State v. Brandley

• Decision Date: 17 December 1998
• Docket Number: No. 971421-CA,971421-CA
• Citation: 972 P.2d 78
• Parties: 358 Utah Adv. Rep. 25 STATE of Utah, Plaintiff and Appellee, v. Aaron T. BRANDLEY, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 78

972 P.2d 78

358 Utah Adv. Rep. 25

STATE of Utah, Plaintiff and Appellee, v. Aaron T. BRANDLEY, Defendant and Appellant.

No. 971421-CA.

Court of Appeals of Utah.

Dec. 17, 1998.

Kent E. Snider, Kent Snider & Associates, Ogden, for Appellant.

Brian J. Namba, Farmington, for Appellee.

Before Judges WILKINS, BENCH, and ORME.

OPINION

ORME, Judge:

Defendant Aaron T. Brandley appeals his jury convictions for five counts of gross lewdness, a class A misdemeanor, in violation of Utah Code Ann. § 76-9-702(3) (Supp.1998). ¹ Specifically, Brandley appeals the trial court's denials of his motion to suppress and his motion for new trial. The motions concern Brandley's rights under Miranda and his contention that his trial counsel was ineffective because members of counsel's law firm worked as prosecutors. We affirm.

BACKGROUND

"On appeal from a jury verdict, the facts are recited in a light most favorable to the jury's verdict." State v. Wright, 893 P.2d 1113, 1115 (Utah Ct.App.1995). Similarly, when reviewing the denial of a motion to suppress, we "recite the facts in a light most favorable to the trial court's findings." State v. Tetmyer, 947 P.2d 1157, 1158 (Utah Ct.App.1997).

During March of 1996, the defendant, Aaron T. Brandley, was a student teacher at Clearfield High School. Brandley improperly touched five female students. As one student bent over to place books in her bag, Brandley walked by and placed his hand on her right buttock. This student testified that although Brandley did not actually grasp her buttock, the touch was clearly intentional. With the other four students, Brandley placed his cupped hand between their legs and touched their crotch areas. Each of these students likewise testified that Brandley's hand could not have accidentally touched their crotch areas. As one student stated: "He grabbed me like too far under to have it be accidental."

The students reported the incidents to school officials as well as the district superintendent, and each student identified Brandley as the man who touched her. On April 1, after these identifications, Sergeant Gianchetta, the school police officer, took statements from at least three of the five students describing the incidents. Gianchetta contacted Inspector William Holthouse of the Clearfield Police Department and turned over the information obtained during the school's investigation. Gianchetta also discussed the students' statements with Holthouse and informed Holthouse that one or more of the students had identified Brandley.

The next morning, Holthouse went to Clearfield High to interview possible suspects. After arriving at the school, Holthouse spoke with school officials, who asked him to interview Brandley. To conduct the interview, Holthouse proceeded to a school office which measured approximately ten feet by twelve feet. In this room, Holthouse sat on the far end of a table that was immediately to the right of the door. At Holthouse's request, the school administrator contacted Brandley and escorted him to the room. When he entered the room with Brandley, the administrator introduced Holthouse and left, closing the door behind him, but without locking it. Holthouse stood, identified himself as a police officer, shook Brandley's hand, and sat back down. Brandley sat down in the chair nearest the door. During the interview, which lasted ten to fifteen minutes, Holthouse was in street clothes rather than a police uniform. Although Holthouse was wearing a badge on his belt that Brandley may have seen, he did not expressly show him his badge or other identification. Holthouse never displayed his gun, raised his voice, or placed Brandley in handcuffs. Although Holthouse did not tell Brandley he was free to leave the room, he also did not place Brandley under arrest or otherwise indicate he was not free to leave. Holthouse never advised Brandley of his Miranda rights. ²

During the interview, Holthouse told Brandley some girls at the school had accused him of touching them. Holthouse then used what he characterized as "detective ploy[s]," such as motioning to a folder that was unrelated to the case and implying that it contained incriminating information, and telling Brandley there were five girls who had been touched. Although he initially stated that he had no idea what Holthouse was talking about, Brandley responded to the latter ploy by saying he "didn't think that there were five." Holthouse then described the alleged contact as something he and his friends had referred to in high school as "scooping," and Brandley responded that he had not scooped the students. Holthouse explained that scooping consisted of forming your hand into a scoop position and Brandley responded that "that was possible." When Holthouse next asked why he did it, Brandley said "he didn't know why he did it but that he knew he needed to stop." At the end of the interview, Holthouse told Brandley he would consult with the county attorney and get back to him, but that Brandley should stay away from the school during the investigation. The administrator then returned to the room and escorted Brandley off the school premises.

