State v. Newman
| Decision Date | 29 November 1996 |
| Docket Number | No. 950208-CA,950208-CA |
| Parties | 304 Utah Adv. Rep. 31 STATE of Utah, Plaintiff and Appellee, v. Rex NEWMAN, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Earl Xaiz and Hakeem Ishola, Salt Lake City, for Defendant and Appellant.
Jan Graham and James H. Beadles, Salt Lake City, for Plaintiff and Appellee.
Before BENCH, GREENWOOD and WILKINS, JJ.
Defendant, Rex Newman, appeals a jury verdict convicting him of aggravated assault, a third degree felony, in violation of Utah Code Ann. § 76-5-103 (1995), and of criminal trespass, a class C misdemeanor, in violation of Utah Code Ann. § 76-6-206 (1995). We affirm.
In the summer of 1993, Daniel Wolfe began constructing a home in Pleasant Grove, Utah, on an empty lot bordering property owned by Fred Newman. Concerned about the construction's effect on his property Fred then appeared on Wolfe's property and accused Wolfe of destroying his fence and demanded that Wolfe stop work. Wolfe apologized and attempted to explain that he was trying to move the dirt away from the fence. As Wolfe continued to assure Fred that he would clean up the fence, Fred left. About ten minutes later, Fred returned with his brother Don Newman, and both Fred and Don began yelling taunts and threats at Wolfe. Soon thereafter, Fred's other brother, Rex Newman, the defendant in this appeal, arrived and joined his brothers in yelling at Wolfe and demanded that Wolfe move the dirt with a shovel, instead of with the trackhoe. To appease the brothers, Wolfe agreed to use a shovel. As Wolfe walked toward the street to retrieve a shovel from his truck, however, the brothers blocked his path and continued shouting.
Fred built a chicken-wire fence on the border between his property and Wolfe's lot. On July 30, 1993, Wolfe's subcontractors began excavating for the home's foundation. When Wolfe visited his lot that evening, he noticed the subcontractors had inadvertently piled a large mound of dirt against Fred's fence. The dirt caused the fence to bulge in and some of the dirt had spilled through the fence onto Fred's property. Wolfe began to move the dirt away from the fence with a trackhoe.
The confrontation escalated until the three brothers closely surrounded Wolfe. At some point, defendant yelled, "grab him," pulled Wolfe toward him by the shirt, and punched him squarely in the face. Wolfe crumpled to the ground and nearly lost consciousness, but was able to grab defendant's knees and pull him to the ground. Wolfe buried his head into defendant's stomach, enduring continued blows to the back and front of his head and to his rib cage. After a few minutes, a police officer arrived on the scene and broke up the fight.
Wolfe suffered injuries to his nose, requiring two separate surgeries to correct. Defendant's blow also fractured seven of Wolfe's teeth, which had to be crowned, and chipped one tooth, which had to be glued together. All three Newman brothers were charged with aggravated assault and criminal trespass. All three were represented by a single attorney, Andrew McCullough. Before trial, McCullough requested that the Newman brothers' trial be severed, but the trial court denied this motion. McCullough expressed his concern about a potential conflict of interest among his clients, and stated he would discuss this concern with his clients and perhaps Bar counsel before proceeding further.
During jury voir dire, prospective juror Tom Cryer indicated that he had been assaulted by his wife's ex-husband, whose last name was also Newman. In addition, Cryer said that the Mr. Newman who assaulted him lived in Pleasant Grove and "looks a lot like" the Newman brothers. The trial court asked Cryer if he could be impartial despite this experience. Cryer said he could and acknowledged that "the defendants can't really be responsible for the actions of someone that's related to them." Nevertheless, the trial court ultimately struck Cryer for cause.
At trial, several witnesses testified on behalf of the Newman brothers, including Don's wife and a nephew. All defense witnesses gave similar testimony about the encounter. According to the defense witnesses, defendant hit Wolfe in self-defense, and at all times, Wolfe was the aggressor. Although trial counsel indicated during his opening statement that defendant would testify, Don was the only brother to testify. After a four-day trial, all three brothers were convicted of criminal trespass. In addition, Don was convicted of simple assault, and defendant of aggravated assault.
Defendant's appeal raises the following issues: (1) Did trial counsel's representation of all three Newman brothers constitute a conflict of interest which rendered counsel's representation constitutionally ineffective; and (2) did potential juror Cryer's comment, concerning a previous encounter with someone who may have been related to the Newman brothers, prejudice the entire jury panel such that trial counsel's failure to move for a mistrial or ask for other curative measures Because defendant's ineffectiveness claims arise for the first time on appeal, without a prior evidentiary hearing, the claims present a question of law. State v. Saunders, 893 P.2d 584, 591 (Utah App.), cert. granted, 910 P.2d 425 (Utah 1995). However, our review is highly deferential to counsel's trial decisions to avoid second-guessing tactical considerations. Id.
denied defendant effective assistance of counsel?
