State v. Strain

• Decision Date: 17 November 1994
• Docket Number: No. 910440-CA,910440-CA
• Citation: 885 P.2d 810
• Parties: STATE of Utah, Plaintiff and Appellee, v. Charles N. STRAIN, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 810

885 P.2d 810

STATE of Utah, Plaintiff and Appellee, v. Charles N. STRAIN, Defendant and Appellant.

No. 910440-CA.

Court of Appeals of Utah.

Nov. 17, 1994.

H. Wayne Green, Salt Lake City, for appellant.

Jan Graham and J. Kevin Murphy, Salt Lake City, for appellee.

Before BENCH, DAVIS and ORME, JJ.

OPINION

DAVIS, Judge:

Defendant Charles N. Strain appeals his jury conviction of second degree murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (Supp.1994). Strain argues he was denied effective assistance of counsel and that the evidence at trial was insufficient to support the guilty verdict. We affirm.

FACTS

On October 17, 1981, Detective Richard Casto of the Utah County Sheriff's Office responded to a call that deer hunters had found a partially buried body in Spanish Fork Canyon. The nude body was in a decomposed condition making facial identification impossible; however, judging from the length of the hair and fingernails, the body appeared to be that of a young woman. The medical examiner determined that the victim had been dead for three to six months and that death was by a gunshot wound inflicted by a .22 caliber gun to the back of the head.

After searching the vicinity, the officers found the victim's clothes, a polaroid film wrapper, and a foil polaroid film cover. The shirt and underwear appeared to have been cut from the victim with a knife or scissors. Officers returned to the scene during the latter part of April 1982 for further search of the area and found a Harlequin book which contained two names and addresses: Bobby Strain in McAllen, Texas, and Deanna Jane Dean in Boise, Idaho.

A new detective, Scott Carter, was assigned to the case in late 1985. Dissatisfied with the previous attempts to locate the individuals who were listed in the Harlequin book, Carter mailed letters to these individuals in late January of 1986. The letters stated that the recipients' names and addresses were found in 1981 in a book near a homicide victim and that if anyone in their family had been missing since that time they should contact Detective Carter immediately.

Upon receiving the letter, Evelyn Lemkey called investigators and indicated that her daughter, Deanna Jane Dean, had been missing since 1981. Dr. Orin A. Boyer, Deanna's dentist, compared his dental records with the records of the medical examiner and concluded that the body was that of Deanna Jane Dean. The same conclusion was reached by Dr. Reed L. Holt, a forensic dental examiner for the Utah State Medical Examiner's Office.

Charles N. Strain, Deanna's step-father, was arrested on February 20, 1986 in connection with Deanna's death. After advising Strain of his Miranda rights, Detective Peter Bell of the Utah County Sheriff's Office questioned Strain extensively concerning his knowledge of the events leading to Deanna's death. Strain stated initially that he had left McAllen, Texas, on a motorcycle with Deanna in late May of 1981. The two were returning to Deanna's mother's house in Boise, Idaho. (Deanna's mother is Mrs. Lemkey; Mrs. Lemkey and Strain were married at that time.) Strain told Bell that Deanna ran away with a motorcycle gang in El Paso, Texas, and he had not seen her since. Strain claimed that after Deanna left, he drove up to Idaho on a route that bypassed Utah.

In subsequent questioning by Bell, Strain changed his story several times. He first admitted that he did not bypass Utah on his way to Idaho and had in fact traveled through Spanish Fork Canyon. He later stated that Deanna was still with him in Utah, but some drug dealers who had been following them since Texas had killed her in Spanish Fork Canyon. After further alterations in the story, Strain finally confessed to the murder and signed a written statement describing what had happened.

At Strain's first trial, Strain moved to suppress the confession as involuntary because it was the result of alleged coercive threats and promises made by the interrogating officers. Bell had threatened a first degree murder charge and possible execution upon conviction if Strain would not admit his involvement in Deanna's death. If Strain would admit his involvement in the murder, Bell said that the State would bring a charge of second degree murder. The trial court denied the motion to suppress, and Strain was convicted of second degree murder.

