State v. Griffin

• Decision Date: 30 January 2015
• Docket Number: No. 20090520.,20090520.
• Parties: STATE of Utah, Appellee, v. Glenn Howard GRIFFIN, Appellant.
• Court: Utah Supreme Court

441 P.3d 1166

STATE of Utah, Appellee,

v.Glenn Howard GRIFFIN, Appellant.

No. 20090520.

Supreme Court of Utah.

Jan. 30, 2015.

Sean D. Reyes, Att'y Gen., John J. Nielsen, Asst. Att'y Gen., Salt Lake City, for appellee.

Jennifer Gowans Vandenberg, Park City, for appellant.

Associate Chief Justice NEHRING authored the opinion of the Court, in which Chief Justice DURRANT, Justice DURHAM, Justice PARRISH, and Justice LEE joined.

INTRODUCTION

Associate Chief Justice NEHRING, opinion of the Court:

¶ 1 The current case comes before this court both as a direct appeal of Glenn Howard Griffin's conviction for first-degree murder and through motions to remand under rules 23 and 23B of the Utah Rules of Appellate Procedure. We deny Mr. Griffin's motion under rule 23. However, we grant his rule 23B motion in part and remand to the trial court to enter findings of fact necessary to evaluate Mr. Griffin's ineffective assistance of counsel claims on appeal. We therefore stay Mr. Griffin's direct appeal pending the trial court proceedings.

BACKGROUND

¶ 2 On May 26, 1984, Bradley Newell Perry was working as a night clerk at a Texaco gas station in Box Elder County, Utah. At some point during the night, one or more individuals entered the store and attacked Mr. Perry. Mr. Perry was tied up, stabbed, and beaten. He died as a result of his wounds

. Approximately $100 in cash was taken from the register of the convenience store.

¶ 3 Sometime after midnight, two students, Ali Sabbah and Baseem Barish, pulled up to the Texaco station for gas. Though the Texaco was a self-service station, a man came out of the store and offered to help the students pump gas. Mr. Sabbah described the man as being about six feet tall and lean, with black hair and a scruffy beard. He guessed the man was approximately thirty years old. Mr. Barish similarly described the man as around six feet tall with black eyes and black hair.

¶ 4 While the man was pumping gas, Mr. Sabbah noticed that the man had bruises on his hand and there was what looked like dried blood on his clothes and fresh blood on his white shoes. Mr. Sabbah paid the man with five one-dollar bills. At that point, Mr. Barish started walking towards the store to buy cigarettes. The man intercepted Mr. Barish and said he would get the cigarettes for him. Mr. Barish paid for the cigarettes with a five-dollar bill, and the man gave him back four of the one-dollar bills as change. Mr. Barish noticed that one of the bills had what appeared to be a fresh bloodstain on it, and he thought that the man seemed nervous. After the students left the gas station, they discussed the strange interaction with the man. Mr. Barish showed Mr. Sabbah the bloody one-dollar bill and placed the bill on the dashboard. Concerned about the encounter, the students sped down the road in an attempt to get pulled over. When that failed, they found a payphone and called the police.

¶ 5 Detective Alan Beard arrived at the students' location and escorted them back to the police station in Brigham City. The students relayed what they had seen and gave Detective Beard the pack of cigarettes purchased at the station and the four one-dollar bills they received as change. Mr. Sabbah sketched two drawings of the man at the gas station.

¶ 6 Sheriff Lynn Yates, a patrol officer at the time, responded to the gas station, arriving at approximately 4:30 a.m. He and Officer Danny Earl entered the store through the public entrance and noticed a blood trail leading to a storage room, which was locked. Sheriff Yates went around the back of the building and looked through a window into the storage area, where he saw Mr. Perry's body lying on the ground. Sheriff Yates and Officer Earl then kicked open the locked storage door. Sheriff Yates determined that Mr. Perry was dead and called for the investigation team.

¶ 7 The murder scene showed evidence of a struggle. Mr. Perry's body was covered in bruises and defensive wounds

, and his hands were bound behind his back with an electrical cord. The autopsy report showed that Mr. Perry had various injuries. The cause of death was certified as blunt-force injury to the head and neck along with multiple stab wounds. The head injury was likely caused by a syrup canister found in the store. Additionally, approximately $100 was missing from the cash register.

