State v. Tyler

Utah, Appellee, Plaintiff STATE of TYLER, Douglas Defendant

James Appellant.

No. 910118. of Utah.

Supreme Court 31, 1993.

March Tyler Tyler

Ms. hit awith baseball bat. her, Tyler Tyler Ms. testified that told your kill pay, dog, “You’ll I’ll and I’ll burn buy your house.” He then left to some beer. Tyler neighbor’s apart-

Ms. went her police. ment and called the Before arrived, Tyler Tyler Ms. return saw alley apart- and walk down an toward her arrived, responding ment. The to, what Officer Richard Walton testified reported by dispatch, an “unwanted guest accompanied situation.” Walton Ms. Tyler apartment. back to her As Walton Tyler approached apartment, and Ms. they alley Tyler emerge saw from the near hurriedly apartment and walk down the nearby street. Walton radioed a officer to stop Tyler questioning. for the mean- time, Tyler apartment Ms. entered her and found a fire the kitchen. Walton radioed fighters department. the fire Fire soon extinguished arrived and the fire. Upon investigation, department the fire Dam, Gen., Atty. R. Paul Van Kevin J. investigator determined that the fire had Gen., Murphy, Atty. City, Asst. Lake Salt originated places, from two one behind and plaintiff appellee. for and top refrigerator. He also one on Garcia, Manny City, C. Lake Salt concluded that the fire had not been the appellant. defendant and He result of accident. believed used to type some of accelerant3 had been refrigerator fire at the base of the start the HALL, Chief Justice: and that some other material had been Douglas Tyler appeals Defendant James trial, ignited atop refrigerator. At arson, aggravated his conviction for a first investigator opined that the had been degree felony in violation of Utah Code “intentionally by set” “hand-held flame.” Tyler brings appeal, Ann. 76-6-103. this § apprehended, Tyler told the offi- claiming When ineffective assistance of counsel just walking around cers that he had violation of his constitutional in the area that he had not been inside counsel.1 We affirm. and time, Tyler’s apartment. Ms. At that he light We recite the facts in a most favor- possession had in his Ms. work iden- jury evening able to the verdict.2 On the keys tag tification and a set of to her home 1, 1990, July Tyler apart- went to the Tyler and car. Ms. testified that she had ex-wife, (here- ment of his Katherine apartment day. left these items in her Tyler”). According inafter “Ms. to Ms. Tyler’s testimony charged ag- was drunk was arrested with They began argue, gravated During proceedings, and abusive. arson. Const, Const, VI; I, by Physical depart- 1. See U.S. amend. Utah art. evidence seized during ment included a can of § paint thinner. Johnson, (Utah 1991). arrived, Tyler. Tyler claimed that separate attor- when represented three he was couch, asleep on the intoxi- arrest, Nancy neys. days Nine after his Tyler's testimo- cated. with Ms. Consistent appearance as Bergeson entered an began argue ny, Tyler they claimed that discovery. request for counsel and made a him and Ms. hit with a baseball bat. attorney, During Bergeson’s tenure as his however, denied, to He that he threatened and had him on one occasion she met with dog” house.” He “kill or “burn [her] [her] him on a later another individual interview buy that he left to a beer and that testified Thereafter, as counsel date. she withdrew and, he apartment, he while in her returned Tyler interest due to a conflict of between paint paint thinner that could smell the office. and a member of her table. He then were on the kitchen preliminary hearing,4 Tyler the was At sitting backyard in the claimed that he was Tyler had represented by Kenneth Brown. “boom.” When he when he heard loud prior hearing. the not met with Brown to up, coming smoke was out of the looked Tyler in his de- hearing, According testimony, At the testified to his back door. neighbors’ telephone fense, advice, attempted to use the against that he did Brown’s report neighbors were to the fire but the thought start the fire and that he pay phone not home. He then left to use a water heaters the fire stemmed from two police Ty- stopped by and was the officer. Tyler’s apartment. prosecution Ms. ler claimed that he had his ex-wife's car testimony his with that of rebutted keys working he had on her because been investigator, department who stated that and that he had her identifica- car