Parsons v. Barnes, 920126

CourtSupreme Court of Utah
Citation871 P.2d 516
Docket NumberNo. 920126,920126
PartiesJoseph Mitchell PARSONS, Plaintiff and Appellant, v. M. Eldon BARNES, in his capacity as Warden of the Utah State Prison, Defendant and Appellee.
Decision Date11 January 1994

Ronald J. Yengich, Gregory J. Sanders, Kirk Gibbs, Salt Lake City, for plaintiff.

R. Paul Van Dam, Atty. Gen., Kris Leonard, Asst. Atty. Gen., Salt Lake City, for defendant.

HOWE, Justice:

Plaintiff Joseph Mitchell Parsons appeals from the denial of his petition for a writ of habeas corpus.

On August 30, 1987, Parsons was hitchhiking near Barstow, California, when the victim, Richard L. Ernest, offered him a ride to Denver, Colorado. Parsons accepted. At 3:00 the next morning, the two men stopped to sleep at the Lunt Park rest area on Interstate Highway 15 near Cedar City, Utah. Both men were settling into sleep when, according to Parsons, Ernest made two sexual advances. The men struggled, and Parsons stabbed Ernest in the chest several times with a five-inch double-edged knife.

Parsons drove about a mile from the rest area and pushed Ernest's body onto the shoulder of the highway. He then drove to a On September 2, the Iron County prosecutor filed an information charging Parsons with first degree murder and aggravated robbery. The same day, the prosecutor took the statements of two witnesses under oath at his office, one from Beverly Ernest, the victim's widow, and one from Chad Williams, an employee at the Beaver convenience store.

service station/convenience store in Beaver, Utah, where he changed his clothes, cleaned out the car, and discarded Ernest's personal belongings in a trash dumpster. Using the victim's credit card, he purchased gas and food. From Beaver, he drove to Richfield, Utah, where he again used Ernest's credit card to purchase several items and to get a motel room. Later that day, police officers were alerted to Parsons' unusual activities at the convenience store and to his fraudulent credit card purchases. At 4:15 p.m., officers found him sleeping in Ernest's car at a rest area near Salina, Utah, and arrested him. The next morning, police officers discovered the victim's body.

The fifth district court began a preliminary hearing on September 17 but discontinued the proceeding at the request of Parsons' appointed counsel. The next day, on the advice of counsel, Parsons pleaded guilty to first degree murder in violation of Utah Code Ann. § 76-5-202. 1 Specifically, he pleaded to the offense as defined in section 76-5-202(1)(h) (intentionally or knowingly causing the death of another having been previously convicted of a felony involving the use or threat of violence to another person). In addition, Parsons pleaded guilty to aggravated robbery and theft of an operable motor vehicle. The sentencing jury imposed the death sentence. We affirmed the sentence on direct appeal. State v. Parsons, 781 P.2d 1275 (Utah 1989).

On March 8, 1990, Parsons filed a pro se petition for habeas corpus review in the third district court. Approximately seven months later, his new appointed counsel filed an amended petition asserting several instances of ineffective assistance of counsel at trial and on appeal. The petition also raised a constitutional issue independent of the ineffective assistance allegations. Parsons contended that by taking the sworn statements of witnesses without giving notice to the defense, the prosecutor violated his federal constitutional rights to counsel and to confront the witnesses against him, U.S. Const. amend. VI, as well as his federal and state constitutional rights to due process. U.S. Const. amend. XIV; Utah Const. art. I, § 7.

Following an evidentiary hearing, the third district court denied the writ, holding that Parsons had received effective assistance of counsel. The court addressed the constitutional question solely as an ineffective-assistance-of-counsel claim, not as a substantive constitutional error. The court denied compensation for appointed counsel in the habeas proceeding, holding that it was a matter for legislative rather than judicial resolution. Parsons appeals.


In deciding habeas appeals, we review conclusions of law for correctness, according "no deference to the lower court's conclusions." Gerrish v. Barnes, 844 P.2d 315, 318-19 (Utah 1992) (citing Fernandez v. Cook, 783 P.2d 547, 549 (Utah 1989)). However, "the trial court's factual findings shall not be set aside on appeal unless clearly erroneous." State v. Tyler, 850 P.2d 1250, 1253 (Utah 1993). Ineffective-assistance-of-counsel claims present a mixed question of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); State v. Templin, 805 P.2d 182, 186 (Utah 1990).


