State v. Bullock

791 P.2d 155, 119 Utah Adv. Rep. 33, 1989 Utah LEXIS 131, 1989 WL 201073

• Court: Utah Supreme Court
• Decided: October 18, 1989
• Docket: 870053
• Status: Published

Opinions

HALL, Chief Justice:

Defendant appeals his convictions of three counts of aggravated sexual abuse of a child¹ and three counts of sodomy upon a child.² The issue presented is whether defendant was convicted on the basis of inadmissible evidence which deprived him of a fair trial. Defendant does not challenge the sufficiency of the evidence. Rather, he contends that the manner in which the case was investigated so tainted the evidence that it was rendered inadmissible at trial, that the trial court committed plain error in admitting the child victims’ out-of-court statements and the opinions of the expert witnesses into evidence, and that trial counsel was ineffective in failing to raise the admissibility issue and in not seeking to suppress the evidence prior to trial. Thus, the relief sought on appeal is reversal of the trial court and dismissal of the charges.

One of defendant’s former neighbors learned of her four-year-old son’s purported involvement in sexual activity. This prompted her to seek an evaluation of her son by Dr. Barbara Snow, a social worker in the Intermountain Sexual Abuse Treatment Center. The child disclosed to Dr. Snow that defendant’s son and another young male friend in the neighborhood had touched his penis and performed fellatio on him. Dr. Snow notified the Division of Family Services, which in turn referred the matter to the Bountiful Police Department. Dr. Snow interviewed one of the boys, who acknowledged that he and defendant’s son had abused the four-year-old in a manner they and two of their neighborhood friends had learned from defendant while playing a “game” with him at his home. Dr. Snow did not interview defendant’s son, but in subsequent interviews of the other three boys, each related that defendant had touched their penises and performed fellatio on all four of them. Also, defendant had each of them touch his penis and perform fellatio on him. And defendant threatened to harm them, their families, or their pets if they told anyone about it. Dr. Snow also made this information available to the Bountiful Police Department.

The three boys were thereafter individually interviewed by Dr. Ann Tyler, a psychologist and the executive director of the Family Support Center, an organization devoted to the prevention and treatment of child abuse and neglect. The interviews conducted by Dr. Tyler produced disclosures of sexual abuse and threats by defendant similar to those disclosures made to Dr. Snow.

Following the Tyler interview, the county attorney held a meeting in his office attended by the three boys, their parents, two deputy county attorneys, and a member of the police department. At this meeting, two of the boys recounted the sexual abuse perpetrated by defendant, but the third denied that anything had happened to him.

Prior to trial, the testimony of the three boys was videotaped for use at trial.³ Their testimony was presented to the court, and each party had the opportunity to examine the witnesses through counsel. Defendant viewed the proceedings from a location out of the presence of the witnesses. The testimony of each of the boys detailed the sexual abuse perpetrated by defendant and the threats he made against them if they should tell anyone about his acts. The boy who previously denied that the abuse had occurred explained his denial by stating that he was no longer afraid of defendant’s threats to him, his family, and his pet dog. At trial, the videotapes were received into evidence and were viewed by the jurors.⁴

Also at trial, Dr. Snow was questioned extensively regarding her credentials and interviewing techniques. She testified that she holds doctorate and masters degrees in social work and that she has had considerable training and experience concerning the area of child sexual abuse. Her employment is in the therapeutic field, and her interests are directed toward the healing of children instead of investigation for the purpose of criminal prosecution. She testified that the interviewing techniques she utilizes differ from those of the police, whose interests are directed toward proving the elements of a crime. Indeed, her “intervention with children is not from a neutral position,” as she is “a child’s advocate.” She described herself as an ally of such children and explained that her “purpose in gathering information from them is to only gather that information that helps them heal.” As such, she remains “relatively indifferent to what happens with the perpetrator.” She testified that her concern is to determine the truth, and she relies upon specific criteria for assessing the truthfulness of a child's statements concerning sexual abuse.

Dr. Snow’s interviews of the boys were not taped, with the exception of a videotaped session with' one boy and an audio-taped session with another boy and his father. She acknowledged that videotaping a child’s initial interview is recommended by some in the field of diagnosing and treating child sexual abuse. However, she noted that it was not her practice to record the sessions because, in her experience, the use of a tape recorder or video machine is disconcerting to children and inhibits their responses. Accordingly, her testimony at trial concerning her interviews of the boys was based primarily on memory.