earlier originate opinion the fire did not from going had tion card because he been Tyler over the water heaters. was bound dropped through papers some when it out for trial. inadvertently put pocket. it in his and he preliminary hearing, Tyler After the Attacking Tyler’s credibility, the de- Ms. represented fired Brown and was at his re- brought fense out that she could not arraignment by Stephen McCaughey.5 Ty- long Tyler had member how she been McCaughey prior ler had not met with to pre- and that on occasions divorced several arraignment. hearing day the At a the fire, police phoned vious to the she had the begin, before the trial was scheduled complain Tyler. was also a about There McCaughey granted moved and was a discrepancy the number of calls between forty-day Also, continuance.6 at McCau- police she claimed to have made to the the ghey’s request, the trial court authorized day the fire and the number the McCaughey employ the services of a addition, Tyler’s had on record. Ms. special investigator prepara- to assist in the neighbor testified for the defense that Ms. Tyler’s tion of defense. visiting had with her since re- turning from work and that Ms. had place The trial took on November 28 and report called the not to 29,1990, present- at which time the defense complain Tyler. The also about defense showing ed evidence several inconsistencies pointed Tyler’s fingerprints out that were presented and differences in the evidence paint not found on the can of thinner. prosecution. Tyler’s testimony of surrounding sig- the events the fire varied Notwithstanding the inconsistencies be- testimonies, nificantly provided by Tyler’s from the version tween and Ms. Because represented by 6.McCaughey was not have asked for the continuance to originally prelimi- at the time of the nary hearing, scheduled expert investigate findings an further hearing postponed was from previous investigation. originally Trial was August August 2 to and, upon set for October 18 waiver of a "speedy” November was reset for McCaughey appointed was counsel for September originally on arraignment. the date set for the result, Tyler’s arraignment As a postponed September Tyler, against present sistance of counsel claims a mixed jury returned a verdict 10 “Therefore, aggravated question of finding guilty him arson. fact and law.” trial, claiming previously inef- ... where the trial court Tyler moved for a new of counsel. The motion heard a motion based on ineffective assis- fective assistance denied, reviewing and he was sentenced to tance of courts are free years independent five to life at to make an indeterminate term of determination of a 11 However, Prison. trial court’s conclusions.” Utah State findings court’s factual shall not be arguing was de- appeals, that he appeal clearly set aside on unless errone- nied to effective his constitutional ous.12 of counsel. He contends that all assistance represent him effec- The Sixth Amendment three counsel failed to United tively. Specifically, provides part, he claims that he had States Constitution in “In all during pro- prosecutions, little contact with counsel the criminal the accused shall en- they proceed joy right ceedings and that did not a to ... have the Assistance of 13 contends that counsel for his defence.” A defendant’s timely manner. He further presented right at Sixth Amendment to counsel has been sufficient evidence was “ right case. held to be ‘the to effective assis- dispute trial to State’s ” 14 determining In tance of counsel.’ The issue to decided is whether sole be a criminal de- whether defendant of Tyler received ineffective assistance guarantee his Amendment nied Sixth counsel, him denying thus his constitution- counsel, effective this court has consistent- Tyler does not make al to counsel. The ly followed Court Strickland.15 any assertion that he denied effective was two-part test for established Strickland assistance of counsel under the Utah Con- determining the existence of ineffective as- guarantees stitution or that the to counsel sistance of counsel: any under the are differ- Utah Constitution First, the defendant must show that provided ent from for in the those United performance counsel’s was deficient. pursue States therefore Constitution. We requires showing that counsel made This a resolution of the issue under the federal errors so serious that counsel was not constitution.7

