State v. King

Decision Date19 July 2012
Docket NumberNo. 20091086–CA.,20091086–CA.
Citation713 Utah Adv. Rep. 61,283 P.3d 980,2012 UT App 203
PartiesSTATE of Utah, Plaintiff and Appellee, v. Samuel KING, Defendant and Appellant.
CourtUtah Court of Appeals

OPINION TEXT STARTS HERE

Joan C. Watt, Salt Lake City, for Appellant.

Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.

Before Judges McHUGH, ORME, and ROTH.

OPINION

McHUGH, Presiding Judge:

¶ 1 Samuel King appeals his conviction for aggravated kidnapping (domestic violence), a first degree felony, seeUtah Code Ann. § 76–5–302 (2008); id. § 77–36–1 (Supp. 2011), and aggravated assault (domestic violence), a third degree felony, see id. § 76–5–103; id. § 77–36–1.1 King claims that he received ineffective assistance of counsel in several respects. He asserts that trial counsel should have consulted a mental health expert and sought discovery of the victim's mental health records. In addition, King contends that trial counsel failed to object to the introduction of a witness's out-of-court statements made during two police interviews. We affirm.

BACKGROUND

¶ 2 King and the victim (Victim) met sometime around the fall of 2007 and moved into an apartment together in the early part of 2008.2 A few months later, the Social SecurityAdministration determined that Victim's diagnosis of posttraumatic stress disorder, methamphetamine-induced psychosis, and depression rendered her disabled and awarded her a lump-sum disability payment of $26,000, as well as $859 in benefits per month. Shortly after Victim received the $26,000 payment, she and King began to have problems in their relationship. In particular, King became violent. He also demanded that Victim spend the money on him and became angry when she gave some of it to other people. Although Victim spent “probably [a] couple of thousand” on King and eventually gave him a cashier's check for $5,000, he was not satisfied. According to Victim, King would hit her and on one occasion he “picked [her] up by [the] throat and ... strangl[ed] her. Victim's former employer and friend (Friend), testified that Victim had told her about King's abuse and had shown Friend bruises. Friend helped Victim move out of the apartment in September 2008, but King continued to live in the apartment.

¶ 3 On September 25, 2008, Victim was at Pioneer Park (the park) where she smoked crack cocaine and drank some vodka that she shared with other individuals. King was also at the park drinking vodka with several people, including his friend Jackie, who was also taking drugs. After it became dark, Jackie approached Victim from behind and wrapped an electric cord around her throat.3 Victim heard King instructing Jackie to do so. King and Jackie then forced Victim to a picnic table and secured her to it with the cord. King and another woman at the park (Ms. A) tried to hit Victim, but Jackie put her arm between Victim and the assailants to block their punches. Nevertheless, King still managed to hit Victim. During the confrontation, King showed Victim a knife and threatened to kill her. Eventually, King called a cab, forced Victim to get in at knife point, and warned that if Victim did not remain silent on the drive, he would kill her. The taxi dropped the trio at King's apartment. King and Jackie held Victim at the apartment against her will, where King threatened to kill her, burn her with a cigarette, and cut out her tongue. To make his point, King heated the blade of a knife on the kitchen stove and told Victim that he intended to use it on her.

¶ 4 Victim testified that throughout that night, King repeatedly stated that he and Jackie intended to take her to the bank in the morning so that she could withdraw the rest of her money and give it to them. At some point, King gave Jackie a roll of duct tape and told her to secure Victim. Jackie pulled Victim's hands behind her back and bound them together with the duct tape and then bound her ankles together. Victim did not resist because she was scared and crying. Afterward, King and Jackie drank vodka for another three to four hours, during which time King occasionally forced Victim to drink vodka too. King and Jackie eventually passed out, leaving Victim on the floor. While King and Jackie were sleeping, Victim was able to unravel enough of the duct tape to escape. Victim exited the apartment and walked to a convenience store, where she called the police.

¶ 5 A police officer (Officer) responded to the call at 4:30 a.m. and observed duct tape on Victim's wrists and ankles. Victim reported that Jackie had bound her with the duct tape, described a wire cord and folding knife with a white grip, and directed Officer to King's apartment. When Officer arrived, the door to the apartment was open and Jackie was sleeping in the living room. Close to Jackie, Officer saw a roll of black duct tape. He then knocked to announce himself, and Jackie invited him to enter. In King's bedroom, Officer saw a number of knives in plain view, including a knife with a white handle. Although Officer saw many cords in the apartment and recovered a white cord, the police did not recover the black cord that Victim reported had been used to secure her to the picnic table.

