*1 nity gather whatever evidence he can and that the defect was was defective mobile Likewise, injuries.” Ford should support of his Howev- of his claims. proximate cause car, er, Drys- every opportunity without the given asserts that reasonable Ford be the elements of “cannot establish dale evidence it can to rebut gather whatever car is essential argues that the claim.” Ford do so claims or show that cannot those Drys- things as whether to determine such point, ear. At that a motion for without the roof, whether actually hit the head dale’s judgment may appropriate, and summary be belt, wearing a seat Drysdale was court will be better able to deter- the trial compressed over springs in the seat of the absence of the car. mine the effect headroom, thereby increasing the years Therefore, think that the trial we headroom would increased or whether summary judgment granted motion Ford’s Drys- in this case. even made a difference prematurely. hand, dale, that the car the other asserts trial court we conclude that the Because necessary his claims and to sustain is summary granting Ford’s motion for erred design “can be argues alleged defect Drysdale’s judgment, need not address we testimony” relating to oth- proven by expert arguments regarding the trial court’s find- Pintos. er 1980 Ford ings fact. of Drysdale cannot make claim that Ford’s the car cannot prima out a facie case without CONCLUSION discovery complete in until is be determined then, argument this case. Until light foregoing, In we reverse the theory. are not convinced that merely a grant trial court’s of Ford’s motion for sum- Drysdale can possibility that there is no pro- for further mary and remand evi- without the car. Much prove his case ceedings opinion. with this consistent car itself that other than the dence exists in this case. Such may prove to be relevant ZIMMERMAN, C.J., STEWART, specifications vehicle of evidence includes the DURHAM, C.J., and HOWE and Associate Pintos, existing Ford Pin- Ford all 1980 JJ., concur. measurements, tos, Drysdale’s body size Standards, Safety Motor Vehicle Federal testing, modeling and crash
computer the car and
police report, photographs of High- by the Utah accident scene taken Drysdale nor has
way Patrol. Neither Ford car, examining and both benefit prejudiced equal-
parties appear to be all, by Yet on the basis ly, if at its absence. Utah, Appellee, Plaintiff and STATE of only, Drysdale sub- of the available evidence trial court three affidavits mitted to the Drys- opinions supporting experts expressing TAYLOR, Defendant Lester Von all 1980 Ford Pintos are claim that dale’s Appellant. defective design and that such defective No. 910496. injuries. Drysdale’s design contributed Nevertheless, despite equal access to all of Supreme Court Utah. evidence, chosen not to submit Ford has testimony use the any of its own expert 24, 1997. Oct. way to refute other Rather, merely Ford as- Drysdale’s claims. support Drysdale cannot his claims
serts that claims cannot defend those
and that Ford summary judgment
without the car. Before court, Drysdale by the trial
is considered every opportu- reasonable
should be afforded *3 Voros, Graham, Gen., Atty. Frederic J.
Jan Gen., Adkins, Jr., Atty. Robert W. Asst. Christiansen, Coalville, City, Terry L. Park appellee. plaintiff and for City, Savage, Park for defendant Bruce J. appellant. DURHAM, Justice: capital appeal from a convic- hear this 78-2-2(3)(i) of the pursuant section Taylor Defendant Von Lester Utah Code. guilty counts of murder pled to two sentencing hearing, the 1991. After imposing the death returned two verdicts Taylor appealed the sentence and sentence. attorney, Elliot Le- subsequently fired appeal with new Taylor maintained vine. rep- counsel, inadequate asserting claims In when the mat- at trial. resentation time, the first we this court ter came before a rule trial court to hold it to the remanded assistance 23B on claims. We claims and collateral hearing and results of that now have the appeal. issues raised treat all underlying crimes are as facts of the 1990, Taylor left In December follows: he housed while halfway house where was aggravated imprisonment parole after Taylor and Edward burglary. Subsequently, family Tiede cabin Deli broke into the Steven Utah, Tiedes Springs, while the Beaver near cabin, City. Lake Once were Salt told him that he Taylor a friend and called Shortly people.” “to shoot some intended alleged: person one thereafter, ipation in the crimes cabin Mrs. Tiede arrived murders; people Taylor multiple saw daughter. with her mother and her witnessed aggravated attempted murder guns, with Deli confronted them apprehended police officer Taylor kidnapings; her mother. shot Mrs. Tiede and daughter Taylor