functioning guaranteed as “counsel” by the Amendment. the defendant Sixth Washington,8 v. Strickland Second, the defendant must show that Supreme United States Court established performance prejudiced the the standard of for assis the deficient review ineffective requires showing This that tance of counsel claims.9 as- defense. “[I]neffective Const, 182, (Utah 7. See State v. 13. U.S. Templin, VI. 805 P.2d 185 amend. 1990); Verde, 116, State v. 770 P.2d 118 n. 1 1239, (Utah 1989); Lafferty, State v. 749 P.2d Templin, (quoting at 186 McMann v. 805 P.2d (Utah 1988). 1247 n. 5 759, 14, Richardson, U.S. 771 n. 90 S.Ct. 397 1441, 14, (1970)); 1449 n. 25 L.Ed.2d 763 see 668, 2052, 8. 466 U.S. 104 S.Ct. 80 L.Ed.2d 674 203, McNicol, (Utah v. 554 P.2d 204 also State (1984). 1976). 698, Id. at 104 at 2070. S.Ct. supra See For Utah cases that follow note 8. see, Gardner, Strickland, example, v. State Strickland, Templin, (citing 805 P.2d at 186 293, (Utah 1992); Templin, 805 844 P.2d 297 698, 2070). 466 U.S. at 104 S.Ct. 155, 185-88; Bullock, P.2d at State v. 791 P.2d denied, (Utah 1989), & cert. 497 159-160 n. 17 Id.; Armontrout, see also v. F.2d Laws 863 1024, 3270, 111 L.Ed.2d 780 U.S. 110 S.Ct. 1377, denied, (8th Cir.1988), 1381 cert. 490 U.S. Carter, 886, (1990); P.2d State v. 893-94 (1989); 104 L.Ed.2d 415 Verde, (Utah 1989); & n. Crestani, 770 P.2d at 118-20 (Utah 15; Speer, v. P.2d 124 & n. State 191-92 Ct.App.1989). 1988); Frame, (Utah State (Utah 1986). Templin, 805 P.2d at 186. impeach present evidence to so and to certain counsel’s errors were serious testimony presented by the State. deprive of the defendant a fair result is reliable.16 whose repre- Despite the fact that separate from the three counsel sented of assis- prevail To a claim ineffective on conviction, we treat time of arrest to his counsel, of has the bur- tance “defendant representation for of purposes it as one parts test.” meeting of this den both determining perfor- whether counsels’ he not receive claims that did do, however, as- mance was deficient. We from “meaningful and assistance” advice performance of all three at differ- sess stages throughout the critical stages representation. ent their proceedings an insufficient presented defense at trial such establishing coun burden of defi- Tyler.18 effort of counsel was To cumulative sels’ ineffectiveness rests with test, first Specifically, part that his meet the of the Strickland cient. contends “ ‘identify a defendant must the acts or nothing” Bergeson, first “did circumstances, which, under the omissions’ passed. more a month while than representation fell be ‘show that counsel’s be- argues Bergeson was deficient objective standard of reasonable low in- she order an “immediate cause did not ” 19 recognized ness.’ Strickland that due and, despite vestigation” of the fire scene “ by faced variety to ‘the of circumstances personally, with the fact that she met him legiti range counsel the of defense [and] investigator, by had him an interviewed regarding rep how mate decisions to best requested prose- information from the ”20 defendant,’ a criminal there is a resent cution, her actual efforts amounted to an perfor strong presumption that counsel’s denial of that this counsel. asserts “ range the of rea mance was ‘within wide phase represen- the crucial of his was most ”21 professional sonable assistance.’ Final tation, “barely Bergeson a time where ly, proof of ineffectiveness must counsel’s legal functioned” as counsel. specul reality, not mere be demonstrable ation.22 counsel, that his claims second Brown, investigate also failed While makes several claims ill-prepared repre- he and that was he when deficient, performance counsels’ that was August preliminary sented the at 16 claims, support authority he cites no hearing. This, according Tyler, consti- provide by he nor does a standard which of Final- tuted constructive denial counsel. judge deficiency. By the of this virtue (his ly, Tyler McCaughey that when claims alone, Tyler has failed to meet the burden counsel) case, assigned third the was by overcoming imparted Strickland of investigation he initiated “fruitless” was presumption performed in a scene been because the fire had since professionally reasonable manner. We up cleaned and crucial evidence had been choose, however, pursue merits of delay. Additionally, Tyler lost due to the Tyler’s analysis. claims under a Strickland trial, McCaughey claims that at offered an insufficient he failed defense inasmuch as of major focus conten expert expert to call an to rebut the tions centers around counsels’ omission of State’s Strickland, Strickland, 16. 