State v. Tennyson

Decision Date26 March 1993
Docket NumberNo. 910620-CA,910620-CA
Citation850 P.2d 461
PartiesSTATE of Utah, Plaintiff and Appellee, v. Richard L. TENNYSON, Defendant and Appellant.
CourtUtah Court of Appeals

Earl Xaiz and Hakeem Ishola, Salt Lake City, for defendant and appellant.

Jan Graham and Charlene Barlow, Salt Lake City, for plaintiff and appellee.



ORME, Judge:

Defendant appeals his conviction for burglary of a dwelling, a second degree felony, in violation of Utah Code Ann. § 76-6-202 (1990), and theft, a class B misdemeanor, in violation of Utah Code Ann. § 76-6-404 (1990). While three primary issues are raised on appeal, the most important is the claim that trial counsel was ineffective in handling jury selection. We affirm.


At about midnight on June 23, 1991, Celeste Kelty heard the front door of her house close and then saw defendant walking down her sidewalk with something in his hands. She observed defendant dropping coins as he walked, and she immediately checked her husband's wallet, finding it completely empty. After Ms. Kelty woke her husband, the couple followed defendant. Along the way, they found coins, credit cards, and Mr. Kelty's drivers license. Mr. Kelty returned to the house and recruited his brother-in-law and father-in-law to help apprehend the intruder. The three of them, each brandishing a tennis racket, chased and surrounded defendant. 1 Mr. Kelty could smell that defendant had been drinking, but would later testify that despite his verbal abuse, defendant acted "pretty normal." Shortly thereafter the police arrived and arrested defendant. The next day Ms. Kelty found the contents of her backpack and wallet strewn about the lawn next to her house and further discovered that the screen in the room where the backpack had been kept was torn and broken in half. Defendant was charged with burglary, a second degree felony, and theft, a class B misdemeanor.

During the jury selection process, eleven of the twenty-three prospective jurors responded affirmatively to the court's inquiry of whether they or any of their family members or close acquaintances had ever been victims of burglary, theft, or other serious crimes. The court then asked each of the eleven additional questions, including whether they could be impartial and fair despite their experiences. After the court's initial inquiries, several jurors, including one at defense counsel's request, were individually interviewed in chambers.

Juror Andrews, who was not questioned in chambers, stated that her car had been burglarized and that her home had been broken into twice. The most recent incident occurred five years before trial. Initially, she equivocated when asked whether she could be impartial and fair during the trial. The court probed further:

The court: Well, in your present state of mind do you think that you would be able to fairly weigh this evidence that's going to be presented today?

Ms. Andrews: I think I could.

The court: Let me ask you this: Do you think that if that evidence indicated innocence, not guilty, that you would be able to render that kind of a verdict in spite of this experience that you've had?

Ms. Andrews: Yes, I do.

The court: On the other hand, if the evidence indicated guilt, could you render that verdict in spite of this circumstance that you've experienced?

Ms. Andrews: Yeah, I could.

Juror Caldwell's home had been broken into about eight years prior to trial. Before any further questioning by the court, she stated unequivocally: "I don't feel that it would alter my judgment today." When the court probed further, asking her if she could be fair in the present case, she again answered affirmatively. She, too, was not questioned in chambers.

Juror Wolf, the third seated juror who affirmatively answered the court's inquiry, explained that while taking care of a friend's apartment the weekend before trial, someone broke into the apartment and disturbed the premises, but he did not know if anything had been taken. He, too, stated up front that he did not think the experience would affect him, and in response to the court's further inquiry as to whether he could be fair, Wolf answered "yes." In chambers, the following exchange occurred:

The court: .... When I asked the question whether you or any members of your family or friends had ever been charged with a serious crime you raised your hand. Would you tell us about that?

Mr. Wolf: Okay, I've got a brother that married into a family whose young son is in prison. He's in a halfway house now. And we're his only family here in Salt Lake so he's at our home quite a bit. And then my niece married a man that was on parol[e] for breaking in, burglary. And he picked up a gun and fired, threatened somebody and fired through the ceiling and was put back in prison just last week or two. He's been let out again. I go camping with him.

