State v. McClellan

• Decision Date: 31 July 2009
• Docket Number: No. 20080350.,20080350.
• Citation: 2009 UT 50,216 P.3d 956
• Parties: STATE of Utah, Plaintiff and Respondent, v. Carl McCLELLAN, Defendant and Petitioner.
• Court: Utah Supreme Court

216 P.3d 956

2009 UT 50

STATE of Utah, Plaintiff and Respondent, v. Carl McCLELLAN, Defendant and Petitioner.

No. 20080350.

Supreme Court of Utah.

July 31, 2009.

Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst. Att'y Gen., Salt Lake City, for respondent.

Margaret P. Lindsay, Spanish Fork, for petitioner.

On Certiorari to the Utah Court of Appeals.

WILKINS, Justice:

INTRODUCTION

¶ 1 This court granted certiorari on the following issues: (1) Whether the court of appeals erred in its assessment of defendant Carl McClellan's contention of plain error and ineffective assistance of counsel to support his argument that the Utah County Attorney's Office should have been disqualified by the association of his former defense counsel, and (2) Whether the court of appeals erred in its assessment of Defendant's claim of error as to the State's presentation of an audio recording as rebuttal evidence. We affirm in part and reverse in part.

BACKGROUND

¶ 2 This appeal stems from McClellan's conviction for first-degree rape. The rape occurred on July 5, 1988, when McClellan stopped at the victim's house while selling cleaning supplies door-to-door in her American Fork neighborhood. He visited the victim's house twice during the day, once between 1:00 and 1:30 p.m. and then again around 4:00 p.m. The rape took place during the first visit. The victim reported the rape to police that evening and McClellan was arrested three days later.

¶ 3 During interrogation by police officers, McClellan stated that he had been to the victim's house only once. When the officers challenged this statement, McClellan admitted to lying and confirmed that he had in fact been there twice. Unbeknownst to McClellan, this police interview was recorded.

¶ 4 Phil Hadfield undertook McClellan's representation and appeared with him at his preliminary hearing and arraignment. Trial was set for August 2, 1988, then continued to August 29, 1988. Three days before the scheduled trial, McClellan appeared for a hearing on a defense motion for a second continuance. At that time, McClellan learned that Hadfield had left private practice and had accepted employment with the Utah County Attorney's Office — the entity that was conducting McClellan's prosecution. Hadfield neither told McClellan of his new employment nor sought the permission of the trial court to withdraw from representation. Newly appointed defense counsel James Rupper sought this second continuance in order to be able to provide his client adequate representation at trial. However, when McClellan learned a continuance would require him to waive his constitutional right to a speedy trial, he refused, and the trial proceeded as scheduled.

¶ 5 At trial, McClellan testified that he had never told police officers that he had been to the victim's house only once. When asked on cross-examination if he would change his testimony if he knew that there was a tape recording of the interview, he indicated that he would not. The interviewing officer then testified that McClellan had admitted to lying during the interview, and disclosed for the first time that the interview had been taped. The prosecution sought to play the contradictory portion of the taped interview, to which McClellan's counsel objected on the grounds that the defense had not been given a copy of the tape or even notified of its existence.

¶ 6 McClellan was allowed to listen to the tape overnight. The defense objected again the next morning, asserting a violation of McClellan's Miranda rights and unfair surprise. All objections were overruled and the court allowed the admission of the tape for rebuttal purposes. Portions were then played for the jury, but the audio was not transcribed as part of the record. On surrebuttal, McClellan testified that he had been nervous during his testimony the previous day and that the tape accurately reflected the interview. McClellan was convicted as charged and sentenced to an indeterminate term of five years to life.

¶ 7 Following sentencing, the defense filed a motion for a new trial. In denying the motion, the judge held that admission of the tape was proper because "the defense had essentially the same notice of the existence of the recording as the prosecution," and therefore, "its introduction was not prejudicial."

¶ 8 On October 3, 1988, the trial court received a letter from McClellan requesting a rehearing, alleging improprieties in his trial and sentencing, including the introduction of the taped interview and the representation of his counsel. The trial court treated this letter as a motion for a new trial and Rupper filed a formal memorandum in support of the motion. An evidentiary hearing was held in which both McClellan and Hadfield testified. The trial court denied McClellan's motion for a new trial, holding again that introduction of the tape was not prejudicial because both McClellan and the prosecution had the same notice of the existence of the tape, and holding that McClellan's dissatisfaction with his representation was founded on the limited time that Rupper had to prepare for trial, which could have been cured by McClellan's acceptance of the continuance his counsel proposed. No record of this hearing survives.

