State v. Burns

• Decision Date: 30 June 2000
• Docket Number: No. 970190.,970190.
• Citation: 2000 UT 56,4 P.3d 795
• Parties: STATE of Utah, Plaintiff and Appellee, v. Becky BURNS, Defendant and Appellant.
• Court: Utah Supreme Court

4 P.3d 795

2000 UT 56

STATE of Utah, Plaintiff and Appellee, v. Becky BURNS, Defendant and Appellant.

No. 970190.

Supreme Court of Utah.

June 30, 2000.

Jan Graham, Att'y Gen., Laura B. Dupaix, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Craig S. Cook, Salt Lake City, for defendant.

RUSSON, Associate Chief Justice:

¶ 1 Defendant Becky Burns appeals from a final judgment of conviction for murder, a first degree felony. Burns alleges that the lower court erred in denying her access to state-funded assistance for expert witnesses, thereby denying her a fair trial.

BACKGROUND

¶ 2 In September 1991, Becky Burns and her husband Richard Burns were charged by information with the murder, by starvation and dehydration, of their six-month-old son Shawn. Shawn suffered from Down syndrome, congenital heart disease, desaturation, gastroesophageal reflux, sucking and feeding problems, and low electrolyte levels. In addition, there were indications that Shawn suffered from chronic pulmonary disease. The Burnses argued that all of these conditions, in conjunction with their side effects and the side effects of the drugs administered in their treatment, caused Shawn's death.

¶ 3 Becky's father paid for counsel to represent both Becky and her husband as co-defendants. Because defense counsel felt this case was medically intensive, he decided that a medical expert was necessary to provide the Burnses with effective representation. However, Becky's father was allegedly of limited means. He had apparently posted bond for the Burnses, paid a pediatrician $300 per hour for consultation at the preliminary hearing, and paid the attorney fees to that point. As a result, he claimed that he was behind in house payments and could not afford the additional expense of an expert witness.

¶ 4 In addition, the Burnses, apparently neither of whom had completed high school, alleged that they were living with Richard's mother, who was single and unemployed. Becky also claimed that she was not working and that Richard, who was working for Becky's father, was making only $100 per week. Expenses for the treatment and care of Shawn Burns had been provided by the State. Since defendants and their families allegedly could not afford the expense of an expert witness, defense counsel moved for the appointment of a state-funded expert witness.

¶ 5 At the hearing on this motion, defense counsel presented evidence for the necessity of expert witness assistance in this particular case. Counsel then relayed the alleged financial situation of the Burnses and their immediate families. Defense counsel also offered to submit affidavits as proof of his clients' indigence. Counsel concluded his argument by asking the court to find that the Burnses were indigent, that a medical expert was necessary, and that it was proper for the State to fund an expert.

¶ 6 On behalf of the State, the prosecution acknowledged that its case relied to a substantial degree on expert medical testimony and it was reasonable for the defense to feel the need to hire expert witnesses. The prosecution also cited rule 15 of the Utah Rules of Criminal Procedure governing expert witnesses, and stated that this rule indicated the court first needed to make a determination of indigency. If the Burnses were found to be indigent, the prosecution argued, the issue of how to pay for expert assistance could then be addressed.

¶ 7 However, the court never arrived at a determination of whether the Burnses were indigent. Instead, after inquiring whether defense counsel was pro bono, the court declared that according to court policy, which was urged by the county, if a defendant was truly indigent, the defendant may have counsel appointed from the Legal Defenders Association ("LDA") and then have access to the funds for expert assistance. Defense counsel argued that the Burnses wished to retain the attorney of their choice and that the court's policy conflicted with this right. The court indicated that since defense counsel was privately retained, it was doubtful that the Burnses were truly indigent. Nevertheless, the position ultimately maintained by the court was that the Burnses would have to make the decision as to whether to retain their counsel, paid for by Becky's father, or if they were ultimately found to be indigent so as to qualify for funds for expert witnesses, the court would appoint LDA counsel and then the funds for expert assistance would be available.

¶ 8 Therefore, without making a finding on the issue of indigence, the court denied the motion for appointment of expert assistance and scheduled a pretrial conference for two weeks later. The court did not deny funds for an expert witness outright, but made it clear that if the Burnses were indigent, they could get state-funded expert assistance only if they were represented by LDA counsel. Therefore, the Burnses were to decide before the pretrial conference whether they wanted to retain their counsel or apply for determination of indigency and accept appointment of LDA counsel.

