State v. Barber

• Decision Date: 09 April 2009
• Docket Number: No. 20060663-CA.,20060663-CA.
• Citation: 206 P.3d 1223,2009 UT App 91
• Parties: STATE of Utah, Plaintiff and Appellee, v. Mike Cory BARBER, Defendant and Appellant.
• Court: Utah Court of Appeals

206 P.3d 1223

2009 UT App 91

STATE of Utah, Plaintiff and Appellee, v. Mike Cory BARBER, Defendant and Appellant.

No. 20060663-CA.

Court of Appeals of Utah.

April 9, 2009.

Lori J. Seppi, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Karen A. Klucznik, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before Judges GREENWOOD, McHUGH, and BILLINGS.¹

OPINION

McHUGH, Judge:

¶ 1 Mike Cory Barber appeals his conviction of child abuse, see Utah Code Ann. § 76-5-109 (2008). We reverse and remand for a new trial.

BACKGROUND²

¶ 2 On March 2, 2005, two-year-old D.A. was flown by Life Flight to Primary Children's Medical Center. D.A. was suffering from a traumatic brain injury that necessitated removing half of his skull; trauma to his eye that ultimately resulted in blindness; five broken bones; and "multiple bruises to many different body surface areas, most of which are in protected locations," including his ear, chest, back, groin, and face.

¶ 3 Barber was in a relationship with D.A.'s mother, JenaV Adams. In February 2005, Barber moved in with Adams and her son, D.A., and daughter, A.A. Adams worked full-time, and Barber was unemployed. Barber watched the children while Adams was at work.

¶ 4 On Sunday, February 27, Adams bathed D.A. and prepared him for bed. She noticed nothing unusual about his health or appearance. The next morning, Adams left the children with Barber and went to work. About three hours later, Barber called Adams and indicated that while he was doing laundry in the basement, he "heard a thud" from upstairs where the two children were playing. Barber reported that A.A. had observed D.A. jumping on the couch and falling on the fireplace's raised hearth and that D.A. "had hit his face and ... his nose was bleeding." Barber assured Adams that D.A. was "okay" and that Barber had "wiped him up" and "was going to lay him down."

¶ 5 A short time later, a friend of Adams, who had seen D.A., convinced Barber to call Adams again and tell her that D.A.'s arm appeared to be broken. Adams returned home and observed that D.A.'s "arm was hanging, it looked broken. There was ... [what] looked like two bruises on his face, and his lip was bloody." Adams took D.A. to Pioneer Valley Hospital where he was diagnosed as having broken both of the bones in his left forearm. D.A.'s arm was placed in a cast the next day. Adams also observed new bruising on D.A.'s right shoulder and lower back. Although Adams argued with Barber about D.A.'s injuries, she did not alert the authorities to her suspicions. In addition, none of the doctors who treated D.A. independently concluded that D.A. had been abused.

¶ 6 Two days after D.A.'s first injuries, March 2, 2005, Barber and the two children dropped Adams at work around 8:30 a.m. About an hour later, Adams talked to D.A., who sounded normal and healthy.

¶ 7 A clerk at a nearby RiteAid, Ivy Owens, testified that she saw Barber and the two children in the store on that same morning at about 9:00 a.m. Owens testified that she heard a child crying and that "[i]t sounded like a hurt cry, like somebody was hurting." She also "heard a slapping noise." Owens walked toward the crying child and saw Barber hit him "across the head or the neck." Owens then walked back to her register and notified her supervisor. Barber later approached Owens's cash register to purchase his items. At the register, Barber "was standing there with the boy and ... he was looking at the back of the boy's neck and ... he said, `What in the hell is this? What's going on here?'" Barber then put his finger to his mouth and "motioned to the little girl like this, shhh." "At some point [during the transaction], he said to [Owens], `You don't think that I would'—and then stopped."

¶ 8 "Between 10:30 and 11:00," Adams received another call from Barber, who was now home. Barber said he had been bathing D.A. and went downstairs "to get a towel [when] ... he heard a thud." Barber told Adams that "D[.A.] slipped and fell in the [bathtub] and he's not responding." Adams "told [Barber] to call 9-1-1."

¶ 9 When paramedics arrived approximately five minutes after being called, D.A. was lying in the living room on his back. The paramedics testified that Barber was acting nervously and that his behavior seemed odd. D.A.'s hair and cast were dry, and he was dressed in a diaper, pants, and a shirt. Barber told a police officer that he had dressed D.A. so that the child would not be cold. The evidence conflicted on whether the bathtub had recently been used.

