December 5, 2013 Utah Court of Appeals Case Summaries

State v. Curtis, 2013 UT App 287, No. 20110799-CA (December 5, 2013)

ISSUES: Ineffective Assistance of Counsel, Utah Rules of Appellate Procedure Rule 23B

Judge Roth,

Defendant Thomas Devirl Curtis appeals his convictions of four counts of rape . . . and four counts of distribution of a controlled substance in a drug free zone . . . . Defendant argues that his trial counsel provided ineffective assistance by committing a number of errors that prejudiced his defense. According to Curtis, his attorney failed to introduce evidence that would have impeached the victim’s testimony, did not interview potential witnesses, and opened the door to damaging impeachment evidence. Curtis also argues that his trial counsel should have moved for a mistrial after the jury and excluded witnesses overheard sidebar conversations. Additionally, Curtis filed a rule 23B motion requesting that we remand his case to the trial court to supplement the record with evidence of his ineffective assistance claim. We deny Curtis’s request for remand because he has not provided key pieces of evidence to his rule 23B motion and because the affidavits accompanying his motion fail to allege nonspeculative facts to support his ineffective assistance claim. We also affirm Curtis’s convictions because he has not shown that his attorney’s failure to introduce evidence was deficient performance or that other errors that may have occurred resulted in prejudice.

At ¶ 1.

Background

Curtis was convicted of giving a minor victim (M.V.) cocaine and raping her on four occasions. In early 2008, M.V.’s family moved into a two-bedroom home outside the Salt Lake valley. M.V. and her sisters shared one bedroom while Curtis, who lived with the family, used the back bedroom. M.V.’s mother (Mother) usually slept on the living room couch.

At ¶ 2.

At trial, the State called M.V. as its first witness. She testified that Curtis had also introduced her to “marijuana” when she “was 12 years old” and that her sister (Sister) “used cocaine with” her and Curtis “a few times.” After a brief discussion with counsel at the bench, the court dismissed the jury and the parties argued at length about whether evidence of such other drug use in the home was admissible. The court ruled that any evidence regarding other drug use in the home was inadmissible “unless it occurred on these instances . . . where the alleged sexual activity occurred.” The judge reiterated this ruling when the State later asked Sister on direct examination whether Mother knew about Sister’s drug use. He noted that unless the State called Sister as a rebuttal witness to impeach Mother or the defendant, “[Sister’s] own [drug] use is not relevant. . . . So I will instruct the jury that [Sister’s] drug use is not an issue in this case, and we’ll go from there.”

At ¶ 6.

Defense counsel also expressed some concern that the jury could have heard the earlier sidebar discussion, but he noted that “we may have been talking enough in lawyer code . . . that they didn’t exactly clue into what we were talking about.” In response to this concern and the prosecution’s question about Sister’s drug use, the court gave two curative instructions at the defense’s request as soon as the jury reconvened. The first directed the jury not to consider “[a]ny evidence of distribution of substance[s] to anyone other than [M.V.].” The second instructed the jurors “not . . . to consider any” information they may have heard during “bench discussions” and to “raise your hand” to alert the court if future bench discussions were audible.

At ¶ 7.

 

Mother testified that she did not know of any drug use in her home, and she would have known.  She also testified that her daughter, M.V. was lying.  The State, over defendant’s objection, impeached her by getting her to admit that she knew about marijuana use in her home,

At ¶¶ 8-9.

Defendant denied all of the allegations.

At ¶ 10.

Sister, over Defendant’s objection, testified that she had observed Defendant and M.V. do cocaine together in the home on several occasions.

At ¶ 11.

Rule 23B Motion for Remand

Curtis requests remand under rule 23B to the trial court for factual supplementation of the record regarding his ineffective assistance of counsel claims. Rule 23B motions are “available only in limited circumstances, to supplement the record with known facts needed for an appellant to assert an ineffectiveness of counsel claim on direct appeal.” State v. Johnston, 2000 UT App 290, ¶ 23, 13 P.3d 175 (per curiam). “There are four basic requirements”: the motion must (1) contain a nonspeculative allegation of facts that (2) do not fully appear in the record, which, if true, (3) could support a determination that counsel’s performance was deficient, and (4) demonstrate that the defendant suffered prejudice as a result. Id. ¶¶ 8–13; see also Utah R. App. P. 23B(a).

