State v. Greuber

• Decision Date: 03 July 2007
• Docket Number: No. 20060009.,20060009.
• Parties: STATE of Utah, Plaintiff and Respondent, v. Darren Neil GREUBER, Jr., Defendant and Petitioner.
• Court: Utah Supreme Court

165 P.3d 1185

2007 UT 50

STATE of Utah, Plaintiff and Respondent, v. Darren Neil GREUBER, Jr., Defendant and Petitioner.

No. 20060009.

Supreme Court of Utah.

July 3, 2007.

Mark L. Shurtleff, Att'y Gen., Matthew D. Bates, Asst. Att'y Gen., Vincent Meister, Salt Lake City, for plaintiff.

Jennifer K. Gowans, Provo, for defendant.

On Certiorari to the Utah Court of Appeals.

DURHAM, Chief Justice:

INTRODUCTION

¶ 1 This case comes before us on a writ of certiorari. Darren Neil Greuber, Jr., challenges the court of appeals' decision that his attorneys were not constitutionally ineffective. We affirm and conclude that Greuber was not prejudiced by his counsel's failure to investigate evidence that might have militated in favor of accepting a plea bargain. Greuber suffered no prejudice because he received a fair trial, and furthermore, the trial court properly found that he would not have accepted a plea to murder even if the evidence had been fully investigated.

BACKGROUND

¶ 2 On the night of October 9, 2001, Greuber, three individuals, and a member of a white supremacist gang were smoking methamphetamine. When the drugs could not be found, the gang member called several other members of his gang to the house. When they discovered that Don Dorton, who was not a gang member, had hidden the drugs, Greuber and members of the gang kicked and punched him in the face and body. Dorton was wrapped in a sheet with his head covered, and his wrists and ankles were bound with duct tape. Greuber carried Dorton to a car and, with the assistance of two other men, transported him to a dirt road. Greuber then dragged Dorton out of and away from the car. He returned to the car without Dorton. The next night, one of the men returned to the scene and found Dorton dead, with an eighty-three-pound rock on his head. Greuber was arrested and charged with criminal homicide and aggravated kidnaping.

¶ 3 During the initial stages of trial preparation, the State offered to allow Greuber to plead guilty to murder in exchange for dismissal of the aggravated kidnaping charge. Greuber rejected the offer.

¶ 4 Part of Greuber's trial strategy was to impeach a jailhouse informant testifying against him by attempting to show that the informant fabricated Greuber's confession after reading discovery materials that Greuber had in his possession while he shared a cell with the informant. After the plea offer had been rejected, but prior to trial, the State served the defense with a Response to Discovery Request referencing recordings of Greuber's prison phone conversations. Greuber's attorneys did not listen to the recordings prior to trial. Thus, they were unaware that the recordings contained statements made by Greuber after the informant had been transferred out of his cell. In one such conversation, Greuber stated that he had not yet received his discovery.¹ At trial, the defense attorneys told the court, in the presence of the jury, that they intended to call Greuber and another witness. During a recess, at the State's suggestion, the defense attorneys listened to the recordings and determined that, because of ethical and credibility considerations, it was not possible to put Greuber or the other witness on the stand. After the recess, the defense attorneys moved for a mistrial. The court denied the motion, and the defense rested without calling the promised witnesses. The jury convicted Greuber of murder and aggravated kidnaping.

¶ 5 On appeal, Greuber claimed that his trial attorneys were constitutionally ineffective because his rejection of the plea offer was due to their failure to listen to the recordings before trial, and thus to realize that the defense impeachment strategy was contrary to the evidence. During an evidentiary hearing on the ineffective assistance of counsel claim, Greuber testified that he would have accepted the plea bargain offer had his attorneys listened to the recordings.² The defense attorneys, however, testified that Greuber would not have accepted the plea offer because he did not want to plead guilty to murder. The district court concluded that Greuber would not have accepted the plea offer because he was unwilling to accept any plea that included the charge of murder. Accordingly, the court found that Greuber suffered no prejudice as a result of his attorneys' actions. The court of appeals affirmed, noting that there is no constitutional right to a plea bargain. State v. Grueber, 2005 UT App 480U, 2005 WL 3007970. We granted certiorari to determine (1) whether counsel's failure to investigate evidence that would militate in favor of accepting a plea bargain may meet the requirement of demonstrating prejudice for an allegation of ineffective assistance of counsel, and (2) whether the record adequately supports the district court's finding that Greuber would not have accepted the State's plea offer even if counsel had fully investigated the State's evidence. Our jurisdiction is appropriate pursuant to Utah Code section 78-2-2(3)(a), (5) (2002).

