888 P.2d 608 (Utah 1994), 910500, Gardner v. Holden

Docket Nº:910500.
Citation:888 P.2d 608
Opinion Judge:STEWART, Associate Chief Justice:
Party Name:Ronnie Lee GARDNER, Plaintiff, Appellee, and Cross-Appellant, v. Tamara HOLDEN, Warden of the Utah State Prison, State of Utah, Defendant, Appellant, and Cross-Appellee.
Attorney:Manny C. Garcia, Salt Lake City, and Craig L. Truman, Denver, CO, and Karen A. Chaney, Tempe, AZ, for plaintiff. R. Paul Van Dam, Atty. Gen., Charlene Barlow, Asst. Atty. Gen., Salt Lake City, for defendant.
Case Date:November 10, 1994
Court:Supreme Court of Utah

Page 608

888 P.2d 608 (Utah 1994)

Ronnie Lee GARDNER, Plaintiff, Appellee, and Cross-Appellant,


Tamara HOLDEN, Warden of the Utah State Prison, State of

Utah, Defendant, Appellant, and Cross-Appellee.

No. 910500.

Supreme Court of Utah.

November 10, 1994

Rehearing Denied Feb. 8, 1995.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Manny C. Garcia, Salt Lake City, and Craig L. Truman, Denver, CO, and Karen A. Chaney, Tempe, AZ, for plaintiff.

R. Paul Van Dam, Atty. Gen., Charlene Barlow, Asst. Atty. Gen., Salt Lake City, for defendant.

STEWART, Associate Chief Justice:

A jury convicted Ronnie Lee Gardner of first degree murder, attempted first degree murder, aggravated kidnapping, escape, and possession of a dangerous weapon by an inmate. He was then sentenced to death. His conviction and sentence were affirmed on direct appeal in State v. Gardner, 789 P.2d 273 (Utah 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990).

Gardner filed this petition for post-conviction relief in district court, challenging both his conviction and his sentence. The district court ruled that Gardner had been denied effective assistance of counsel in the penalty hearing and on appeal because trial counsel did not give a defense psychiatrist adequate time to test and evaluate Gardner and because appointed appellate counsel did not adequately research and brief issues on appeal. The court held that these deficiencies entitled Gardner to a new penalty hearing and a new appeal.

On appeal, the State argues that counsel's performance was not deficient and, alternatively, that any alleged deficiencies were not prejudicial. Gardner cross-appeals, arguing that his conviction should have been set aside and that the district court erred in rejecting his other claims of error.

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  1. FACTS

    The facts developed at the trial and at the hearing on the petition for post-conviction relief are as follows: On April 2, 1985, Ronnie Lee Gardner was transported from the Utah State Prison to the Metropolitan Hall of Justice in Salt Lake City for a pretrial hearing on a second degree murder charge. As Gardner and his guards entered the courthouse basement, a woman handed Gardner a gun. The guards exchanged gunfire with Gardner, shot him through the lung, and then retreated from the area. In attempting to escape, Gardner entered the archives room, where he saw two attorneys, Robert Macri and Michael Burdell, hiding behind the door. Gardner pointed the gun at Macri and cocked the hammer of the gun. Burdell exclaimed, "Oh, my God!" Turning, Gardner shot and killed Burdell.

    Gardner then forced prison officer Richard Thomas, who was also in the basement, to conduct him out of the archives room to a stairwell leading to the second floor. As Gardner crossed the lobby, he shot and seriously wounded Nick Kirk, a uniformed bailiff. Gardner climbed the stairs to the next floor, where he took hostage Wilburn Miller, a vending machine serviceman. As Gardner exited the building, Miller broke free and escaped. Outside, Gardner threw down his gun and surrendered to waiting police officers.

    Gardner's attorneys, brothers Andrew and James Valdez of Salt Lake Legal Defenders Association, were to meet Gardner that day at 9:00 a.m. for the pretrial hearing. Andrew Valdez was walking toward the courthouse when he saw Gardner go down to the ground. As Andrew ran across the street, he could see that Gardner was bleeding from the chest. Andrew spoke with Gardner and then left. James Valdez arrived at the courthouse soon after. He immediately approached Gardner and asked him if he was all right; Gardner responded that he was in pain.

    Gardner was later transported to the University Hospital. Wayne Jorgensen, a prison officer assigned to guard Gardner at the hospital, testified at trial that Gardner told him he shot Burdell because he thought Burdell looked as if he would jump on him. According to Jorgensen, Gardner also declared that he would have killed anyone who tried to stop him from escaping.

    Both Andrew and James Valdez represented Gardner at trial. The thrust of the defense was that Gardner was in such pain and physical distress after he was wounded that his shooting Burdell was only a reaction and therefore the killing was unintentional. In preparation for trial, defense counsel spoke with the emergency room doctors who treated Gardner. The doctors told counsel that Gardner was not in shock when he came into the emergency room, did not have excessive bleeding, was lucid and demanding, and was aware of the situation.