At ¶ 15.

Rule 23B motions must “be accompanied by affidavits . . . that show the claimed prejudice suffered by the appellant as a result of the claimed deficient performance.” Utah R. App. P. 23B(b). This means that a defendant must not only identify uncalled witnesses or other evidence that he claims should have been presented at trial, but must go further, providing affidavits from the uncalled witnesses “detailing their testimony” and other “evidence he intends to present on remand,” together with an explanation of “how that evidence supports both prongs of” his ineffective assistance claim. Johnston, 2000 UT App 290, ¶ 11; see also State v. Christensen, 2013 UT App 163, ¶¶ 2, 4, 305 P.3d 222 (per curiam) (denying a rule 23B motion because the defendant did not include “certain medical records and an insurance report” with her motion). Where facts in the record already support the claim or a defendant “merely hopes to discover evidence suggesting ineffectiveness,” remand is not available under rule 23B. Johnston, 2000 UT App 290, ¶ 23.

At ¶ 16.

With respect to the evidence not introduced, Curtis has failed to allege nonspeculative facts as rule 23B requires. See Utah R. App. P. 23B(a) (“The motion shall be available only upon a nonspeculative allegation of facts . . . .”); Johnston, 2000 UT App 290, ¶ 10. Fact allegations are insufficient unless the defendant “present[s] this court with the evidence he intends to present on remand and explain[s] how that evidence supports” an ineffective assistance of counsel claim. Johnston, 2000 UT App 290, ¶ 11. . . .

At ¶ 18.

Here, Curtis failed to include several key pieces of evidence with his motion. Although affidavits from Mother, Curtis’s sister, M.V.’s foster mother (Foster Mother), and Curtis’s mother all mention photographs showing M.V. had no track marks on her arms six weeks after she claims to have used cocaine with Curtis, the photographs themselves were not provided. Similarly, Curtis’s supporting memorandum refers to a hair follicle drug test “showing [M.V.’s] negative results for cocaine use,” but he does not provide the test results in any evidentiary form. Curtis’s motion also describes a DCFS report showing that M.V. denied Curtis abused her. The defendant cites a specific page of the report in his motion, but he does not provide a copy of the report itself. “Absent the evidence that is the subject of the motion for remand, this court is left with only speculation about the content and value of the proposed evidence.” Id. ¶ 4. Thus, without the photographs, tests results, or the DCFS report, the motion for remand is based “largely upon hearsay and allegations reciting what [Curtis] hopes” the evidence will show, see Johnston, 2000 UT App 290, ¶ 18, and not on the required “nonspeculative allegation of facts,” Utah R. App. P. 23B(a). Consequently, Curtis has not met the requirements for remand on these issues.

At ¶ 19.

        For similar reasons, Curtis’s motion does not justify remand to supplement the record with testimony from “Jonathan Rowley [of DCFS] and M.B.”—two potential witnesses the defendant argues his attorney should have interviewed and called at trial. First, Curtis has not attached an affidavit detailing M.B.’s testimony. See State v. Johnston, 2000 UT App 290, ¶ 11, 13 P.3d 175 (per curiam). Instead, he relies on Mother’s affidavit, which simply states, “[M.B.] spent a lot of time at our home and she would have been able to dispute some of what [M.V.] testified to in court.” Mere “recitation of what [a witness] would have said,” however, “is speculative[,] . . . is largely conclusory,” and does not satisfy the requirements of rule 23B. Id. ¶ 17. Second, while Curtis’s motion identifies Jonathan Rowley as the author of the DCFS report, there is no affidavit from Rowley detailing the substance of his testimony. The only reference to Rowley in any of the four affidavits Curtis attached to his motion is one sentence from Curtis’s mother’s affidavit: “The DCFS worker who ordered the drug testing was not called at trial.” This falls well short of rule 23B’s requirement that defendants “identify . . . uncalled witnesses” and “identify specific facets of their testimony that might have helped [the] case.” State v. Vessey, 967 P.2d 960, 965 n.5 (Utah Ct. App. 1998).

At ¶ 20.

