State v. Snyder

• Decision Date: 27 August 1993
• Docket Number: No. 920475-CA,920475-CA
• Citation: 860 P.2d 351
• Parties: STATE of Utah, Plaintiff and Appellee, v. Barry J. SNYDER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 351

860 P.2d 351

STATE of Utah, Plaintiff and Appellee, v. Barry J. SNYDER, Defendant and Appellant.

No. 920475-CA.

Court of Appeals of Utah.

Aug. 27, 1993.

Jan P. Malmberg (argued), Perry, Malmberg & Perry, Logan, for defendant and appellant.

Jeffrey "R" Burbank (argued), Deputy Casche County Atty., Logan, for plaintiff and appellee.

Before BILLINGS, GARFF and ORME, JJ.

OPINION

ORME, Judge:

Defendant Barry Snyder appeals his jury conviction for two counts of lewdness involving a child, Class A misdemeanors, in violation of Utah Code Ann. § 76-9-702.5 (1991). On appeal, defendant raises several issues, the most important being the claim that he was denied the effective assistance of counsel, in violation of the Sixth Amendment, by reason of trial counsel's failure to timely interpose a Miranda objection. We reverse and remand.

FACTS

On March 17, 1992, at approximately 3:00 p.m., two young girls claimed a man exposed himself to them in front of a residence, which proved to be that of defendant. At the time, defendant was a Category I police officer, employed at the Cache County Sheriff's Office as a correctional officer. Pursuant to the investigation of the allegedly lewd display, two police officers, Detective Sergeant Lynn Nelson and Lieutenant Robert DeGasser, arrived at defendant's home at approximately 8:45 a.m. the following morning. The officers asked defendant to accompany them to the Child and Family Support Center in Logan. Defendant agreed to do so.

Upon arrival at the Center, Nelson, who was familiar with defendant's police background, had the following discussion with defendant concerning his Miranda rights:

Q: Um, typically in these situations I have to read people their rights. I think you know what your rights are, probably.

A: Oh, yeah.

Q: And understand them.

A: Yeah.

After this exchange, the officers questioned defendant without any further reference to his Miranda rights. The officers videotaped the entire interview with defendant. Although it is unclear from the record exactly how long the questioning lasted, it can be deduced from Nelson's trial testimony that the interview continued for well over an hour. ¹ During this interview, defendant admitted to being present when the incident in question occurred, but he denied any lewd behavior. In contrast to the two girls who claimed he was nude, defendant claimed he was wearing a pair of shorts when he opened his front door to tell the children to get away from his property. More importantly, defendant made numerous statements regarding his sexual proclivities. Following this interview, the officers returned defendant to his home and, pursuant to a consent search, procured the clothing defendant claimed to be wearing at the time of the incident.

Defendant and his trial counsel reviewed the videotaped interview on April 6, 1992. A verbatim transcript of the videotape was prepared and a copy was provided to defense counsel in early May. On May 15, 1992, less than five days before trial, defense counsel filed a motion to suppress all statements made in the interview. A hearing on the motion to suppress was held on May 19, 1992. The trial court denied defendant's motion because it was not timely made and hence was in violation of Rule 12(b)(2) of the Utah Rules of Criminal Procedure, which requires requests for ruling on the admissibility of evidence to be made at least five days prior to trial. ²

Defendant was tried by a jury on May 21, 1992. Statements that defendant made during the interview were used against him at trial, both as substantive evidence and for impeachment purposes. Post-interview statements that defendant made to police officer Marty Prescott concerning his sexual problems and fantasies were also presented to the jury when she testified as to their conversation. After hearing all the conflicting testimony, the jury found defendant guilty of two counts of lewdness involving a child.

Defendant claims that because his trial counsel failed to timely file the motion to suppress, the jury was inundated with highly prejudicial testimony that undoubtedly swayed their verdict. Defendant contends that trial counsel's failure to timely file this motion, which was crucial to his defense, constituted ineffective assistance of counsel.

STANDARD OF REVIEW

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth a two-prong analytical framework for evaluating ineffective assistance of counsel claims brought under the Sixth Amendment to the United States Constitution. In order for a defendant's Sixth Amendment challenge to succeed, the defendant

must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Accord State v. Templin, 805 P.2d 182, 186 (Utah 1990). Defendant not only has the burden of meeting both prongs of this test, but must also overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Accord Templin, 805 P.2d at 186; State v. Tennyson, 850 P.2d 461, 465-66 (Utah App.1993). Moreover, "this court will not second-guess trial counsel's legitimate strategic choices, however flawed those choices might appear in retrospect." Tennyson, 850 P.2d at 465. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; State v. Pascual, 804 P.2d 553, 556 (Utah App.1991). Given the arduous nature of the defendant's burden, ineffective assistance of counsel claims rarely succeed. See Tennyson, 850 P.2d at 466; State v. Moritzsky, 771 P.2d 688, 690 (Utah App.1989).

Nevertheless, the right to effective counsel is a crucial element of a criminal defendant's Sixth Amendment rights. Thus, in determining whether a defendant was denied effective assistance of counsel, this court cannot apply rigid mechanical rules, but instead must focus "on the fundamental fairness of the proceeding whose result is being challenged." Strickland, 466 U.S. at 670, 104 S.Ct. at 2056.

When a trial court has previously ruled on an ineffective assistance of counsel claim, the issues raised present mixed questions of law and fact. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. However, in a situation such as the present case, where the ineffective assistance claim is first raised on direct appeal, this court can only determine that the defendant was denied effective assistance of counsel if it can do so as a matter of law. ³ See State v. Tennyson, 850 P.2d at 466; State v. Ellifritz, 835 P.2d 170, 175 (Utah App.1992). Because of the "distorting effects of hindsight," Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, appellate review of trial counsel's performance must be highly deferential in order to prevent the temptation to second-guess counsel's actions based on a lifeless record. See Tennyson, 850 P.2d at 466.

MIRANDA REQUIREMENT

Defendant's primary contention is that trial counsel's performance, in failing to timely bring and preserve a suppression motion premised on a violation of Miranda, fell below the standard guaranteed by the Sixth Amendment. Accordingly, we must first decide whether defendant's Miranda rights were actually violated. If they were not, trial counsel's tardiness in bringing the suppression motion was not prejudicial and the ineffective assistance claim fails.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court stated that "the prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Id. at 444, 86 S.Ct. at 1612. More importantly, the Court stated that "whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable...." Id. at 469, 86 S.Ct. at 1625 (emphasis added). Thus, a "warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead." Id. at 471-72, 86 S.Ct. at 1626 (emphasis added).

Defendant contends that the police interview at the Center was a custodial interrogation and because the questioning was not preceded by the requisite Miranda warnings, the State's use of any statements made during or as a result of this interview violated his rights as defined in Miranda.

We must address two related questions in deciding this claim. First, we must determine whether the police interview, in which defendant made his statements, constituted "custodial interrogation." Second, if there was custodial interrogation, we must decide whether defendant's position as a police officer obviated the necessity of giving him the requisite Miranda warnings.

A. Custodial Interrogation

The United States Supreme Court has defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The Court elaborated on this definition in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam), stating that "Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.' " Id. at 495, 97 S.Ct. at 714. Analyzing the applicable case law, this court has held that "the proper inquiry as to...