State v. Biebinger, 20160460-CA

• Decision Date: 21 June 2018
• Docket Number: No. 20160460-CA,20160460-CA
• Parties: STATE of Utah, Appellee, v. Vernon Richard BIEBINGER, Appellant.
• Court: Utah Court of Appeals

428 P.3d 36

STATE of Utah, Appellee,

v.Vernon Richard BIEBINGER, Appellant.

No. 20160460-CA

Court of Appeals of Utah.

Filed June 21, 2018

Emily Adams, Attorney for Appellant.

Sean D. Reyes, Salt Lake City, and William M. Hains, Attorneys for Appellee.

Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen and Diana Hagen concurred.

Opinion

HARRIS, Judge:

¶1 A jury convicted Defendant Vernon Richard Biebinger of various crimes stemming from a traffic stop gone awry. He appeals his convictions, arguing that he was incompetent at the time of his trial and that his counsel was constitutionally ineffective for failing to file a competency petition during trial. We reject Defendant's arguments and affirm his convictions.

BACKGROUND

¶2 In March 2014, Defendant was driving a car with three passengers when one of the passengers alerted him that there was a police car behind him. In response, Defendant quickly executed a left turn and nearly hit a bicyclist, prompting the officer in the police car (Officer) to initiate a traffic stop. During the stop, Officer noticed that Defendant was "fidgeting in the center console area" and kept glancing towards the center console. When Officer asked Defendant for his registration and proof of insurance, Defendant claimed he "couldn't locate those items," and continued nervously glancing towards the center console while talking to Officer. Officer asked Defendant if there were any weapons in the vehicle. Defendant responded "just these," and produced a knife and set of brass knuckles. At this point, Officer returned to his vehicle to begin checking Defendant's identification for warrants, and called for backup. After backup officers arrived, they observed Defendant "moving around a lot" in the vehicle, and asked him to exit the vehicle and sit on the curb where they could more easily observe him.

¶3 Defendant did not comply with this instruction. Instead, he began yelling and then drove quickly away. Defendant led several police officers on a high-speed chase, which ultimately ended in a cul-de-sac when Defendant's vehicle became stuck between an RV and a fence. Defendant and all of the other occupants exited the vehicle, and Defendant ran but was eventually apprehended by police. During a subsequent search of the vehicle, police found a stolen handgun on the driver's side floorboard. The police also found a second handgun discarded outside the vehicle.

¶4 Police interviewed Defendant shortly after the incident. During the interview, Defendant stated that he ran from the police because he believed an acquaintance of his had planted guns in the car to "set him up." When confronted by an officer who stated that Defendant's story "[made] no sense," Defendant reiterated that one of the passengers in the car (Passenger) had raised the possibility of planted evidence and that this had prompted Defendant to flee. Defendant also told police that he had initially intended to exit the vehicle when ordered to do so by backup officers, but that Passenger had told him to "go." Officers noted that Defendant did not appear to be exiting the vehicle at that point in time.

¶5 The State ultimately charged Defendant with obstructing justice, failing to respond to a police officer's signal to stop, theft by receiving stolen property, reckless endangerment, and possession of a firearm by a restricted person.

¶6 Prior to trial, Defendant's first attorney filed a petition raising the question of whether Defendant was competent to stand trial. In the petition, counsel asserted that Defendant might not be competent to assist in the preparation of the defense. The court promptly granted the petition, and appointed two mental health experts to examine Defendant. Several weeks later, Defendant retained new counsel, and this second attorney represented Defendant at the competency hearing. At that hearing, the State informed the court that the mental health experts had been unable to contact Defendant for a complete evaluation and thus were not able to issue a report as to his competency. Defendant's second attorney represented to the court that, as he understood it, "the issue [with Defendant's competency] originally was" that Defendant had been previously diagnosed "bipolar and schizophrenic," but that Defendant had "been on his medication ... for 30 days" by the time of the competency hearing. Because of this, Defendant's second attorney withdrew the competency petition, stating that, while Defendant was on his medication, counsel believed that Defendant understood the potential punishment he might face, the role of the parties and of the court, and the details of his case sufficiently to "help assist" in his own defense. Based on these representations, the trial court considered the competency petition withdrawn, and conducted no further proceedings thereon.