At trial, Dr. Tyler was questioned extensively regarding her qualifications and the procedures she followed in conducting her interviews with the boys. She testified that she is a licensed psychologist with substantial training and experience in the field of child sexual abuse. As such, she performed individual “corroborative assessments” of the three boys and reached the conclusion that each had been sexually abused. Her training emphasized the importance of data collection and good record keeping, including the use of tapes.

In response, defendant presented three expert witnesses who were critical of Dr. Snow’s techniques and the validity of Dr. Tyler’s corroborative assessments because of the asserted contamination of the victims’ testimony occasioned by Dr. Snow’s interviewing process. Specifically, Dr. Monica Christy testified that it was important to tape the initial interviews of the children, not only to record the answers, but also to understand how the questions were asked and to be able to remember the fine details of the interview. Dr. Christy challenged the objectivity of Dr. Snow’s interviewing techniques of ignoring the child’s response until the child learned to give the answer she expected and of rewarding answers that she liked by making such comments as “good boy.” Dr. Christy was critical of Dr. Snow’s practice of “shaping” the testimony of a child by confronting an undesired response with the statement that the child must tell the truth, thereby implying that the truth had not been told. She was also critical of the fact that at the meeting held in the office of the county attorney, the boys were permitted to “cross-contaminate” each other by sharing their versions of the sexual abuse incidents.

Dr. Michael DeCaria was similarly critical of Dr. Snow’s interviewing procedures. He testified that when interviewing children, the questions must be “open-ended.” That is, a question cannot have the answer already contained within it. The interviewer must also be neutral and impartial from the outset and not make prejudgments as to what has occurred. Additionally, Dr. DeCaria explained that there is a danger in having children repeat allegations to different people since the more an event is discussed, the more real the event may seem to become. He emphasized the need to record the interviews of the children. It was his ultimate opinion that by the time the boys were interviewed by Dr. Tyler, they were irretrievably contaminated by their previous contacts with Dr. Snow, their parents, and the other children.

Dr. Stephen Golding testified that one who interviews a child in such cases must remain completely neutral and that when Dr. Snow conceded that she was a child advocate looking for sexual abuse, she missed the forensic mental health standards “by a mile.” It was his conclusion that once the boys had been contaminated by the interviewing methods of Dr. Snow, it was impossible for Dr. Tyler or anyone else to know what had actually happened.

Defendant contends that he was denied due process because the initial interviews of the child victims conducted by Dr. Snow so contaminated the investigative process through suggestive questioning and inadequate recording practices that the evidence of sexual abuse that surfaced during her interviews and the subsequent interviews of the victims by other persons, including their parents, rendered all of the evidence inadmissible.

Defendant also claims that he was denied effective assistance of counsel because trial counsel (1) failed to raise the due process challenge to the admissibility of the State’s evidence of child sexual abuse; (2) failed to challenge the admissibility of the child victims’ out-of-court statements; (3) failed to object to the competency of the children, parents, and experts to testify; (4) failed to object to the “syndrome” evidence; (5) failed to object to the videotaping procedures employed; (6) failed to object to the expert witness testimony that the children in this case were victims of sexual abuse; and (7) failed to make an opening statement or file post-trial motions. Defendant concedes that the claims raised on appeal were not raised in the court below.

It is apparent from the record that it was the strategy of defense counsel to attack the quality of the State’s evidence in an effort to persuade the jury of the insufficiency of the evidence to support a conviction. Defense counsel did so by extensively cross-examining the State’s witnesses and by presenting countervailing testimony of defense experts, evidence of defendant’s good character and reputation for truthfulness, and defendant’s own denial testimony.

The record also reflects that both the judge and counsel were well aware of the significant evidentiary issues which permeate a trial in this kind of case. At one of several pretrial conferences held to resolve procedural issues, the court reviewed with counsel the provisions of Utah Code Ann. § 76-5-411 (Supp.1985) (amended 1988 & 1989),⁵ which governed the admissibility of out-of-court statements of child victims of sexual abuse. The court also reviewed with counsel the applicability of State v. Nelson,⁶ a recent case wherein we interpreted the provisions of said section 76-5-411.