¶ 6 In the interim, another police officer transported Victim to the police station for an interview. Victim's hands and feet were still partially bound by the duct tape. A police detective (Detective) conducted the interview and observed that Victim was “very volatile emotionally” and “kind of shell shocked.” At trial, Detective testified that it was apparent that Victim had “some mental health issues, but not enough to not track what [Detective] was saying to her[;] ... she was capable of talking to [Detective] and answering the questions appropriately.” A little over a week after that interview, Victim spoke with Detective again. Although Victim reported that King held a knife to her side during the cab ride at the first interview, during the second interview she denied that this had happened. Victim was also vague about the timing of events at the apartment, including when she had escaped, and did not know what month it was presently. However, Victim consistently maintained that King had directed Jackie's actions.

¶ 7 Detective also interviewed Jackie on two separate occasions. The first interview was on the same morning that Detective first spoke with Victim. According to Detective, during the first interview, Jackie indicated “that [King] and [Ms. A] were trying to hit [Victim] at the park ... and that [Jackie] ... would block their attempts to assault [Victim].” Detective also reported that Jackie stated that King wanted Victim to pick up clothes she had left at the apartment. Victim was initially afraid to go to King's apartment, but Jackie assured her that everything would be all right because Jackie would go with her. According to Detective, Jackie further indicated that King was “f—ing with that bitch,” referring to Victim, and that he was scaring her.” When Detective asked who placed duct tape on Victim, Jackie replied that [Victim] liked to roam in the middle of the night,” but did not directly answer the question. Detective also asked about the knife, but Jackie did not respond.

¶ 8 At some point, Detective interviewed Jackie again.4 At the second interview, Detective used more aggressive interrogation tactics and “bluffed [Jackie] quite a bit.” Detective opined that officers are permitted to “do any number of things ... as long as [they're] not assaulting [the witness] or berating them or, you know, beating them down or, you know, touching them or any of those sorts of things.” During the second interview, Detective told Jackie that the district attorney would give Jackie a deal and that “the duct tape came back with fingerprints, and the fingerprints were [King's].” Using those tactics, Detective was successful in getting Jackie to provide “a little bit more information than ... the first time.”

¶ 9 The State charged Jackie with felony kidnapping but allowed her to plead guilty to misdemeanor attempted assault in exchange for her testimony at King's trial. King was charged with two felonies: aggravated kidnapping (domestic violence), seeUtah Code Ann. § 76–5–302 (2008); id. § 77–36–1 (Supp. 2011), and aggravated assault (domestic violence), see id. § 76–5–103; id. § 77–36–1. By the time of King's trial, Jackie had completed her sentence on the misdemeanor.

¶ 10 The State called Jackie as a witness at King's trial, apparently expecting her to implicate him in the crime. Instead, Jackie's direct testimony was rambling and inconsistent, and during cross-examination, she denied that King was involved in holding Victim against her will. She also indicated that the only knife involved was a small pocket knife that King gave to Victim so that she could clean her fingernails. Jackie also testified that on the afternoon of the incident, Victim thought her mother was dead until she spoke to her mother on King's cellular phone. The prosecutor reminded Jackie of statements she had made to him shortly before she took the stand that apparently implicated King and asked Jackie if she remembered making them. Jackie's responses were vague, evasive,and inconsistent. To further impeach Jackie's trial testimony, the prosecutor elicited testimony from Detective about statements Jackie made during the first and second interviews. King's trial counsel did not object to the prosecution's use of Jackie's prior statements.

¶ 11 The jury found King guilty of both charges. He now appeals.

ISSUE AND STANDARD OF REVIEW

¶ 12 King asserts that his trial counsel was ineffective. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law, which we review for correctness.” State v. Fowers, 2011 UT App 383, ¶ 15, 265 P.3d 832 (internal quotation marks omitted).

ANALYSIS

¶ 13 Criminal defendants are entitled to effective assistance of counsel under the Sixth Amendment to the United States...

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