State v. Thompson

• Citation: 318 P.3d 1221,752 Utah Adv. Rep. 41
• Decision Date: 16 January 2014
• Docket Number: No. 20080546–CA.,20080546–CA.
• Court: Court of Appeals of Utah
• Parties: STATE of Utah, Plaintiff and Appellee, v. Michael W. THOMPSON, Defendant and Appellant.

318 P.3d 1221

752 Utah Adv. Rep. 41

STATE of Utah, Plaintiff and Appellee,

v.Michael W. THOMPSON, Defendant and Appellant.

No. 20080546–CA.

Court of Appeals of Utah.

Jan. 16, 2014.

Linda M. Jones, Troy L. Booher, and Noella A. Sudbury, for Appellant.

Sean D. Reyes and Mark C. Field, for Appellee.

Judge CAROLYN B. McHUGH authored this Opinion, in which Judges GREGORY K. ORME and JAMES Z. DAVIS concurred.

McHUGH, Judge:

¶ 1 Michael W. Thompson appeals from his conviction on two counts of forcible sodomy, both first degree felonies. SeeUtah Code Ann. § 76–5–403(1) to –403(3) (LexisNexis 2003) (current version at Utah Code Ann. § 76–5–403 (LexisNexis Supp.2013)). Among other things, he claims that he received ineffective assistance of counsel. Specifically, Thompson asserts that trial counsel failed to investigate or challenge the qualifications of the State's rebuttal witness, failed to object to the witness's testimony as improper extrinsic character evidence, failed to object to instances of prosecutorial misconduct, and failed to object to defective jury instructions. We agree that trial counsel performed deficiently in some respects and that but for counsel's deficient performance, there is a reasonable probability that the outcome of the trial would have been more favorable to Thompson. Accordingly, we reverse and remand for a new trial.

BACKGROUND ¹

¶ 2 Thompson's convictions arose out of events involving a sixteen-year-old girl (A.T.), at a time when Thompson was a thirty-two-year-old long-haul truck driver living in Wisconsin. In late August 2002, Thompson and a friend (Friend) were passing through Salt Lake City and stayed two nights at A.T.'s home. Over a year and a half later, in April or May 2004, A.T. reported to the police that on the second morning of Thompson's 2002 visit, Thompson and A.T. engaged in two acts of oral sex. As a result, the State ultimately charged Thompson with two counts of forcible sodomy.

¶ 3 At a three-day jury trial in March 2007, the State called A.T. as the only witness in its case-in-chief. She testified that in early August 2002, around her sixteenth birthday, she accompanied Thompson on a long-haul trip. While stopped in Laramie, Wyoming, and then again when they reached Thompson's house in Wisconsin, Thompson and A.T. kissed and engaged in oral sex.² A.T. also testified that in late August 2002, Thompson and Friend stayed two consecutive nights at A.T.'s house in Salt Lake City. Thompson's convictions are based on A.T.'s testimony that Thompson came into her downstairs bedroom around 9:00 a.m. or 9:30 a.m. on the second morning of that visit and that he and A.T. engaged in two acts of oral sex.

¶ 4 Thompson testified in his own defense, stating that he and Friend stayed at A.T.'s house for two nights in August 2002, but not consecutively. According to Thompson, they arrived in the evening on August 20 and left for Las Vegas and California the next morning. Thompson testified that he and Friend arrived back in Salt Lake City on August 24 and spent a second night at A.T.'s house. However, Thompson denied having oral sex with her. Thompson claimed that he and Friend left early the next morning because they were transporting produce. Specifically, Thompson indicated that on the morning of August 25 he “got up at 6:00 a.m., got ready and got out of there,” and that he and Friend “were rolling ... by 6:30 in the morning” Central Time. Thompson asserted that A.T.'s account could not be accurate because he was on the road at the time she alleged the offenses had occurred. When asked whether he had driver's logs for this trip, Thompson said he did and that he kept daily logs in accordance with federal law. Thompson's trial counsel then moved to excuse Thompson and to recall him later in the trial, and the prosecutor deferred cross-examination until Thompson was recalled.

¶ 5 Next, Friend testified, corroborating Thompson's account that they stayed at A.T.'s house on two separate nights. Friend testified that on the first morning at A.T.'s house, August 21, he awoke between 8:00 a.m. and 9:00 a.m. Central Time, but that on the second morning, August 25, he awoke between 6:30 a.m. and 7:30 a.m. Mountain Time. He stated that Thompson was still asleep when Friend awoke the second morning and that when Thompson awoke around 7:30 a.m., Friend and Thompson went outside for a few minutes to talk and smoke. When they returned inside, A.T. was awake and upstairs. Friend indicated that he and Thompson packed their things and left for Wisconsin shortly thereafter. On cross-examination, Friend testified that Thompson awoke at 9:00 a.m. “that morning,” with the context of the testimony making the date ambiguous.