20. Templin, (quoting 466 U.S. at S.Ct. at 2064. P.2d at 186 805 2065). 466 U.S. at 104 S.Ct. at added) Templin, (emphasis at 186 Strickland, (citing 466 U.S. at at 104 S.Ct. Id. 2064). McNicol, P.2d at 204. Frame, 405; Buel, State P.2d at v. (Utah 1985). Strickland, Templin, (quoting P.2d at 186 2065); 466 U.S. also at see Gardner, 844 P.2d at 297. may adequate investigation investigation an immediate have an immediate and with preferable, scene. Consistent Strick- counsel’s assistance need not be land, Templin in we concluded judged State errorless to be effective.28 Because adequately if counsel fails to defense Bergeson presumably obtained the same case, investigate of a underlying facts as she have information would obtained performance cannot be viewed as counsel’s independent performed had she an investi- However, in event reasonable.23 coun- gation, we conclude that her conduct was instigate investigation, sel does an he reasonable. duty has “a or she make reasonable Obviously, investiga- had there been no particular investiga- decision that makes whatsoever, perfor- tion defense counsels’ Furthermore, unnecessary.”24 in tions mance have would been deficient.29 How- cases where the issue is whether counsel ever, light Bergeson in facts that assistance, particu- rendered “a ineffective prompt request discovery made a must investigate lar decision not to be di- prosecution, investigation that an rectly in all assessed reasonableness conducted, eventually and that circumstances, heavy applying a measure investigation failed to show that an earlier judgments.”25 counsel’s deference to yielded would have different results than case, undisputed McCaughey, those obtained we conclude present In the it is McCaughey appointed regard that when overall counsels’ conduct with investiga an ordered to the was reasonable. special investigator He tion. retained performance was otherwise Counsels’ investigated who the fire and assisted Claims of assis- reasonable. ineffective preparing Tyler’s It therefore defense.26 largely depend tance of counsel on the Bergeson’s remains at issue whether deci Therefore, assessing facts of each case. investiga sion not to initiate immediate representation, the we reasonableness of investiga tion such an was reasonable that take into account all circumstances sur- necessary tion was time.27 Al not at the Tyler “Bergeson that rounding it.30 claims though Bergeson herself investigat neither nothing did ... more than a month while fire, ed nor an of the ordered passed_” Berge- The record shows that upon being appointed the record that shows Tyler appointed son for nine counsel Tyler, discovery counsel for she a made arrest, days which time she after his at request prosecution reports of the for all discovery request to made referred the investigations concerning the and case. July Bergeson met with above. On prosecution provided The then her with the Tyler. Finally, at a nonrecord memoran- information available the time. While 188; Strickland, suggest Templin, at no evidence in the record to 23. 805 P.2d see also 27. There is entirely Bergeson forego in- that decided to U.S. S.Ct. at at 2066. Therefore, vestigation. she because withdrew appointment, her it is as counsel soon after possible Strickland, at at 466 U.S. 2066. only decisions made to assess the she withdrawal, her not whether she intend- before Id. investigate ed to later. Smith, investigator 26. The record indicates that Haw. (1986). spent assisting McCaughey prepar- 51 hours ing Tyler’s investigator's defense. The time was Templin, "a to In we stated that decision not spent primarily investigating researching, and investigate be a deci- cannot considered tactical among things, by collected other information Therefore, sion.’’ at decision department investigator. investiga- the fire investigate not receive the same defer- to cannot responsibilities locating tor’s also included and ence decision. afforded tactical witnesses, subpoenaing interviewing prospective records, Strickland, 689-90, meeting meeting Tyler, once with and at S.Ct. 30. See 466 U.S. periodically McCaughey. with 2065-66. call, strategies including what witnesses to at her July that on dum31 indicates make, by large and and by objections what to Legal request, Tyler was interviewed put to forth are within the what defenses investigator, a fact Defender Association generally are prerogative of counsel and acknowledges. It is clear that that professional judgment.34 left to