Curtis has also failed to demonstrate that remand is appropriate to supplement the record with evidence that “the jury and witnesses had been tainted by hearing the [court’s] sidebars [with the attorneys].” Curtis maintains that his attorney “should have motioned the court for a new trial” instead of requesting a curative instruction and that Curtis received ineffective assistance as a result. However, “the affidavits supporting [a rule 23B] motion must ‘allege facts that’ . . . demonstrate prejudice, i.e., that the result would have been different had counsel’s performance not been deficient.” Johnston, 2000 UT App 290, ¶ 13 (quoting Utah R. App. P. 23B(b)). Curtis has not satisfied this standard.

At ¶ 21.

[I]n order to justify rule 23B remand, Curtis must allege nonspeculative facts that indicate a witness changed her testimony after hearing court proceedings, thereby prejudicing Curtis to the extent that he cannot be said to have had a fair trial. Cf. State v. Cramer, 2002 UT 9, ¶¶ 32–33, 44 P.3d 690 . . . .

At ¶ 22.

Although each affidavit provides evidence that the exclusionary order was ineffective [because witnesses could hear the side bar discussions], none of them “provide . . . evidence that [witnesses] changed [their] testimon[ies]” because they overheard sidebar conversations or other court proceedings. See Cramer, 2002 UT 9, ¶ 33. Three of them are silent on the issue, and Foster Mother simply expressed concern “that this issue may have affected the testimony of other witnesses in this case,” without identifying specific information the witnesses overheard that could have had such an effect. “This invitation to speculate cannot substitute for proof of prejudice,” see State v. Arguelles, 921 P.2d 439, 441 (Utah 1996), and Curtis has therefore failed to persuade us that remand is appropriate on this issue.

At ¶ 24.

We conclude for similar reasons that remand is not necessary on the issue of whether Curtis’s attorney should have moved for a new trial “based on the possibility that the jury improperly overheard several sidebar conversations.” Defendant’s trial counsel, who participated in each sidebar conversation, requested and received a curative instruction rather than moving for a mistrial. “In the absence of the appearance of something persuasive to the contrary, we assume that the jurors were conscientious in performing . . . their duty, and that they followed the instructions of the court.” State v. Burk, 839 P.2d 880, 883 (Utah Ct. App. 1992). And curative instructions are “ordinarily presumed on appeal to be effective,” State v. Winward, 941 P.2d 627, 635 (Utah Ct. App. 1997), absent a “substantial and prejudicial” underlying error or irregularity, State v. Hodges, 517 P.2d 1322, 1325 (Utah 1974). In order to justify remand, Curtis must therefore allege facts showing that sidebar discussions likely so tainted the jury that “there is a reasonable probability that [Curtis] cannot have [had] a fair and impartial determination of his guilt or innocence.” See Hodges, 517 P.2d at 1324.

At ¶ 25.

The defendant has not alleged facts demonstrating that his trial counsel’s decision prejudiced the result in his case. In his rule 23B motion, Curtis states that “the information the jury overheard could not be erased by a curative instruction,” but he does not describe in meaningful detail the contents of the sidebar discussions or analyze why they would have had this effect. . . . Without more, “there is no reason to believe that the jury [was] . . . unable to follow the court’s instructions and ignore” the sidebar discussions. See State v. Menzies, 889 P.2d 393, 402 (Utah 1994). Remand to supplement the record on this issue is therefore not required.

At ¶ 26.

Finally, remand is not necessary on Curtis’s claim that his attorney was ineffective for mistakenly opening the door to damaging impeachment testimony because that issue can be decided on the existing record. “‘Rule 23B is directed to cases where some crucial factual information is absent from the record,’” not “‘the typical ineffective assistance case where the parties dispute whether trial counsel’s actions reflected some strategy, given the facts established by the record.’” State v. Johnston, 2000 UT App 290, ¶ 9, 13 P.3d 175 (per curiam) (quoting State v. Tennyson, 850 P.2d 461, 468 n.5 (Utah Ct. App. 1993)).

At ¶ 27.

Here, Curtis fails to identify any crucial factual information absent from the record. . . . Consequently, remand is unnecessary on this issue.

At ¶ 28.

In summary, we conclude that rule 23B remand is unnecessary to resolve Curtis’s claims on appeal. Because Curtis has not provided the evidence absent from the record he argues supports his claim—the photographs, drug test results, DCFS report, or affidavits from Rowley and M.B.—he has not alleged nonspeculative facts showing ineffective assistance as rule 23B requires. Additionally, the affidavits supporting Curtis’s motion provide no facts indicating that witnesses changed their testimonies or that the jury was irreparably biased by overhearing sidebar conversations. Finally, whether Curtis received ineffective assistance when his attorney opened the door to evidence of marijuana use can be decided on the existing record.