The court: Do you feel that would in any way affect your ability to be impartial to both sides in this case?

Mr. Wolf: I think so. I know yesterday when the home was broken into I was very angry that a person--somebody would break into somebody else's home.

The court: Do you think that you could be fair to both sides?

Mr. Wolf: Probably. I know there's circumstances where people do these things. I probably could.

While still in chambers, defense counsel challenged two other jurors because she felt they could not be impartial. The court granted these two challenges. Nonetheless, Juror Andrews, who had been a burglary victim, and Jurors Caldwell and Wolf, who knew friends or family that had been burglary or theft victims, were seated. Defense counsel used her peremptory challenges on four other jurors, all of whom had some personal experience as victims or who knew victims of a burglary or theft, although it is of course unclear whether that was the reason in each instance for the strike.

During trial, defendant testified specifically as to the types and quantity of alcohol he drank on June 23. According to his testimony, he drank copious amounts of beer and whisky, and smoked three marijuana joints. This was consistent with Mr. Kelty's testimony that defendant reeked of alcohol. Defendant also testified that he could not remember the events which culminated in his apprehension by the Keltys.

Neither the trial judge nor the State had expected Kelty to testify. Furthermore, the State was unaware until defendant testified that he was basing his defense on intoxication. The State notified defendant's trial counsel during an afternoon break of the one-day trial that it intended to call Sergeant Korring, a Utah Highway Patrol officer with specialized training in alcohol intoxication, to testify in response to defendant's testimony concerning his intoxicant-induced amnesia. The trial court overruled defense counsel's objections that (1) the State had not provided earlier notice of Korring as an expert witness and (2) the State did not lay the proper foundation for such testimony.

Sergeant Korring estimated that defendant's blood alcohol level at the time of the burglary would have been 0.37 if he consumed as much as he claimed. This is an extremely high concentration, even for an experienced drinker. Korring based his calculations on factors provided by defendant during his testimony, such as weight, type and quantity of alcohol, and time span of consumption. Korring further testified that a person with that blood alcohol level would have trouble walking and talking, which tended to refute defendant's claimed level of consumption since Mr. Kelty, who apprehended him, testified he had no such problem. On the other hand, Korring conceded that a person with that blood alcohol level could experience blackouts, i.e., loss of memory, for some period while intoxicated. This statement had the potential for aiding defendant since he claimed to have been so drunk that he experienced amnesia.

Defense counsel requested a jury instruction that defendant could be found guilty of the lesser, but not included, offense of public intoxication, a class C misdemeanor. Utah Code Ann. § 76-9-701 (1990). The court refused, and defense counsel unsuccessfully objected to the court's ruling. The jury returned a guilty verdict on both crimes for which defendant was charged.

Through new appellate counsel, defendant raises three primary issues for our review: (1) Defendant received ineffective assistance of counsel because of counsel's inaction involving jurors Andrews, Caldwell, and Wolf; (2) the trial court improperly failed to submit a jury instruction on the misdemeanor offense of public intoxication; and (3) the trial court erred by allowing Sergeant Korring to testify without proper foundation or notice.


Defendant argues that jurors Andrews, Caldwell, and Wolf were biased against him and that trial counsel's failure to challenge these three for cause constituted ineffective assistance of counsel. The United States Supreme Court, in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), set forth the analytical framework for deciding ineffective assistance of counsel claims under the Sixth Amendment. See U.S. Const. amend. VI. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. Consistent with this jurisprudential underpinning, the Court announced a two-prong test to determine whether counsel's performance, in actuality, deprives a defendant of the Sixth Amendment guaranty. Thus, in order to prevail, a defendant first

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...

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    ...Bullock, 791 P.2d 155, 159-60 (Utah 1989), cert. denied, 497 U.S. 1024, 110 S. Ct. 3270, 111 L. Ed. 2d 780 (1990)."State v. Tennyson, 850 P.2d 461, 469-70 (Utah Ct. App. 1993).Our research shows that other jurisdictions have found counsel's performance deficient only after counsel failed to......
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2 books & journal articles
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