Fernandez v. Cook
| Decision Date | 12 July 1993 |
| Docket Number | No. 910395,910395 |
| Citation | 870 P.2d 870 |
| Parties | Anastacio FERNANDEZ, Jr., Plaintiff and Appellee, v. Gerald L. COOK, Warden, Utah State Prison; R. Paul Van Dam, Utah Attorney General, Defendants and Appellants. |
| Court | Utah Supreme Court |
Robert M. Archuleta, Salt Lake City, for plaintiff and appellee.
R. Paul Van Dam, Atty. Gen., J. Frederic Voros, Jr., Asst. Atty. Gen., Salt Lake City, for defendants and appellants.
The State appeals the grant of a petition for habeas corpus and the denial of the State's motion for new trial. We reverse.
On May 9, 1986, a jury convicted Anastacio Fernandez, Jr., of two counts of rape of a child in violation of Utah Code Ann. § 76-5-402.1. At trial, the State's primary witness was Fernandez' daughter ("P.F."), who stated that from the time she was eleven years old to the time she was thirteen years old, Fernandez had sexual intercourse with her "a lot." 1 She testified in detail of two specific incidents when her father had intercourse with her: one occurring on October 30, 1983, and one on April 18, 1985. On cross-examination, P.F. admitted that she did not get along with her father and that she preferred living with her mother and without her father.
The State also presented the testimony of Dr. Kent Gibbs, the physician who examined P.F. subsequent to her accusations that Fernandez had intercourse with her. Dr. Gibbs examined P.F. when she was fourteen years old, approximately one year after the last time Fernandez allegedly had intercourse with her. Dr. Gibbs testified that after performing a pelvic examination on P.F., his findings were inconclusive as to whether she had had intercourse. 2 Dr. Gibbs further testified that a girl similarly situated who regularly engaged in intercourse a year before being examined would "not necessarily" possess a different physical makeup than P.F.'s.
Dr. Gary Sazama, a clinical psychologist, also testified on behalf of the prosecution. Dr. Sazama testified that after a two-hour interview with P.F., he concluded that she suffered from post-traumatic stress disorder, which is characteristic in rape and molestation victims. On cross-examination, Dr. Sazama admitted that stress could also result from fabricating a sex abuse story and anticipating a courtroom confrontation. Dr. Sazama later opined that P.F.'s particular condition did not result from pretrial stress.
Fernandez was represented by Clint Judkins at trial. Judkins presented the testimony of Fernandez and Arselia Fernandez (Fernandez' wife and P.F.'s mother). Fernandez denied all of P.F.'s accusations that he had had intercourse with her. He also testified that he and P.F. argued and that he thought her "story" was fabricated to get him out of the house. Consistent with the testimony of Fernandez and P.F., Arselia Fernandez testified that P.F. and her father did not get along and that P.F. was happier when he was gone. Arselia Fernandez claimed that P.F. had never discussed her father's alleged misconduct with her. She further testified that she did not believe that the alleged rapes occurred and that P.F. was not always truthful.
The jury resolved the dispute in the evidence against Fernandez. He was sentenced to two consecutive minimum mandatory terms of fifteen years to life. Fernandez appealed the sentence and later, on order by this court, was resentenced to two fifteen-year terms to run concurrently instead of consecutively. Fernandez then filed a pro se appeal from the new sentencing order. That appeal was subsequently dismissed on motion of Fernandez' present counsel.
In April 1988, Fernandez filed a petition for habeas corpus in the Third Judicial District Court. He sought a new trial, arguing that he was denied his constitutional right to effective assistance of counsel and that he was further denied the constitutional right to trial by an impartial jury. The district court dismissed the petition, finding that the issues could have been raised on direct appeal and that there were no unusual circumstances that would justify failure to do so. Fernandez appealed the district court's ruling. This court reversed and remanded, holding that Fernandez' failure to raise the claim of ineffective assistance of counsel on appeal did not preclude him from raising it in a habeas corpus proceeding where the alleged ineffective counsel had represented Fernandez on direct appeal and did not raise the issue. 3
On March 23, 1990, the district court held a hearing on Fernandez' petition for habeas corpus. Among those testifying was Dr. Gibbs. In addition to presenting his findings of the examination performed on P.F., Dr. Gibbs testified that before trial, Judkins had not spoken with him or subpoenaed his records. He also stated that based on the examination, he had written the investigating detective advising that from his findings, he "would be surprised if she was regularly sexually active." Additionally, based on a hypothetical posed, Dr. Gibbs testified that he would expect an easier examination, one without discomfort, for an eleven- to thirteen-year-old girl who claimed to have had intercourse one hundred times. However, consistent with his prior trial testimony, Dr. Gibbs stated that he could not determine conclusively whether P.F. had had sexual intercourse.
