State v. Tyler, 910118

• Decision Date: 31 March 1993
• Docket Number: No. 910118,910118
• Citation: 850 P.2d 1250
• Parties: STATE of Utah, Plaintiff and Appellee, v. James Douglas TYLER, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1250

850 P.2d 1250

STATE of Utah, Plaintiff and Appellee, v. James Douglas TYLER, Defendant and Appellant.

No. 910118.

Supreme Court of Utah.

March 31, 1993.

R. Paul Van Dam, Atty. Gen., Kevin J. Murphy, Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Manny C. Garcia, Salt Lake City, for defendant and appellant.

HALL, Chief Justice:

Defendant James Douglas Tyler appeals his conviction for aggravated arson, a first degree felony in violation of Utah Code Ann. § 76-6-103. Tyler brings this appeal, claiming ineffective assistance of counsel in violation of his constitutional right to counsel. ¹ We affirm.

We recite the facts in a light most favorable to the jury verdict. ² On the evening of July 1, 1990, Tyler went to the apartment of his ex-wife, Katherine Tyler (hereinafter "Ms. Tyler"). According to Ms. Tyler's testimony at trial, Tyler was drunk and abusive. They began to argue, and Ms. Tyler hit Tyler with a baseball bat. Ms. Tyler testified that Tyler told her, "You'll pay, I'll kill your dog, and I'll burn your house." He then left to buy some beer.

Ms. Tyler went to her neighbor's apartment and called the police. Before the police arrived, Ms. Tyler saw Tyler return and walk down an alley toward her apartment. The police arrived, responding to what Officer Richard Walton testified to, as reported by dispatch, an "unwanted guest situation." Walton accompanied Ms. Tyler back to her apartment. As Walton and Ms. Tyler approached the apartment, they saw Tyler emerge from the alley near the apartment and walk hurriedly down the street. Walton radioed a nearby officer to stop Tyler for questioning. In the meantime, Ms. Tyler entered her apartment and found a fire in the kitchen. Walton radioed the fire department. Fire fighters soon arrived and extinguished the fire.

Upon investigation, the fire department investigator determined that the fire had originated from two places, one behind and one on top of the refrigerator. He also concluded that the fire had not been the result of an accident. He believed that some type of accelerant ³ had been used to start the fire at the base of the refrigerator and that some other material had been ignited atop the refrigerator. At trial, the investigator opined that the fire had been "intentionally set" by "hand-held flame."

When apprehended, Tyler told the officers that he had just been walking around in the area and that he had not been inside Ms. Tyler's apartment. At that time, he had in his possession Ms. Tyler's work identification tag and a set of keys to her home and car. Ms. Tyler testified that she had left these items in her apartment that day.

Tyler was arrested and charged with aggravated arson. During the proceedings he was represented by three separate attorneys. Nine days after his arrest, Nancy Bergeson entered an appearance as Tyler's counsel and made a request for discovery. During Bergeson's tenure as his attorney, she met with him on one occasion and had another individual interview him on a later date. Thereafter, she withdrew as counsel due to a conflict of interest between Tyler and a member of her office.

At the preliminary hearing, ⁴ Tyler was represented by Kenneth Brown. Tyler had not met with Brown prior to the hearing. At the hearing, Tyler testified in his defense, against Brown's advice, that he did not start the fire and that he thought that the fire stemmed from two water heaters in Ms. Tyler's apartment. The prosecution rebutted his testimony with that of the fire department investigator, who stated that in his opinion the fire did not originate from the water heaters. Tyler was bound over for trial.

After the preliminary hearing, Tyler fired Brown and was represented at his arraignment by Stephen McCaughey. ⁵ Tyler had not met with McCaughey prior to the arraignment. At a hearing the day before the trial was scheduled to begin, McCaughey moved for and was granted a forty-day continuance. ⁶ Also, at McCaughey's request, the trial court authorized McCaughey to employ the services of a special investigator to assist in the preparation of Tyler's defense.