As explained, on the same day he charged Parsons with first degree murder, the prosecutor took the statements of Williams and Mrs. Ernest under oath. Parsons now argues Habeas relief is available where a defendant has suffered an "obvious injustice" or "substantial and prejudicial denial of a constitutional right." Gerrish v. Barnes, 844 P.2d at 319; Hurst v. Cook, 777 P.2d 1029, 1034 (Utah 1989). However, the writ can neither substitute for, nor perform the function of, regular appellate review. Codianna v. Morris, 660 P.2d 1101, 1104 (Utah 1983); see, e.g., Hurst v. Cook, 777 P.2d 1029, 1034 (Utah 1989); Bundy v. Deland, 763 P.2d 803, 804 (Utah 1988); Brown v. Turner, 21 Utah 2d 96, 98-99, 440 P.2d 968, 969 (1968). For this reason, a "party may not raise issues in a habeas corpus petition that could or should have been raised on direct appeal." Fernandez, 783 P.2d at 549. However, where "unusual circumstances are present that justify the failure to raise the issue on direct appeal, a court may entertain such a claim raised for the first time in the habeas corpus petition." Id.

that by taking these sworn statements without giving notice to the defense, the prosecutor violated his federal constitutional right to counsel and to confront the witnesses against him, U.S. Const. amend. VI, and his federal and state constitutional rights to due process. U.S. Const. amend. XIV; Utah Const. art. I, § 7. Parsons raises this argument independent of his ineffective assistance allegations.

The State argues that Parsons' substantive constitutional arguments are procedurally barred because he failed to raise them on direct appeal and because he has not shown "unusual circumstances" justifying his failure to do so. While it is true that he has not alleged the requisite unusual circumstances, "procedural default is not always determinative of a collateral attack on a conviction" where, as in this case, "it is alleged that the trial was not conducted within the bounds of basic fairness or in harmony with constitutional standards." Hurst, 777 P.2d at 1036. We therefore reach the merits of Parsons' federal constitutional arguments. However, after careful consideration, we conclude that his Sixth and Fourteenth Amendment rights were not violated. 2

Rule 14(h) of the Utah Rules of Criminal Procedure exclusively governs the taking of depositions in criminal cases. 3 See State v. Nielsen, 522 P.2d 1366, 1367 (Utah 1974) (holding that rule 30 of the Utah Rules of Civil Procedure, permitting discovery depositions, does not apply to criminal cases). It permits depositions in narrow circumstances:

(h) Whenever a material witness is about to leave the state, or is so ill or Utah R.Crim.P. 14.

infirm as to afford reasonable grounds for believing that he will be unable to attend a trial or hearing, either party may, upon notice to the other, apply to the court for an order that the witness be examined conditionally by deposition. Attendance of the witness at the deposition may be compelled by subpoena. The defendant shall be present at the deposition and the court shall make whatever order is necessary to effect such attendance.

When a prosecutor takes a statement that does not conform to the requirements of rule 14(h), he or she has not taken a deposition even if the witness gives the statement under oath. Admittedly, the term "deposition" is sometimes "used in a broad sense to describe any written statement verified by oath." 23 Am.Jur.2d Depositions and Discovery § 108 (1983). 4 However, according to rule 14(h), a statement under oath is not a deposition unless the court has ordered the proceeding, the deposing party has given notice to the other party, the defendant is present, and the witness being deposed is about to leave the state or is so ill that his or her attending the trial is unlikely. At the habeas proceeding, the prosecutor testified that he was not proceeding under rule 14(h) when he took the statements of Williams and Mrs. Ernest. Rather, he took the statements "to preserve and gain information" and "to put everything in perspective--times, dates, who did what." He did not apply to the court for an order to take the statements, nor did he notify Parsons. Accordingly, we agree with the trial court that the statements of Williams and Mrs. Ernest "were not 'depositions', but were rather 'sworn statements' generated by a careful and thoughtful investigative prosecutor." While no statutory or procedural rule affirmatively authorizes a prosecutor to take investigatory statements outside the confines of rule 14(h), due process of law is not offended when a prosecutor chooses to do so.

In fact, the record indicates that Parsons benefited from the statements. The habeas court found it likely that the prosecutor took the statements before defense counsel was appointed, thereby preserving information for Parsons when it was fresh in the minds of two critical witnesses. Likewise, defense counsel used Mrs. Ernest's sworn statement at the sentencing hearing for impeachment purposes....

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