Fernandez testified at the hearing that he had discovered a tape recording wherein P.F. said that she wished Fernandez was back in jail. Fernandez claimed that Judkins knew of the tape but failed to question him about it at trial. Furthermore, Fernandez contended that Judkins was not prepared at trial and that despite their several meetings, Judkins never discussed trial strategy with him.
Judkins also testified at the hearing. Judkins testified that he had practiced law for nineteen years before becoming a circuit court judge in 1989 and that during that time, he had extensive experience in criminal law on the side of both the defense and the prosecution. Relative to his representation of Fernandez, Judkins stated that he prepared for trial by reviewing the prosecution's file, the video tape of P.F.'s police interview, and Dr. Gibbs' post-examination letter and by conducting a number of interviews. Judkins stated that a great amount of research was not necessary because he had "extensive background" in this particular area, representing others similarly situated, and therefore had knowledge of the law and defenses available. At the time of trial, Judkins felt that he was adequately prepared to defend Fernandez. Concerning any conduct or decisions that were being called into question, Judkins claimed that he made decisions and proceeded in a manner that in his judgment would best serve Fernandez' interests.
Finally, Fernandez called as a "legal expert" Lynn Brown, an attorney with extensive experience in criminal defense. Brown testified as to what he or any reasonable attorney would or would not have done in preparation for Fernandez' defense. All or most of the questions posed and the responses elicited referred indirectly to what Judkins should or should not have done, intimating that Judkins had rendered ineffective assistance.
The district court concluded that Fernandez had received ineffective assistance of counsel, denying him the constitutional right to counsel, and ordered that the case be retried. The court later entered findings of fact and conclusions of law. The State appealed the district court's decision on Fernandez' habeas corpus petition but later sought and obtained a dismissal of the appeal. Back before the district court, the State contended that the findings of fact and conclusions of law were in error and should be set aside. In addition, the State argued that there was insufficient evidence to justify the district court's decision and moved for a new trial on Fernandez' habeas corpus petition. 4 The State's motion came before the district court for hearing, at which time the court granted Fernandez' motion in limine precluding P.F., Wendy Sanders, Michelle Sanders, Brenda Riggs, and Shelly Spackman from testifying at the habeas corpus trial. 5 The district court subsequently denied the State's motion for a new trial on the habeas corpus petition.
Before this court, the dispositive issue is whether the district court was correct in granting Fernandez' petition for habeas corpus based on the legal conclusion that Fernandez was denied effective assistance of counsel.
The applicable standard of review for claims of ineffectiveness of counsel is set forth in Strickland v. Washington. 6 In Strickland, the United States Supreme Court observed that the principles that apply in addressing ineffective assistance claims on direct appeal apply in habeas corpus actions as well. 7 Strickland held that claims of ineffective assistance of counsel involve a mixed question of law and fact. 8 Thus, "where a trial court has previously heard a motion based on ineffective assistance of counsel, reviewing courts are free to make an independent determination of a trial court's conclusions." 9 However, the findings of fact will not be set aside unless clearly erroneous. 10
In the recent case of State v. Thurman, 11 we again addressed the appropriate standard of review of trial court findings of fact as distinguished from the legal conclusions drawn therefrom. We reiterated that while deference is given to underlying findings of fact, which will not be set aside unless clearly erroneous, ultimate conclusions of law are to be reviewed for correctness. 12
Fernandez claims that he was denied the right to counsel under the Sixth Amendment. 13 The Sixth Amendment states in pertinent part, "In all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defence." 14 The guarantee to assistance of counsel has been held to mean " 'the right to effective assistance of counsel.' " 15 In determining whether a criminal ...
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Utah Standards of Appellate Review – Revised [1]
...1993) (stating appellate courts disregard labels on factual findings and legal conclusions and look to substance); Fernandez v. Cook, 870 P.2d 870,874-75 (Utah 1993) (stating when reviewing lower court's findings and conclusions appellate courts disregard labels and examine substance of iss......
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Utah Standards of Appellate Review
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