Case Information
*1 IN THE UTAH COURT OF APPEALS
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Terry L. Johnson, ) MEMORANDUM DECISION
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Petitioner and Appellant, ) Case No. ) ) F I L E D
) (September 2012) Utah, ) ) App Respondent and Appellee. )
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Third District, Salt Lake Department, Honorable W. Barrett
Attorneys: Michael P. Studebaker, Ogden, Appellant
Mark L. Shurtleff Brett J. DelPorto, Salt Lake City, Appellee Before Judges Thorne.
ORME, Judge: Terry L. postconviction We affirm. convicted murder following jury prosecution
presented expert testimony about details murder trial may found we considered Johnson’s appeal following conviction. Among other things, we appeal for choosing different test, give testimony regarding, items linked events led conviction. id. We that *2 counsel’s choice was a “strategic decision,” given that defense had consulted a DNA had purposefully determined that calling would not in interest. Id.
¶3 Following direct appeal, Johnson filed a petition for postconviction relief based, again, a claim of assistance partly premised upon defense counsel’s not to a DNA expert. The district court dismissed each claim in the petition concluded that the DNA claim had been previously adjudicated. On appeal, the Utah Supreme Court affirmed. See Johnson Johnson II 2011 UT 59, ¶ 18, 267 P.3d 880.
¶4 In 2008, Johnson filed a request for postconviction DNA State successfully moved to dismiss the petition. district court because defense made a to request DNA testing at the time of trial, Utah Code section 78B ‐ 9 ‐ 301 prevented Johnson later pursuing this avenue through postconviction proceedings. See Utah 78B ‐ 9 ‐ 301(4) (Supp. 2012). And event, the district court ruled, Johnson failed to meet the statute’s other requirements for requesting DNA testing. In 2010, filed a verified petition for postconviction The
district court granted the State’s motion to dismiss, again ruling failed to meet the requirements of section 78B ‐ 9 ‐ now ruling. Review the of a for postconviction relief presents a question of law, which we review correctness, granting no deference the district court. Gardner , 2010 ¶ 55, 234 1115. Section 9 ‐ 301(4) explains a court “may order testing in cases which time the the not request reasons.” Ann. we choice to delve into matters related a “reasonable strategic choice,” , qualifies “tactical reason[]” purposes the provisions effect relevant do differ materially from statutory provisions now if effect, cite current version code as convenience reader. *3 statute, Ann. his briefing, merely disagrees with our prior conclusion, asserting, as he did “[t]here can be no reason having items tested . . . as evidence would have proven exculpatory Mr. Johnson.” four pages argument opening brief do nothing more than explain what is, insist it is important, contend no could possibly see avoiding use evidence reasonable tactical decision. There is, however, least clear situation might determine such action strategy, i.e., is justifiably concerned evidence will inculpate rather than exculpate defendant. has provided us reason revisit our previous conclusion seek additional tactically motivated. “DNA [Johnson] request reasons,” ‐ 301(4), affirm court.
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Gregory K. Judge
¶8 WE CONCUR:
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James Z. Judge
____________________________________ A. Thorne Jr., Judge