On appeal, the Utah Supreme Court ruled that some of Strain's confession may have In February 1991, Strain was again tried and convicted of second degree murder. Strain appeals, arguing that he was denied effective assistance of counsel and that the evidence was insufficient to convict him.

been the result of coercive threats and promises and remanded the matter to the district court for additional evidence on the question of the voluntariness of the confession. See State v. Strain, 779 P.2d 221, 227 (Utah 1989). After a hearing and several motions on this issue, the trial court held on remand that no statements made by Strain after Bell improperly threatened him with first degree murder charges could be used by the state in a new trial. As a result, only Strain's admission that he passed through Utah with Deanna, and Strain's claim that two drug dealers had killed Deanna were admissible at Strain's second trial.

INEFFECTIVE ASSISTANCE OF COUNSEL

Strain argues that he was denied his constitutional right to effective assistance of counsel at his second jury trial. When, as in this case, the claim of ineffective assistance of counsel is raised for the first time on appeal, ¹ we resolve the issue as a matter of law. State v. Cosey, 873 P.2d 1177, 1179 (Utah App.), cert. denied, 883 P.2d 1359 (Utah 1994). In order to prevail on a claim of ineffective assistance of counsel, Strain must establish both prongs of the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) that his counsel's performance "fell below an objective standard of reasonableness;" id. at 688, 104 S.Ct. at 2064; and (2) that counsel's performance prejudiced the defendant. Id. at 687, 104 S.Ct. at 2064. Utah has consistently followed the two-prong Strickland test when analyzing ineffective assistance of counsel claims. State v. Goddard, 871 P.2d 540, 545 (Utah 1994); State v. Frame, 723 P.2d 401, 405 (Utah 1986); Cosey, 873 P.2d at 1179; State v. Tennyson, 850 P.2d 461, 465 (Utah App.1993).

In proving the first prong of the Strickland test, the defendant must point to specific instances in the record where counsel's assistance was inadequate. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. In so doing, the defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. "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 (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; State v. Pascual, 804 P.2d 553, 556 (Utah App.1991)).

In order to prevail on the second prong of the Strickland test, the defendant must show that he was prejudiced by the ineffective assistance of counsel. Specifically, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Further, in cases in which it is "easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice," we will do so without addressing whether counsel's performance was professionally unreasonable. Id. at 697, 104 S.Ct. at 2069.

Strain argues counsel's performance was inadequate in seven respects: (1) failure to give an opening statement; (2) failure to cross-examine Robert Strain; (3) cross-examination

of Evelyn Lemkey; (4) cross-examination of Peter Bell; (5) cross-examination of James Gaskill; (6) cross-examination of John P. Riley; and (7) failure to adequately investigate the underlying facts of the case. We consider each of these claims in turn.

1. Failure to Give Opening Statement

Strain's attorney did not present an opening statement at trial. He explained to the court,

I don't believe that it would be of any benefit to make a long statement. I think that the facts in this case or the concerns or the issues to be decided are fairly well in the minds of the jury now, so I would waive the opening statement and call [the first witness].

Strain argues that his attorney's failure to make an opening statement was prejudicial in that it "would lead a reasonable juror to the conclusion that the defense did not have any evidence, did not know what strategy it was pursuing and had no opinion as to the relevance and significance of the evidence the State was going to offer."

Strain does not cite any authority for the proposition that failure to give an opening statement is prejudicial, and in fact, recent case law suggests the opposite. In State v. Harry, 873 P.2d 1149 (Utah App.1994), this court ruled that "[e]ven if we did determine that trial counsel forgot to deliver an opening statement, we would still conclude that such failure did not prejudice [defendant]. There are several circumstances where it may be advantageous for counsel to forego an opening statement." Id. at 1154. Accordingly, counsel's failure to give an opening statement in this case does not constitute ineffective assistance of counsel.

2. Cross-examination of Robert Strain

Robert Strain, Strain's son, testified at the second trial that Deanna left McAllen, Texas, with his father in June of 1981. He stated that his father took a .22 caliber gun with him on the trip and had recently used a polaroid camera. ² In addition, Robert's description of the clothes that Deanna was wearing when she left on the trip matched the clothing found at the site of the murder. Strain's attorney...