Trial counsel challenged the admissibility of only a modicum of the State’s evidence. On the other hand, appellate counsel has attacked the admissibility of virtually all of the State’s evidence. However, because trial counsel failed to object below, defendant is precluded by rule 103(a)(1) of the Utah Rules of Evidence from raising any of these points on appeal in the absence of showing that (1) the trial court committed plain error in admitting the evidence or (2) trial counsel was ineffective in failing to raise objections to the same.⁷ In the context of this case, we need not reach the issues pertaining to the propriety of the trial court’s evidentiary rulings or defendant’s claim of plain error.

In order for an erroneous ruling by a trial court to constitute reversible error, the error must have been harmful and we must be persuaded either that the ruling was properly objected to before the trial court or, if not objected to, that the ruling was plainly erroneous.⁸ Defendant urges that the evidentiary rulings which he finds objectionable on appeal fall into the plainly erroneous category. However, we do not appraise all rulings objected to for the first time on appeal under the plain error doctrine. For example, if trial counsel’s actions amounted to an active, as opposed to a passive, waiver of an objection, we may decline to consider the claim of plain error.⁹ Such a course of action is consistent with the policy underlying the plain error rule. The plain error rule permits the appellate court to assure that justice is done, even if counsel fails to act to bring a harmfully erroneous ruling to the attention of the trial court. But if a party through counsel has made a conscious decision to refrain from objecting or has led the trial court into error, we will then decline to save that party from the error. This flexibility is inherent in the plain error rule. “[T]he plain error ... test ... ultimately permit[s] the appellate court to balance the need for procedural regularity with the demands of fairness.” ¹⁰

In the context of this case, before addressing defendant’s claim of plain error, it is necessary to address the threshold issues: Was the failure to raise the objections before the trial court the result of a consciously chosen strategy of trial counsel rather than an oversight, and if it was a strategic decision, did the making of that choice constitute ineffective assistance of counsel? If the decision was conscious and did not amount to ineffective assistance of counsel, this Court should refuse to consider the merits of the trial court’s ruling. Indeed, the failure to object in such instances should be treated as a conscious waiver and should preclude further consideration of the issue. This was precisely the course that was followed in State v. Medina,11 which was decided under the manifest injustice provision of rule 19(c) of the Utah Rules of Criminal Procedure. In circumstances such as those presented here, “manifest injustice” and “plain error” are operationally synonymous.¹²

The necessity for an appellate court’s following such an approach is obvious when the consequences of the alternative are considered. If trial counsel were permitted to forego objecting to evidence as part of a trial strategy that counsel thinks will enhance the defendant’s chances of acquittal and then, if that strategy fails, were permitted to claim on appeal that the Court should reverse because it was plain error for the court to admit the evidence, we would be sanctioning a procedure that fosters invited error.¹³ Defendants are thus not entitled to both the benefit of not objecting at trial and the benefit of objecting on appeal.¹⁴

The plain error rule exists to permit review of trial court rulings as a way of protecting a defendant from the harm that can be caused by less-than-perfect counsel. But the purpose of that rule is in no way implicated if defense counsel consciously elects to permit evidence to be admitted as part of a defense strategy rather than through inadvertence or neglect.¹⁵

The State contends that the manifold failures to object complained of by appellate counsel for defendant were the result of a conscious strategy, and we agree. It is reasonable to conclude that defense counsel, an experienced criminal lawyer, consciously chose not to seek the exclusion of the testimony about which defendant now complains. While the evidence complained of may have been inadmissible, trial counsel could reasonably conclude under these circumstances that there was little chance of keeping the testimony of the children out of evidence, especially after the trial court sua sponte made reliability findings. He might well have thought that the only way of effectively undermining the mutually consistent testimony of these young children about shocking incidents of sexual abuse was not to insist that the children testify at trial or object to their videotaped testimony, but rather was to put a less sympathetic adult witness, such as Dr. Snow, on the stand and to portray her as an unprofessional, misguided zealot who put these ideas in the children’s minds through the use of techniques akin to brainwashing. In this way, counsel could explain to the jury why the children were relating untrue stories which they seemed to believe. Having made this decision, counsel could reasonably have concluded that it would be inconsistent to seek to exclude Dr. Tyler’s testimony about behavior and the children’s out-of-court statements and that since the experts, not the children, were thus “on trial,” there was little reason to try to keep out their opinions on abuse.

