Butterfield v. Cook, 910130-CA

• Decision Date: 02 August 1991
• Docket Number: No. 910130-CA,910130-CA
• Citation: 817 P.2d 333
• Parties: Dale BUTTERFIELD, Petitioner and Appellant, v. Gerald L. COOK, Warden, and his successors, Utah State Prison, Respondent and Appellee.
• Court: Utah Court of Appeals

Page 333

817 P.2d 333

Dale BUTTERFIELD, Petitioner and Appellant, v. Gerald L. COOK, Warden, and his successors, Utah State Prison, Respondent and Appellee.

No. 910130-CA.

Court of Appeals of Utah.

Aug. 2, 1991.

Certiorari Denied Nov. 12, 1991.

Jimi Mitsunaga (argued) and Walker E. Anderson, Salt Lake City, for petitioner-appellant.

R. Paul Van Dam, State Atty. Gen. and Kirk Torgensen, Asst. Atty. Gen., Governmental Affairs, Salt Lake City, for respondent-appellee.

Before BILLINGS, ORME and RUSSON, JJ.

OPINION

BILLINGS, Associate Presiding Judge:

Petitioner Butterfield appeals from the trial court's denial of his writ of habeas corpus. Petitioner was convicted of first degree rape, and on direct appeal the Utah Supreme Court affirmed his conviction. Petitioner filed a writ of habeas corpus in the third district court claiming he was denied effective assistance of counsel on his direct appeal. The district judge, after an evidentiary hearing, denied the petition. On appeal, petitioner requests this court to reverse the order denying his petition for writ of habeas corpus, to examine the issues he raises on their merits or in the alternative to remand for a new trial. We affirm the denial of petitioner's writ of habeas corpus.

FACTS

Petitioner was convicted of raping his daughter's friend on a weekend trip to Heber. At trial, the principal witnesses to testify against Butterfield were the complainant, age fourteen, and Arlene Connolly at whose house they were staying. Connolly testified she was awakened by the complainant's protests. She noted petitioner's unusual appearance and behavior and described what appeared to be blood, oil, and seminal fluid on the complainant and her clothing. The complainant testified that petitioner had forced her to have sexual intercourse. Due to the complainant's age and the nature of her testimony, the trial judge ordered the courtroom cleared and the trial closed.

At trial, petitioner denied having intercourse with the complainant. He claimed he had sent her to bed after she had taken her medication and accidentally spilled some cooking oil. Tests performed on portions of the complainant's clothing were negative for blood or seminal fluid. The examining physician found no evidence of blood or seminal fluid, but noted other conditions consistent with sexual trauma.

On direct appeal to the Utah Supreme Court, petitioner's only claim of error was that he had been denied a right to a public trial. The supreme court affirmed. State v. Butterfield, 784 P.2d 153 (Utah 1989). Petitioner subsequently filed a petition for habeas corpus claiming ineffective assistance of counsel on his direct appeal. Petitioner claimed his appellate counsel should have addressed the following issues on appeal: (1) There was insufficient evidence to support the jury verdict; (2) The complainant's prior sexual behavior should have been admitted to show she had the experience necessary to manufacture a rape charge; (3) The absence of instructions on consent.

Petitioner's appellate counsel testified at the evidentiary hearing held by the district court. Counsel stated they had carefully reviewed the case and read the entire record in order to determine which issues to appeal. Counsel concluded the insufficiency of the evidence argument was without merit as there was substantial evidence to support the jury verdict. Counsel explained their decision not to raise the issue of the complainant's prior sexual behavior stating they believed the evidence was properly excluded under Utah law. Counsel stated Butterfield was not entitled to consent instructions because he testified he did not have intercourse with the complainant, not that she consented. Appellate counsel both testified they believed they had excellent arguments on the public trial issues and therefore made the strategic decision to focus attention on that point rather than to argue issues they felt had no chance of success.

In denying Butterfield's petition for a writ of habeas corpus, the court found "that as a matter of appellate strategy, counsel decided not to raise all frivolous issues so as to improve the chance of success on the meritorious issues." The court also concluded counsel's choice of issues for appeal fell within the range of competent counsel.

In this appeal, petitioner claims the district court should have determined he was denied effective assistance of counsel on appeal because his appellate counsel failed to raise meritorious issues and also failed to file an Anders brief. State v. Butterfield, 784 P.2d 153 (Utah 1989).