¶ 9 McClellan filed a notice of appeal on February 27, 1989. On July 12, 1990, Rupper withdrew as appellate counsel. He was replaced by Kent O. Willis, who was in turn replaced by Don Elkins on August 14, 1991. The appellate court was not provided with a complete transcript of McClellan's trial until November 1991, thirty-two months after the notice of appeal was filed. The appeal was ultimately dismissed two months later, in January 1992, for failure of McClellan's counsel to file a brief.

¶ 10 Meanwhile, in October 1991, McClellan, acting pro se, had filed a Petition for Writ of Habeas Corpus, seeking vacation of his conviction and a new trial. Defense counsel Steven J. Aeschbacher was appointed to represent him in these proceedings. Ultimately, this petition was dismissed by the district court as untimely. McClellan appealed, and the court of appeals reversed on constitutional grounds and remanded for consideration of the substantive claims.¹

¶ 11 Thereafter, Aeschbacher entered into a stipulation with the State to allow McClellan to be resentenced nunc pro tunc to facilitate his direct appeal. An order to this effect was issued on May 24, 1994. However, the record does not indicate that this order was ever filed.

¶ 12 Two years later, in June 1996, the district court issued a Notice of Intent to Dispose of Exhibits and Orders, advising the parties of its intent to dispose of the exhibits in McClellan's file unless a written objection was filed. McClellan had no counsel of record at that time and was not notified personally. No objection was filed, and the exhibits, including the audio tape of McClellan's interview, were presumably destroyed.

¶ 13 For nearly ten years, McClellan remained unaware he had been resentenced and was once again able to exercise his right to appeal his conviction of sixteen years earlier. McClellan was not made aware of the resentencing order until the spring of 2004 when he and his family finally contacted Aeschbacher's former firm. He sought to have the order enforced in July 2004, at which time the Utah County Public Defender Association was appointed to represent him.

¶ 14 Resentencing finally occurred more than a year later, in October 2005. The district court reimposed McClellan's original sentence and denied all his post-trial motions. McClellan timely appealed, claiming that he was provided ineffective assistance of counsel because Rupper did not move to disqualify the entire Utah County Attorney's office and claiming that the trial court erred by admitting the recording of his interrogation. State v. McClellan, 2008 UT App 48, ¶¶ 10, 12, 179 P.3d 825.

¶ 15 While the appeal was pending, in December 2006, McClellan filed a motion for remand under rule 23B of the Utah Rules of Appellate Procedure to develop a record in support of his allegations of ineffective assistance of counsel. The court of appeals denied this motion on the grounds that it was based largely on the assertion of facts already of record and because it failed to set forth any nonspeculative facts that established ineffective assistance and resulting prejudice.

¶ 16 The court of appeals subsequently denied both of McClellan's claims on appeal, affirming his conviction. It held that while a presumption arises that all prosecutors have been exposed to confidential information when former defense counsel joins a prosecutor's office, that presumption can be rebutted by a showing that the former defense counsel has been effectively screened from the ongoing prosecution. In McClellan's case, there was no evidence in the record that Hadfield either had or had not been screened; therefore, the court of appeals assumed that "the prosecutor's office adequately rebutted the presumption of shared confidences and that McClellan's [new] trial counsel was satisfied with the precautions taken to screen Hadfield." Id. ¶ 23. It thus concluded that Rupper had not rendered ineffective assistance. The court of appeals further held that McClellan had waived his right to claim error as to the admission of the tape because he had not sought a continuance to attempt to mitigate the impact of the tape during his trial. Id. ¶ 31.

STANDARD OF REVIEW

¶ 17 On certiorari, we review the decision of the court of appeals for correctness, granting no deference to its conclusions of law. State v. Brake, 2004 UT 95, ¶ 11, 103 P.3d 699. "When confronted with ineffective assistance of counsel claims, we review a lower court's purely factual findings for clear error, but review the application of the law to the facts for correctness." Taylor v. State, 2007 UT 12, ¶ 13, 156 P.3d 739. Additionally, we review the legal questions underlying the admissibility of evidence for correctness. See...