acquaintance of the victim, who subsequently entered the apartment. The victim testified that after a brief conversation on the couch, she became nervous as a result of defendant‘s comments and asked him to leave. Instead, defendant tried to kiss her, and when she again insisted that he leave, he grabbed her and started dragging her toward the bedroom. On the way, defendant put a knife to her throat, forced her into the bedroom and onto the bed, and proceeded to undress her. According to the victim, defendant then raped her. Defendant admitted that he had sex with the victim, but claimed that it was consensual.
Defendant was charged with aggravated sexual assault and convicted by a jury of the
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first claims that he was denied his constitutional right to the effective assistance of counsel. See
Defendant must meet a two-part test to prevail on his claim. First, defendant must show that counsel‘s performance “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). However, to do so, defendant must overcome a strong presumption that counsel‘s performance fell “within the wide range of reasonable professional assistance” and that “under the circumstances, the challenged action ‘might be considered sound trial strategy.‘” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Accord State v. Templin, 805 P.2d 182, 186 (Utah 1990). Second, defendant must show that counsel‘s deficient performance was prejudicial to his defense. Strickland, 466 U.S. at 687. Defendant can meet the prejudice requirement only by showing that “but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Accord Tennyson, 850 P.2d at 466.
Prior to the presentation of evidence, the trial court conducted voir dire of prospective jurors to determine their ability to be fair and impartial. At the conclusion of its questioning, the court asked if there was anything further that the jurors believed might affect their judgment. Juror Hodges informed the court that for the past sixteen years she had worked as a diversion officer at the Salt Lake City Police Department and had both an office there and at the County Sheriff‘s Department. In response to further questioning by the court, Juror Hodges responded that her circumstances would not affect her ability to be fair and impartial. The court was satisfied with her response, defendant‘s trial counsel did not challenge her, and she served as a juror.
Defendant now claims that trial counsel‘s failure to challenge Juror Hodges for cause constituted ineffective assistance of counsel because her statements clearly showed bias. While we fail to see how Juror Hodges’ responses establish any actual prejudice on her part, it seems even more tenuous to claim that the failure to challenge her for cause constituted ineffective assistance of counsel. As noted by the Fifth Circuit, “[t]he selection of a jury is inevitably a call upon experience and intuition. The trial lawyer must draw upon his own insights and empathetic abilities. Written records give us only shadows for measuring the quality of such efforts.” Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir.1989), cert. denied, Romero v. Collins, 494 U.S. 1012 (1990).
This court has also recognized the difficulty of trying to assess what counsel was thinking during jury selection, “because of our inability, on appeal, to view the jurors and assess their potential bias. Only those present, the court and counsel, have that advantaged view.” Ellifritz, 835 P.2d at 177. Further, “the transcript reveals nothing about [the juror‘s] demeanor or other intangible characteristics that constitute the collage of attributes attorneys assess in choosing jurors. For all we know [he or she] was the most attentive juror, or the only one who glanced disparagingly at the prosecution or sympathetically toward the defendant.” Tennyson, 850 P.2d at 469. Our review of counsel‘s performance “is inherently ham-
Even when trial counsel allows the ultimate selection of a juror who initially appeared biased on voir dire, “courts deny the ineffective assistance claim unless counsel‘s actions could not conceivably constitute legitimate trial tactics.” Tennyson, 850 P.2d at 469 (citations omitted). Consequently, at least where the attorney has actively participated in the jury selection process, as in the case before us, we cannot see how counsel‘s2 action could give rise to a successful ineffective assistance claim. See Villarreal, 857 P.2d at 955. Given the fact that we are ill-equipped to determine what actually occurred, “we ‘will not second-guess a trial attorney‘s legitimate use of judgment as to trial tactics or strategy.‘” Tennyson, 850 P.2d at 470 (quoting State v. Pascual, 804 P.2d 553, 556 (Utah App.1991)).
Thus, absent at least some showing that trial counsel has failed to reasonably participate in the selection of jurors, we hold that an ineffective assistance claim premised on the failure to challenge any particular juror for cause cannot “overcome the strong presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment” in the selection process. State v. Bullock, 791 P.2d 155, 159-60 (Utah 1989), cert. denied, 497 U.S. 1024 (1990).
EXCLUSION OF THE VICTIM
Defendant‘s second claim is that the trial court abused its discretion by not ex-
Defendant claims that the trial court abused the discretion afforded it by
While we doubt that the trial court abused its statutory discretion in allowing the victim to remain in the courtroom,
ADMISSION OF EVIDENCE
Finally, defendant argues that the trial court erred in admitting testimony of the victim‘s mother concerning the victim‘s behavior following the incident. Where the underlying facts are not in dispute, we review the trial court‘s decision to admit evidence under a correction of error standard. State v. Ramirez, 817 P.2d 774, 781-82 (Utah 1991); Provo City v. Warden, 844 P.2d 360, 365 (Utah App.1992). See also State v. Thurman, 846 P.2d 1256, 1270-71 & n. 11 (Utah 1993).
