State v. Classon

• Decision Date: 06 March 1997
• Docket Number: No. 930186-CA,930186-CA
• Citation: 935 P.2d 524
• Parties: 312 Utah Adv. Rep. 26 STATE of Utah, Plaintiff and Appellee, v. James Dean CLASSON and Daniel E. Classon, Defendants and Appellants.
• Court: Utah Court of Appeals

Page 524

935 P.2d 524

312 Utah Adv. Rep. 26

STATE of Utah, Plaintiff and Appellee, v.James Dean CLASSON and Daniel E. Classon, Defendants and Appellants.

No. 930186-CA.

Court of Appeals of Utah.

March 6, 1997.

Margaret P. Lindsay, Provo, and Linda Anderson, Salt Lake City, for Defendants and Appellants.

Jan Graham and Thomas B. Brunker, Salt Lake City, for Plaintiff and Appellee.

Before WILKINS, BILLINGS and JACKSON, JJ.

WILKINS, Associate Presiding Judge:

DefendantsJames Dean Classon and Daniel E. Classon appeal their 1992 convictions for aggravated sexual assault, a first degree felony.SeeUtah Code Ann. § 76-5-405(1995).We reverse and remand for a new trial because we hold defendants were denied their Sixth Amendment right to receive effective assistance of counsel.

BACKGROUND

I.The Crime

Because defendants are appealing from a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict, seeState v. Dunn, 850 P.2d 1201, 1205(Utah1993), and recite the facts accordingly.However, we also present conflicting evidence to the extent necessary to clarify the issues raised on appeal.Seeid. at 1204-05;State v. Vigil, 922 P.2d 15, 18(Utah.Ct.App.1996).

Around midnight on June 16, 1992, sixteen-year-old A.B. was walking near a park in Provo, Utah.Two and one-half days earlier, A.B. had run away from a group home.During that time, she had slept in a park and had eaten only an apple.Defendants, who were age twenty-six and twenty-eight, one married and one unmarried, saw A.B. as they were driving down the street.James thought A.B. was a prostitute, and Daniel asked her if she wanted a ride.A.B. accepted the invitation and got into the back seat of the two-door car, which Daniel was driving.

Defendants were drinking beer and offered some to A.B., which she accepted and drank.A.B. testified she drank the beer because defendants threatened to kill her if she did not get drunk.Defendants testified A.B. willingly accepted the beer.Defendants and A.B. agree that she drank the beer very fast, and that defendants told A.B. they were going "to party" in the mountains.

Defendants then drove to a convenience store to buy more beer.A.B. testified that after Daniel gave James money to buy the beer, she tried to leave the car by the passenger door.When she did, Daniel told her to get back in the car, and James, who had just left the store and returned to the car, pushed her back into the car and threatened to kill her if she tried to leave.Defendants, however, testified that, while James was buying the beer, A.B. remained in the car with Daniel, whom she talked to, "rubbed," and kissed.Daniel testified that in kissing him, A.B. gave him a hickey on his neck.

After leaving the convenience store, Daniel drove into the mountains.During the drive, defendants gave A.B. four or five more beers to drink.A.B. testified defendants told her "they wanted to have fun with [her]."However, defendants testified the three of them were listening to music, drinking beer, and having a good time together.

On a dirt road in Hobble Creek Canyon, one of the car's tires became flat, so Daniel pulled to the side of the road.A.B. testified they pulled to the left side of the road to change the front left tire.Defendants testified they pulled to the right side of the road to change the back right tire.There were no street lights, street signs, traffic, or houses where Daniel stopped.A.B. did not know where defendants had taken her.Daniel admitted that he purposely drove to this remote area because it was unlikely police would be there.Defendants and A.B. then got out of the car, and James changed the tire.

A.B.'s and defendants' testimonies varied significantly at this point.A.B. testified that while James changed the tire, Daniel forced her to undress and have sexual intercourse with him against her will.A.B. unsuccessfully tried to stop him by biting him on the neck.A.B. testified that after Daniel had finished, and after James had changed the tire, James also forced her to have sexual intercourse with him.

A.B. testified that after James finished, she tried to run away, but Daniel forced her back into the car where he again forced her to have sexual relations with him.Daniel told her that if she said anything he would kill her.After Daniel finished, she got out of the car to put her clothes on, but James threw her to the ground and forced himself upon her again.