¶ 8 Following the murder, police investigated a number of leads, developing a list of approximately two hundred potential suspects. Police considered Thomas Nager, an employee at the station, and Mr. Nager's friend, Craig Martinez, to be primary suspects. The lead detective on the case explained that he believed the perpetrator was someone familiar with the store, and he testified that Mr. Sabbah had identified Mr. Nager from a photo lineup as being "consistent with" the man he had seen at the gas station. Police also received information from Michael Caldwell, a friend of Mr. Nager and Mr. Martinez. Mr. Caldwell implicated Mr. Nager and Mr. Martinez in the murder, but his story was inconsistent and changed during conversations with the police. At Mr. Griffin's trial, Mr. Nager admitted that he sold drugs out of the store, he was late for work on the morning after the murder, he stole from the store and was fired when the manager discovered his theft, and he had multiple felony convictions.¹ Mr. Nager also claimed that he heard from others that Mr. Martinez had bragged about killing Mr. Perry. Ultimately, however, no DNA evidence connected Mr. Nager or Mr. Martinez to the murder, and neither man was charged. The case went cold for several years.

¶ 9 Mr. Griffin became a suspect in 2005 when DNA from the blood-stained one-dollar bill was matched to him. Investigators then tested hair samples that were collected from the murder scene for mitochondrial DNA (mtDNA) and determined that 99.94 percent of the population could be excluded as the donor but Mr. Griffin could not. Additionally, a fellow inmate of Mr. Griffin's, Benjamin Britt, told police that Mr. Griffin made incriminating statements about the murder to him while they were in prison together.

¶ 10 The State charged Mr. Griffin with first-degree murder under Utah Code section 76–5–202 (1984),² and a jury convicted him. The State sought the death penalty, but the jury returned a sentence of life without parole. Mr. Griffin timely appealed. Mr. Griffin also filed motions to remand under Utah Rules of Appellate Procedure 23 and 23B. We deferred consideration of those motions in order to address the claims in conjunction with the issues raised on his direct appeal.

ANALYSIS

¶ 11 We first consider Mr. Griffin's rule 23 motion for remand to supplement the record on appeal. We determine that this relief cannot be granted under rule 23, and we therefore deny the motion. We next address Mr. Griffin's rule 23B motion and conclude that, for certain claims, he alleges sufficient facts that could support a finding of ineffective assistance of counsel. We therefore grant the motion in part and temporarily remand to the trial court for the entry of findings of fact. We stay a ruling on Mr. Griffin's direct appeal pending the outcome of the trial court proceeding.

I. MOTION UNDER RULE 23

¶ 12 Mr. Griffin alleges that a number of errors occurred during trial for which there is no evidence on record. He therefore requests that we remand his case under rule 23 of the Utah Rules of Appellate Procedure to make findings on claims regarding a conflict of interest with counsel, inadequate compensation for counsel, and the State's failure to preserve evidence for testing by the defense.

¶ 13 Mr. Griffin cites no authority that permits this court to grant his requested relief under rule 23. Rule 23 merely governs the form of motions; it does not grant parties any substantive rights.³ Mr. Griffin therefore cannot base his motion to supplement the record on rule 23 alone. The rules do provide two mechanisms to supplement the record for appeal. Under Utah Rule of Appellate Procedure 11(h), a party may make a "correction" or "modification" to the record in circumstances when "any difference arises as to whether the record truly discloses what occurred in the trial court" or if "anything material to either party is misstated or is omitted from the record by error [or] by accident." Alternatively, a party may, as Mr. Griffin also does, bring a motion under rule 23B to remand for findings of fact not in the record that relate to an ineffective assistance of counsel claim. However, Mr. Griffin's motion under rule 23 does not implicate the concerns addressed in rules 11(h) or 23B.⁴ He simply desires to augment the record for the benefit of arguments on appeal unrelated to his ineffective assistance of counsel claims. This is not permitted.⁵ His request runs contrary to our traditional rule that "this court need not, and will not[,] consider anyfacts not properly cited to, or supported by, the record."⁶ To allow parties to enlarge the record posttrial would eviscerate our longstanding rules of preservation and finality and open the door to never-ending litigation. We therefore deny Mr. Griffin's motion under rule 23.

II. RULE 23B MOTION

¶ 14 Mr. Griffin also filed a motion under Utah Rule of Appellate Procedure 23B to remand the case to the trial court for findings bearing on his claims of ineffective assistance of counsel. A number of Mr. Griffin's 23B claims fail, and we therefore deny the motion in part. However, we determine that for several of his claims, Mr. Griffin has satisfied the requirements of rule 23B, and we therefore remand this case to the trial court on those claims.

¶ 15 In Strickland v. Washington, the United States Supreme Court articulated a two-part test to evaluate claims of ineffective assistance of counsel.⁷ First, the burden is on the defendant to establish that "his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment."⁸ Secon...