State v. Litherland

• Decision Date: 29 September 2000
• Docket Number: No. 990016.,990016.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Christopher LITHERLAND, Defendant and Appellant.
• Court: Utah Supreme Court

12 P.3d 92

2000 UT 76

STATE of Utah, Plaintiff and Appellee, v. Christopher LITHERLAND, Defendant and Appellant.

No. 990016.

Supreme Court of Utah.

September 29, 2000.

Jan Graham, Att'y Gen., Karen A. Klucznik, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Kristine M. Rogers, Salt Lake City, for defendant.

DURRANT, Justice:

¶ 1 Defendant Christopher Litherland appeals his convictions of rape and forcible sexual abuse. He asserts that his trial counsel was ineffective for failing to request that two prospective jurors be dismissed for cause or for failing to remove them with peremptory challenges, and that the trial court committed plain error in failing to remove, sua sponte, those same jurors. We affirm.

BACKGROUND

¶ 2 We relate the facts in the light most favorable to the jury's verdict. See State v. Gordon, 913 P.2d 350, 351 (Utah 1996)

. During the time of the relevant events in this case, the defendant, Christopher Litherland, who was twenty-four years old, lived in Monticello, Utah. The victim, a sixteen year-old girl, likewise lived in Monticello, but was attending school in Blanding, Utah. The victim knew both Litherland and his wife, and tended Litherland's baby daughter two or three times during the late summer or early fall of 1997. On several occasions, Litherland drove to Blanding to give the victim a ride home from school. On a few occasions, he gave her driving lessons. An intimate relationship developed. The victim testified that on two occasions Litherland drove her up to a mountainous area and touched her breasts, buttocks, and vaginal area, both over and under her clothing. At some point thereafter, the victim told Litherland she wanted to end their relationship. On October 9, the victim was tending Litherland's baby when Litherland unexpectedly arrived home. The victim testified that she and Litherland had an argument about their relationship and then had sexual intercourse.

¶ 3 Litherland was charged with one count of rape, a first degree felony, in violation of Utah Code Ann. § 76-5-402, and one count of forcible sexual abuse, a second degree felony, in violation of Utah Code Ann. § 76-5-404(1).¹ During jury selection, the court addressed the problem of prospective jurors' acquaintance with witnesses and prior awareness of the crime. Monticello is a relatively small community where many of the inhabitants know each other and hear about local significant events by word of mouth. Several prospective jurors were excused because they indicated a strong or unequivocal bias due to information they had received or due to their relationships with participants in the trial.² Two prospective jurors, Melvin Dalton and Tamara Barton, also indicated a prior familiarity with the case, but were not excused and sat on the jury panel.

¶ 4 Dalton initially heard about the case through "local town gossip." He also indicated he was personally acquainted with both the victim and Litherland. The victim was a friend of his daughter and he had once attempted to hire Litherland to perform some work for him. In response to a question about how his personal acquaintance with the victim might affect his judgment, he stated as follows:

I think what I will worry about is my parental feelings for my own daughter that's similar to [the victim], has some of the same mental problems and one thing or another. And I am probably maybe a little overprotective parent. And I may have a tendency to believe her and because of my own relationship with my own daughter.... That might be unavoidable, make it real hard not to, you know.

¶ 5 In response to this, the court asked, "Counsel, would either of you want me to excuse Dalton? I will if either of you wants me to." Defense counsel replied, "No, I'll pass." Then, after Dalton stated he had a close friendship with one of the defense's named witnesses,³ the trial court inquired, "Anybody want Dalton excused now?" Defense counsel again replied, "No."

¶ 6 Barton worked for an organization known as Family Agencies Community Together, which is apparently affiliated with the San Juan School District. She attended a meeting where a person who had interviewed the victim discussed the assault and identified Litherland as the perpetrator. Barton affirmed that she had not received a detailed report, had not formed an opinion as to whether Litherland was guilty, and felt she could set aside what she had heard and decide the case based on the evidence presented at trial. At the conclusion of voir dire, the court asked if there were any challenges for cause. Defense counsel stated, "I don't think I have any yet. I think I want to talk to Mr. Litherland about Barton. But I don't have any strong feelings against anyone right now." Shortly thereafter, the court noted, "I want to be able to try this case. But if we run out of jurors and we can't try it because we don't have enough fair jurors, so be it." Defense counsel replied, "Can I take just a second and talk to him in the jury room? I just want to talk about Barton." The court inquired, "Do you want to do that before we return?" and Litherland's counsel replied, "Yes. Do you mind? It will just take 30 seconds." The court thereafter went off the record and Litherland's counsel never requested Barton's removal.