At ¶ 29.

Ineffective Assistance

Curtis argues that his trial counsel did not provide him with effective assistance. He asserts that because the case was essentially “a credibility contest between [M.V.] and [the defendant],” his counsel should have used every “opportunit[y] to cast doubt on [M.V.’s] credibility and testimony.” Specifically, Curtis maintains that his attorney should have presented “photos, drug test results, [and] a [DCFS] report” that Curtis asserts would have undermined M.V.’s credibility. Additionally, Curtis argues that his counsel was ineffective for failing to “interview potential witnesses that would have called into question . . . [M.V.’s] credibility” and for “failing to motion for a new trial after . . . the jury and excluded witnesses” overheard sidebar conversations. Finally, Curtis argues that his counsel was deficient for “opening the door to damaging crossexamination” and “impeachment testimony” regarding drug use in the home.

At ¶ 30.

[W]here our rule 23B analysis has already resolved an underlying ineffective assistance issue, we refer back to the pertinent section of this decision.

At ¶ 31.

The Court sets forth the Strickland v. Washington, 466 U.S. 668 (1984), two-part test for ineffective assistance of counsel claims: (1) deficient performance, and (2) prejudice. 

At ¶¶ 32-34.

A. Failure to Introduce Evidence 

Curtis has not shown that his counsel’s performance was deficient for failing to introduce into evidence the photographs, DCFS report, and drug test results. First, none of this evidence appears in the record, and Curtis did not include it in his rule 23B motion for remand. Without it, we have no way of knowing whether the photographs actually show M.V.’s arms free of scarring soon after the alleged cocaine use, whether M.V. actually tested negative for cocaine, or whether the DCFS report was so compelling that no reasonable attorney would have failed to introduce it into evidence. On appeal, we “presume that any argument of ineffectiveness presented to [us] is supported by all the relevant evidence of which the defendant is aware,” and “ambiguities or deficiencies resulting [from an inadequate record] simply will be construed in favor of a finding that counsel performed effectively.” State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92. Without any of this evidence before the court, Curtis’s claim that his trial counsel performed deficiently for failing to introduce it cannot succeed because it remains “speculative” and not “a demonstrable reality.” See Munguia, 2011 UT 5, ¶ 30 (citation and internal quotation marks omitted).

At ¶ 35.

Second, given the uncertainty surrounding this evidence, we cannot say there was “no reasonable basis” supporting the decision to leave it out. See State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (citation and internal quotation marks omitted). . . .

At ¶ 36.

The Court discusses possible legitimate strategies for not introducing the evidence.

At ¶¶ 36-39.

B. Failure to Interview

For similar reasons, the defendant has not demonstrated that his attorney provided ineffective assistance by failing to interview Jonathan Rowley or M.B. . . .

At ¶ 40.

            Here, while the defendant’s brief mentions that his trial counsel “was aware of other potential witnesses[,] Jonathan Rowley of the [DCFS] and [M.B.],” he does not assert that trial counsel failed to interview Rowley. And although Curtis does argue that “[i]t is unclear why counsel decided not to interview [M.B.],” neither the record nor the four affidavits attached to Curtis’s 23B motion reasonably support an assertion that no interview took place. Rather, Mother states that she “informed [defendant’s trial counsel] about the existence of [M.B.] . . . and [that] she would have been able to dispute some of what [M.V.] testified to in court.” She does not assert that the defendant’s trial counsel failed to interview M.B.

At ¶ 41.

       Even were we to assume that trial counsel failed to interview both witnesses, Curtis has not shown that he was prejudiced. Other than Mother’s statement that M.B. “was a family friend [who] . . . spent extensive time” at the home and “would have given testimony that would undermine [M.V.’s] testimony,” Curtis provides no description of what M.B. would have testified to at trial. Similarly, the most detailed description of Rowley’s potential testimony is a single line in the defendant’s mother’s affidavit: “The DCFS worker who ordered [M.V.’s] drug testing was not called at trial.” Without nonspeculative evidence establishing what each witness could have testified to at trial, Curtis has not shown that any deficient performance by trial counsel in failing to interview them was “‘so serious’” that it “‘deprive[d] [him] of a fair trial,’ and that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,’” State v. Lenkart, 2011 UT 27, ¶ 38, 262 P.3d 1 (quoting Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)).

