State v. Heywood

• Decision Date: 06 August 2015
• Docket Number: No. 20121051–CA.,20121051–CA.
• Citation: 2015 UT App 191,357 P.3d 565
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Kristopher K. HEYWOOD, Defendant and Appellant.

357 P.3d 565

2015 UT App 191

STATE of Utah, Plaintiff and Appellee

v.Kristopher K. HEYWOOD, Defendant and Appellant.

No. 20121051–CA.

Court of Appeals of Utah.

Aug. 6, 2015.

Scott L. Wiggins, Salt Lake City, Attorney for Appellant.

Simarjit S. Gill and Colleen K. Magee, Attorneys for Appellee.

Judge J. FREDERIC VOROS JR. authored this Memorandum Decision, in which Judges STEPHEN L. ROTH and JOHN A. PEARCE concurred.

Opinion

VOROS, Judge:

¶ 1 A jury convicted Kristopher K. Heywood of exposing himself to a small child while standing behind a glass storm door in the entryway of his home. The child's mother (Mother) identified Heywood. Heywood contends on appeal that his trial counsel rendered constitutionally ineffective assistance in several ways, but chiefly by not calling an eyewitness identification expert or requesting an eyewitness identification jury instruction. Yet this case exhibits few if any of the factors that our caselaw has identified as affecting the accuracy of eyewitness testimony, such as fatigue, intoxication, bias, mental problems, cross-racial identification, fright, distractions, news reports, cross-contamination, suggestive police conduct, or weapon focus. Furthermore, the only other person in the home at the time was Heywood's brother, and Heywood does not suggest that Mother saw his brother at the door. We conclude that Heywood has not demonstrated that his trial counsel rendered ineffective assistance. We accordingly affirm.

BACKGROUND¹

¶ 2 In September 2011, Mother and her three-year-old daughter (Daughter) walked past Heywood's home on their way to a school playground. Mother noticed Heywood standing behind a glass storm door in the front doorway of the house. Heywood wore a white t-shirt and no pants. Mother saw Heywood handling his penis.

¶ 3 While keeping Daughter occupied so that she would not see Heywood, Mother waved to him and made eye contact with him to let him know that Mother and Daughter were there. At that point, Mother hoped that Heywood's conduct was inadvertent. But after making eye contact with Heywood, Mother saw that “[h]e just continued to play with his penis.” Mother hurried Daughter toward the school playground and looked back once to make sure Heywood had not left his house. When Mother made eye contact with Heywood again, he was “squished into his doorway” so he could “watch [them] as far as he could while still playing with his penis.” Mother and Daughter continued to the playground.

¶ 4 After only a few minutes at the playground, Daughter had to go to the bathroom. Mother “wasted a little bit of time” before heading home, hoping that Heywood would not be in the doorway of his house when they passed. But Heywood was again in the doorway. This time, he wore khaki-colored shorts but had “dropped his shorts” and, after making eye contact with Mother, “started to play with his penis” again. Daughter pointed to Heywood and said, “Look at that, Mommy.” Mother called the police. While on the phone with the police, Mother waved to Heywood “in frustration” as he continued to handle his penis. When Heywood realized that Mother was on the phone, he “finally left the doorway.” Mother watched Heywood's house while she and Daughter waited outside the house for the police to arrive.

¶ 5 When the police arrived, Mother described Heywood to one of the police officers (Officer) as wearing glasses, a white t-shirt, and khaki-colored shorts and as being approximately five feet, ten inches tall. After Mother pointed out the house where she saw Heywood, she and Daughter went home. Officer knocked on Heywood's door and, when Heywood answered, Officer informed him that he was investigating a lewdness complaint. Heywood invited Officer into the entryway of the house to discuss the complaint. When Officer asked him if there was anyone else in the house, Heywood said that his adoptive brother (Brother) was there but that his wife (Wife) was not.

¶ 6 Heywood testified that he was wearing a white t-shirt and brown shorts on the morning of the offenses and that he was playing an online video game with Brother uninterrupted from 9:30 a.m. until he heard a knock at the door sometime around noon or 12:30 p.m. Heywood claimed to have been “very shocked” at the accusation against him. He told Officer that he had not been in the doorway on the day of the offenses. He stated that he sometimes looked at the school but that he had not done so that day.