¶ 7 The jury convicted Litherland on both of the charged counts. Litherland now appeals. He argues that Dalton and Barton were biased, that his trial counsel was ineffective for failing to remove them, and that the trial court committed plain error in refusing to remove them sua sponte.

DISCUSSION

¶ 8 Litherland bears the burden of establishing that his trial counsel was ineffective in failing to request that Dalton and Barton be dismissed for cause or for failing to exercise peremptory challenges to remove them. See State v. Taylor, 947 P.2d 681, 685 (Utah 1997)

. He also bears the burden of establishing that the trial court committed plain error in failing to dismiss these jurors sua sponte. See State v. Olsen, 860 P.2d 332, 334 (Utah 1993).

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 9 We have previously stated that two conditions should be met before we will treat the merits of a claim of ineffective assistance of counsel on direct appeal. In State v. Humphries, we stated that "ineffective assistance of counsel should be raised on appeal if [1] the trial record is adequate to permit decision of the issue and [2] defendant is represented by counsel other than trial counsel." 818 P.2d 1027, 1029 (Utah 1991); see also State v. Hovater, 914 P.2d 37, 40 (Utah 1996)

. In this case, Litherland is represented by different counsel on appeal. We therefore address the question of the adequacy of the record prior to reaching the merits of his ineffectiveness claim.

¶ 10 Because the question of what constitutes an adequate record for treatment of an ineffectiveness claim has caused some degree of confusion, we take this opportunity to clarify and refine the law applicable to the adequate record requirement. We begin first with a brief review of the relevant case law and the appellate rules dealing with the appropriate procedural mechanism for raising the claim that a defendant's trial counsel was ineffective. ¶ 11 We have frequently held that society's interest in the finality of judgments requires defendants to raise most issues relating to asserted trial defects in a direct appeal from the judgment of conviction. See, e.g., Hurst v. Cook, 777 P.2d 1029, 1034-35 (Utah 1989)

(writ of habeas corpus may not be used as substitute for direct appeal); Codianna v. Morris, 660 P.2d 1101, 1104 (Utah 1983) (same); Boggess v. Morris, 635 P.2d 39, 41 (Utah 1981) (same). On appeal, it is the defendant's obligation to provide supporting arguments by citation to the record. "`If an appellant fails to provide an adequate record on appeal, this Court must assume the regularity of the proceedings below.'" State v. Robertson, 932 P.2d 1219, 1226 (Utah 1997) (quoting Jolivet v. Cook, 784 P.2d 1148, 1150 (Utah 1989) (additional quotations omitted)); see also State v. Wetzel, 868 P.2d 64, 67 (Utah 1993); State v. Miller, 718 P.2d 403, 405 (Utah 1986); State v. Robbins, 709 P.2d 771, 773 (Utah 1985); State v. Jones, 657 P.2d 1263, 1267 (Utah 1982).

¶ 12 However, subsequent to the issuance of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which established the standard for claims that counsel was ineffective, we recognized that the general procedural rules applicable to most issues raised on direct appeal did not always pertain to claims of trial counsel's ineffectiveness. As Humphries noted, a defendant is not in a position to raise the argument that trial counsel was ineffective when that defendant is represented by the same counsel on appeal as at trial. See 818 P.2d at 1029; see also Pascual v. Carver, 876 P.2d 364, 366 n. 1 (Utah 1994)

; Jensen v. DeLand, 795 P.2d 619, 621 (Utah 1989); Fernandez v. Cook, 783 P.2d 547, 549 (Utah 1989). Similarly, with respect to the defendant's burden of providing an adequate record on appeal, counsel's ineffectiveness may have caused, exacerbated, or contributed to the record deficiencies, thus presenting the defendant with a catch-22 unique to claims of ineffectiveness of trial counsel. See Hurst, 777 P.2d at 1036 n. 6 (noting ineffectiveness of counsel as an example of the type of error that may arise outside the record). Accordingly, we observed in Humphries that "generally[,] a claim of ineffectiveness of trial counsel cannot be raised on appeal because the trial record is insufficient to allow the claim to be determined." 818 P.2d at 1029.

¶ 13 Humphries made this general observation at a time when there was no ready procedural solution to the dilemma created by an inadequate record of trial counsel's ineffectiveness. Thus, where the record was inadequate (and possibly so because of the very ineffectiveness of which defendant complained), the appellate court's treatment and...