At ¶ 42.

C. Curative Instructive v. Mistrial

Curtis has not shown “a demonstrable reality,” State v. Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082 (citation and internal quotation marks omitted), that his counsel was deficient or that he suffered prejudice when counsel requested a curative instruction instead of moving for a new trial after the jury and excluded witnesses overheard sidebar conversations. . . . We are not persuaded.

At ¶ 43.

Whether to move for a mistrial or request a curative instruction is a strategic decision that is “‘generally left to the professional judgment of counsel.’” State v. Franco, 2012 UT App 200, ¶ 7, 283 P.3d 1004 (quoting State v. Wood, 648 P.2d 71, 91 (Utah 1982)). For the most part, appellate courts refrain from second guessing trial counsel’s legitimate strategic choices, id., to avoid the “distorting effects of hindsight” that would result from evaluating “counsel’s performance on the basis of an inanimate record,” State v. Tennyson, 850 P.2d 461, 466 (Utah Ct. App. 1993) (citation and internal quotation marks omitted). This standard takes into account the fact that trial counsel, “[u]nlike a later reviewing court, . . . observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011). Accordingly, if there is any “plausible strategic explanation for counsel’s behavior,” we assume counsel acted competently. Tennyson, 850 P.2d at 468.

At ¶ 44.

Here, there is almost no evidence in the record or in the defendant’s rule 23B motion that describes the content of the unrecorded sidebars. Curtis’s trial counsel, a participant in each discussion, described them as focused on technical evidentiary issues—“prior bad acts and uncharged, that sort of stuff”—that may have been “enough in lawyer code . . . that [the jury] didn’t exactly clue into what [they] were talking about.” If this characterization is accurate—and Curtis has not identified any evidence that it is not—there was no basis for a conclusion that the jurors were irreparably biased or that lay witnesses would alter their testimonies after hearing a highly technical evidentiary discussion. This is especially true where Curtis’s counsel, an experienced trial attorney who had been privy to all that was said at the pertinent bench conferences, judged that whatever the jury might have heard was relatively obscure and could be remedied with an instruction from the judge. See State v. Moore, 2012 UT App 227, ¶ 6, 285 P.3d 809 (recognizing that ineffective assistance claims fail if any “conceivable legitimate tactic or strategy can be surmised from counsel’s actions” and that there is “a strong presumption that trial counsel was competent” (citations and internal quotation marks omitted)). Further, a successful mistrial motion would have meant a new jury. Curtis’s attorney may have been satisfied with the jury and concluded that the possibility of a less sympathetic jury outweighed any marginal benefit his client might receive from a new trial. Consequently, we cannot say that requesting a curative instruction instead of moving for a mistrial lacked any plausible strategic basis, particularly considering our duty to “construe[] ambiguities or deficiencies” in the record “in favor of finding that counsel performed effectively,” State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92.

At ¶ 45.

But even if we assume that defendant’s trial counsel performed deficiently, we are not persuaded that Curtis suffered any prejudice. For reasons we have already discussed, Curtis has not shown that the sidebar conversations altered witness testimony or affected jurors in a way that undermined the integrity of his trial. See supra ¶¶ 21–26.

At ¶ 46.

D. Opening Door to Prior Bad Acts Evidence

Curtis argues that he received ineffective assistance when his attorney “inadvertently opened the door to impeachment testimony” and “cross-examination that undermined the defense’s credibility.” Early in Curtis’s trial, the court ruled inadmissible evidence of drug use other than the cocaine use alleged to have accompanied each instance of sexual abuse. But during Mother’s direct examination, the defendant’s attorney asked a broader question—whether she ever saw “any indication of drug use going on in [her] home?” (Emphasis added.) As a consequence, on crossexamination, the court permitted the prosecution to ask Mother and Curtis about marijuana use because trial counsel “opened th[e] door on that issue when [he] asked [Mother] if she was aware of drug use in the home,” instead of limiting her testimony to cocaine use. Sister was also permitted to testify for the prosecution in rebuttal that she had seen the defendant and M.V. use cocaine together “several times.”

At ¶ 47.