¶ 7 Heywood offered an explanation for why Mother might have thought she saw him: “I asked [Officer] did maybe someone see me in front of the window at some time. I've looked over at the school ... [and] I'm thinking well maybe someone is seeing me and thinks they saw something or something like that.” Officer told Heywood that Mother “seemed very reliable ... and that she described [Heywood] exactly.” Officer saw Brother and testified that after comparing Heywood's clothing and body structure to Brother's “there was no doubting that [Heywood] was the right person ... that [Mother] had described.” Officer then testified that Heywood “kind of thought a little bit and then he says well yes [he] was in the doorway, that he likes to watch the school building to make sure the school building is safe.”

¶ 8 After Mother and Daughter arrived home, they got into Mother's car to drive to a convenience store. Mother drove by Heywood's house and saw Officer talking with Heywood. When Officer and Mother spoke later that day, she told him that she had seen him talking to the “right person.” Officer showed Mother Heywood's driver-license photograph, and she confirmed that he was the “right person.”

¶ 9 The case proceeded to trial, and a jury found Heywood guilty on two counts of lewdness involving a child, class A misdemeanors. Heywood appeals.

ISSUES ON APPEAL

¶ 10 First, Heywood contends that trial counsel rendered ineffective assistance by failing to call an eyewitness expert to testify about the “deficiencies and pitfalls of eyewitness identifications.”

¶ 11 Second, Heywood contends that trial counsel rendered ineffective assistance by “failing to request a Long instruction because eyewitness identification was a central issue in the case.” See State v. Long, 721 P.2d 483 (Utah 1986).

¶ 12 Third, Heywood contends that trial counsel rendered ineffective assistance by not investigating and presenting evidence of Officer's failure to employ a photographic lineup.

¶ 13 Fourth, Heywood contends that trial counsel rendered ineffective assistance by failing to file a motion to suppress Heywood's statements to the investigating officer.

¶ 14 Fifth, Heywood contends that trial counsel rendered ineffective assistance by failing to investigate and present computer evidence that Heywood and Brother were playing an online video game at the time of the offenses.

¶ 15 Finally, Heywood contends that the cumulative effect of the errors resulting from trial counsel's ineffective assistance merits reversal.

ANALYSIS

¶ 16 Heywood raises a number of claims contending that his trial counsel rendered constitutionally ineffective assistance. To succeed on a claim of ineffective assistance of counsel, Heywood must establish that trial counsel performed deficiently and that counsel's deficient performance resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Houston, 2015 UT 40, ¶ 70 ; State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92. We review claims of ineffective assistance of counsel raised for the first time on appeal for correctness. State v. Lucero, 2014 UT 15, ¶ 11, 328 P.3d 841.

I. Eyewitness Expert

¶ 17 Heywood contends that his trial counsel rendered ineffective assistance by failing to call an eyewitness expert to testify about the “deficiencies and pitfalls of eyewitness identifications.” Heywood argues that because “the State relied exclusively on the eyewitness identification of [Mother]—a stranger to [Heywood]”—and because Mother's testimony “contained numerous inconsistencies,” his trial counsel rendered ineffective assistance by failing to call an expert witness to testify to the unreliability of eyewitness identification. The State responds that trial counsel's performance was not deficient and that, in any event, any claimed deficiencies did not prejudice Heywood.

¶ 18 We begin by examining under what circumstances eyewitness experts are required at trial. In State v. Clopten, our supreme court recognized that “[d]ecades of study ... have established that eyewitnesses are prone to identifying the wrong person as the perpetrator of a crime, particularly when certain factors are present.” 2009 UT 84, ¶ 15, 223 P.3d 1103. Because “there is little doubt that juries are generally unaware of these deficiencies in human perception and memory and thus give great weight to eyewitness identifications,” id., juries “benefit from assistance as they sort reliable testimony from unreliable testimony,” id. ¶ 17. Thus, when an eyewitness identifies a stranger, the presence of certain factors may call for expert testimony “to adequately educate a jury regarding these inherent deficiencies.” See id. ¶¶ 16, 32. Here, Mother and Heywood were strangers. Thus, we must consider whether the Clopten factors weigh in favor of calling an eyewitness expert. If not, trial counsel did not render ineffective assistance by not calling one. See id. ¶ 33 (explaining that where an expert cannot “identify factors that have contributed to a misidentification” the testimony may be excluded).

¶ 19 Clopten's first category of factors pertains to the observer:

The first category pertains to the eyewitness and includes factors such as uncorrected visual defects, fatigue, injury, intoxication, presence of a bias, an exceptional mental condition such as an intellectual disability or extremely low intelligence, age (if the eyewitness is either a young child or elderly), and the race of the eyewitness relative to the race of the suspect (cross-racial identification)

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