State v. Cosey

• Decision Date: 21 April 1994
• Docket Number: No. 930131-CA,930131-CA
• Citation: 873 P.2d 1177
• Parties: STATE of Utah, Plaintiff and Appellee, v. Dwaine Attila COSEY, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1177

873 P.2d 1177

STATE of Utah, Plaintiff and Appellee, v. Dwaine Attila COSEY, Defendant and Appellant.

No. 930131-CA.

Court of Appeals of Utah.

April 21, 1994.

Certiorari Denied Aug. 19, 1994.

James C. Haskins and Paul Gotay, Murray, for defendant-appellant.

Jan Graham and Joanne C. Slotnik, Salt Lake City, for plaintiff-appellee.

Before ORME, Associate P.J., and BENCH and RUSSON, JJ. ¹

ORME, Associate Presiding Judge:

Defendant Dwaine Cosey appeals his conviction for rape, a first degree felony, in violation of Utah Code Ann. § 76-5-402 (1990). Defendant claims that he was denied the effective assistance of counsel during jury selection, that he did not receive a fair trial because the victim remained in the courtroom, and that evidence of the victim's subsequent behavior was improperly admitted. We affirm.

FACTS

We recite the facts in the light most favorable to the jury's verdict. State v. Hamilton, 827 P.2d 232, 233-34 (Utah 1992). In the early hours of March 20, 1992, the victim in this case answered a knock at her door. Outside the door was defendant Cosey, an acquaintance of the victim, who subsequently entered the apartment. The victim testified that after a brief conversation on the couch, she became nervous as a result of defendant's comments and asked him to leave. Instead, defendant tried to kiss her, and when she again insisted that he leave, he grabbed her and started dragging her toward the bedroom. On the way, defendant put a knife to her throat, forced her into the bedroom and onto the bed, and proceeded to undress her. According to the victim, defendant then raped her. Defendant admitted that he had sex with the victim, but claimed that it was consensual.

Defendant was charged with aggravated sexual assault and convicted by a jury of the

lesser included offense of rape. On appeal, defendant claims that his trial counsel should have challenged one of the jurors for cause, that the trial court erred in allowing the victim to remain in the courtroom, and that the court should have excluded testimony by the victim's mother concerning the victim's behavior after the incident.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first claims that he was denied his constitutional right to the effective assistance of counsel. See U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). Where the claim of ineffective assistance of counsel "is raised for the first time on direct appeal, we must decide whether defendant was deprived of the effective assistance of counsel as a matter of law." State v. Tennyson, 850 P.2d 461, 466 (Utah App.1993). See State v. Ellifritz, 835 P.2d 170, 175 (Utah App.1992).

Defendant must meet a two-part test to prevail on his claim. First, defendant must show that counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). However, to do so, defendant must overcome a strong presumption that counsel's performance fell "within the wide range of reasonable professional assistance" and that "under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Accord State v. Templin, 805 P.2d 182, 186 (Utah 1990). Second, defendant must show that counsel's deficient performance was prejudicial to his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Defendant can meet the prejudice requirement only by showing that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. Accord Tennyson, 850 P.2d at 466.

Prior to the presentation of evidence, the trial court conducted voir dire of prospective jurors to determine their ability to be fair and impartial. At the conclusion of its questioning, the court asked if there was anything further that the jurors believed might affect their judgment. Juror Hodges informed the court that for the past sixteen years she had worked as a diversion officer at the Salt Lake City Police Department and had both an office there and at the County Sheriff's Department. In response to further questioning by the court, Juror Hodges responded that her circumstances would not affect her ability to be fair and impartial. The court was satisfied with her response, defendant's trial counsel did not challenge her, and she served as a juror.

Defendant now claims that trial counsel's failure to challenge Juror Hodges for cause constituted ineffective assistance of counsel because her statements clearly showed bias. While we fail to see how Juror Hodges' responses establish any actual prejudice on her part, it seems even more tenuous to claim that the failure to challenge her for cause constituted ineffective assistance of counsel. As noted by the Fifth Circuit, "[t]he selection of a jury is inevitably a call upon experience and intuition. The trial lawyer must draw upon his own insights and empathetic abilities. Written records give us only shadows for measuring the quality of such efforts." Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir.1989), cert. denied, Romero v. Collins, 494 U.S. 1012, 110 S.Ct. 1311, 108 L.Ed.2d 487 (1990).