Defendant first argues that trial counsel's motion to sever triggered the trial court's duty to ensure that counsel's representation of all three Newman brothers did not constitute a conflict of interest. The State counters that the trial court was not obliged to inquire further about a conflict where counsel informed the court he would investigate that possibility himself.
Normally, to prevail on a claim that trial counsel's conflict of interest resulted in constitutionally ineffective assistance of counsel, a defendant "must show that an actual conflict of interest existed which adversely affected his [or her] lawyer's performance." State v. Webb, 790 P.2d 65, 73 (Utah App.1990), denial of habeas aff'd, 853 P.2d 898 (Utah App.), cert. denied, 860 P.2d 943 (Utah 1993), denial of habeas aff'd, 67 F.3d 312 (10th Cir.1995); accord Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). However, an actual conflict that adversely affected the lawyer's performance is presumed under "special circumstances" in which counsel puts the trial court on notice that a conflict probably exists. Cuyler, 446 U.S. at 346-47, 100 S.Ct. at 1717.
For example, in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), defense counsel, representing three codefendants, moved to sever their trials and for appointment of separate counsel, on the grounds that he and the defendants themselves were concerned that their interests were conflicting. Id. at 478, 98 S.Ct. at 1175. The Holloway Court noted the following considerations:
[First, a]n "attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of trial." Second, defense attorneys have the obligation, upon discovering a conflict of interest, to advise the court at once of the problem. Finally, attorneys are officers of the court, and " 'when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.' "
Id. at 485-86, 98 S.Ct. at 1179 (footnotes and citations omitted). Accordingly, the Court determined that the trial court's failure to heed counsel's repeatedly-expressed concerns constituted reversible error, irrespective of whether defendant had demonstrated any actual conflict or prejudice. Id. at 484-85, 98 S.Ct. at 1178-79.
Nevertheless, under the Holloway rationale, trial courts generally may rely on counsel to discover and appropriately deal with any conflicts, in cases involving multiple representation. Cuyler, 446 U.S. at 346-47, 100 S.Ct. at 1717. Thus, where counsel makes no objection at trial, the trial court may presume that no improper conflict due to joint representation is present. Id. at 348, 100 S.Ct. at 1718; Webb, 790 P.2d at 73. Similarly, trial courts may rely on counsel's representations that he or she has or will investigate the possibility of conflicts and notify the court if any conflict arises. See United States v. Kidding, 560 F.2d 1303, 1310 (7th Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977).
In Kidding, defense counsel assured the court that after discussing joint representation with his clients, he felt there would be no conflict, and if any conflict should arise, he would immediately advise his clients to obtain separate counsel. Id. Under these facts, the reviewing court stated it was reasonable for the trial judge to infer that counsel and his clients had made an informed decision to proceed with joint representation. Id. The Kidding court therefore concluded the trial court had no obligation to delve further into the matter. Id.
Thus, where an attorney representing more than one codefendant clearly In the instant case, trial counsel did not inform the trial court of a probability of a conflict among the Newman brothers. Although counsel filed a motion to sever the brothers' trial, such a motion would not necessarily have put the court on notice of an actual conflict. If the alleged actual conflict in this case--that trial counsel would need to emphasize the other brothers' culpability while de-emphasizing defendant's--was a real danger, the court might have expected counsel to move for appointment of separate counsel for each codefendant.
informs the trial court of "the probable risk of a conflict of interest," there is a presumption that the codefendants' constitutional...To continue reading
Request your trial
-
Tolbert v. State
...of Tolbert from that of Leroy is most probably explained by a conflict of interest is, at best, poorly supported. See State v. Newman, 928 P.2d 1040, 1045 (Utah App.1996). The trial court found "no evidence of anything that trial counsel could have done in defense of [Tolbert] that was not ......
-
STATE EX REL. SA
...case presented a conflict of interest. A conflict of interests exists when parties have inconsistent interests. See State v. Newman, 928 P.2d 1040, 1044 (Utah Ct.App.1996). To obtain custody of S.A., Father would have had to distance himself from Mother because Father was not charged with a......
-
Int'l Fid. Ins. Co. v. La Porte Constr.
... ... high-density, mixed-use residential and commercial project in ... downtown Salt Lake City known as the Plaza at State Street ... (the “Plaza”). Tannach Properties hired La Porte ... Construction, with Mr. Logue as its president and principal, ... “avoid[s] second-guessing tactical ... considerations” by IFIC. State v. Newman, 928 ... P.2d 1040, 1043 (Utah Ct. App. 1996). IFIC is thus entitled ... to augment the judgment by the amount of the additional ... ...