State v. Taylor

• Citation: 947 P.2d 681
• Decision Date: 24 October 1997
• Docket Number: No. 910496,910496
• Parties: 328 Utah Adv. Rep. 23 STATE of Utah, Plaintiff and Appellee, v. Von Lester TAYLOR, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 681

947 P.2d 681

328 Utah Adv. Rep. 23

STATE of Utah, Plaintiff and Appellee, v. Von Lester TAYLOR, Defendant and Appellant.

No. 910496.

Supreme Court of Utah.

Oct. 24, 1997.

Jan Graham, Atty. Gen., J. Frederic Voros, Jr., Asst. Atty. Gen., Robert W. Adkins, Coalville, Terry L. Christiansen, Park City, for plaintiff and appellee.

J. Bruce Savage, Park City, for defendant and appellant.

DURHAM, Justice:

We hear this appeal from a capital conviction pursuant to section 78-2-2(3)(i) of the Utah Code. Defendant Von Lester Taylor pled guilty to two counts of capital murder in 1991. After a sentencing hearing, the jury returned two verdicts imposing the death sentence. Taylor appealed the sentence and subsequently fired his attorney, Elliot Levine. Taylor maintained his appeal with new counsel, asserting claims of inadequate representation at trial. In 1994, when the matter came before this court the first time, we remanded it to the trial court to hold a rule 23B hearing on the ineffective assistance of counsel claims and collateral claims. We now have the results of that hearing and treat all issues raised in the appeal.

The facts of the underlying crimes are as follows: In December 1990, Taylor left a halfway house where he was housed while on parole after imprisonment for aggravated burglary. Subsequently, Taylor and Edward Steven Deli broke into the Tiede family cabin near Beaver Springs, Utah, while the Tiedes were in Salt Lake City. Once in the cabin, Taylor called a friend and told him that he intended "to shoot some people." Shortly thereafter, Mrs. Tiede arrived at the cabin with her mother and her daughter. Taylor and Deli confronted them with guns, and Taylor shot Mrs. Tiede and her mother. When Mrs. Tiede's daughter started to pray, Taylor told her it would do no good because he worshiped the devil. Later that afternoon, Mr. Tiede and another of the Tiedes' children arrived at the cabin. Defendant held Mr. Tiede at gun point, stole $105 from him, and shot him in the face with bird shot at least once and possibly twice. After trying to set fire to Mr. Tiede, the house, and the garage, Taylor and Deli fled by snowmobile and then by car, taking the two Tiede daughters with them. The police apprehended Taylor and Deli later that day. Mr. Tiede survived the attack.

The police charged Taylor with two counts of criminal homicide in the first degree, one count of attempted criminal homicide in the first degree, aggravated arson, two counts of aggravated kidnaping, aggravated robbery, theft, failure to respond to an officer's signal to stop, and aggravated assault. When Taylor agreed to plead guilty to the two counts of criminal homicide, the State dropped the other charges.

This appeal raises only the issues addressed at the rule 23B hearing, namely, whether Taylor's initial attorney, Levine, provided ineffective assistance of counsel and in doing so prejudiced the outcome. Taylor asserts multiple grounds for finding ineffective assistance of counsel: (1) Levine misinformed him about the effect of a guilty plea, which led him to plead guilty when he would not otherwise have done so; (2) Levine's philosophy about the role of the defense attorney conflicted with his duty to represent Taylor and caused Taylor to plead guilty involuntarily; and (3) the minimal compensation Levine received for Taylor's representation created a conflict of interest depriving Taylor of effective assistance of counsel. Taylor also suggests that the various errors by Levine resulted in cumulative error at the penalty phase, rendering the sentence arbitrary and capricious.

Following the rule 23B hearing, the trial court found that the prosecution had presented overwhelming evidence of Taylor's participation in the crimes alleged: one person witnessed the murders; multiple people saw the attempted murder and the aggravated kidnapings; and a police officer apprehended Taylor as Taylor fled the crime scene with hostages. The trial court also found, contrary to Taylor's testimony, that Levine did not tell Taylor that the penalty phase would exclude evidence of the crimes for which charges had been dropped. During plea discussions, with Taylor present, the court explicitly stated that it would have to rule on the admissibility of the evidence relevant to the dropped charges at the penalty phase. Levine had prepared to take the case to trial and advised Taylor to do so; he did not pressure Taylor to plead guilty. Taylor pled voluntarily because he did not want to put his family and the victims through a trial and he did not want to testify against Deli.