Curtis argues that evidence of marijuana use and other cocaine use “was not initially admissible” and “[b]ut for Counsel’s . . . blunder, [Sister] would not have testified as a rebuttal witness [and] would not have corroborated [M.V.’s] testimony.” He also asserts that the error undermined Curtis’s and Mother’s testimony and “prejudiced the jury against . . . Curtis because of the drug distribution charges alleged against him.” Even if we assume Curtis’s attorney performed deficiently by failing to limit his question to cocaine use, Curtis has not shown that Sister’s rebuttal testimony about Curtis’s cocaine use with M.V. or the evidence of marijuana use resulted in material prejudice.

At ¶ 48.

Where an attorney opens the door to damaging evidence, there is no prejudice if the evidence is admissible independent of the attorney’s error. See State v. Gonzales, 2005 UT 72, ¶ 68, 125 P.3d 878. . . .

At ¶ 49.

Here, while Curtis correctly points out that his attorney’s examination of Mother opened the door to Sister’s testimony, the district court also concluded that Sister’s testimony would have been admissible even if counsel’s questioning of Mother had been limited to “cocaine use” instead of “drug use” in general. When Sister testified on rebuttal that she saw the defendant use cocaine with M.V. “several times,” defense counsel objected. After some discussion, the court ruled that Sister’s rebuttal testimony was admissible for three reasons: (1) Mother testified that M.V. “was lying and [Mother was] aware of her lying because she’s lived with her”; (2) Mother testified that there was no drug use in the home; and (3) Curtis testified that he never used cocaine with M.V.

At ¶ 50.

On appeal, Curtis’s ineffective assistance claim attacks just one of these three grounds for admissibility. Thus, like in Gonzales, where the court determined no prejudice resulted because evidence of prior bad acts was admissible independent of the attorney’s errors, id. ¶ 68, here Sister’s rebuttal testimony would have been admissible regardless of any error Curtis’s attorney committed. As a result, we are not persuaded that “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’” if Curtis’s attorney had not opened the door to Sister’s rebuttal testimony during Mother’s direct examination. See State v. Lenkart, 2011 UT 27, ¶ 38, 262 P.3d 1 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

At ¶ 51.

“Utah courts have allowed impeachment evidence even though it introduces evidence of a prior bad act if the purpose of the evidence is to affect credibility.” State v. Tucker, 800 P.2d 819, 824 (Utah Ct. App. 1990). Even where impeachment evidence is improperly admitted, the verdict stands unless “‘the likelihood of a different outcome’” absent the improperly admitted evidence is “‘sufficiently high to undermine confidence in the verdict.’” State v. Hamilton, 827 P.2d 232, 240 (Utah 1992) (quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)). And because the prejudice standard for improperly admitted evidence is “equivalent” to “the prejudice test of ineffective assistance” claims, State v. Martinez, 2013 UT App 154, ¶ 5, 304 P.3d 110, we rely on cases from both areas in our analysis.

At ¶ 54.

Evidence of marijuana use, by itself, is not sufficiently prejudicial to undermine our confidence in the jury’s verdict. Proof of prejudice “must be a demonstrable reality,” not mere speculation, Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993), and errors that have an “isolated” or “trivial effect” on the verdict are not prejudicial, State v. Hales, 2007 UT 14, ¶ 86, 152 P.3d 321 (citation and internal quotation marks omitted). Accordingly, Utah courts have refused to overturn convictions where the prejudicial effect of improperly admitted evidence was diminished by the presence of more damaging evidence legitimately part of the record. . . .

At ¶ 54.

Here, Curtis’s and Mother’s admissions that they used or acquiesced in marijuana use in a home occupied by several minors certainly did not bolster Curtis’s defense, but other evidence of drug use in the family’s home likely blunted any prejudicial effect. M.V. testified that by early 2008, when she moved out of Salt Lake, she “had already developed kind of a bad cocaine problem” and had “been shooting up with [Curtis] for a few months.” She also mentioned that Curtis used cocaine with her several times a day for a period of seven months and admitted that Mother had “seen [M.V.] smoke pot.”6 And Sister testified that she saw M.V. and Curtis use cocaine “several times” in both the bedroom and the bathroom of the family’s home. Mother’s ready admission that she “kn[ew] about marijuana use in [her] home” and Curtis’s brief testimony that he “smoke[d] marijuana [himself]” were themselves relatively mild in comparison to the “far more damaging testimony” of pervasive cocaine use over a seven-month period. See Davis, 965 P.2d at 537–38. Thus, evidence that Curtis smoked marijuana would have merely an “isolated” or “trivial effect” on the verdict. See Hales, 2007 UT 14, ¶ 86 (citation and internal quotation marks omitted).