Defendant claims that the mother‘s testimony was irrelevant to the central issue of whether the victim consented to the sexual encounter, and that even if relevant it was substantially more prejudicial than probative. The State argues that the evidence was relevant to show that the victim had suffered a traumatic experience, thereby bolstering her testimony that she had been raped.6
We disagree with defendant‘s claim that the mother‘s testimony was irrelevant or un-duly prejudicial. Evidence of a drastic change in the victim‘s behavior is relevant circumstantial evidence that a traumatic ex-perience such as rape has occurred. See State v. Reser, 244 Kan. 306, 767 P.2d 1277, 1279 (1989) (reasoning that victim‘s behavior subsequent to reported assault is relevant corroborative evidence). Any doubts raised by the defense concerning whether or not the incident caused the change concern the weight that should be accorded the evidence, not its admissibility.7 Nor was the evidence so gruesome, shocking, or sentimental as to be unduly prejudicial. See State v. Maurer, 770 P.2d 981, 984 (Utah 1989); State v. Bartley, 784 P.2d 1231, 1237 (Utah App.1989). In fact, the mother‘s testimony was quite limit-ed, and relatively insignificant in the context of the evidence as a whole. Accordingly, we hold that the trial court did not err in admit-ting the mother‘s testimony.
CONCLUSION
Trial counsel‘s failure to challenge a partic-ular juror for cause did not constitute ineffec-tive assistance of counsel in this case. In fact, where counsel actively participates in jury selection, we cannot foresee a successful claim of ineffective assistance for failure to challenge a particular juror, given the inher-ent difficulties in reviewing the decisionmak-ing process, and the strong presumption that counsel‘s performance falls within the wide range of reasonable professional assistance. Nor did the trial court abuse its discretion in refusing to exclude the victim from the court-room after testifying, but instead was re-quired by law to allow her to remain. Final-ly, we conclude that the trial court did not err in admitting testimony concerning behav-ioral changes in the victim following her as-sault, for the purpose of showing that she had suffered a traumatic event. Accordingly, defendant‘s conviction is affirmed.
RUSSON, J., concurs.
BENCH, Judge (concurring in part, dissenting in part):
I concur in the main opinion‘s treatment of the issues involving the exclusion of the vic-tim and the admission of evidence. Howev-er, I respectfully dissent from the main opin-
In Garrett, we held that we can entertain an ineffective assistance of counsel claim on direct appeal “only if the record is adequate to permit a decision.” Id. at 580. We further held that a “trial record is adequate only if ‘we are not aware of any evidence or arguments which might be made that [are] not now before us.‘” Id. (quoting State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991)). Garrett claimed, among other things, that jury instructions presented by his trial attorney were erroneous. Because we could look to the record to determine the adequacy of the instructions given to the jury, we addressed the ineffective assistance claim on direct appeal. Id.
Garrett also claimed, however, that his tri-al attorney was ineffective in failing to object to the prosecution‘s use of its peremptory challenges in a manner he claimed was ra-cially motivated. Id. at 581; see Batson v. Kentucky, 476 U.S. 79, 89-92 (1986) (racially moti-vated peremptory strikes are unconstitution-al). In analyzing this claim, we stated:
We do not know from the record before us whether the prosecution in fact had race-neutral reasons for removing the po-tential jurors because defense counsel did not object. Nor do we know for certain whether defense counsel‘s failure to object to strikes was deficient performance or trial strategy. Defense counsel may have had [juror language deficiencies] in mind in not objecting to the prosecution‘s re-moval of the two potential jurors. It is also conceivable that perceptions of inat-tentiveness or a lack of sympathy towards defendant—or any myriad of intangible factors—could prompt competent defense counsel to forego asserting a Batson chal-lenge. Given the presumption that de-fense counsel was acting properly, we must assume that defense counsel also wanted these potential jurors removed and there-fore did not raise a Batson challenge as a matter of strategy. Any evidence to the contrary is simply not in the record before us. The record is therefore inadequate for us to find on direct appeal that counsel‘s performance was objectively deficient.
Id.; see also Humphries, 818 P.2d at 1029 (generally ineffective assistance of trial coun-sel claim “cannot be raised on [direct] appeal because the trial record is insufficient to allow claim to be determined“).
The record in the present case is similarly deficient as to why defense counsel did not challenge Juror Hodges. The main opinion acknowledges the inadequacy of the record. Nevertheless, in direct violation of Garrett and principles of stare decisis, the main opin-ion decides the merits of defendant‘s claim. The main opinion, echoing Garrett, recog-nizes that
[o]ur review of counsel‘s performance “is inherently hampered by our necessary reli-ance on only the lifeless transcript to as-sess the dynamic and highly judgmental process of jury selection.” Accordingly, we could only speculate as to what trial counsel was thinking when selecting a par-ticular juror, or what effect that selection would play in counsel‘s overall strategy or plan. Such speculation is manifestly inap-propriate, given the strong presumption that counsel‘s behavior was the product of trial strategy rather than ineptitude.
See main opinion, at 1179-1180 (citations omitted). The main opinion goes on to state that “[g]iven the fact that we are ill-equipped to determine what actually occurred, ‘we will not second-guess a trial attorney‘s legitimate use of judgment as to trial tactics or strate-gy.‘” Id. at 1180 (citations omitted). This is precisely the reasoning in Garrett. Because we are “ill-equipped” to decide what actually occurred at trial, we cannot address this issue on direct appeal.
Perhaps even more troubling than the fail-ure to follow stare decisis is the effect the main opinion‘s holding will have on defen-dants who may have legitimate ineffective assistance claims. The main opinion argues that, where the record on direct appeal is
Because of the inadequacy of the record, we cannot decide defendant‘s ineffective as-sistance of counsel claim on direct appeal. Under Garrett and the principles of stare decisis, we should decline on direct appeal to reach the merits of an ineffective assistance of counsel claim where the trial record is inadequate.