¶ 9 The Burnses wanted to retain the counsel Becky's father had engaged but claimed they were unable to pay the expense of an expert witness. Therefore, they proceeded to trial with no experts of their own. On August 20, 1992, the jury convicted both Becky and her husband of criminal homicide. Defendants timely moved for a new trial and/or arrest of judgment on the ground of jury misconduct, but defense counsel withdrew from the case without obtaining a ruling on these motions.

¶ 10 Becky was sentenced to five years to life in prison, but the sentence was suspended in favor of three years of probation, one year in the Salt Lake County jail, a fine, drug and alcohol rehabilitation, vocational training, completion of a GED, and completion of parenting classes.

¶ 11 Becky violated her probation after two years and was ordered to serve six months in jail. She was also ordered to complete a residential substance abuse program and three more years of probation. Becky did not complete the residential substance abuse program, and therefore, her probation was revoked. In April 1996, Becky's original sentence of five years to life was imposed with credit for time served. Becky was then sent to the women's correctional facility at the Utah State Prison.

¶ 12 On July 9, 1996, Becky moved for a ruling on her earlier motion for a new trial. The trial court denied the motion on the basis of abandonment, but on March 24, 1997, the State conceded that Becky had been denied her right to appeal and so stipulated. Thereupon, Becky was sentenced nunc pro tunc. A notice of appeal was thereafter filed to this court on April 11, 1997.

¶ 13 Becky argues on appeal that she was deprived of a fair trial in that she was required to utilize the attorney services of the LDA or forfeit any right to other indigent benefits such as expert witness fees. She claims that this is not only a violation of her federal and state constitutional rights but also violative of the Utah Indigent Defense Act¹ as well as public policy. In addition, Becky contends that the trial court was in error in surmising that she was not eligible to be considered indigent if her family retained an attorney.

¶ 14 The State counters that because Becky did not establish her indigence on the record, she has not preserved her claim for appeal and it is therefore waived. Alternatively, the State argues that the trial court was correct in conditioning Becky's right to state-funded assistance on her acceptance of LDA counsel.

STANDARD OF REVIEW

¶ 15 The question of whether a trial court can require a defendant to accept LDA counsel in order to qualify for other state-funded assistance is a matter of statutory interpretation, and we review a trial court's statutory interpretation for correctness. See Rushton v. Salt Lake County, 1999 UT 36, ¶ 17, 977 P.2d 1201

.

ANALYSIS

I. WAIVER OF RIGHT TO APPEAL

¶ 16 First we must determine whether Becky Burns has waived her right to appeal. The State contends that when Burns failed to establish her indigence on the record, she waived her right to appeal the decision that she was not entitled to state-funded expert assistance unless she accepted LDA counsel. As support for this position, the State cites Cunningham v. Cunningham, 690 P.2d 549 (Utah 1984), and In re Giles, 657 P.2d 285 (Utah 1982). We find both cases to be distinguishable from the situation before us now.

¶ 17 It is true that an appellate court generally will not review any issue that was not raised in the court below. See 5 Am. Jur.2d Appellate Review § 690 (1995). This is based in part on the principle that it is unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. See State v. Peterson, 121 Utah 229, 236, 240 P.2d 504, 507 (1952)

; 5 Am.Jur.2d Appellate Review § 690. However,

[w]e have never required criminal defendants who have properly presented a claim to take exception to a trial court's erroneous ruling in order to preserve the issue on appeal. Rather, our case law establishes that the doctrine of waiver has application if defendants fail to raise claims at the appropriate time at the trial level, so the trial judge has an opportunity to rule on the issue or if they do not create an adequate record for an appellate court to review their claims.

State v. Emmett, 839 P.2d 781, 783-84 (Utah 1992) (footnote omitted).

¶ 18 Accordingly, in Cunningham, we declined to address a statute of frauds issue because the plaintiff had not raised it before the trial court. It was first raised in a post-trial memorandum. See Cunningham, 690 P.2d at 552 n. 2

. Furthermore, in Giles, we declined to reach the issue of attorney fees because the issue was not raised until appeal. See Giles, 657 P.2d at 289. But see Sittner v. Schriever, 2000 UT 45, ¶¶ 16-17, 2 P.3d 442 (holding that it was not necessary for appellant to file post-judgment...