A.B. testified that after the rapes, defendants started apologizing to her and arguing between themselves as to whose fault it was.They then told her to get in the car and drove her to Springville, where they gave her five dollars and dropped her off.Defendants offered to pay for A.B. to stay in a hotel room, but failed to follow through when she accepted their offer.Just before they left, defendants again threatened A.B., stating that if she told anyone they had raped her, they would kill her.

Defendants, on the other hand, both testified that after Daniel changed the tire, the three got back in the car, drove a little further up the road, then parked and continued drinking beer and listening to music.Defendants testified that A.B. was kissing and fondling Daniel, so James took a couple of beers with him and left the car for approximately twenty minutes.Daniel testified that after James left, he had consensual sexual intercourse with A.B. in the back seat.

Both defendants testified that when James returned to the car, A.B. began kissing James, so Daniel grabbed some beer and left the car for about twenty minutes.James testified that while Daniel was absent, he had consensual sexual intercourse with A.B. inside the car.

Defendants testified that afterwards, the three drove to Springville, where A.B. asked to be dropped off.When A.B. left the car, Daniel gave her $25.00.James offered her his coat, but she refused it.A.B. also refused Daniel's offer to pay for a motel room for her so she could shower and relax.

After defendants drove away, A.B. called 911 and said she had been raped.A sheriff's deputy arrived and took A.B. to a hospital.

A.B. arrived at the hospital around 3:00 a.m., where she received a Code "R" examination, an examination designed specifically for rape victims.The examination revealed physical evidence of recent sexual intercourse and motile sperm.In addition, "H" antigens were discovered, which are consistent with Type "O" blood.Later, it was discovered that defendants have Type "O" blood, while A.B. has Type "A" blood.

After A.B. was taken to the hospital, a detective from the sheriff's office, acting upon A.B.'s description of defendants and their car, found defendants.

II.Defendants' Legal Representation

Both defendants were arrested and charged with two counts of aggravated sexual assault, a first degree felony.SeeUtah Code Ann. § 76-5-405(1995).The court appointed attorneys from Legal Defenders, Inc. to represent defendants.From the time they were charged to the time they were convicted, defendants had contact with three attorneys from Legal Defenders: John Musselman, Cleve Hatch, and Joe Alldrege.Musselman was an experienced criminal lawyer.Hatch had tried several misdemeanor cases, but only one felony case at the most.Alldrege had just been hired by Legal Defenders and, as far as Hatch knew, had no trial experience.

At their waiver hearing, defendants met with Musselman and Hatch.During this meeting, Musselman encouraged defendants to accept a plea bargain, which they refused.James later testified that at this meeting, Musselman told defendants that he would represent them.Daniel testified that after he and James refused the plea bargain offer, Musselman said that he would begin working on the case and that Hatch would represent one brother and Musselman would represent the other.Daniel also testified that because Musselman did not have enough time to talk to them that morning, he said he would "come down to the county jail and talk to [defendants] and get a little more information" later.Musselman, however, testified that he would not have unequivocally agreed to represent defendants because he was uncertain at that point whether he would be available to represent them at trial.

Later, Musselman represented defendants at their arraignment in July 1992.¹Daniel later testified that at the arraignment, Musselman advised defendants to waive their right to a speedy trial to give him time to prepare a solid defense.Musselman later testified that he was merely "standing in" for Hatch at the arraignment.However, Daniel testified that Musselman told defendants at the arraignment that he would represent one brother and Hatch would assist him and represent the other brother.Daniel stated that the "sole reason"he waived his right to a speedy trial was because Musselman said that he had experience in criminal law, that he would represent defendants, and that he needed more time to prepare the case.

Defendants both claim they spoke on the phone with Musselman while they were incarcerated.James asserted that while he was at the county jail, he called Musselman.During the conversation, Musselman reaffirmed he was their trial attorney and stated he would try to visit them.Daniel testified that when he spoke with Musselman over the phone, he expressed his concern that Musselman had not yet come to the county jail to talk to them.Musselman told him that either he or Hatch would come to see them and that he was "very busy" working on their case and would see them at trial.Musselman did not remember these conversations, but acknowledged he may have talked to defendants by phone.

Hatch represented defendants at their preliminary hearing in July 1992, which Alldrege also attended.Daniel later testified that he told the court"in a pretrial" that he did not want Hatch to represent him.

Hatch also represented defendants at...