In claiming ineffectiveness of counsel, defendant must bear the burden of demonstrating that trial counsel’s representation fell below an objective standard of reasonable professional judgment and that counsel’s performance was prejudicial.¹⁶ Defendant has failed to meet this two-pronged standard on any of his claims of ineffectiveness of counsel.

Defendant must overcome the strong presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment.¹⁷ Whenever there is a legitimate exercise of professional judgment in the choice of trial strategy, the fact that it did not produce the expected result does not constitute ineffectiveness of counsel.¹⁸

As heretofore observed, it is apparent from the record that it was the strategy of defense counsel to attack the quality of the State’s evidence in an effort to persuade the jury of the insufficiency of the evidence to support a conviction. Counsel for the defense effectuated this by cross-examining the State’s witnesses and by presenting countervailing testimony of defense experts, evidence of defendant’s good character and reputation for truthfulness, and defendant’s own denial testimony.

Furthermore, review of the record confirms that defense counsel effectively put Dr. Snow “on trial” and mounted an effective attack on her motives and methods through both her testimony and that of other experts. Nevertheless, the jurors were apparently persuaded that the children spoke the truth. However, the actions of defense counsel, when considered in light of the presumption of competence that attends any representation, lead to the conclusion that counsel was not ineffective and that the failure to object to the errors alleged by appellate counsel was the result of conscious trial strategy. Hence, we do not reach defendant’s plain error contentions.

The decisions of defense counsel not to offer an opening statement and not to make post-trial motions are well recognized as matters best left to the professional judgment of counsel. Defendant has not demonstrated that his representation by defense counsel fell below an objective standard of reasonable professional judgment,¹⁹ nor has he shown that he was prejudiced by counsel’s decision not to offer an opening statement or make post-trial motions.²⁰

The conviction and judgment are affirmed.

BILLINGS, Court of Appeals Judge, concurs.

1 . In violation of Utah Code Ann. § 76-5-404.1 (Supp.1988) (amended 1989).

2 . In violation of Utah Code Ann. § 76-5-403.1 (Supp.1987) (amended 1988).

3 . Pursuant to Utah Code Ann. § 77-35-15.5 (Supp.1987) (amended 1988; repealed 1989); see Utah R.Crim.P. 15.5.

4 . Id. The constitutionality of this procedure and the effect of the United States Supreme Court’s decision in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), are issues not before us in this case. See also infra pages 159-160 & note 13 (discussion of trial strategy and invited error).

5 . The amendments are not pertinent here.

6 . 725 P.2d 1353 (Utah 1986).

7 . Utah R.Evid. 103(d); see State v. Verde, 770 P.2d 116, 118-19 (Utah 1989) (ineffective assistance claim asserted to avoid effect of failure to object); State v. Eldredge, 773 P.2d 29, 35-36 (Utah 1989) (plain error explained), cert. denied, — U.S. -, 110 S.Ct. 62, 107 L.Ed.2d 29 (Oct. 2, 1989); State v. Medina, 738 P.2d 1021, 1023-24 (Utah 1987) (manifest error and ineffective assistance claims asserted to avoid effect of failure to object).

8 . Verde, 770 P.2d at 121.

9 . See, e.g., Medina, 738 P.2d at 1023; Morgan v. Quailbrook Condominium Co., 704 P.2d 573, 579 (Utah 1985); A.I.D. v. Jewkes, 701 P.2d 486, 487-89 (Utah 1984).

10 . Verde, 770 P.2d at 122 n. 12 (citation omitted).

11 . 738 P.2d 1021, 1023.

12 . See Verde, 770 P.2d at 121-22.

13 . See State v. Tillman, 750 P.2d 546, 560-61 (Utah 1987).

14 . See Medina, 738 P.2d at 1023.

15 . Id.

16 . State v. Carter, 776 P.2d 886, 893 (Utah 1989).

17 . See Strickland v. Washington, 466 U.S. 668, 689-91, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984); State v. Lairby, 699 P.2d 1187, 1203-06 (Utah 1984), overruled on other grounds, State v. Ossana, 739 P.2d 628, 631 (Utah 1987).

18 . Medina, 738 P.2d at 1023-24.

19 . Strickland, 466 U.S. at 688, 104 S.Ct. at 2064.

20 . Carter, 776 P.2d at 893; State v. Archuleta, 747 P.2d 1019, 1023-24 (Utah 1987); Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983).