¶ 6 Subsequently, Thompson was recalled to the stand. On cross-examination, the prosecutor asked Thompson about Friend's testimony. Interpreting Friend's reference to “that morning” as a reference to August 25, the prosecutor highlighted a possible discrepancy in Friend's testimony about when he and Thompson awoke on August 25. The prosecutor asked, “So, one of those wasn't true. Which one was the truth? It was either you got up at 9:00, or you got up at 7:15. Or maybe it was something else. Why don't you tell us what happened.” In response, Thompson explained that he could not be “a hundred percent right to the second, time, hour, everything” of the time he arose on that morning, which was six years before trial. When pressed again about the possible discrepancy, Thompson said there was “[n]o way [he] could have got up at 9:00” because he was “under a produce load,” which could result in significant financial liability if delivered late.³

¶ 7 During cross-examination, the prosecutor also asked about A.T.'s testimony that Thompson and A.T. had also had oral sex in Laramie, Wyoming. Thompson denied the allegation, stating, “No. Personally, I don't go through Laramie, Wyoming.” At another point during cross-examination, Thompson stated that commercial truck drivers are required to take an eight-hour break after every ten hours of driving (the Ten–Hour Rule). The prosecutor asked Thompson whether he followed this rule “religiously,” and Thompson said he did.

¶ 8 At some point during trial, Thompson's trial counsel had disclosed to the prosecutor, without any prior notice, that he intended to introduce Thompson's commercial truck driver's logs. The defense offered the driver's logs to undermine A.T.'s credibility and to support Thompson's testimony that he could not have had oral sex with A.T. at the time she claimed on August 25, 2002, because he was already on his way back to Wisconsin. The prosecutor moved to exclude the driver's logs because they had been provided on short notice despite being within the scope of an earlier discovery request. The trial court denied the prosecutor's motion, but allowed him to use the lunch break to find a rebuttal witness.

¶ 9 Thompson's trial counsel offered the driver's logs as an exhibit on redirect. Thompson testified that the driver's logs were “accurately kept by [him] as a driver” and that if the driver's logs says “that's the time that [he was] in those places, [then] that's the time that [he was] in those places.” Thompson's driver's logs indicated that he arrived in Salt Lake City on August 20 at 10:30 p.m. Central Time and drove to Las Vegas the next day. The logs also show that he and Friend returned to A.T.'s house on August 24 and that they “left Salt Lake City at 6:30 [a.m. Central T]ime” on August 25. Relying on the driver's logs, Thompson asserted that “the testimony of [A.T.] that [he] had been with her at 9:00 o'clock, or possibly 10:00 o'clock in the morning [Mountain Time], would not be accurate.”

¶ 10 On re-cross examination, the prosecutor again asked Thompson whether he followed the Ten–Hour Rule “religiously” and whether he kept his driver's logs accurately. Thompson testified that he tried to follow the Ten–Hour Rule, that he kept his driver's logs accurately to the best of his ability, and that he did not “cook[ ] the books.” The prosecutor also elicited testimony from Thompson explaining that truck drivers are limited to seventy hours of on-duty time in a seven-day period (the Seventy–Hour Rule).⁴ At the end of Thompson's testimony, the trial court received the driver's logs into evidence.

¶ 11 After the lunch break, the State offered a civilian transportation specialist for the Utah Highway Patrol (Specialist), as a rebuttal witness to challenge the accuracy of Thompson's driver's logs. Specialist testified that he supervised training and instruction of the safety inspection division and motor vehicle safety section of the Utah Highway Patrol and that he had expertise in the area of training relating to drivers' hours of service. Specialist then described a computer software program called PC*Miler, which uses trucking routes and speed limits to estimate travel times. Specialist presented a report generated using the PC*Miler program that calculated the time it would have taken Thompson to drive the trip reflected in his driver's logs from Rapid City, North Dakota, to Salt Lake City, Utah, on August 20, 2002. Relying on the PC*Miler report, Specialist testified that Thompson's trip covered between 664 and 727 miles, depending on the route, and would have taken over fourteen hours to travel on either route. Specialist further opined that Thompson's driver's log entry indicating that he traveled the distance in ten hours could not be accurate because it was “not physically possible.” Specialist informed the jury that Thompson “definitely” violated the Ten–Hour Rule and the Seventy–Hour Rule. Specialist further concluded that Thompson had “cooked the books” to avoid documenting violations of the rules governing how many hours a truck driver can spend on the road without a break. On cross-examination, Specialist admitted that he did not know the exact route Thompson traveled, the applicable speed limits, or...