Case Information
*1 IN THE UTAH COURT OF APPEALS
‐‐‐‐ ooOoo ‐‐‐‐ Utah, ) OPINION
)
Plaintiff Appellee, ) Case No. )
v. ) F I L E D
) (October 18, 2012) Maximino Arriaga, )
) UT App 295 Appellant. ) ‐‐‐‐‐
Fourth District, Provo Department, Honorable Claudia Laycock
Attorneys: Elizabeth Hunt, Salt Lake City, Appellant
Mark L. Shurtleff Jeffrey S. Gray, Salt Lake City, Appellee ‐‐‐‐‐
Before Judges Orme, Roth, Christiansen.
ORME, Judge:
¶1 Defendant Maximino Arriaga appeals conviction three counts aggravated child, claiming counsel. We affirm.
BACKGROUND began sexually abusing when nine or ten years old. married aunt, three lived aunt’s
grandparents’ home. The abuse took place regularly until the victim, at age 17, was removed home other reasons by the Division of Child and Family Services. During years that lived in same household, introduced the victim to, and provided her with, methamphetamine.
¶3 When victim was 18, she had her own apartment but spent most of her time Defendant’s home. She subsequently gave up her apartment and moved in permanently with and aunt. Eventually victim discovered that she was pregnant with child. When their child was months old, police raided home and found materials used production methamphetamine. Despite denying that she used drugs, victim was arrested after a drug test. She was placed program while jail. During therapy session, she disclosed first time long history sexual abuse by Defendant. She explained she had come forward this information earlier because she was afraid because she feared she would placed into even worse situation if were sent foster home.
¶4 When was interviewed by police, he admitted he was father child but maintained their sexual relationship consensual only began after victim turned 18. He repeatedly denied ever sexually abusing victim. charged three counts aggravated sexual child, three counts forcible sodomy, three counts rape. The proceeded trial. During jury selection, two prospective jurors indicated their questionnaires they believed officers were likely tell truth than were defendants. Although other prospective jurors so indicated were questioned chambers, choose either these two questioned regarding their answers question, two were ultimately seated jury. ¶6 Defense intended introduce evidence molestation family members, which reported when still minor. When mentioned opening this potentially violated rule Utah Rules Evidence, counsel explained intended introduce only show was capable reporting family members believed was inapplicable situation. court ruled inadmissible for to comply rule 412’s requirement that a party seeking admission of such evidence file a motion trial. The court also addressed the merits of question found both that the evidence did meet any exception under rule 412 that, any event, the should have been kept out as being more prejudicial than probative under rule 403.
¶7 At conclusion of trial, jury convicted Defendant on three counts of aggravated sexual of child. He was acquitted of rape sodomy counts that pertained time after victim reached 18.
ISSUE AND STANDARD OF REVIEW
¶8 Defendant, through new counsel, appeals his convictions basis ineffective assistance of counsel. claims three specific instances of ineffective his counsel. First, contends that counsel was ineffective for failing question two jury members stated during voir dire were more likely believe testimony police officer than defendant. We previously remanded pursuant rule 23B Utah Rules Appellate Procedure, permitting evidentiary hearing entry findings regarding defense performance regard. 23B court found although counsel objectively deficient failing request further questioning two jurors, prejudice because showed were able to set aside their stated biases. Second, contends defense counsel ineffective failing
file motion seeking ruling under Utah Rules Evidence. This failure, argues, precluded counsel following through intention seek admission about earlier reports other family members.
¶10 Finally, claims do impeach credibility. Specifically, claims should have attacked inconsistency several made during investigation, including denied own use officers. Defendant argues should highlighted report abuse *4 until being prosecuted own felony and pleas in abeyance pending same judge who overseeing case. ¶11 “In ruling an ineffective assistance claim following [r]ule 23B hearing, we defer trial court’s findings fact, but review its legal conclusions for correctness.” State v. Hernandez , 2005 UT App 546, ¶ 13, 128 P.3d 556 (alteration in original) (citations internal quotation marks omitted). As ineffective assistance counsel claims have gone through 23B hearing, we review factual findings clear error legal conclusions correctness. See State v. Lenkart , 2011 UT 27, ¶ 20, 262 P.3d 1.