counsel’s nothing” Bergeson “did claim Furthermore, call or counsel’s decision to record, by only unsupported but not is matter expert to call an witness is a not on these contradicted.32 Based also is questioned strategy, which will not be facts, Tyler’s allegation is meritless. there and viewed as ineffectiveness unless allegations that regard With is no reasonable basis for that decision.35 Brown, unprepared his second McCaughey in- The record reveals mer- preliminary hearing, we find no at the testimony through a troduced number reasons. First and it for a number of witnesses, including Tyler. Through Ty- foremost, there is no evidence in the record McCaughey brought testimony, ler’s out unprepared. Sec- suggest that he was in the ver- several inconsistencies State’s ond, recently appointed only he had surrounding the fire. In sion of events Tyler.33 preliminary At the addition, presented to attack evidence testify hearing, advised not to Brown credibility reliability and of the State’s behalf, only on his own which indicates Ty- included Ms. evidence. Such evidence thinking expended that he had some effort inability long she ler’s to remember how hearing in the preparing about and for the and, con- had been divorced36 get ready, also short time he had to but trary Tyler’s testimony, Ms. that on nu- counsel, providing advice that he acted as preceding occasions in the merous months professional opinion. light In based on his fire, Ms. had called the circumstances, performed of all Brown Tyler.37 complaining about It was also reasonably. jury pointed out to the that the rec- to Tyler’s We now turn conten Tyler phoned only ords showed that Ms. McCaughey presented an tions that insuffi day while she once on trial, primarily failing addition, by cient defense at claims that she called twice. expert dispute to call an the State’s McCaughey brought possibility out the experts by failing present certain evidence that was re- fabricated testimony contradictory investigator It some ten the State’s. covered Finally, McCaughey days is well established that trial tactics and after the fire.38 disregard Tyler practice It is normal to nonrecord 36. Ms. testified at trial that she and 296, Cook, years. material. See State v. (Utah 1986). 714 P.2d 297 had been thirteen The divorce divorced However, brief, in the State they its decree introduced at trial indicated that objection waived to consideration of this memo- approximately and had been divorced seven randum. years. one-half Bergeson 32. The record also indicates that did 37. Ms. testified that she had called Tyler’s not even serve as counsel for an entire complain to about once or twice appearance month. She entered as counsel on July McCaughey from December 1989 to August July 9 and moved to withdraw on brought during out on cross-examination that precisely actually it period, 33. While is not clear in the record that same time she had contact- appointed Tyler, complaints when he was for ed the six times with various appearance did not enter un- Brown as counsel Tyler. about 17, August day hearing. til a after the days 38. Nine after the asked the Wood, 71, (Utah), 34. State v. 648 P.2d cert. investigator get to come and items that had denied, 988, 341, 459 U.S. 74 L.Ed.2d lighter the smell of fluid or some flammable (1982); Gray, see also State 601 P.2d Later, liquid Laboratory on them. State Crime (Utah 1979); Pierren, hydrocarbons tests showed the items to contain 1978); McNicol, (Utah 554 P.2d at 205. (basic flammable, produce any element to used Sammons, liquid). investigator 35. State v. 156 Ariz. combustible The fire testi- (1988). fied that Ms. claimed to have these found TYLER: MR. emphasized again clos- What? and brought out fingerprints Tyler’s argument ing you unwilling If are to THE COURT: thinner found paint not on the can were rights to a your constitutional waive apartment, which the State in Ms. trial, I no alternative but to speedy have have possibly been hypothesized could try it tomorrow. light the fact the fire. accelerant of to, I will MR. TYLER: I don’t want but testimony and evidence that substantial my right speedy to a trial. waive defense, we do presented were THE To the extent Novem- COURT: second-guess defense coun- attempt to ber 28? simply conclude that strategies, but sel’s reasonably trial. at MeCaughey performed I MR. TYLER: If have to. don’t have to. THE COURT: You purpose requiring effective The of. guess get a fair trial I MR. TYLER: To ensure of counsel is to better assistance going I’m to have to. a fair trial.39

