Taylor v. Warden

• Decision Date: 20 October 1995
• Docket Number: No. 930595,930595
• Citation: 905 P.2d 277
• Parties: John Albert TAYLOR, aka John Albert Ippolito, Plaintiff and Appellant, v. WARDEN, Defendant and Appellee.
• Court: Utah Supreme Court

Page 277

905 P.2d 277

John Albert TAYLOR, aka John Albert Ippolito, Plaintiff and Appellant, v. WARDEN, Defendant and Appellee.

No. 930595.

Supreme Court of Utah.

Oct. 20, 1995.

Edward K. Brass, Salt Lake City, for plaintiff.

Jan Graham, Att'y Gen., Charlene Barlow, Thomas Brunker, Asst. Att'ys Gen., Salt Lake City, for defendant.

DURHAM, Justice:

John Albert Taylor appeals from the denial of his petition for a writ of habeas corpus. We affirm.

In 1989, following a bench trial before Judge David E. Roth, Taylor was convicted of capital homicide and sentenced to death for sexually assaulting eleven-year-old Charla King and strangling her with a telephone cord. Additional facts are set out in our opinion in State v. Taylor, 818 P.2d 1030 (Utah 1991), cert. denied, 503 U.S. 966, 112 S.Ct. 1576, 118 L.Ed.2d 219 (1992). We affirmed Taylor's conviction on direct appeal. Id. Taylor petitioned for extraordinary relief pursuant to rule 65B, Utah Rules of Civil Procedure. Following an evidentiary hearing, the second district court denied the writ, holding that Weber County had provided counsel who met the statutory minimum standard in 1989 for indigent representation, that Taylor had received effective assistance of counsel, and that Taylor's waiver of a jury Taylor makes three arguments on appeal: (1) that his counsel failed to render adequate assistance; (2) that he did not knowingly and intelligently waive his right to a jury trial at both the guilt and penalty phases; and (3) that withdrawal of his original trial counsel constituted ineffective assistance of counsel or, in the alternative, a conflict of interest which extended to his new trial counsel.

                trial was knowing and voluntary. 1  Taylor appeals
                

In deciding habeas appeals, we review legal conclusions for correctness and factual findings for clear error. Parsons v. Barnes, 871 P.2d 516, 518 (Utah), cert. denied, --- U.S. ----, 115 S.Ct. 431, 130 L.Ed.2d 344 (1994). Ineffective assistance of counsel claims present a mixed question of fact and law. Id.

INEFFECTIVE ASSISTANCE OF COUNSEL

Taylor contends that his trial counsel were not sufficiently experienced to render adequate assistance to a capital homicide defendant. Taylor alleges that counsel's failure to meet the "prevailing norms" for experienced counsel resulted in both deficient performance and prejudice. We note, however, that Taylor's arguments regarding the experience of his counsel have no relevance to Taylor's claim of ineffective assistance. In addressing Taylor's claim, we do not rely on counsel's experience or on whether counsel met the "prevailing norms" for defense counsel in a capital case. Instead, we look to counsel's actual performance to determine whether it was adequate. ² See United States v. Hall, 843 F.2d 408, 412-13 (10th Cir.1988) (holding that inexperience was not grounds for a presumption of ineffectiveness); accord United States v. Badolato, 701 F.2d 915, 926 (11th Cir.1983); see also Burden v. Zant, 903 F.2d 1352, 1361 (11th Cir.1990) (holding that inexperience does not constitute ineffectiveness per se; petitioner must still make showing of deficient performance and prejudice), rev'd on other grounds, 498 U.S. 433, 111 S.Ct. 862, 112 L.Ed.2d 962 (1991).

To determine whether a petitioner's right to effective assistance of counsel has been violated, we apply the two-part test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See Parsons, 871 P.2d at 521. First, a petitioner must show "that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment." Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988). Second, a petitioner must show that his counsel's performance prejudiced him. Id.

To prevail on the first prong, a petitioner must overcome a strong presumption that counsel rendered adequate assistance. Parsons, 871 P.2d at 522. The petitioner must identify specific acts or omissions demonstrating that counsel's representation failed to meet an objective standard of reasonableness. State v. Templin, 805 P.2d 182, 186 (Utah 1990) (citing Strickland, 466 U.S. at 688, 690, 104 S.Ct. at 2064, 2065). We give counsel wide latitude to make tactical decisions and will not question such decisions unless we find "no reasonable basis" for them. Fernandez v. Cook, 870 P.2d 870, 876 (Utah 1993) (citing State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993)).

