State v. Arguelles

• Citation: 921 P.2d 439
• Decision Date: 12 July 1996
• Docket Number: No. 930036,930036
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robert V. ARGUELLES, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 439

921 P.2d 439

STATE of Utah, Plaintiff and Appellee, v. Robert V. ARGUELLES, Defendant and Appellant.

No. 930036.

Supreme Court of Utah.

July 12, 1996.

Jan Graham, Atty. Gen., J. Frederic Voros, Jr., Asst. Atty. Gen., Charles D. Behrens, Salt Lake City, for plaintiff.

Ronald S. Fujino, Salt Lake City, for defendant.

ZIMMERMAN, Chief Justice:

Roberto V. Arguelles appeals his conviction of two first degree felony counts of aggravated sexual abuse of a child. We affirm.

On the afternoon of August 1, 1992, a ten-year-old girl and her eight-year-old brother were playing outside at their elementary school when a man approached them claiming to be a school security guard. The man explained that he was investigating a report of a broken window and asked the children to accompany him to the back of the school. There the man said, "Well, I don't see any broken windows, so I'll have to frisk you to make sure that you didn't steal anything." The man proceeded to "frisk" the children both outside and inside their clothes and touched their "private parts." Then the man said, "You are okay, I guess. You are okay." The children ran home and reported the crime to their parents, who then called the police.

Arguelles was arrested approximately one week later, after the children separately identified him in a police photo array as the man who had accosted them behind the elementary school. Because the incident involved two victims and because Arguelles had previously been convicted of aggravated sexual assault and attempted capital homicide, both first degree felonies, he was charged with two counts of aggravated sexual abuse of a child in violation of section 76-5-404.1 of the Utah Code. ¹ After a two-day jury trial, Arguelles was convicted as charged and sentenced to two consecutive minimum mandatory prison terms of nine years to life.

Arguelles appeals, contending that he is entitled to a new trial because (i) his trial counsel was constitutionally ineffective in advising Arguelles not to testify in his own behalf; (ii) the trial court erred in refusing to excuse a biased juror for cause; (iii) the trial court erred in sustaining the State's hearsay objection to testimony about out-of-court statements offered in support of Arguelles' defense; and (iv) the trial court's definition of the "beyond-a-reasonable-doubt" standard in its instructions to the jury was inadequate. All of these arguments raise questions of law which we review for correctness. State v. Pena, 869 P.2d 932, 936 (Utah 1994). We address Arguelles' arguments in order.

Arguelles first contends that he was deprived of his Sixth Amendment right to the effective assistance of counsel. ² He claims that he waived his right to testify in reliance on his counsel's advice which, in turn, was premised on the mistaken belief that if Arguelles were to testify, the prosecution would be entitled to impeach him with evidence of his prior conviction for aggravated sexual assault. ³ In determining whether Arguelles' counsel was constitutionally ineffective, we apply the two-prong test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See Taylor v. Warden, 905 P.2d 277, 282 (Utah 1995); Parsons v. Barnes, 871 P.2d 516, 521 (Utah), cert. denied, --- U.S. ----, 115 S.Ct. 431, 130 L.Ed.2d 344 (1994).

"To prevail [on a claim of ineffective assistance of counsel], a defendant must show, first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel's performance prejudiced the defendant."

Parsons, 871 P.2d at 521 (quoting Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988)). Unless Arguelles has demonstrated that he was prejudiced by his trial counsel's performance, we need not decide whether that performance was deficient. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed."); accord Parsons, 871 P.2d at 523.

To show prejudice under the second prong of the Strickland test, "a defendant must proffer sufficient evidence to support 'a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different.' " Parsons, 871 P.2d at 522 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " State v. Templin, 805 P.2d 182, 187 (Utah 1990) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). Under this standard, Arguelles bears the burden of demonstrating a reasonable probability that he would not have been convicted absent his counsel's advice not to testify. We conclude that Arguelles has not met this burden.