Taylor the crime scene with pray, started to fled When Mrs. Tiede’s found, con- good hostages. The trial court also her it no because told would do testimony, Levine did trary worshiped devil. Later that after- penalty phase noon, not tell that the Mr. and another of the Tiedes’ Tiede the crimes for which Defendant evidence of children arrived at cabin. exclude During plea dis- point, charges dropped. gun held stole been Mr. Tiede $105 him, cussions, Taylor present, the court ex- shot him in the face with bird shot *4 to rule on try- plicitly that it would have possibly at once twice. After stated least and house, Tiede, admissibility to ing the of the evidence relevant to set fire to Mr. and the by penalty phase. at dropped charges and fled the the garage, Taylor the Deli snowmo- car, prepared to take the case to trial by taking then the Tiede Levine had bile and two so; Taylor he police appre- to do did daughters with them. The and advised Taylor day. Taylor plead guilty. pled Mr. Taylor pressure Deli later that to hended and put to voluntarily because he did not want Tiede survived the attack. family through a trial and he and the victims charged Taylor with counts police The two testify against to Deli. did want degree, in first one of criminal homicide the attempted criminal homicide count of “philosophy,” the regard to Levine’s With arson, two degree, aggravated first counts closing argument found in his trial court robbery, aggravated kidnaping, aggravated Levine assert a which conflicted position did theft, signal respond failure to an officer’s to attorney. his role as In that with Tay- stop, aggravated to and assault. When help- argument, Levine his role as described guilty agreed plead lor to to two counts guilt ing their and take the defendants admit homicide, dropped the of criminal the State Nonetheless, appropriate punishment. charges. other testimony at Levine’s the rule court believed differ from 23B that his real beliefs ad- appeal only raises the issues This he those at trial and that made he described hearing, namely, 23B at the rule dressed gamer jury’s at to the statements trial Levine, Taylor’s attorney, initial leniency. encourage trust its Further- and provided assistance of counsel and more, provide any Taylor failed to evidence prejudiced Taylor doing so the outcome. to actually encouraged plead him Levine multiple finding ineffec- grounds for asserts guilty. The court also that Levine’s found (1) Levine misin- tive assistance of counsel: Taylor prejudice did not because it statement plea, guilty him of a formed about effect range fell within the broad of reasonable guilty plead him when he would which led to professional strategy. about (2) so; have done otherwise at- philosophy about the role of the defense Concerning resulting in- conflict from duty represent torney with his conflicted adequate compensation, the court found that Taylor Taylor plead guilty and caused Taylor’s lawyer Levine as under served (3) involuntarily; compensa- the minimal provide County Summit contract with Taylor’s representa- tion Levine received years criminal For two defense services. depriving a conflict of interest created $24,000. services, Levine As the received Taylor of counsel. of effective assistance county, legal defender for the Levine defend- Taylor suggests that the various errors also pursued courts and ha- ed clients various in cumulative at the resulted error Levine pri- beas claims. Levine also maintained a rendering phase, the sentence arbi- that, during practice he vate the months trary capricious. Taylor, represented provided eighty to nine- gross spent Following hearing, ty percent trial of his income. the rule 23B percent of time prosecution present- approximately sixty-nine found that the January May Tay- Taylor’s partic- between 1991 overwhelming ed (1) analysis: defendant two-part under a that time fifty percent of spent He lor case. performance counsel’s with demonstrate that Taylor and consultation “ money objective of reason- trial court found an standard parents. The ‘fell below (2) income and that his absent matter to Levine must show that did not ableness’ case. in this errors, not affect his decisions chance did a reasonable he had counsel’s errors undermine prevail, and thus the Levine chose Taylor’s claims is that ofOne Templin, outcome. State confidence exam of pursue psychological not to (Utah 1990) 182, (quoting P.2d 186-87 would thought further exams because Levine 688, 668, Washington, 466 U.S. Strickland already per- exams prove fruitless and the (1984)). 80 L.Ed.2d sanity competency 104 S.Ct. to determine formed Tay- performance, “‘a jury, hurting reviewing counsel’s to the be disclosed When previous strong presumption reports indulge case. The court must lor’s Tay- regarding range information exams included falls within the -wide conduct counsel’s ” witchcraft, as in Satanism lor’s interests Id. assistance.’ professional reasonable drug abuse. One previous well S.Ct. (quoting Strickland at 186 say that did psychological evaluations 2065). personality disor- signs of antisocial showed features, SCOPE but ABOUT personality I. MISINFORMATION with schizoid der *5 negative infor- that the PENALTY PHASE Levine determined OF Taylor’s and behavior character mation about specifically Taylor claims that Levine sug- from any potential benefit would offset hearing sentencing would him that the told personality a disor- the existence of gesting dropped the all evidence about exclude decision that Levine’s The court found der. homicide, aggravated attempted charges of testimony fell within health to omit mental arson, kidnaping, aggravated aggravated professional range of reasonable the broad theft, Taylor argues that the robbery, etc. Taylor’s did not obtain judgment. Levine finding Levine did factual trial court’s Taylor about his ask school records but did likelihood of Taylor about the not misinform failed to obtain days. Levine also school entering into preventing this evidence from records, juvenile court his Taylor’s health clearly erroneous. penalty phase was the records, family’s psychological rec- his findings of a trial court’s We consider Taylor’s friends interview He did not ords. they against “are clearly mother erroneous when than his fact family members other or hand, has v. State Taylor, weight on the other clear of the evidence.” and father. the 1987). (Utah 191, if Levine Walker, Evi provide evidence failed to 743 P.2d 193 suggested investi- of the performed 23B presented at the rule dence have trial would outcome of the gations, correctly the finding that Levine supports the suggest even what He does not differed. scope pen Taylor the of the about informed have revealed investigation would such he told alty phase. Levine testified improved his how the revelations phase would resem Taylor the jury. found that The court position with the closely guilt phase but that very ble below the not fall performance did Levine’s from intro prevent the State possibly could threshold. reasonableness inflammatory photographs as ducing certain pro transcript plea of the The evidence. findings court’s defer to a trial un Levine’s version and ceedings supports v. hearing. State a rule 23B of fact after contrary. testimony to the dermines (Utah Ct.App. 1198 Huggins, 920 P.2d Taylor prose the hearing, heard plea At the facts, 1996). decide we must From these evi to introduce say that it intended cution assis Taylor received reg charges. Levine of the dismissed dence in violation of Sixth tance of object to such evidence. intent to istered his Constitut of the United States Amendment if satisfied by he was asked When Sixth This court reviews id. ion.1 See Taylor responded performance, questions with Levine’s ineffective assistance Amendment Utah Constitution. a claim under the Taylor not advance 1. did 686 guilty fact
affirmatively
during
Taylor
plead
er told
and in
two occasions
plea
discourage
doing
him from
so.
proceedings. Although
judge
could tried to
Moreover,
Taylor himself testified that
Taylor
have found
at the
23B
credible
rule
reasons,
personal
not,
pled guilty for
not because
enough
hearing, he did
Thus,
alleged
attorney’s
supports
advice.
judge’s finding
prevent
us
Hence,
conflict
not undermine our confidence
holding
clearly
does
erroneous.
guilty plea. Like-
the voluntariness of the
Taylor
provide
Levine did not misinform
wise,
theory
ex-
the views
man-
ineffective assistance of counsel
jury argument
pressed in his
constituted
ner.
strategy under
reasonable
the circumstances
plausible;
to see
Levine wanted the
II.
IN
CONFLICT
DEFENSE ROLE
lawyer
him as
committed to truth
philos
claims that Levine’s
justice, with client who was honest and
ophy
attorney
about the role
a defense
deserving
repentant and
thus
duty
represent Taylor,
conflicted with his
penalty.
death
resulting
involuntary guilty plea
in an
only
significant
area where a
prejudicing
penalty phase.
the outcome of the
“
question
concerning
arises
Levine’s motives
The right
encompasses
right
to counsel
‘the
do
has to
representing
to counsel free from conflicts of interest.’”
pursue mitigation
failure
At
Webb,
evidence.
(Utah.Ct.App.
P.2d
State v.
72
phase
1990)
sentencing
of a
crime
Strickland,
(quoting
U.S.
Utah,
weigh
fact
the miti
finder must
2064),
S.Ct.
denial
habeas
sub
aff'd.
gating
against
aggravating
fac
factors
Veur,
by
nom.
Der
P.2d 898
Webb Van
tors, imposing
penalty only if the
the death
(Utah.Ct.App.1993)
Der
Webb Van
outweigh
Cir.1995).
