State v. Johnston

Decision Date19 October 2000
Docket NumberNo. 971327-CA.,971327-CA.
Citation2000 Utah Ct. App. 290,13 P.3d 175
PartiesSTATE of Utah, Plaintiff and Appellee, v. James JOHNSTON, Defendant and Appellant.
CourtUtah Court of Appeals

John E. Hummel, St. George, Blaine T. Hofeling, Cedar City, for Appellant.

Jan Graham, Atty. Gen., and Laura B. Dupaix, Assistant Atty. Gen., Salt Lake City, for Appellee.




¶ 1 This matter is before the court on James Johnston's motion to reconsider our denial of his motion for remand under Utah Rule of Appellate Procedure 23B. We believe the denial was well-taken, and it will stand, but as there seems to be widespread confusion about Rule 23B, we take this occasion to explain fully the reasons why the motion was denied.


¶ 2 Johnston was bound over on one count of sodomy, four counts of sexual abuse of a child, and two counts of lewdness. The charges concerned a nine-year-old girl, B.R., and an eight-year-old girl, A.K., who spent time at the home of Johnston and his girlfriend, Tansy Black. Gary Pendleton first appeared as counsel for Johnston, but withdrew before trial alleging that "a serious and irreconcilable rift" had developed with his client. New counsel, Thomas Blakely, appeared on behalf of Johnston about three weeks before trial. ¶ 3 At trial, the State put on three witnesses, B.R., A.K., and the police officer who investigated the charges. In videotaped interviews which were shown at trial, the girls testified that Johnston touched their "private parts," that he chased them around with a massager, and that he had them perform oral sex on him. At trial, the girls testified similarly. However, there was a discrepancy as to when they say the touching occurred. The officer testified that he found a massager in Johnston's home matching the girls' description.

¶ 4 At the close of the State's case, it moved to dismiss one of the lewdness charges. Blakely moved for a directed verdict on the other charges arguing, among other things, that there was a discrepancy in the dates on which the offenses allegedly occurred. The prosecutor argued there was no discrepancy, but asked that the Information be amended to conform to the evidence. Blakely objected to this, saying Johnston would be entitled to a mistrial for lack of notice. The court then took the matter under advisement.

¶ 5 Blakely called a total of twelve witnesses on Johnston's behalf: 1) Tansy Black, Johnston's live-in girlfriend whom the girls often visited; 2) Dianna Tequida, Tansy's friend; 3) Gwen Black, Tansy's eighteen-year-old sister; 4) "Bonnie" Black, Tansy's thirteen-year-old sister; 5) Lindsey Black, Tansy's fifteen-year-old sister; 6) Randy Soderquist, the DCFS worker who had interviewed B.R.; 7) Thomas Wiki, a friend of Johnston's who lived with him for a time; 8) Shannon Nielsen, mother of a friend of B.R.'s; 9) Joy Nielsen, grandmother of a friend of B.R.'s; 10) Douglas Nielsen, Joy's husband, who did carpentry work at Johnston's house; 11) Linnan Daniels, Tansy Black's mother; and 12) Ginger Newland, a friend of Johnston. These witnesses testified that the girls never seemed to be nervous around Johnston, that they spent a lot of time at Johnston's and Tansy's house; that the girls returned to the Johnston house repeatedly; that B.R. was particularly demanding of Tansy and Johnston in asking for ice cream and other things; that Johnston often went to bed early while the others stayed up; that the girls sometimes slept over, but chose where they slept; and some testified that B.R. seemed too casual about the alleged incidents.

¶ 6 In closing argument, Blakely attacked the children's credibility, pointing out discrepancies between the interviews and the girls' testimony. Nonetheless, Johnston was convicted of the remaining charges against him — one count of sodomy, four counts of sexual abuse, and one count of lewdness. Blakely withdrew as counsel after sentencing.


¶ 7 The purpose of Rule 23B is for appellate counsel to put on evidence he or she now has, not to amass evidence that might help prove an ineffectiveness of counsel claim. It allows supplementation of the record, in limited circumstances, with nonspeculative facts not fully appearing in the record that would support the claimed deficient performance and the resulting prejudice. The rule was adopted to provide a "procedural solution to the dilemma created by an inadequate record of trial counsel's ineffectiveness." State v. Litherland, 2000 UT 76, ¶ 13, 12 P.3d 92.

