State v. Humphries

• Decision Date: 04 October 1991
• Docket Number: No. 900006,900006
• Citation: 818 P.2d 1027
• Parties: STATE of Utah, Plaintiff and Respondent, v. Thomas R. HUMPHRIES, Defendant and Petitioner.
• Court: Utah Supreme Court

Page 1027

818 P.2d 1027

STATE of Utah, Plaintiff and Respondent, v. Thomas R. HUMPHRIES, Defendant and Petitioner.

No. 900006.

Supreme Court of Utah.

Oct. 4, 1991.

R. Paul Van Dam, Dan Larsen, Salt Lake City, for plaintiff and respondent.

E. Jay Sheen, Salt Lake City, for defendant and petitioner.

HOWE, Associate Chief Justice:

We granted certiorari to review defendant's conviction for issuing bad checks, 795 P.2d 1138, a third degree felony, in violation of Utah Code Ann. § 76-6-505(1) (Supp.1988). In an unpublished opinion, the court of appeals in case No. 880704-CA affirmed the conviction.

Defendant opened a checking account at a bank in Ogden with an initial deposit of $100. He made no other deposits, but he wrote a number of checks on the account for amounts in excess of $100. At his trial for issuing bad checks, he testified that prior to writing them, he gave Dorie Stewart, a friend, a deposit slip and $3,600 in cash and instructed her to deposit that amount in his checking account. He further testified that Stewart did not make the deposit but instead applied the money to a debt which he owed her. He asserted that the cash was from a settlement of a fire insurance claim which was split between him and two business partners. He did not report Stewart's failure to the police because he owed her money.

At his trial, he called Stewart as a witness. Prior to her testimony, the prosecutor examined her on voir dire outside the presence of the jury. He advised Stewart of her rights under the fifth amendment against self-incrimination and of the penalties for theft and perjury. After the trial resumed, Stewart declined to testify, claiming a privilege under the fifth amendment.

In closing argument, the prosecutor told the jury that Stewart "[d]idn't want to lie, but she also didn't want to tell the hard truth and that is, that this man is dishonest." The prosecutor also stated in closing that defendant was a "dishonest person" and advised the jury to "disregard the testimony of the defendant because of his dishonesty." The jury found defendant guilty, and he was given a prison sentence.

After defendant was sentenced, his trial counsel withdrew, and another attorney was appointed to pursue an appeal. In his brief to the court of appeals, defendant's counsel raised five assignments of error: (1) that the prosecutor stated to the jury in closing argument his opinion that defendant was a dishonest person; (2) that the prosecutor improperly threatened witness Stewart if she testified; (3) that the prosecutor questioned defendant as to why he did not subpoena one of his business partners as a witness, supposedly to corroborate defendant's testimony as to the receipt of the $3,600; (4) that certain bank records which were not a basis for the charges against defendant were admitted; and (5) that defense counsel represented defendant at the preliminary hearing, because the attorney admitted he had a conflict of interest. In response to these five assignments of error, the State contended that in failing to timely object, defendant's trial counsel had failed to preserve for appeal the first four. As to the fifth assignment, the State contended that it was meritless because defendant expressly waived any conflict of interest. The court of appeals in its memorandum decision agreed with the State's response and affirmed defendant's conviction for the reasons advanced by the State.

On this certiorari review by this court, the defendant through new counsel now contends that he was denied the effective assistance of appellate counsel as guaranteed by the sixth amendment to the Constitution of the United States because his counsel did not raise in the court of appeals (1) ineffectiveness of trial counsel in failing to object to the prosecutor's conduct, or (2) prosecutorial misconduct which was "plain error" and should be reviewed on appeal despite the lack of any objection thereto. The State responds that this court should not consider defendant's ineffective assistance of appellate counsel claim, which is now raised for the first time. Rather, it argues, such claim should be raised in the context of a postconviction action where an evidentiary record may be established and any legal remedies imposed. The State suggests that if defendant does seek postconviction relief "based upon a claim of prosecutorial misconduct in closing argument, the State may well concede that error occurred when the prosecutor commented to the jury that defendant's witness Stewart invoked her fifth amendment privilege because she did not want to lie."

The State is correct that ordinarily a claim of ineffectiveness of appellate counsel must be raised in a postconviction proceeding, as provided for in rule 65B(i), Utah Rules of Civil Procedure. Obviously, such a proceeding would usually be the first opportunity to advance that claim. However, this case presents the unusual situation where the claim of ineffectiveness of appellate counsel is being raised in a second tier of appellate review by new appellate counsel. If we were to require defendant to present the claim of ineffective assistance of trial or appellate counsel...