    Robert Macri testified at trial that after Gardner shot Burdell, Macri ran around the door and closed it behind him as a shield. However, at the preliminary hearing, Macri testified that he could not remember how the door shut. After the preliminary hearing but before trial, unknown to either the prosecution or defense counsel, Macri underwent hypnosis to help him remember how the door shut. Macri could not recall that detail while under hypnosis but asserted that while driving to California some months later, he suddenly recalled that he had shut the door. In all other respects, Macri's testimony at the preliminary hearing and at trial were the same. It was at the post-conviction proceeding while Gardner's appeal was pending that defense counsel first became aware that Macri had been hypnotized prior to trial.

    At trial, Gardner took the stand and testified on direct examination that he had been convicted of various crimes, including crimes of violence. Defense counsel elicited this information, according to the testimony at the habeas hearing, because he believed that the prosecution would use those convictions to impeach Gardner and he wanted to "steal the prosecution's thunder."

    At the penalty hearing, defense counsel called Dr. Heinbecker, a psychiatrist, to testify regarding Gardner's mental status. On the basis of Gardner's medical history and previously administered psychological and I.Q. tests, Dr. Heinbecker testified that it was likely that Gardner suffered from organic

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    brain damage. The prosecution challenged that diagnosis with other prior psychological evaluations performed on Gardner. However, Dr. Heinbecker had only twenty-four hours to prepare for testifying. His preparation consisted of interviewing Gardner, Gardner's mother, and Gardner's brother and reviewing Gardner's previous medical and psychological records. Dr. Heinbecker did not administer any psychological tests to Gardner but relied on tests administered by prison psychologists and others.

    On direct appeal from the conviction and sentence, the Salt Lake Legal Defenders' Association (LDA) continued to represent Gardner. However, after LDA's brief was filed, Gardner filed a pro se supplemental brief alleging ineffective assistance of counsel at trial. A few days before oral argument, Gardner asked LDA to withdraw as his attorneys. As a result, LDA moved to withdraw three days before oral argument. The Court denied the motion to withdraw but appointed attorney Ed Brass to file a supplemental brief for Gardner on his ineffectiveness-of-counsel claim and permitted Gardner to supplement his brief and the oral argument of LDA. The supplemental brief asserted that trial counsel were ineffective in failing to object to the admission of certain testimony but stated that other claims of ineffectiveness of counsel were premature because there was no record upon which to base a review.


    Gardner raised numerous issues in his petition for post-conviction relief, and the district court addressed the merits of all of them. The issues a petitioner may properly raise in a petition for post-conviction relief, however, are limited. Rule 65B(b) of the Utah Rules of Civil Procedure provides for post-conviction relief for those who have been wrongfully imprisoned due to "a substantial denial of rights." Nevertheless, the rules that govern a Rule 65B proceeding limit the kinds of issues that can properly be raised and considered.

    A petition for post-conviction relief, or habeas corpus, collaterally attacks a conviction and/or a sentence. It is not a substitute for direct appellate review. Codianna v. Morris, 660 P.2d 1101, 1104 (Utah 1983). Issues raised and disposed of on direct appeal of a conviction or a sentence cannot properly be raised again in a Rule 65B proceeding, Hurst v. Cook, 777 P.2d 1029, 1036 (Utah 1989), and should be dismissed as an abuse of the writ without a ruling on the merits. Issues that could and should have been raised on direct appeal, but were not, may not properly be raised in a habeas corpus proceeding absent unusual circumstances. Fernandez v. Cook, 783 P.2d 547, 549 (Utah 1989); Codianna, 660 P.2d at 1104. The unusual circumstances test requires a showing of "an obvious injustice or a substantial and prejudicial denial of a constitutional right." Hurst, 777 P.2d at 1035; Fernandez, 783 P.2d at 549; Codianna, 660 P.2d at 1005; Dunn v. Cook, 791 P.2d 873, 876 (Utah 1990). " '[T]he unusual circumstances test was intended to assure fundamental fairness and to require reexamination of a conviction on habeas corpus when the nature of the alleged error was such that it would be "unconscionable not to reexamine" ... and thereby to assure that "substantial justice [was] done"....' " Hurst, 777 P.2d at 1035 (quoting Codianna, 660 P.2d at 1115 (Stewart, J., concurring)). In all events, it is not the function of a Rule 65B proceeding to allow a defendant to scour the record of the original proceeding for a technical error upon which to collaterally attack a conviction or a sentence. Ordinarily, assertions of error based on evidentiary, procedural, and instructional rulings are deemed waived under the law unless an...

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