¶ 8 There are four basic requirements for obtaining a 23B remand. First, the motion must be supported by affidavits setting forth "facts not fully appearing in the record on appeal that show the claimed deficient performance of the attorney." Utah R.App.P. 23B(b). In other words, the rule is a means to supplement the record with facts now known, even though not previously elicited in the record. ¶ 9 A remand is not necessary if the facts underlying the ineffectiveness claim are contained in the existing record. Rule 23B

was clearly not intended to provide for remand in the typical ineffective assistance case where the parties dispute whether trial counsel's actions reflected some strategy, given the facts established by the record. Instead, Rule 23B is directed to cases where some crucial factual information is absent from the record.

State v. Tennyson, 850 P.2d 461, 468 n. 5 (Utah Ct.App.1993) (emphasis in original).

¶ 10 Second, the facts alleged in support of a Rule 23B motion may not be speculative. This requirement is illustrated in State v. Garrett, 849 P.2d 578 (Utah Ct. App.1993), in which this court said:

Defendant has not alleged any facts that would establish trial counsel's deficient performance or the prejudice suffered by defendant. At best, defendant has simply speculated that trial counsel's failure to object might not have been due to trial strategy. Given the rule's clear emphasis on specific factual allegations, it would be improper to remand a claim under rule 23B for a fishing expedition. Not only would a remand based on speculation be inconsistent with the presumption of sound trial strategy, it would likely open the floodgate of incomplete and fragmented ineffective assistance claims on direct appeal. Because defendant has not alleged any facts in support of his ineffective assistance claim, we do not remand it for an evidentiary hearing.

Id. at 581-82 (citation omitted); see also State v. Litherland, 2000 UT 76, ¶ 26 n. 11, 12 P.3d 92 (reiterating requirement that Rule 23B motion be supported by nonspeculative allegations of fact); State v. Hopkins, 1999 UT 98, ¶ 13 n. 1, 989 P.2d 1065 (stating "[m]any of Hopkins' allegations are wholly speculative and are of such an ambiguous nature that this court cannot determine if a rule 23B remand is merited"). A defendant must specifically identify uncalled witnesses and "identify specific facts of their testimony that might have helped his case." State v. Vessey, 967 P.2d 960, 965 n. 5 (Utah Ct.App. 1998). This must be done by affidavit. See Utah R.App.P. 23B(b).

¶ 11 The requirement that a defendant support a 23B motion with affidavits is not unlike Utah Rule of Civil Procedure 56(e), which requires that affidavits "be made on personal knowledge." Cf. Utah R.App.P. 23B(a) (stating Rule 23B motion is "only available upon a nonspeculative allegation of facts"). Thus, to obtain a Rule 23B remand, a defendant must not only submit affidavits specifying who the uncalled witnesses are and that they are available to testify at an evidentiary hearing, he must ordinarily submit affidavits from the witnesses detailing their testimony. See Vessey, 967 P.2d at 965 n. 5 (stating defendant must "identify specific facets of [the proposed witnesses'] testimony that might have helped his case"). In other words, a defendant must present this court with the evidence he intends to present on remand and explain how that evidence supports both prongs of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To grant a Rule 23B remand on less would permit remands on speculative facts in contravention to the express language of Rule 23B. Likewise, it would permit Rule 23B to be used as a discovery tool rather than as a means to make a record of facts now known to defendant which bear on his ineffective assistance claim, but which do not otherwise appear of record.

¶ 12 Third, the allegations must show deficient performance. In other words, the nonspeculative facts must focus on why counsel's performance was deficient.

¶ 13 Finally, the affidavits supporting the motion must "also allege facts that show the claimed prejudice suffered by the appellant as a result of the claimed deficient performance." Utah R.App.P. 23B(b). These facts must demonstrate prejudice, i.e., that the result would have been different had counsel's performance not been deficient.

¶ 14 A 23B motion "shall also be accompanied by a proposed order [of] remand that identifies the ineffectiveness claims and specifies the factual issues relevant to each such claim to be addressed on remand." Utah R.App.P. 23B(b).

¶ 15 The above factors may be distilled into four questions a person seeking a Rule 23B remand must be able to answer in the affirmative:

1. Does the claim turn on facts not already in the record?
2. Are they nonspeculative facts, which can be readily shown, as demonstrated by the affidavits submitted in support of the motion?
3. Do such facts show constitutionally deficient performance?
4. Do such facts show that the deficiency actually prejudiced defendant?

¶ 16 Johnston asserts he meets the requirements for a 23B remand. We disagree.


¶ 17 Johnston contends that he was prejudiced by his trial counsel's failure to investigate and interview witnesses. However, Rule 23B(b) requires that the motion be...

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