State v. Julian, 870351
| Decision Date | 28 March 1989 |
| Docket Number | No. 870351,870351 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Larry JULIAN, Defendant and Appellant. |
| Court | Utah Supreme Court |
D. Gilbert Athay, Salt Lake City, for defendant and appellant.
R. Paul Van Dam, Christine F. Soltis, Salt Lake City, for plaintiff and appellee.
Defendant was convicted of two counts of sodomy upon a child, in violation of Utah Code Ann. § 76-5-403.1 (Supp.1987) (amended 1988). On appeal, he claims that at trial he was denied effective assistance of counsel 1 and that the trial court committed prejudicial error in failing to dismiss a prospective juror for cause. We affirm.
Defendant's first point is that trial counsel was ineffective because he failed (1) to file a motion requiring the victims' interviews to be recorded; (2) to object to the prosecution's noncompliance with rule 16 of the Utah Rules of Criminal Procedure; (3) to properly prepare; (4) to object to irrelevant evidence; (5) to conduct effective cross-examination; and (6) to call character witnesses on defendant's behalf. In Strickland v. Washington, 2 the United States Supreme Court established the standard for determining ineffective assistance of counsel at trial. In order to prevail on such a claim, a defendant must show, first, that counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel's performance prejudiced the defendant. 3
As to defendant's contention that trial counsel failed to "obtain an order from the district court" requiring recording of victim interviews conducted after the preliminary hearing, defendant cites no law to support his proposition that counsel had a duty to do so, and no claim of a constitutional violation is substantiated. Furthermore, since the court previously denied a similar motion made by defense counsel and since testimony which resulted from interviews conducted subsequent to the preliminary hearing was minimal and cumulative of other testimony presented, defendant has failed to demonstrate the requisite prejudice. His claim is without merit.
Next, defendant contends that his counsel was ineffective in not objecting to the introduction of two exhibits offered in violation of the disclosure provisions of rule 16 of the Utah Rules of Criminal Procedure. This rule in part provides:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. 4
While defendant correctly notes that a prosecutor's failure to fully respond to a rule 16 request might impair the adversary process, 5 he has failed to show any prejudice that resulted from the alleged breach of the discovery rules. In fact, defendant has not sufficiently demonstrated that he was surprised at the existence of the exhibits or their contents, that he was misled by the prosecutor's omissions, or that the defense was in any way substantially impaired. Instead, the record indicates that at trial defendant's counsel reviewed and was aware of the contents of the exhibits. While he did not object to one, defendant's counsel apparently objected to the form of the other and a modification to the exhibit was made.
Defendant further claims that to properly prepare for trial, his counsel should have obtained and read legible copies of documents that were later offered as evidence. However, we have reviewed the exhibits provided on appeal and conclude that they are legible. Furthermore, our review of the record indicates that counsel read the documents. Defendant's argument is therefore without merit.
Defendant also contends that his counsel failed to file a motion in limine and "to object on numerous occasions to the presentation of other alleged wrongful conduct on the part of the defendant which had no relevancy or materiality to the proceedings for which he was on trial." However, after reviewing the record, we are not convinced that defendant has sufficiently demonstrated counsel's ineffectiveness in this regard. In fact, the record supports a determination that counsel made a conscious decision to allow introduction of the testimony in question in order to demonstrate the theory that defendant's wife had abnormal reactions to and preoccupations with sexual matters, which explained a poor marital relationship, and led her to manipulate and corrupt the children and cause the fabrication of their testimony. While counsel conceivably took a risk by allowing discussion of defendant's relationship with his wife, including their "sexual problems," defendant cannot now complain that the defense was ineffective because it was unsuccessful. 6
Defendant next claims that counsel was ineffective in his cross-examination of two State witnesses and the victims in this case. However, a reasonable reading of the record again supports the determination that counsel's questioning was in part focused on defendant's theory that the children had been manipulated and corrupted and that their testimony was fabricated. Further, defendant failed to show that but for the alleged deficiencies of his counsel, there exists any reasonable probability that the jury's verdict would have been different 7 or that the cross-examination undermined the "proper functioning of the adversarial process." 8
Defendant lastly contends that counsel was ineffective because he failed to call available witnesses to testify concerning defendant's good character and because counsel "interposed unintelligible questions" and "made unintelligible arguments" during trial. However, we have reviewed the record with these claims in mind and conclude that they are without merit.
A reading of the record indicates that defendant's allegations of prejudice do not give rise to the conclusion that "but for counsel's unprofessional errors, the result of the proceeding would have been different." 9 Further, defendant has not shown how counsel's decisions were not merely tactical choices or how his performance fell below an objective standard of reasonable professional judgment. 10 Accordingly, this point on appeal is without merit.
Defendant's second point is that the trial court abused its discretion in overruling defendant's challenge of a prospective juror for cause. This Court has repeatedly held that it is prejudicial error to compel a party to exercise a peremptory challenge to remove a prospective juror who should properly have been removed for cause. 11 Rule 18(e) of the Utah Rules of Criminal Procedure provides:
(e) The challenge for cause is an objection to a particular juror and may be taken on one or more of the following grounds:
....
(14) That a state of mind exists on the part of the juror with reference to the cause, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging....
This Court has previously noted Chief Justice Marshall's statement quoted in Reynolds v. United States: 12
"[L]ight impressions which may fairly be supposed to yield to the testimony that may be offered; which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to him." 13
Defendant argues that juror 17 was predisposed to believe the victims' testimony and was thus incapable of rendering an impartial verdict. However, after considering juror 17's complete testimony, we are not convinced. Relevant portions of the examination follow:
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State v. Dunn
...cert. denied, 497 U.S. 1024, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1989); State v. Carter, 776 P.2d 886, 894 (Utah 1989); State v. Julian, 771 P.2d 1061, 1063-64 (Utah 1989); State v. Medina, 738 P.2d 1021, 1023-24 (Utah 1987). Moreover, when confronted with a claim of ineffective assistance, we......
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State v. Woolley
...a peremptory challenge to remove a prospective juror who should have been removed for cause. Gotschall, 782 P.2d at 461; State v. Julian, 771 P.2d 1061, 1064 (Utah 1989). A. Juror Impartiality Article I, section 12 of the Utah Constitution and the sixth amendment to the United States Consti......
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State v. Baker
...significant effort in rehabilitating a potential juror to whom even an inference of bias has attached. See, e.g., State v. Julian, 771 P.2d 1061, 1065-66 (Utah 1989) (prospective juror who indicated predisposition to believe victim's testimony successfully rehabilitated by twenty questions)......
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Julian v. State
...Julian to two concurrent prison terms of fifteen years to life. We affirmed the convictions on direct appeal. See State v. Julian, 771 P.2d 1061 (Utah 1989) (Julian I). ¶ 3 In December 1995, Julian challenged his convictions in a petition for post-conviction relief filed pursuant to rule 65......
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Views from the Bench
...765 P.2d 839 (Utah 1988) [4] State v Wooley, 810 P.2d 440 (Utah 1991) [5] State v Bishop, 753 P.2d 439 (Utah 1988) [6] State v Julian, 771 P.2d 1061 (Utah 1989) [7] State v Cobb, 774P.2d 1123 (Utah 1989) [8] State v Julian, 771 P.2d 1061 (Utah 1989) [9] Evans v Doty, 175 Utah Adv. Rep. 80 (......