ANALYSIS In establishing ineffective assistance counsel, has burden
showing (1) “counsel’s performance deficient” it “fell below an objective standard reasonableness,” (2) “the deficient performance prejudiced defense.” Strickland v. Washington , 466 U.S. 668, 687, 688 (1984). We begin our analysis strong presumption competent effective. See State v. Crosby , 927 P.2d 638, 644 (Utah 1996). Given presumption, has “wide latitude making tactical decisions” we “will question such decisions unless there is reasonable basis supporting them.” Id. Once deficient performance is established, still has burden demonstrate “that is reasonable probability that, but unprofessional errors, result proceeding would been different.” Strickland 466 U.S. at 694. Because both prongs the Strickland test must be met prove ineffective assistance counsel, need not “address both components inquiry if defendant makes insufficient showing one.” Id. 697.
I. Was Not Prejudiced Counsel’s Failure Further Question Two Jurors During Voir Dire. burden show deficient performance “affected outcome case.” v. Litherland , UT 76, ¶ 19, 12 P.3d 92. “When results seating juror actually biased against defendant, . . . prejudice required Strickland will presumed.” State v. King , UT 54, ¶ 18, P.3d 1283. Thus, establish prejudice, “must *5 show that his actions . . . allowed the seating an actually biased juror.” Id. ¶ 47.
¶14 First, agree Defendant’s contention, 23B court’s finding, that erred in pursue follow ‐ up questioning two jurors who indicated on their questionnaires that they believed a police officer was more likely to tell truth than a criminal defendant. However, based court’s findings, we hold that failed show that jurors were actually biased, i.e., that was prejudiced challenge jurors trial. In v. Olsen , P.2d 332 (Utah 1993), Utah Supreme Court considered an ineffective assistance claim in a case in which failed to challenge a juror who had stated that he was more inclined believe a police officer than witnesses. See id. at 335. The juror, when questioned, explained that he believed he could set those feelings aside be impartial. See id. at 334. The Court noted “we cannot say [the juror] exhibited such actual bias as prevent him from acting impartially” because, despite juror’s initial statements, “subsequent questioning court showed [he] could impartial juror.” Id. at 334–35. Without more actual bias, Court held defendant had failed to prove he was prejudiced, thus he could not show counsel. See id. at 335.
¶16 As Olsen , two challenged jurors indicated they believed police officer was likely testify truthfully than defendant were questioned. Both jurors were asked clarify, detail, their statements, both indicated believed they ability set aside their stated bias use their best judgment weighing credibility witnesses. There little reason doubt their claim, given was acquitted six charges while was convicted only three. Most importantly, was which outcome hinged testimony officers. While police officer testify, his testimony largely limited repeating prior, recorded interview. It appears officer’s credibility really issue. There claim, example, misrepresented contents recordings Olsen juror questioned during voir dire. The two case were questioned during 23B hearing.
or tampered them. Thus, it is difficult to see any possibility of prejudice to this case, even without the subsequent reassurance by the they believed could—and did—impartially evaluate the testimony case.
II. Was Not Prejudiced by Defense Counsel’s Failure File a Motion Admission Evidence Under Rule 412 of the Utah Rules of Evidence. contends counsel should have filed a motion prior to trial, pursuant rule 412 the Utah Rules Evidence, seeking the admission evidence the reported sexual abuse by other family members several years her reporting abuse by Defendant. Rule 412 declares evidence “prov[ing] a engaged other sexual behavior . . . or . . . evidence offered prove victim’s sexual predisposition” is inadmissible proceedings. Utah R. Evid. 412(a)(1)–(2). The rule provides exceptions prohibition. Such evidence admissible if “offered prove someone other than defendant the source” abuse, “if offered by defendant prove consent,” or if “exclusion would violate defendant’s constitutional rights.” Id. R. 412(b)(1)–(3). To admit evidence through one these exceptions, however, rule requires party intending offer evidence file motion before trial. See id. R. 412(c)(1).
¶18 Defense sought admission earlier reports by family members counter contention that had been some way discouraged reporting by earlier than did. Defense indicated did not file rule motion in furtherance strategy because believe rule applicable. The court disagreed about applicability rule deemed evidence inadmissible lack required motion. court took one further step, however, addressed merits concerning evidence, concluding admission would barred even if filed timely motion. Because court addressed issue, despite failure file motion, and indicated it would allowed even proper pretrial motion, cannot see how prejudiced file *7 motion. (noting 1994) (Utah 525 516, P.2d 871 , Barnes v. Parsons See [2] failure to file futile motion does not constitute ineffective assistance of counsel).