At ¶ 55.

We are also not persuaded that opening the door to marijuana use undermined Curtis’s and Mother’s credibility enough to have a material effect on the verdict. . . .

At ¶ 56.

The Court explains why it is not convinced that the admission of marijuana evidence was sufficient prejudicial to undermine the verdict.  Most influential was the context of the evidence and Sister’s rebuttal testimony.

At ¶¶ 56-60.

Because Curtis has not included key pieces of evidence with his rule 23B motion and because the affidavits accompanying his motion fail to allege nonspeculative facts to support his ineffective assistance claim, we deny Curtis’s rule 23B motion for remand. We also deny Curtis’s ineffective assistance of counsel claim because he has not shown his attorney’s failure to introduce evidence was deficient, and any other errors that may have been committed did not result in prejudice.

At ¶ 61.

In re J.F., 2013 UT App 288, No. 20130242-CA (December 5, 2013)

ISSUE: Substitution of Counsel

Per established policy, I will not be summarizing that portion of this case that challenges the sufficiency of evidence for a determination terminating her parental rights.

Judge Davis,

Mother next argues that the juvenile court erroneously denied her day-of-trial motion for substitute counsel because the “total” breakdown in communication between her and her appointed counsel (Counsel) amounted to a deprivation of her statutory right to effective counsel, see Utah Code Ann. § 78A-6- 1111(1)(a) (LexisNexis 2012); In re C.C., 2002 UT App 149, ¶ 9, 48 P.3d 244 (recognizing that the statutory right to counsel in parental termination cases requires that the appointed counsel provide effective assistance). Mother does not dispute that the juvenile court made the required inquiry into her motion for substitute counsel, see In re C.C., 2002 UT App 149, ¶ 12, but argues that her motion was erroneously denied. We review the juvenile court’s denial of Mother’s request for new counsel for an abuse of discretion. See id. ¶¶ 6, 10.

At ¶ 11.

The juvenile court has the discretion to appoint substitute counsel if the court’s inquiry into the party’s request reveals good cause for the substitution. See id. ¶¶ 12, 14. “[T]o warrant substitution of counsel, a defendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict.” State v. Lovell, 1999 UT 40, ¶ 31, 984 P.2d 382 (citation and internal quotation marks omitted).5 “[T]he cause of the breakdown—or who is to ‘blame’—in an attorney–client relationship significantly affects whether the breakdown . . . requires the court to substitute a defendant’s court-appointed counsel.” State v. Scales, 946 P.2d 377, 382 (Utah Ct. App. 1997) (applying a constitutional standard). Accordingly, “[a] defendant must do more than show that he or she does not have a ‘meaningful relationship’ with his or her attorney,” and “[t]he fact that a defendant does not get along with his [or her] attorney does not, standing alone, establish a denial of the effective assistance of counsel.” Id. (second and third alterations in original) (citations and internal quotation marks omitted). Likewise, a defendant cannot rely “solely on [her] illegitimate complaints or subjective perception of events” to establish that her attorney–client relationship is “imperiled” by “intense animosity.” Id. (citation and internal quotation marks omitted).

At ¶ 12.

We agree with the juvenile court that Mother’s decision not to cooperate with Counsel after having cooperated with her for several years, combined with Mother’s vague assertion that Counsel had not been doing “enough” and may have been rude at times, do not establish good cause for substitution of counsel. . . . . Mother admitted to having affirmatively avoided Counsel’s communications by failing to respond to Counsel’s various letters requesting that they schedule a meeting. The juvenile court acknowledged that Mother’s decision to avoid communicating and cooperating with Counsel was illustrative of “friction” in their attorney–client relationship but determined that Mother’s choice to avoid Counsel did not “establish[] that a complete breakdown of communication existed.” See In re S.W., 2007 UT App 50U, para. 3 . . . Despite Mother’s avoidance of Counsel, she and Counsel had met once before trial and again the morning of trial. Counsel asserted that she was prepared and ready to represent Mother at trial. . . . Accordingly, the juvenile court did not abuse its discretion in denying Mother’s motion to appoint substitute counsel.

At ¶ 13.