aggravating circumstances
the mit
Veur,
(10th
dence a Amendment uncovered they absolutely perform Taylor. citing Despite but must one. as an advocate for Amendments, Taylor Eighth Fourteenth III. OF INTEREST CONFLICT He argues only Amendment claim. the Sixth FROM MINIMAL RESULTING has, identify quite simply, failed to deficien- COMPENSATION performance that had cies Levine’s Taylor suggests Levine’s also that of apparent effect on outcome his compensation per created se con minimal Taylor pled guilty to trial. We note that preventing giving flict him of interest from and has never been able horrendous crimes Tay Taylor adequate assistance counsel. suggest mitigating or undis- to circumstances compensation flat argues lor that fee encour favorably might have closed evidence which spend ages lawyers to as little on a case time jury. requires the influenced the Fairness possible promote plea bargains. and to that Levine not have a lot observation did acknowledge problem that the of inade with in his defense effort. work defending quate for cases resources closing argument major tar- Levine’s But significant potential for harm.2 creates Taylor sug- get Taylor’s criticism. As Taylor allege, identify, failed to let alone has closing gests, argument was not Levine’s particular support anything in this case to began persuasive Levine model rhetoric. theory that his At no defense suffered.3 telling story Native about how American say, time can’t to have did Levine “We afford into the but then failed to death came world tested,” you psychologically anything story argument. connect Levine Moreover, personally had the kind. Levine jury directly spare never asked the during income other sources substantial from life, say although that “the client’s he did period represented Taylor knew he killing stop told the compensation he has to somewhere.” He could obtain extra county Taylor balancing jurors mitigating aggrava- if needed. did not introduce regarding other on ting extremely demands meaningfully was diffi- factors point inadequacies time or they if impossible cult not but that had to do time this infor spent on case. Without anyway. emphasized him- He mation, accept court’s we lower thought “gross” self his own crimes were and re assessment Levine’s income repeatedly “vile.” He reminded the strategy efforts sources did affect his Taylor, generally, like did not criminals Hence, in this case. under the conflict mentioned, “you I.” think like He but above, part II interest standard discussed on, only mitigating did not elaborate Taylor has failed to demonstrate an actual had, i.e., youth factors relative interest. conflict of Overall, and clean record. Levine did not give performance. a virtuoso
IV. CUMULATIVE ERROR Nevertheless, posi we are in a violated claims *8 Sixth, every closing to in a Eighth, and Fourteenth tion review statement Vick, Douglas preparation particular 2. See W. Under- Id. This becomes Poorhouse Justice: lack of Arbitrary ly apparent sentencing proceedings Indigent in where at Services and funded Death Defense Sentences, 1995). (Fall torneys present mitigating to that fail evidence 43 L.Rev. Buff. 329 403-04; Anthony does Id. at also Pa- attorneys exist. see compensation capital Poor for defense Smith, duano & A. The Clive Stafford Unconscio poor attorneys appears to attract as evidenced nability Wages Appointed Paid Sub-Minimum disciplinary action and for the rate of disbarment of Cases, 281, Rutgers Capital Counsel 43 L.Rev. in attorneys in at 398. these various states. Id. (1991) (examining statutorily 283 set Also, many capital attorneys general lack defense attorneys for fees defense remunerate training experience and the have not received lawyers losing poorly profitable more so that is in the most needed to defend a client "one of doing "everything possible prevent to than a specialized practice fields in law.” of American sentence”). guilty verdict and death Furthermore, Id. at because of the min- 398-99. attorneys spend pay, imal fail to the time often prepare efficacy 402-03. needed to Instead, for a case. Id. at 3. We make no about the of this they economically, argument order survive with more to in other cases evidence system-wide challenge. on other cases that also demand time. in a take
689
case,
jury
explained to the
In this
it was
determine whether
capital ease to
duty
mitigating
the
fac
and reiterated
previously, an
its
enough. As
persuasive
stated
told
youth
prior
and
clean record. He
only be “reason
attorney’s performance need
tors —
prison
is “a
186-87,
jurors that life
tortuous
the
able,”
the
Templin,
P.2d at
and
805
existence,”
Strickland,
to
a
broad,
perhaps
suggest would be
range of
is
reasonableness
punishment. Compared
Ham
to
suitable
at 2065. In the
at
104 S.Ct.
466 U.S.
Wade,
and
lack
and
these factors
the
cases,
monds
held that
following
courts have
significant
representa
in his
failings
of other
attorneys’ closing arguments did
meet
effective,
provided
suggest that Levine
tion
of coun
the standard of effective assistance
exemplary,
of
Hammonds,
assistance
counsel.
albeit
In
425
sel.
United States v.
(D.C.Cir.1970), the court found
F.2d
impact
of the
of
An accurate assessment
errors,
totality
the
and
that “the
of
omissions
jury in
closing argument
penalty
on
the
closing
particularly
argument,
the futile
extremely
At
point,
difficult.
lack
clearly
proa
forma defense and a
reflect
facts,
jury
all the
has heard all the
the
knows
adequate representation
preparation
of
witnesses,
applicable
has
the
received
attorney’s argu
of
and trial
the case.” The
jurors may already have
Some
instructions.
primarily of
ment
Hammonds consisted
argument
up their minds. Oral
builds
made
to
telling
jury
did
intend make
the
he
attempts
base
information and
to
on this
asking
jurors
case
the
summation of the
ju-
hearts
minds of the
operate
the
them to
to
what the court told
do
depends greatly on the
rors. Persuasion
justice.