This court has also recognized the difficulty of trying to assess what counsel was thinking during jury selection, "because of our inability, on appeal, to view the jurors and assess their potential bias. Only those present, the court and counsel, have that advantaged view." Ellifritz, 835 P.2d at 177. Further, "the transcript reveals nothing about [the juror's] demeanor or other intangible characteristics that constitute the collage of attributes attorneys assess in choosing jurors. For all we know [he or she] was the most attentive juror, or the only one who glanced disparagingly at the prosecution or sympathetically toward the defendant." Tennyson, 850 P.2d at 469. Our review of counsel's performance "is inherently hampered Even when trial counsel allows the ultimate selection of a juror who initially appeared biased on voir dire, "courts deny the ineffective assistance claim unless counsel's actions could not conceivably constitute legitimate trial tactics." Tennyson, 850 P.2d at 469 (citations omitted). Consequently, at least where the attorney has actively participated in the jury selection process, as in the case before us, we cannot see how counsel's action could give rise to a successful ineffective assistance claim. See Villarreal, 857 P.2d at 955. Given the fact that we are ill-equipped to determine what actually occurred, "we 'will not second-guess a trial attorney's legitimate use of judgment as to trial tactics or strategy.' " Tennyson, 850 P.2d at 470 (quoting State v. Pascual, 804 P.2d 553, 556 (Utah App.1991)).

                by our necessary reliance on only the lifeless transcript to assess the dynamic and highly judgmental process of jury selection."  Id. at 467.   Accordingly, we could only speculate as to what trial counsel was thinking when selecting a particular juror, or what effect that selection would play in counsel's overall strategy or plan.  See State v. Villarreal, 857 P.2d 949, 954-55 (Utah App.1993).  Such speculation is manifestly inappropriate, given the strong presumption that counsel's behavior was the product of trial strategy rather than ineptitude.  See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065;  Villarreal, 857 P.2d at 954;  Templin, 805 P.2d at 186
                

Thus, absent at least some showing that trial counsel has failed to reasonably participate in the selection of jurors, we hold that an ineffective assistance claim premised on the failure to challenge any particular juror for cause cannot "overcome the strong presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment" in the selection process. ² State v. Bullock, 791 P.2d 155, 159-60 (Utah 1989), cert. denied, 497 U.S. 1024, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990).

EXCLUSION OF THE VICTIM

Defendant's second claim is that the trial court abused its discretion by not excluding Defendant claims that the trial court abused the discretion afforded it by Utah Code Ann. § 78-7-4 (1992). Section 78-7-4 provides that "in any cause the court may, in its discretion, during the examination of a witness exclude any and all other witnesses in the cause." Defendant argues that by allowing the victim to remain in the courtroom after testifying, the trial court deprived him of a fair and impartial trial, in that subsequent witnesses may have shaped their testimony to conform to what they believed the victim wanted them to say.

the victim, who testified for the prosecution, from the courtroom. However, whether or not the trial court even had discretion to exclude the victim from the courtroom depends on the interplay between two provisions of law. The trial court's interpretation and application of a statute or rule presents a question of law. State ex rel. Division of Consumer Protection v. Rio Vista Oil, Ltd., 786 P.2d 1343, 1347 (Utah 1990); Ohline Corp. v. Granite Mill, 849 P.2d 602, 605 (Utah App.1993). "[W]e accord conclusions of law no particular deference, but review them for correctness." Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985). See Salt Lake City v. Emerson, 861 P.2d 443, 445 (Utah App.1993).

While we doubt that the trial court abused its statutory discretion in allowing the victim to remain in the courtroom, Utah Rule of Evidence 615, duly promulgated by the Utah Supreme Court, effectively disposes of defendant's claim. ³ Under Rule 615, the trial court had no discretion to exclude the victim. According to the rule, a witness may not be excluded if he or she is also "an adult victim in a criminal trial where the prosecutor agrees with the victim's presence." ⁴ Utah R.Evid. 615(1)(d). Rule 615,...