III. Defense Counsel Was Not Ineffective for Declining Attack Victim’s
Credibility through Additional Evidence. contends ineffective for failing cross ‐
examine about inconsistent statements she allegedly made, for failing introduce additional about not reporting until after her arrest, for failing seek admission of victim’s plea abeyance from her drug case, elicit when arrested. asserts each these pieces could have diminished credibility showing potential motive her lie about abusing order shift attention away charges against her. We disagree. “There are countless ways provide effective assistance any given case.”
Strickland v. Washington , 466 U.S. 668, 689 (1984). For reason, “indulge strong presumption counsel’s conduct falls within wide range reasonable professional assistance” “under circumstances, challenged action might be considered sound trial strategy.” Id. (citation internal quotation marks omitted). We will not engage speculation regarding possible alternative actions could taken will hold defendant has overcome heavy burden only when or shows actions “were outside wide range” approaches that may taken “professionally competent” counsel. Id. 690. In words, we “will not question [counsel’s] decisions unless is reasonable basis supporting them.” State v. Crosby , 927 P.2d 638, 644 (Utah 1996).
[2] Whether trial court’s conclusion merits rule 412 correct not before us. has only appealed basis counsel. concedes brief any claim error trial court’s handling rule 412 issues preserved, demonstrated plain error or exceptional circumstances as basis direct consideration court’s rulings. See v. Nelson ‐ Waggoner , UT 29, ¶ 16, P.3d 186. Thus, we need only determine whether file motion any bearing outcome case.
¶21 First, regarding Defendant’s contention that counsel acted in an objectively deficient manner by not cross ‐ examining victim about allegedly inconsistent she made, we disagree that there could have been no sound trial strategy for this decision. victim’s accounts her abuse Defendant contained very graphic disturbing details. It would be perfectly reasonable for defense counsel in this to want to avoid rehashing dirty details victim’s testimony in order to point out few minor inconsistencies here there. Defendant, thus, not “overcome presumption that, under circumstances, challenged action might considered sound strategy.” Strickland , U.S. at (citation and internal quotation marks omitted).
¶22 As Defendant’s contention that counsel should have elicited more evidence establish fact that victim not report abuse until after was arrested on her own charges, we do not agree that there was no reasonable basis for actions. suggests that this evidence would have helped establish convincingly merely claimed that there was to get herself out trouble. We note, however, counsel took opportunity to make this argument trial, although there may have been few additional pieces of might have bolstered argument to some small degree, we are unpersuaded was no reasonable basis decision forego additional focus on theory.
¶23 Regarding Defendant’s contention counsel should have sought admission regarding plea in abeyance, we disagree there was no reasonable basis counsel proceed manner. And it not clear us why, exactly, should have sought admission plea abeyance, considering her plea charges was obvious way related victim’s testimony against charges. Furthermore, such strategy would also have permitted jury again hear involved manufacture methamphetamine. Competent may well concluded that minimizing references Defendant’s involvement use manufacture drugs preferable inviting jury speculate testified falsely as unspoken condition already ‐ entered plea abeyance. ¶24 Finally, are persuaded argument was objectively deficient choosing elicit statements officers unaware methamphetamine being manufactured sold in house shared Defendant. Again, may reasonably concluded it best to raise ambiguous evidence, lest there yet further attention paid illegal activities his sexual case.
CONCLUSION
¶25 While erred further question two indicated during voir dire believed officer likely tell truth than defendant, has failed establish error prejudiced him. Further, has failed establish any prejudice defense file motion before an effort permit introduction regarding reports abuse. Finally, has failed overcome his heavy burden showing counsel acted objectively deficient manner choosing elicit certain evidence actions statements. In which was acquitted three rape three forcible sodomy charges, failed establish connection conviction remaining three charges.
¶26 Affirmed.
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Gregory K. Orme, Judge
‐‐‐‐‐ I CONCUR:
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Stephen L. Roth, Judge
‐‐‐‐‐ I CONCUR, EXCEPT THAT AS TO SECTION II, I CONCUR ONLY IN THE
RESULT:
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Michele M. Christiansen, Judge