that a defendant receives in a occasions acted Counsel on several Tyler, I want to THE Mr. don’t COURT: circumstances for better manner secure attorney you. Your screw around with Brown, Ty Tyler. Based on motion you proper in a trying represent is Sep from arraignment was continued ler’s fashion, and he needs to have some ex- September to allow 10 to tember thing. gra- perts look at this State Additionally, at preparation more time. for agreed They don’t ciously has to this. day hearing place took before neither do I. agree to this. And have to trial, MeCaughey originally scheduled too. you get to see a fair trial I’d like forty-day trial sought granted and was my purpose here is to see And that’s sole Tyler to conduct continuance on behalf of you get a fair State prepare and to better going to But I’m not gets a fair trial. he had on trial due to the short time been your constitu- you equivocate on allow following dialogue took the case. The Either rights speedy to a trial. tional place hearing: you willing give upit so that you’re you willing give up THE Are COURT: this extended the benefit of can have speedy to a trial your constitutional willing to you time. If aren’t period of extent of November 28? to the that, your you waived do then haven’t speedy you are entitled right to a I’ve here a MR. TYLER: I hate to. constitution, and I will to have under the days. nine hundred and morning. It’s try this case tomorrow go I can THE COURT: Your decision. your decision. tomorrow, you or whatever want. is to have My MR. TYLER: decision only thing we MR. TYLER: If that’s the I’m is not in. fair trial. All the evidence off, off, put put can do. It’s been long my rights to a give up forced put off. and forty days from now. I don’t know that it’s been THE COURT: give THE You’re not forced to COURT: agree I don’t that put put off and off. game up. play this word them We can put I set this put off and off. it’s I have the rest of the afternoon. thirty days from the time matter within my attention. people other here that need arraigned. equivocation, No you were rights to a my I waive MR. TYLER: Tyler. you go If want to Mr. morning. speedy trial. go tomorrow we’ll Frame, During See 723 P.2d at 405. in her bedroom closet. the inves- 39. items tigation day was seized on the of the a sheet closet, presumably be- from the same bedroom paint it smelled of thinner. No other cause were recovered. items brief, Tyler In of them.43 his is not one only not that coun- illustrates above certain acts of counsel as merely labels discharge duty to attempting sel constituting actual or constructive either assistance, but provide Tyler effective with assistance, providing a without denial understood, although be- also that independent An for the assertion. basis McCaughey, as well grudgingly, that conduct leads us to of counsels’ evaluation court, taking the neces- intent on performance falls that counsels’ conclude up- while sary steps a fair trial to ensure categories. Tyler of these into neither rights. holding Tyler’s constitutional the burden of affirmative- therefore retains only per- that counsel We conclude ly proving prejudice.44 competently as reasonably, formed but affirmatively that shown Tyler has not sum, Tyler well, Tyler. representing in by any conduct of coun- prejudiced he was of counsel not shown acts or omissions allegations prejudice are “whol- sel. His reasonably professional that fall below a way “in no speculative”45 at best and ly standard, he has failed to and therefore that ‘but for give rise to conclusion prong first imposed by the meet the burden errors, result unprofessional counsel’s test. of the Strickland ”46 A different.’ would have been [at trial] persuades efforts us review of counsels’ conclusion, Despite the above performance had been that if their even address the analysis continue our we deficient, deficiency did not result such test. The prong second of the Strickland Tyler. prejudice to requires test part second of the Strickland prejudiced showing that a defendant was “ probabili ‘there is a reasonable such CONCLUSION that, ty unprofessional counsel’s but for errors, proceeding the result of the would through their concerted efforts Although ”40 A have been different.’ reasonable result, produce the desired counsel did not probability that which is sufficient to is is not sufficient for “an unfavorable result reliability in the undermine the confidence give rise to a conclusion of and does not Tyler argues under of the outcome.41 “A ineffective assistance of counsel.”47 perfor that because counsels’ Strickland as- guaranteed defendant is not ‘successful “ ”48 amounted to actual and constructive counsel,’ mance ‘competency sistance counsel, prejudice is denial of assistance of re- not measured of counsel is ”49 presumed prong second Moreover, enough and therefore the it is not sult.’ performance test is met.42 While it is Strickland can show that counsels’ contexts, or that counsels’ true that certain Strickland could have been better presumed, performance might have contributed to his recognized prejudice is this Strickland, (quoting Templin, P.2d at Id. at 104 S.Ct. at 2067. 2068); at see also 466 U.S. at S.Ct. Gardner, (Utah 1989) Carter, 844 P.2d at 297. 45. Frame, 406). (citing 723 P.2d at See Templin, (citing 805 P.2d at 187 Strick land, 2068). Carter, (quoting 466 U.S. at 104 S.Ct. 776 P.2d at Strick- 893-94 land, 2068). 466 U.S. at Strickland, 466 U.S. at 104 S.Ct. at 2067. Buel, 700 P.2d at 703. expressly recognized 43. Strickland certain cir- 750, Woods, Wash.App. State v. 34 665 P.2d prejudice presumed: cumstances where is when 895, White, (1983) (quoting State v. 81 900 actual or constructive denial of assistance has 223, 1242, (1972)). occurred, Wash.2d 500 P.2d 1243 prosecution when the interferes with assistance, counsel’s and when counsel is bur- Wilson, by Wash.App. (quoting dened a conflict of interest. See id. at Id. 29 (1981)). 104 S.Ct. at 2067. 626 P.2d by delay. ap- It right hampered was does conviction.50 constitutional scene pear that because the fire had been only assistance of entitles him to effective by fire damage cleaned and the caused complete to the best or most not special investigator repaired, the limit- was short, representation available.51 a de- reviewing ed to and re- claiming of fendant ineffective assistance port department. made Howev- showing difficult counsel has the burden er, has special investigator not been representation actual unreasonable deposed testify the opportunity or had to While failure to show prejudice.52 actual regarding any under. limitation worked enough either element would have been to appears me a It to that when defendant uphold his defeat claim convic- originated differently a fire contends that tion,53Tyler has failed to show both that department investigator than the fire has counsels’ deficient and performance was reported, independent investigation may an perfor- prejudiced by that he was such well be warranted. It is no answer Accordingly, mance. we hold state, the majority, as does that defendant not was denied constitutional inves- not demonstrated that earlier effective assistance of counsel and affirm tigation course, have him. would aided Of ruling. the trial court’s defendant cannot show that. No one what, timely indepen- knows if anything, a investigation might dent have revealed. JJ., ZIMMERMAN, DURHAM and circumstances, obtaining the Under these concur. department’s report, helpful, while may protect have been sufficient to HOWE, Associate Chief Justice defendant’s interests. (dissenting). Additionally, the record does not reflect I I the appeal dissent. would dismiss if the first and second counsel interviewed appellate is