The trial took place on November 28 and 29, 1990, at which time the defense presented evidence showing several inconsistencies and differences in the evidence presented by the prosecution. Tyler's testimony of the events surrounding the fire varied significantly from the version provided by Ms. Tyler. Tyler claimed that when he arrived, Ms. Tyler was asleep on the couch, intoxicated. Consistent with Ms. Tyler's testimony, Tyler claimed that they began to argue and Ms. Tyler hit him with a baseball bat. He denied, however, that he threatened to "kill [her] dog" or "burn [her] house." He testified that he left to buy a beer and that he returned and, while in her apartment, he could smell the paint and paint thinner that were on the kitchen table. He then claimed that he was sitting in the backyard when he heard a loud "boom." When he looked up, smoke was coming out of the back door. According to his testimony, he attempted to use the neighbors' telephone to report the fire but the neighbors were not home. He then left to use a pay phone and was stopped by the police officer. Tyler claimed that he had his ex-wife's car keys because he had been working on her car earlier and that he had her identification card because he had been going through some papers when it dropped out and he inadvertently put it in his pocket.

Attacking Ms. Tyler's credibility, the defense brought out that she could not remember how long she and Tyler had been divorced and that on several occasions previous to the fire, she had phoned the police to complain about Tyler. There was also a discrepancy between the number of calls she claimed to have made to the police the day of the fire and the number the police had on record. In addition, Ms. Tyler's neighbor testified for the defense that Ms. Tyler had been visiting with her since returning from work and that Ms. Tyler had called the police to report the fire, not to complain about Tyler. The defense also pointed out that Tyler's fingerprints were not found on the can of paint thinner.

Notwithstanding the inconsistencies between Tyler's and Ms. Tyler's testimonies the jury returned a verdict against Tyler, finding him guilty of aggravated arson. Tyler moved for a new trial, claiming ineffective assistance of counsel. The motion was denied, and he was sentenced to an indeterminate term of five years to life at the Utah State Prison.

Tyler appeals, arguing that he was denied his constitutional right to effective assistance of counsel. He contends that all three counsel failed to represent him effectively. Specifically, he claims that he had little contact with counsel during the proceedings and that they did not proceed in a timely manner. He further contends that sufficient evidence was not presented at trial to dispute the State's case.

The sole issue to be decided is whether Tyler received ineffective assistance of counsel, thus denying him his constitutional right to counsel. Tyler does not make any assertion that he was denied effective assistance of counsel under the Utah Constitution or that the guarantees to counsel under the Utah Constitution are any different from those provided for in the United States Constitution. We therefore pursue a resolution of the issue under the federal constitution. ⁷

In Strickland v. Washington, ⁸ the United States Supreme Court established the standard of review for ineffective assistance of counsel claims. ⁹ "[I]neffective assistance of counsel claims present a mixed question of fact and law." ¹⁰ "Therefore, ... where the trial court has previously heard a motion based on ineffective assistance of counsel, reviewing courts are free to make an independent determination of a trial court's conclusions." ¹¹ However, the trial court's factual findings shall not be set aside on appeal unless clearly erroneous. ¹²

The Sixth Amendment to the United States Constitution provides in part, "In all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of counsel for his defence." ¹³ A defendant's Sixth Amendment right to counsel has been held to be " 'the right to effective assistance of counsel.' " ¹⁴ In determining whether a criminal defendant has been denied his Sixth Amendment guarantee to effective counsel, this court has consistently followed Strickland. ¹⁵ The Court in Strickland established a two-part test for determining the existence of ineffective assistance of counsel:

First, 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. ¹⁶

To prevail on a claim of ineffective assistance of counsel, a "defendant has the burden of meeting both parts of this test." ¹⁷

Tyler claims that he did not receive "meaningful advice and assistance" from counsel throughout the critical stages of the proceedings and that an insufficient defense was presented at trial such that the cumulative effort of counsel was deficient. Specifically, he contends that his first counsel, Bergeson, "did nothing" while more than a month passed. Tyler argues that Bergeson was deficient because she did not order an "immediate investigation" of the fire scene and, despite the fact that she met with him personally, had him interviewed by an investigator, and requested information from the prosecution, her efforts amounted to an actual denial of counsel. Tyler asserts that this was the most crucial phase of his representation, a time where Bergeson "barely functioned" as legal counsel.

Tyler claims that his...