He
Id. at 602.
would constitute
interpersonal dynamic
between
quality
presumption
of inno
failed to mention
jury.
There are nuances to
offense,
cence,
the rea
the elements
that cannot be reflected
oral communication
standard,
linchpin
and the
doubt
sonable
Levine, having
printed page.
on the
become
Id.
defendant’s lack
intent.
the case—the
jurors, may
acquainted
have decided
Calderon,
In
at
F.3d
603. Wade
advocacy
aggressive
alienat-
would have
(9th Cir.1994), the
held that de
court
them;
may
or offended
have been
ed
in
closing argument,
counsel’s
which
fense
low-key,
ap-
convinced that
minimalist
jury that
the defendant
telling
cluded
sympathy.
their
ac-
proach would elicit
a death sentence because
benefit from
knowledge
argument
is so mini-
misery,
put
out of his
erased
it would
him
represent
to
the lower threshold of
mal as
ineffectiveness.
any doubt as to counsel’s
and that if he had had
reasonableness
argument
that such an
caused
The
held
to work with
the evidence or
more
“
process
in the adversarial
‘breakdown
client,
result.
might
we
reached another
produce just
system
our
counts on
of the crime and
the nature
substantial
Given
”
Strickland,
(quoting
466 U.S.
Id.
results.’
however,
against Taylor,
even
2068).
696, 104
at
S.Ct.
likely
closing argument is not
to have
finest
penalty.
few
him from the death
saved
cases,
representa-
elements of
In both
operating in this
mitigating circumstances
closing argument demonstrat-
other than
needed
offset
fall well below
level
case
(list-
at 603
ineffectiveness. Hammonds
ed
of his crimes.
In our
the vicious character
including
appear
failure to
ing other factors
understatement of Levine’s
judgment,
dire, make
arraignment, to conduct voir
argument
closing
did not lead
the death
(dis-
statement, etc.);
atWade
opening
client.
cussing
about child
failure to remind
*9
abuse,
testimony by de-
inflammatory
use of
CONCLUSION
fendant,
twice-rejected multiple per-
of
reuse
noted,
Tay-
Nonetheless,
representation
Levine’s
of
both courts
As
sonality theory).
attorney
argu-
not illustrate ideal defense
closing
lor does
the deficiencies of
found
however,
Taylor,
not the ideal
repre-
was
to make the
behavior.
ments to be so serious as
Taylor voluntarily pled guilty to
sentation,
question,
and
defendant.
beyond
604;
committing
provoca-
without
heinous crimes
Wade
Hammonds
prejudicial.
irrefutable,
tion,
had
detailed
and the State
1324.
to know
priate
possible
The
but
is not
penalty,
of those crimes.
chances that
de-
have been
had
might
would
fared
better
the what
discovered
have
had
attorney
country
job.
his
best criminal defense
fense counsel done
perfect argument are
For
made the
slim.
clearly
Furthermore,
counsel
reason, Taylor
prejudice
show
cannot
repre-
disqualified from
should
been
have
Similarly,
performance.
related
senting
and
de-
any other
defendant
claims,
regard to
conflict of
interest
of his failure to adhere to
fendant because
Taylor failed to show an actual conflict. The
professional
of com-
fundamental
standards
trial court is affirmed.
Holland,
petence
v.
and conduct. See State
(Utah 1994) (discussing and
Washington, 466 104 S.Ct. U.S. (1984); Templin,
L.Ed.2d State (Utah 1990).
P.2d 182 “[djefense majority opinion
The states that
attorneys absolutely perform” ...
“mitigation workup.” not That was done in majority opinion this case. characteriz- Utah, Appellee, STATE Plaintiff mitigation investigation es defense counsel’s “very “adequate.” limited” I can- but Id. Lynn agree adequate. Jeffrey CARRUTH, it was Defense not Defendant in-depth Appellant. counsel did conduct an investi- history gation psychological of defendant’s No. 960714-CA. It simply and condition. sufficient attorney knew some of about defendant’s Appeals Court Utah. psychological problems, childhood his learn- Oct. 1997. disorder, ing fam- substance abuse possibly ily. All those factors others may seriously affected defendant’s explored simply were
character way
meaningful purpose providing for the weigh in evidence that would favor of a
some may It nothing
life sentence. be adequate mitigation
have come from an
workup persuaded that would have *10 appro- a different as to
reach conclusion