Arguelles argues that he relied on his counsel's advice in deciding not to testify and that his failure to testify was prejudicial because he "was the lone witness who could definitively explain what he was doing before, during, and after the time in question" and cites Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 2709, 97 L.Ed.2d 37 (1987), for the proposition that "the most important witness for the defense in many criminal cases is the defendant himself." (Emphasis omitted.) However, beyond these general and conclusory statements in Arguelles' brief, he has not proffered any record evidence which undermines our confidence in his conviction. Although Arguelles now claims that he relied on his counsel's advice in deciding not to testify, we find nothing in the record which suggests that Arguelles would have decided to testify in the absence of that advice. Moreover, neither the record nor Arguelles' brief indicates what his testimony would have been if he had testified. Arguelles urges this court to assess the probable impact of testimony without placing before us the substance of that testimony. This invitation to speculate cannot substitute for proof of prejudice. See Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993) ("[P]roof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality.").

Alternatively, Arguelles argues that prejudice should be presumed because his counsel's advice effectively denied him his right to testify in violation of constitutional and statutory strictures. See Rock, 483 U.S. at 51-53, 107 S.Ct. at 2709-10 (discussing constitutional bases of criminal defendant's right to testify); Utah Const. art. I, § 12 ("In criminal prosecutions the accused shall have the right ... to testify in his own behalf...."); Utah Code Ann. § 77-1-6(1)(c) ("In criminal prosecutions the defendant is entitled ... [t]o testify in his own behalf...."). Although we may presume prejudice under some circumstances, we decline to do so here.

Strickland recognized that prejudice may be presumed when there has been actual or constructive denial of counsel, when the government has interfered with counsel's assistance, or when counsel has acted with a conflict of interest. See Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. In addition, this court has noted that "pursuant to our 'inherent supervisory power over the courts,' we may presume prejudice in circumstances where it is 'unnecessary and ill-advised to pursue a case-by-case inquiry to weigh actual prejudice.' " Parsons, 871 P.2d at 523 n. 6 (quoting State v. Brown, 853 P.2d 851, 857, 859 (Utah 1992)). Arguelles does not argue that any of these circumstances exist in the present case but instead cites the federal district court case of United States v. Butts, 630 F.Supp. 1145, 1148 (D.Me.1986), for the proposition that "a defendant's right to testify in a criminal proceeding against him [is] so basic to a fair trial that its infraction [by defense counsel] can never be treated as harmless error." Therefore, Arguelles argues, this court should not require him to prove prejudice to prevail on his claim of ineffective assistance of counsel. However, Butts does not represent the prevailing view and, in fact, appears to be the only case in which a court applying the federal standard for ineffectiveness has imposed a per se rule of reversal when a defendant is prevented from testifying by his trial counsel. Rather, every appellate court considering the issue has applied Strickland 's two-prong test. See, e.g., United States v. Thomas, 992 F.2d 201, 205 (8th Cir.1993); Nichols v. Butler, 953 F.2d 1550, 1553-54 (11th Cir.1992) (en banc); Colorado v. Naranjo, 840 P.2d 319, 326 (Colo.1992); Commissioner of Correction v. Rodriquez, 222 Conn. 469, 610 A.2d 631, 636 n. 9 (1992), overruled on other grounds by Simms v. Warden, 229 Conn. 178, 640 A.2d 601, 605 n. 12 (1994); Wisconsin v. Flynn, 190 Wis.2d 31, 527 N.W.2d 343, 351-53 (Ct.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1389, 131 L.Ed.2d 241 (1995). Therefore, we decline to presume that Arguelles was prejudiced by his counsel's advice not to testify. Because Arguelles has not made the requisite showing of prejudice, he cannot prevail on his claim of ineffective assistance of counsel.

Arguelles next claims that the district court violated rule 18(e) of the Utah Rules of Criminal Procedure in denying his for-cause challenge of an allegedly biased juror. ⁴ During voir dire, Arguelles' counsel discovered that one of the prospective jurors knew the children involved in this case and their mother. After questioning the juror as to the nature of this relationship, Arguelles' counsel challenged the juror for cause. The district court denied the for-cause challenge, and Arguelles' counsel exercised a peremptory challenge to remove the prospective juror. Arguelles now asserts that the district court erred in refusing to excuse the allegedly biased juror for cause. Because Arguelles has not demonstrated that he was prejudiced by the denial of...