Ineffective assistance of counsel is the type of "unusual circumstance" that permits one to obtain review by a writ of habeas corpus. Dunn v. Cook, 791 P.2d 873, 875-76 (Utah 1990); Wagstaff v. Barnes, 802 P.2d 774, 775-76 (Utah App.1990). In reviewing appeals from a dismissal of a petition for a writ of habeas corpus, the trial court's conclusions of law are reviewed for correctness. Fernandez v Cook, 783 P.2d 547, 549 (Utah 1989). However, in reviewing findings of fact "we survey the record in the light most favorable to the findings and judgement; and we will not reverse if there is a reasonable basis therein to support the trial court's refusal to be convinced that the writ should be granted." Medina v. Cook, 779 P.2d 658 (Utah 1989) (quoting Bundy v. DeLand, 763 P.2d 803, 805 (Utah 1988)).

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

A. Standard

Utah's appellate courts have not yet considered whether failure of counsel to brief alleged meritorious issues on appeal rises to the level of ineffective assistance of counsel such that defendant on petition for habeas corpus should be granted a new trial. ¹ However, the standards previously utilized by Utah's appellate courts to evaluate claims of ineffective assistance of trial counsel are equally applicable to a claim of ineffective appellate counsel.

In State v. Frame, 723 P.2d 401 (Utah 1986), Utah adopted the two-prong Strickland test to establish ineffective assistance of counsel. First, petitioner must show counsel's representation fell below the objective standard of a reasonable professional. The evidence must be sufficient to overcome the presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Counsel must have been of such poor quality that the defendant was deprived of the "counsel" guaranteed by the sixth amendment. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65; State v. Wynia, 754 P.2d 667, 671-72 (Utah App.), cert. denied, 765 P.2d 1278 (Utah 1988). A mere showing that petitioner did not receive a favorable result or that his counsel's strategy did not work as planned does not establish that his counsel was inadequate. State v. McNicol, 554 P.2d 203, 204-05 (Utah 1976); State v. Grueber, 776 P.2d 70, 76 (Utah App.), cert. denied, 783 P.2d 53 (Utah 1989). We do not second guess the tactical strategy of trial counsel and we accord the same deference to counsel on appeal. Wynia, 754 P.2d at 671.

Second, petitioner must show counsel's errors were prejudicial. There must be a reasonable probability that but for counsel's error, the outcome of the proceeding would have been different. Frame, 723 P.2d at 405. Showing prejudice is a substantial task. "It is not enough to claim the alleged errors had some conceivable effect on the outcome...." Id. The error must be such that we lose confidence in the result on appeal. Id.

Failure to prove either one of these prongs will defeat a claim of ineffective assistance of counsel. Grueber, 776 P.2d at 76; State v. Geary, 707 P.2d 645, 646 (Utah 1985). The United States Supreme Court has suggested, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

Although Utah's appellate courts have not directly addressed the necessity for appellate counsel to raise all nonfrivolous issues in the context of an ineffective assistance of counsel claim, the United States Supreme Court has noted that counsel does not have to advance every argument regardless of merit on appeal. Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 835, 83 L.Ed.2d 821 (1985).

In Jones v. Barnes, the Supreme Court reversed a lower court holding that appellate counsel must raise every nonfrivolous issue requested by the defendant, stating, "a brief that raises every colorable issue runs the risk of burying good arguments...." ...." 463 U.S. 745, 753, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983). "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible or at most on a few key issues." 463 U.S. at 751-52, 103 S.Ct. at 3313. The Court continued, "for judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every 'colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders [v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967) ]." 463 U.S. at 764, 103 S.Ct. at 3314.

In Smith v. Murray, the Supreme Court found that the deliberate tactical decision of counsel not to pursue a particular claim on appeal after examining the record was within the bounds of reasonable professional assistance. 477 U.S. 527, 535-36, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). ²

In summary, we will examine each of petitioner's claims of counsel error to determine first, if counsel's failure to raise the issue on petitioner's direct appeal fell below reasonable professional standards and second, if counsel's failure was sufficiently prejudicial to undermine our confidence in the result on appeal.

B. Sufficiency of the Evidence

Petitioner...