¶ 10 D.A. was flown by helicopter to Primary Children's Medical Center, where he was treated by a team of medical professionals. Because D.A. was suffering from subdural bleeding that "covered the entire surface of the brain on the right side," the doctors removed that half of his skull to relieve the pressure. The doctors also placed a permanent shunt to drain fluid from D.A.'s brain into his stomach. A subsequent full body scan revealed that D.A.'s right arm, the one not already in a cast, and his collar bone were broken. Although D.A. "wasn't expected to make it," he survived and was released after sixty-three days in the hospital.

¶ 11 Despite saying he was anxious to be with D.A., Barber never went to the hospital. Instead, he "took [Adams's] car and left a message on [her] cell phone, saying that he had dumped [the] car at a car wash and the keys were in the trunk." When police officers located Barber more than a month later, he had shaved his head, grown a beard, and "was a lot skinnier." The police asked Barber why he did not visit D.A. at the hospital, and Barber "[s]aid that he had just been to jail and he didn't want to go to jail again."

¶ 12 Barber was charged by information with child abuse on March 4, 2005.³ At an initial appearance on April 15, 2005, Barber was informed of his right to counsel. Barber indicated that he would hire private counsel, but a short time later, he requested that the Legal Defender's Association (the LDA) be appointed to represent him. After reviewing Barber's affidavit of indigency, the trial court granted Barber's request on April 26, 2005. Barber's trial was scheduled to begin February 28, 2006.

¶ 13 On February 13, 2006, Barber retained private counsel and the court granted counsel's request for a continuance. The LDA then withdrew and delivered a complete copy of Barber's file to private counsel. That file included contact information for Dr. Rothfeder, a medical expert the LDA had engaged for the defense.

¶ 14 On March 18, 2006, Barber's private counsel individually "and at the request of [Barber]" attempted to withdraw as counsel. In a minute entry dated March 23, the trial court ruled that it "w[ould] not allow defendant's counsel to withdraw at this time." No further analysis was provided. Barber's private counsel again moved to withdraw at the April 3 pre-trial conference, declaring that "it appears that [Barber] is really not able to sustain the fees that are involved, and [he] has indicated that he would like to go back to the [LDA] for representation." The court again denied Barber's request to dismiss private counsel and to be represented by the LDA instead. Private counsel immediately requested a continuance, arguing that he had been ill and, therefore, was not prepared for trial. The court refused the request because trial was not scheduled until April 18, which meant counsel would "have plenty of time to be ready."

¶ 15 The case proceeded to trial on two counts of child abuse, one allegedly stemming from a fall into the fireplace reported on February 28, 2005 (the fireplace incident), and the other allegedly caused by a fall in the bathtub reported on March 2, 2005 (the bathtub incident).⁴ Private counsel offered no expert testimony for the defense. The jury acquitted Barber with respect to the fireplace incident but convicted him on the charges stemming from the bathtub incident. Barber appeals that conviction.

ISSUES AND STANDARDS OF REVIEW

¶ 16 Barber presents three issues on appeal. First, Barber argues that he received ineffective assistance of counsel when his attorney failed to investigate the need for or to hire an expert to interpret D.A.'s medical records. "In ruling on an ineffective assistance claim following a[r]ule 23B hearing, we defer to the trial court's findings of fact, but review its legal conclusions for correctness." State v. Hernandez, 2005 UT App 546, ¶ 13, 128 P.3d 556 (alteration in original) (internal quotation marks omitted).

¶ 17 Second, Barber claims that the trial court's denial of his motion to dismiss private counsel and return to the LDA violated his rights secured by the Sixth Amendment to the United States Constitution. See U.S. Const. amend. VI. Absent special circumstances, a "defendant's choice of retained counsel must be respected," United States v. Collins, 920 F.2d 619, 626 (10th Cir.1990), superseded by statute on other grounds as recognized by Lewis v. Commissioner of Internal Revenue, 523 F.3d 1272 (10th Cir. 2008), and "[w]here the right to be assisted by counsel of one's choice is wrongly denied, ... it is unnecessary to conduct an ineffectiveness or prejudice inquiry ...," United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (affirming reversal of defendant's conviction due to the trial court's refusal to allow defendant to proceed with his hired attorney of choice). However, "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them." Id. at 151, 126 S.Ct. 2557; accord Caplin & Drysdale v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) ("[T]hose who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts."). Thus, a defendant's request to substitute one public defender for another is reviewed for abuse of discretion. See...