State v. Curtis

• Decision Date: 06 August 2014
• Docket Number: No. 20110799–CA.,20110799–CA.
• Citation: 749 Utah Adv. Rep. 38,317 P.3d 968
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Thomas Devirl CURTIS, Defendant and Appellant.

317 P.3d 968

749 Utah Adv. Rep. 38

STATE of Utah, Plaintiff and Appellee,

v.Thomas Devirl CURTIS, Defendant and Appellant.

No. 20110799–CA.

Court of Appeals of Utah.

Dec. 5, 2013.

Rehearing Denied Aug. 6, 2014.

Grant W.P. Morrison and Court J. Klekas II, for Appellant.

John E. Swallow and Christopher D. Ballard, for Appellee.

Judge STEPHEN L. ROTH authored this Opinion, in which Judges J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

ROTH, Judge:

¶ 1 Defendant Thomas Devirl Curtis appeals his convictions of four counts of rape, seeUtah Code Ann. § 76–5–402 (LexisNexis Supp. 2013), ¹ and four counts of distribution of a controlled substance in a drug free zone, see id. §§ 58–37–8(1)(a)(iii), (4)(a)(x) (2012). Defendant argues that his trial counsel provided ineffective assistance by committing a number of errors that prejudiced his defense. According to Curtis, his attorney failed to introduce evidence that would have impeached the victim's testimony, did not interview potential witnesses, and opened the door to damaging impeachment evidence. Curtis also argues that his trial counsel should have moved for a mistrial after the jury and excluded witnesses overheard sidebar conversations. Additionally, Curtis filed a rule 23B motion requesting that we remand his case to the trial court to supplement the record with evidence of his ineffective assistance claim. We deny Curtis's request for remand because he has not provided key pieces of evidence to his rule 23B motion and because the affidavits accompanying his motion fail to allege nonspeculative facts to support his ineffective assistance claim. We also affirm Curtis's convictions because he has not shown that his attorney's failure to introduceevidence was deficient performance or that other errors that may have occurred resulted in prejudice.

BACKGROUND

¶ 2 Curtis was convicted of giving a minor victim (M.V.) cocaine and raping her on four occasions.² In early 2008, M.V.'s family moved into a two-bedroom home outside the Salt Lake valley. M.V. and her sisters shared one bedroom while Curtis, who lived with the family, used the back bedroom. M.V.'s mother (Mother) usually slept on the living room couch.

¶ 3 After M.V.'s family moved, M.V. accompanied Curtis on a number of trips to Salt Lake City to buy cocaine. She was sixteen or seventeen years old at the time. M.V. testified at trial that she and Curtis would “go up to Salt Lake to get more cocaine, and then [they]'d come back [home] and [they]'d sell some of it. But mostly—mostly [they] just used it.” She testified,

[Defendant] would put [the cocaine] in a spoon and add water, and then he'd put ... [a] cotton ball in there and he'd use the needle and soak up the liquid through the cotton ball. And then he'd do half, and then he'd fill up the syringe with the other half, and then I would do that one.

M.V. and Curtis used cocaine this way several times in the bathroom of the home and in Curtis's bedroom. M.V. said the cocaine use left scars and bruises on her arms, which she covered with “long sleeve shirts and zip up shirts.”

¶ 4 In late January 2008, Curtis and M.V. traveled to Salt Lake for another “drug run.” After returning home, they “did cocaine in [Curtis's room]” until about 2:00 a.m. At that point, M.V. “laid down and tried to go to sleep” because she “had to work the next morning.” The defendant then raped her.

¶ 5 Over the next several months, Curtis raped M.V. three more times after providing her with cocaine. First, in March 2008, M.V. and Curtis “had been using drugs again ... and it was just another late night in [Curtis's] room and the same thing happened.” A few weeks later, Curtis injected M.V. with cocaine in his bedroom, continued to use cocaine with her “throughout the night,” and then “[M.V.] laid down and [the] same incident happened.” Finally, in late May 2008, when M.V. returned home from work, the defendant gave her cocaine and used it himself. M.V. said they “continued doing that throughout the night ... [a]nd then later on” M.V. said she “kind of zoned off a little bit” right before Curtis again raped her.