STANDARD OF REVIEW

¶ 6 "On certiorari review, this court reviews the decision of the court of appeals, not the decision of the district court." Colosimo v. Roman Catholic Bishop, 2007 UT 25, ¶ 11, 156 P.3d 806. Whether the Sixth Amendment applies is a question of law that we review for correctness. In assessing a claim of ineffective assistance of counsel, "we review for correctness the trial court's application of the law to the facts, but we will overturn the [trial] court's findings of fact only if they are clearly erroneous." Menzies v. Galetka, 2006 UT 81, ¶ 58, 150 P.3d 480. "For a reviewing court to find clear error, it must decide that the factual findings made by the trial court are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court's determination." State v. Pena, 869 P.2d 932, 935-36 (Utah 1994).

ANALYSIS

¶ 7 Two issues were presented in this case: first, whether the failure of Greuber's attorneys to investigate the contents of the recordings and Greuber's rejection of the plea bargain offer meet the requirement of demonstrating prejudice for an allegation of ineffective assistance of counsel; and second, whether the record adequately supports the district court's finding that Greuber would not have accepted the plea. We conclude that while the Sixth Amendment right to the effective assistance of counsel generally applies during the plea process, Greuber's rejection of the plea offer in this case did not result in prejudice because he received a fair trial; and in any event, the district court's conclusion that Greuber would not have accepted any plea involving murder was not clearly erroneous.

I. PLEA BARGAINS AND THE SIXTH AMENDMENT

¶ 8 The Sixth Amendment of the United States Constitution guarantees a criminal defendant's right to counsel "in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States Supreme Court has recognized that "the right to counsel is the right to the effective assistance of counsel," id. at 686, 104 S.Ct. 2052 (internal quotation marks omitted), and effective assistance is required during the "plea process," Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

¶ 9 In order to show ineffectiveness during plea negotiations, a defendant must show that "counsel's performance was deficient" and that "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Hill, 474 U.S. at 57, 106 S.Ct. 366. If counsel's representation fell below an objective standard of reasonableness, her performance was deficient. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Further, the defendant is prejudiced by counsel's actions only if the result of the proceedings would have been different absent the claimed deficiency.³ Id. at 691, 104 S.Ct. 2052. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id. at 697, 104 S.Ct. 2052.

¶ 10 When the Supreme Court has applied the Sixth Amendment right to the plea process, it has considered whether an accepted guilty plea has prejudiced the defendant, Hill, 474 U.S. at 58, 106 S.Ct. 366, and not how the right applies when a defendant rejects a plea and proceeds with a fair trial. We too have considered the right in the context of guilty pleas. See State v. Rojas-Martinez, 2005 UT 86, ¶ 10, 125 P.3d 930; see also State v. Martinez, 2001 UT 12, 26 P.3d 203. But unlike the Supreme Court, we have had the opportunity to consider the Sixth Amendment right when a plea offer is rejected and the defendant proceeds with a fair trial. State v. Knight, 734 P.2d 913, 919 n. 7 (Utah 1987) (recognizing that the key difference between an accepted plea offer and a rejected plea offer is that in the latter case, the defendant does "not waive his right to a fair trial"); State v. Geary, 707 P.2d 645, 646 (Utah 1985) ("[O]ur state and federal constitutions guarantee fair trials, not plea bargains."). Although we rejected the defendant's claim in Knight, we did so with little analysis, and therefore, we take this opportunity to elaborate on the Sixth Amendment's application to rejected plea bargains.

¶ 11 It is clear that defendants possess the right to the effective assistance of counsel in plea negotiations. The Supreme Court has recently reiterated, however, that the right to the effective assistance of counsel is grounded in the constitutional right to receive a fair trial. United States v. Gonzalez-Lopez, ___ U.S. ___, ___, 126 S.Ct. 2557, 2563, 165 L.Ed.2d 409 (2006) (recognizing that the right to effective assistance of counsel is derived from the right to a fair trial unlike the right to counsel of choice). The right is "recognized not for its own sake, but because of the...