because the record insufficient any other than At witnesses defendant. fairly for us determine whether defen- contradictory testimony trial there was was dant denied effective assistance of called the police whether Ms. had counsel. disturbance, report a or A both. verdict, Following jury’s defendant tape of the call to the was made ground moved for a new trial on the dispatcher that would have clarified that issue, The ineffective assistance of counsel. it was erased defendant’s but before attorney it. subpoenaed third This was hearing. court the motion denied without important Tyler’s neighbor, because Ms. appealed the assumption Defendant has on police, from home called whose she appeal adequate that the record on is for us that Ms. called the testified However, to determine that issue. defi- true, If report that fact would tend a fire. ciencies in the record me unable to leave position defendant’s corroborate make that determination. set the fire and then blamed him. example, For defendant contends that his fingerprints Finally, there were on seeking first counsel deficient in not used, they can of accelerant that was but prompt independent investigation of the or- investiga- No prints. were not defendant’s igin and cause of the fire. His third coun- prints tion made to determine whose appointment special sel did obtain the of a they were. investigator, until but was not three and one-half months after the fire. We do paucity of the record leaves too investigation many questions join not know extent that to what unanswered me to State, Estes, P.2d at 50. Estes v. 111 Idaho (1986). Verde, at 118-19. See P.2d People County, v. District Court El Paso (Colo. 1988). majority, largely which relies on as-

sumptions the lack made from of evidence.

I appeal preju- would dismiss the without collaterally

dice and allow defendant to at- 65B,

tack his conviction under rule Utah evidentiary

Rules of Civil Procedure. An

hearing can then be held to determine the

adequacy representation. of defendant’s

STEWART, J., dissenting concurs in the

opinion HOWE, Associate C.J. NAY, individually person

LeeAnn and as representative

al for Matthew and Mer Nay, Nay;

issa the heirs of Robert

Virginia Nay, individually per and as representative

sonal for Connie Wheel

er, Carolyn Gallegher, Nay Joan

Jalynn Nay, Wayne Nay, the heirs of Appellants,

Plaintiffs and CORPORATION,

GENERAL MOTORS DIVISION,

GMC TRUCK and Ron GMC, Inc.,

Green Chevrolet Pontiac Appellees.

Defendants and

Nos. 910273 and 910365.

Supreme Court of Utah.

April

Case Details

Case Name: State v. Tyler

Court Name: Utah Supreme Court

Date Published: Mar 31, 1993

Citation: 850 P.2d 1250

Docket Number: 910118

Court Abbreviation: Utah