¶ 6 On December 11, 2009, the State charged Curtis with four counts of rape and four counts of distribution of a controlled substance in a drug-free zone. At trial, the State called M.V. as its first witness. She testified that Curtis had also introduced her to “marijuana” when she “was 12 years old” and that her sister (Sister) “used cocaine with” her and Curtis “a few times.” After a brief discussion with counsel at the bench, the court dismissed the jury and the parties argued at length about whether evidence of such other drug use in the home was admissible. The court ruled that any evidence regarding other drug use in the home was inadmissible “unless it occurred on these instances ... where the alleged sexual activity occurred.” The judge reiterated this ruling when the State later asked Sister on direct examination whether Mother knew about Sister's drug use. He noted that unless the State called Sister as a rebuttal witness to impeach Mother or the defendant, “[Sister's] own [drug] use is not relevant.... So I will instruct the jury that [Sister's] drug use is not an issue in this case, and we'll go from there.”

¶ 7 Defense counsel also expressed some concern that the jury could have heard the earlier sidebar discussion, but he noted that “we may have been talking enough in lawyer code ... that they didn't exactly clue into what we were talking about.” In response to this concern and the prosecution's question about Sister's drug use, the court gave two curative instructions at the defense's request as soon as the jury reconvened. The first directed the jury not to consider “[a]ny evidence of distribution of substance[s] to anyone other than [M.V.].” The second instructed the jurors “not ... to consider any” information they may have heard during “bench discussions” and to “raise your hand” to alert the court if future bench discussions were audible.

¶ 8 The defense's first witness was Mother. On direct examination, she denied that there was “any indication of drug use” in her home and asserted that she “would have known” if there was. She also testified that she “[a]lways” knew what was going on in the family's home and would have “filed the charges [herself]” if there was an inappropriate relationship between M.V. and Curtis. On cross-examination, the State focused on Mother's statements regarding drug use to attack her credibility:

Q. Now, you say you didn't know about drug use in your home. But you did know about marijuana use in your home; is that correct?

A. Yes.

[Curtis's Counsel]: Objection, Judge....

THE COURT: You opened that door on that issue when you asked her if she was aware of drug use in the home. So that's an appropriate question.

....

Q. [Prosecutor]. And so since you knew there was drug use, you did not have charges filed on anyone at that point based on that drug use; is that right?

A. Yes.

¶ 9 On redirect, Mother stated again that if she were aware of drug use or inappropriate sexual activity in the home, Mother “would have been gone.” Mother also testified that she did not believe M.V. because, as her mother, she “know[s] when [M.V.]'s lying” and that M.V. “was lying” when she testified in court about Curtis's drug use and inappropriate sexual conduct.

¶ 10 Curtis testified in his own defense. He denied “us[ing] cocaine with [M.V.],” “inject[ing] [M.V.] with cocaine,” and “hav[ing] sexual intercourse with” M.V. On cross-examination, over the defense's objection, the court allowed the State to question Curtis regarding marijuana use in the home because Mother had already denied that there was any drug use in the home. Curtis readily admitted that he “smoke[d] marijuana,” but when asked if M.V. and her sisters also smoked marijuana, he responded, “No, with me, no.”

¶ 11 The State called Sister as a rebuttal witness. She testified that she saw the defendant use cocaine with M.V. “several times ... in the bathroom[and] in the bedroom” of the family's home. Defense counsel objected, citing the court's prior decision excluding evidence of drug use other than the cocaine use that accompanied the four instances of sexual abuse. After a lengthy discussion, the court allowed Sister's testimony to rebut the defendant's assertion that he never used cocaine with M.V., Mother's allegations that M.V. was lying, and Mother's statement that no drug activity ever occurred in the home.

¶ 12 The jury convicted Curtis of four counts of rape and four counts of distribution of a controlled substance. Curtis appeals.

ISSUES AND STANDARD OF REVIEW

¶ 13 Curtis requests that we remand this case to the trial court under rule 23B of the Utah Rules of Appellate Procedure to create a record regarding his ineffective assistance of trial counsel claim. SeeUtah R.App. P. 23B(a). Rule 23B allows a criminal defendant asserting an ineffective assistance claim to “move the court to remand the case to the trial court for entry of findings of fact” that are necessary for an appellate court to resolve the claim. Id. Although not strictly a standard of appellate review, we grant such motions “only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.” Id.

¶ 14 Curtis also argues that he received ineffective assistance of counsel because his attorney (1) “failed to present photographs that questioned [M.V.' s] credibility and testimony”; (2) did not present the results of a hair follicle drug test that Curtis alleges shows M.V. did not use cocaine; (3) never introduced into evidence a Division of Child and Family Services (DCFS) report showing M.V. had previously denied having an inappropriate relationship with the defendant; (4) “failed to investigate and interview potential witnesses”; (5) mistakenly opened the door to cross-examination questioning...