State v. Buel

Decision Date17 May 1985
Docket NumberNo. 20095,20095
Citation700 P.2d 701
PartiesThe STATE of Utah, Plaintiff and Respondent, v. Forrest G. BUEL, Defendant and Appellant.
CourtUtah Supreme Court

L.A. Dever, Vernal, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

The defendant in this case was initially charged with attempted murder and possession of a dangerous weapon by a restricted person. A jury found him guilty of the lesser included offense of aggravated assault and possession of a dangerous weapon by a restricted person, in violation of U.C.A., 1953, § 76-5-103 (1978) and U.C.A., 1953, § 76-10-503 (1978), respectively. We affirm.

On January 19, 1983, a group of people gathered at defendant's home for an impromptu party. At some point during the party, two men began wrestling with each other. They ended up in the living room, and one of the men was thrown into a bookcase. There was testimony at trial that the two men had been previously cautioned to "settle down." There was also testimony that defendant and one of the men, Barry Dunn, had been arguing earlier in the day and that defendant had suggested to Dunn that he leave. On seeing Dunn and the other man wrestling, defendant grabbed a flashlight and struck Dunn over the head with it several times. Some of the other people at the party separated defendant and Dunn. Although there is conflicting testimony as to how the fight proceeded after that point, it appears that shortly thereafter Dunn picked up a pair of scissors, went outside, and then came back into the house looking for defendant. Defendant, who had picked up a gun, was hiding in the bedroom loft. There was testimony that Dunn stated that he was "going to get" defendant. There was also testimony that defendant called to Dunn and told him to come up to the loft. There was further conflicting testimony as to whether Dunn still had the scissors when he climbed up to the loft and whether defendant saw Dunn with the scissors. As Dunn climbed the ladder to the loft, defendant shot him five times. Again, there was contradictory testimony as to whether all the shots were fired at once or whether defendant fired two shots, causing Dunn to fall to the floor, and then fired three more shots after Dunn was lying on the floor. Dunn was taken to a hospital and was released two days later.

At trial, the State presented evidence of defendant's prior conviction of robbery in the state of Washington. The evidence consisted of papers that included a cover letter from an agent of the Washington Department of Corrections, an attestation affidavit by the records custodian, a photograph of defendant, a copy of a fingerprint card, a copy of a warrant of commitment, and a copy of a judgment and sentence. Defense counsel objected to the admission of the documents on the ground that they were not properly authenticated and were therefore hearsay. The trial court ruled that the evidence was admissible.

On appeal, defendant raises three issues: sufficiency of the evidence, inadmissibility of the evidence of the prior conviction, and ineffective assistance of counsel.

Defendant first argues that the evidence of self-defense in this case was sufficient to cast a reasonable doubt on defendant's guilt and, therefore, that the jury should not have returned a verdict of guilty. Defendant points to the testimony that Dunn had a weapon in his hand, threatened "to get" defendant, kicked the bedroom door open, and had the weapon in his hand as he climbed the ladder to where defendant was hiding. There was, however, considerable evidence that contradicted defendant's claim of self-defense, including testimony that defendant had taunted Dunn to come up to the loft, testimony that indicated that Dunn had dropped the scissors before entering the bedroom, and testimony that defendant had expressed a desire to kill Dunn. The fact that there was contradictory testimony, without more, is not grounds for reversal, State v. Watts, Utah, 675 P.2d 566, 568 (1983). The conflicting evidence was before the jury, and it was the jury's responsibility to evaluate its significance. State v. Wulffenstein, Utah, 657 P.2d 289, 292 (1982), cert. denied, 460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 799 (1983). The standard in considering a sufficiency of the evidence claim is that we will review the evidence and all reasonable inferences in a light most favorable to the jury's verdict. Only when the evidence is so inconclusive or improbable that reasonable minds must have entertained a reasonable doubt of defendant's guilt will we reverse a jury conviction on the ground of insufficient evidence. State v. Petree, Utah, 659 P.2d 443, 444 (1983). It was the jury's prerogative to weigh the conflicting evidence, and we find no basis for overturning its verdict.

Defendant next argues that he was denied effective assistance of counsel. Defendant bases his argument on two grounds: his trial counsel moved to consolidate the two charges against defendant for one trial, and defense counsel did not object to the admission of the document from the state of Washington on the basis of lack of proper foundation. In relation to the latter claim, defendant asserts that there was no evidence of a chain of custody concerning the exhibit, and therefore counsel's failure to object was indicative of inadequate representation.

In Codianna v. Morris, Utah, 660 P.2d 1101 (1983), we said, "The burden of establishing inadequate representation is on the defendant, 'and proof of such must be a demonstrable reality and not a speculative matter.' " Id. at 1109 (quoting State v. McNichol, Utah, 554 P.2d 203,...

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  • State v. Tyler, 910118
    • United States
    • Utah Supreme Court
    • 31 Marzo 1993
    ...297.20 Templin, 805 P.2d at 186 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).21 Id.22 Frame, 723 P.2d at 405; State v. Buel, 700 P.2d 701, 703 (Utah 1985).23 Templin, 805 P.2d at 188; see also Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.24 Strickland, 466 U.S. at 691, 104 S.C......
  • State v. Grueber
    • United States
    • Utah Court of Appeals
    • 2 Junio 1989
    ...result does not give rise to the conclusion that defendant received ineffective assistance of counsel. See, e.g., State v. Buel, 700 P.2d 701, 703 (Utah 1985). If the defendant fails to make the required showing of either deficient performance on counsel's part or of sufficient prejudice as......
  • State v. Augustine
    • United States
    • Utah Court of Appeals
    • 7 Marzo 2013
    ...sufficiently inconsequential so no reasonable likelihood exists that the error affected the outcome of the proceedings.”); State v. Buel, 700 P.2d 701, 703 (Utah 1985) (concluding that trial counsel's failure to make futile objections does not constitute ineffective assistance).II. Mental S......
  • State v. Frame, s. 21002
    • United States
    • Utah Supreme Court
    • 31 Julio 1986 to his conduct and intent. The existence of contradictory testimony, without more, does not require reversal. State v. Buel, 700 P.2d 701, 703 (Utah 1985); State v. Howell, 649 P.2d 91, 97 (Utah Whether defendant intended to cause Bovee's death or, at least, serious bodily injury may be ......
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