¶7 After the competency hearing, but before trial, Defendant's second attorney withdrew as counsel for Defendant. The trial court appointed a third attorney (Trial Counsel) to represent Defendant, and Trial Counsel represented Defendant through trial.

¶8 At trial, the State called several police officers to testify about the events that occurred during the traffic stop. The State also called Passenger as a witness, who testified that he was "really shocked" when Defendant began fleeing from police, and that Defendant told Passenger that he was sorry for fleeing but that he had "things on [him]." Passenger testified that, upon saying this, Defendant produced an item wrapped in cloth that Passenger eventually determined was a handgun. Passenger testified that Defendant threw the gun into Passenger's lap and asked him to throw it out the window, at which point Passenger refused. Passenger also described seeing a second firearm in Defendant's lap at some point during the chase. Passenger testified that the guns were not his.

¶9 After consulting with Trial Counsel, Defendant elected to testify in his own defense. During his testimony, Defendant presented a much different account than either (a) the account Passenger had described in his testimony or (b) the account Defendant had provided during his initial interview with police. At trial, Defendant testified that, shortly after being stopped, Passenger informed Defendant that he (Passenger) possessed "things," which Defendant initially understood to be a reference to "drugs." Defendant testified that, after being told that Passenger had "things," an officer asked Defendant to get out of the car, and when Defendant asked why he needed to get out, the officer began to threaten him and tried to open the car door. Defendant further testified that, while the officer was trying to open the car door, Defendant saw Passenger move in a way that triggered a memory Defendant had of Passenger attempting to sell Defendant a gun. Defendant testified that, based on that memory, he realized that the "things" Passenger had said he possessed were firearms rather than drugs. Upon realizing this, Defendant became afraid that Passenger would try to "blast his way out" of the encounter with police, and Defendant testified that it was this fear that prompted him to flee from police. In keeping with this account, Defendant testified that the firearms belonged to Passenger, and not to him.

¶10 Defendant's direct testimony often took the form of long, monologue-like statements, where he would testify for some time without being prompted by a question from counsel. At one point, Trial Counsel told him they could "take a second" if Defendant needed a break. On cross-examination, the State first asked Defendant if he was okay, observing he appeared "emotional." Defendant replied that he was "all right." The State then confronted Defendant with inconsistencies in his trial testimony, asking him how he knew that Passenger had a gun if, by his own testimony, Passenger had never shown him the gun in the car and he had initially assumed Passenger had drugs. Defendant responded that "the situation and tone and everything going on" had convinced him Passenger had a gun, even though he did not actually see one. During cross-examination, Defendant also maintained that he had told the police in his initial interview about his basis for believing Passenger had a gun. When the State confronted him with the discrepancy between that testimony and the account he had given police during his initial interview (that he ran from the police because Passenger had raised the possibility that a third party had placed a firearm in Defendant's car to set him up), Defendant initially stated that he did not remember saying those things to police. When the State pressed him on that answer, however, Defendant admitted that he did remember saying "something ... like that, yes." The State then asked if Defendant had told police in his initial interview about Passenger's alleged statement that he "had some things." Defendant admitted that he did not, and asserted that he failed to do so because he was afraid of Passenger. Defendant finally asserted that he did not remember what he had or had not said during his initial interview.

¶11 Also during cross-examination, the State played video-recorded portions of Defendant's initial police interview, and asked Defendant about them. When confronted with the discrepancies between his trial testimony and his statement during the initial interview, Defendant began giving inconsistent answers, at times stating that he did not remember what he had previously said, and sometimes giving conflicting accounts as to why his interview differed from his trial testimony. At one point, Defendant acknowledged that "[w]hat I'm saying on the stand right now is completely different from [my interview testimony]," and that the discrepancy was because he was "scared" during his interview. After cross-examination, Trial Counsel elected to forgo any redirect examination. Trial Counsel also did not ever renew or re-file any...