As to the second prong, a petitioner must proffer evidence sufficient to support " 'a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different.' " Parsons, 871 P.2d at 522 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). In addition, when a petitioner is challenging a death sentence, we must determine whether Taylor asserts numerous claims of ineffective assistance. He claims that his counsel rendered ineffective assistance by (1) failing to request a new preliminary hearing after the withdrawal of Taylor's original counsel, (2) failing to conduct an adequate pretrial investigation, (3) failing to make all pertinent pretrial motions, (4) advising Taylor to waive a jury for both the guilt and penalty phases, and (5) failing to adequately prepare for the penalty phase. On the basis of our review of the record, we reject Taylor's ineffective assistance claims and will discuss each in turn.

a reasonable probability exists that absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Parsons, 871 P.2d at 522 (citing Strickland, 466 U.S. at 695, 104 S.Ct. at 2068).

Taylor alleges that when his original counsel withdrew from the case following the preliminary hearing, his new counsel should have moved to remand the case for a new preliminary hearing. Taylor reasons that a new preliminary hearing would have provided counsel the opportunity to observe witnesses and engage in discovery. See State v. Anderson, 612 P.2d 778, 784-86 (Utah 1980) (recognizing the ancillary benefits of the preliminary hearing). At the rule 65B evidentiary hearing, Taylor put on an expert witness who testified that he would have moved for a new preliminary hearing for various tactical reasons, such as enabling counsel to personally gauge the witnesses' credibility and impact on the trier of fact. ³ Taylor's counsel Don Redd testified, however, that he and co-counsel Martin Gravis concluded a new preliminary hearing was unnecessary and would actually have helped the prosecution in its preparation for trial. Redd testified that he and Gravis had a "good feel" for the case and did not want to assist the prosecution by giving them another opportunity to preview the case. Counsel were able to personally interview witnesses who had testified at the preliminary hearing and to ascertain the expected testimony of other witnesses by reviewing the transcript of the preliminary hearing. We find no reason to question the reasonableness of counsel's decision not to move for a new preliminary hearing and to instead rely on interviews and a review of the preliminary hearing transcript. Furthermore, Taylor has failed to identify how the lack of a new preliminary hearing prejudiced him. He does not cite any avenue of cross-examination or testimony at trial which might have been favorably affected by a second hearing. Accordingly, we reject this claim.

Taylor also claims that counsel's pretrial investigation was inadequate. He alleges that counsel were deficient in failing to independently investigate police reports and fingerprint evidence and in making no effort to scientifically assess the community's attitude toward the crime and Taylor himself before deciding to advise Taylor to waive the jury. Taylor also claims that counsel made no effort to interview witnesses and determine their impact on the trier of fact. We reject Taylor's contentions.

Sufficient performance requires that counsel adequately investigate the underlying facts of a case. See Tyler, 850 P.2d at 1255 (citing State v. Templin, 805 P.2d 182, 188 (Utah 1990)). A review of the record demonstrates that counsel met this standard as a whole, as well as with respect to Taylor's specific contentions.

Counsel and the investigator assigned to the case interviewed individuals whom Taylor identified as potential witnesses, as well as witnesses identified by reviewing the police reports. Counsel investigated rather extensively Taylor's contention that another potential suspect, Robert Braswell, had allegedly been watching the victim in the park and had committed the murder. Counsel interviewed people who lived in the apartment complex, including residents the police officers had talked to during their canvass. Counsel reviewed Taylor specifically claims that counsel were deficient in making no effort to independently verify the accuracy of fingerprint evidence placing Taylor at the scene of the crime and in failing to retain a fingerprint expert to challenge the State's testimony regarding the fingerprint evidence. We disagree. Taylor's original counsel, who represented him at the preliminary hearing, acknowledged the strength of the testimony from the State's fingerprint expert. The State's expert testified at the preliminary hearing that twelve points of positive comparison would have supported a positive identification, that he marked thirty-two points of positive comparison between the prints removed from the phone in the victim's apartment and Taylor's prints, and that he had matching prints from adjacent fingers, thereby eliminating any possibility of a misidentification. Taylor's replacement counsel, after interviewing the State's fingerprint experts, determined not to put on their own print expert. Such a decision is generally a matter of trial strategy, and in this case, we find no reason to...