On April 3, 1996, the State filed an information in Davis County charging Brandley with five counts of gross lewdness, a Class A misdemeanor, in violation of Utah Code Ann. § 76-9-702(3). Brandley hired attorney Michael V. Houtz of the law firm Helgesen, Waterfall & Jones as his defense counsel. On August 21, Brandley filed a motion to suppress the statements given to Officer Holthouse during the April 2 interview, arguing Brandley made the statements during a custodial interrogation and the statements were inadmissible because Holthouse failed to inform Brandley of his Miranda rights. Brandley submitted an affidavit in support of his motion in which he also denied making any incriminating statements to Officer Holthouse. Brandley stated that he may have "unintentionally brushed" students when the halls were crowded, but that he never touched anyone in the manner described by Holthouse, let alone those particular five female students.

The trial court held a hearing on the motion, and Holthouse testified to the interview's setting and content as described above. Holthouse also testified that at the time of the interview, so far as he was aware, only one student had positively identified Brandley as the man who touched her. Specifically, Holthouse stated he "did not have any indication the other four had identified Mr. Brandley at that time for sure." After the hearing, the trial court denied Brandley's motion to suppress. The court, relying on the four factors discussed in Salt Lake City v. Carner, 664 P.2d 1168, 1171 (Utah 1983), found that because Brandley was not in custody during the interview for Miranda purposes, Miranda warnings were not required.

At trial, the State called Holthouse to testify about the interview and Brandley's statements. On cross-examination, contrary to his testimony at the suppression hearing, Holthouse testified that before the interview with Brandley, he understood all five students had identified Brandley. With this admission, Brandley renewed his motion to suppress. After hearing arguments outside the jury's presence, the trial court noted that Holthouse's testimony differed from that at the suppression hearing, and that before the interview, Holthouse "knew that this investigation had focused pretty much exclusively on Mr. Brandley." The court took Brandley's renewed motion under advisement. Nonetheless, at the trial's conclusion, the court affirmed its earlier denial, finding that, under the totality of the circumstances, Brandley was not in custody for purposes of Miranda. The jury returned a guilty verdict on each of the five counts of gross lewdness charged in the information.

After trial, but before sentencing, Brandley, through new counsel, filed a motion for new trial, arguing that his previously retained attorney, Mr. Houtz, had a conflict of interest that deprived Brandley of the effective assistance of counsel. Although sentencing was scheduled for December 23, the trial court used this time to hear arguments on the motion for new trial. Brandley and the State stipulated that Richard W. Jones and Lucille Kelly Lowrey, members of Houtz's law firm, acted as prosecutors in Uintah, Weber County. The trial court denied Brandley's motion for a new trial, concluding the claimed conflict of interest was "irrelevant or merely hypothetical." The court also concluded that Brandley had not demonstrated that he received ineffective assistance by his trial counsel. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

Brandley appeals his convictions arguing, first, that the trial court erred in denying his motion to suppress statements made to Inspector Holthouse during the April 2, 1996, interview at the school because Brandley was in custody for Miranda purposes, but Holthouse never advised Brandley of his Miranda rights. "We review the trial court['s] factual findings underlying the denial of a motion to suppress for clear error, while conclusions of law are reviewed for correctness." State v. Galli, 967 P.2d 930, 933 (Utah 1998). Whether, given the underlying facts, Brandley was in custody for Miranda purposes is a question of law we review for correctness. See State v. Wood, 868 P.2d 70, 83 (Utah 1993).

Second, Brandley argues the trial court erred in denying his motion for a new trial because Brandley received ineffective assistance from his counsel, in violation of his Sixth Amendment right. ³ When reviewing the denial of a motion for new trial based on an ineffective assistance of counsel claim, we defer to the trial court's factual findings unless clearly erroneous, but remain "free to make an independent determination of a trial court's conclusions." State v. Templin, 805 P.2d 182, 186 (Utah 1990). Accord State v. Wright, 893 P.2d 1113, 1119 (Utah Ct.App.1995).

I. MOTION TO SUPPRESS

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