With regard to Levine's "philosophy," the trial court found that in his closing argument Levine did assert a position which conflicted with his role as a defense attorney. In that argument, Levine described his role as helping defendants admit their guilt and take the appropriate punishment. Nonetheless, the court believed Levine's testimony at the rule 23B hearing that his real beliefs differ from those he described at trial and that he made the statements at trial to garner the jury's trust and encourage its leniency. Furthermore, Taylor failed to provide any evidence that Levine actually encouraged him to plead guilty. The court also found that Levine's statement did not prejudice Taylor because it fell within the broad range of reasonable professional judgment about jury strategy.

Concerning the conflict resulting from inadequate compensation, the court found that Levine served as Taylor's lawyer under a contract with Summit County to provide criminal defense services. For two years of services, Levine received $24,000. As the legal defender for the county, Levine defended clients in various courts and pursued habeas claims. Levine also maintained a private practice that, during the months he represented Taylor, provided eighty to ninety percent of his gross income. Levine spent approximately sixty-nine percent of his time between January and May 1991 on the Taylor case. He spent fifty percent of that time in consultation with Taylor and with Taylor's parents. The trial court found that money did not matter to Levine and that his income did not affect his decisions in this case.

One of Taylor's claims is that Levine chose not to pursue a psychological exam of Taylor because Levine thought further exams would prove fruitless and the exams already performed to determine sanity and competency would be disclosed to the jury, hurting Taylor's case. The reports from the previous exams included information regarding Taylor's interests in Satanism and witchcraft, as well as previous drug abuse. One of the psychological evaluations did say that Taylor showed signs of antisocial personality disorder with schizoid personality features, but Levine determined that the negative information about Taylor's character and behavior would offset any potential benefit from suggesting the existence of a personality disorder. The court found that Levine's decision to omit mental health testimony fell within the broad range of reasonable professional judgment. Levine did not obtain Taylor's school records but did ask Taylor about his school days. Levine also failed to obtain Taylor's health records, his juvenile court records, and his family's psychological records. He did not interview Taylor's friends or family members other than his mother and father. Taylor, on the other hand, has failed to provide any evidence that if Levine had performed any of the suggested investigations, the outcome of the trial would have differed. He does not even suggest what such investigation would have revealed and how the revelations would have improved his position with the jury. The court found that Levine's performance did not fall below the reasonableness threshold.

We defer to a trial court's findings of fact after a rule 23B hearing. State v. Huggins, 920 P.2d 1195, 1198 (Utah Ct.App.1996). From these facts, we must decide whether Taylor received ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution. ¹ See id. This court reviews Sixth Amendment ineffective assistance questions under a two-part analysis: (1) The defendant must demonstrate that counsel's performance " 'fell below an objective standard of reasonableness' "; and (2) he must show that absent counsel's errors, he had a reasonable chance to prevail, and thus the errors undermine confidence in the outcome. State v. Templin, 805 P.2d 182, 186-87 (Utah 1990) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). When reviewing counsel's performance, " 'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " Id. at 186 (quoting Strickland at 689, 104 S.Ct. at 2065).

I. MISINFORMATION ABOUT SCOPE OF PENALTY PHASE

Taylor claims that Levine specifically told him that the sentencing hearing would exclude all evidence about the dropped charges of attempted homicide, aggravated arson, aggravated kidnaping, aggravated robbery, theft, etc. Taylor argues that the trial court's factual finding that Levine did not misinform Taylor about the likelihood of preventing this evidence from entering into the penalty phase was clearly erroneous.

We consider a trial court's findings of fact clearly erroneous when they "are against the clear weight of the evidence." State v. Walker, 743 P.2d 191, 193 (Utah 1987). Evidence presented at the rule 23B hearing supports the finding that Levine correctly informed Taylor about the scope of the penalty phase. Levine testified that he told Taylor that the penalty phase would resemble very closely a guilt phase but that Levine could possibly prevent the State from introducing certain inflammatory photographs as evidence. The transcript of the plea proceedings supports Levine's version and undermines Taylor's testimony to the contrary. At the plea...