State v. Gordon

913 P.2d 350, 286 Utah Adv. Rep. 3, 1996 Utah LEXIS 41, 1996 WL 115858

• Court: Utah Supreme Court
• Decided: March 11, 1996
• Docket: 940558
• Status: Published

Opinions

HOWE, Justice:

Defendant appeals from a conviction for possession of a controlled substance with intent to distribute, a second degree felony. Pursuant to rule 43 of the Utah Rules of Appellate Procedure, the court of appeals certified the case to this court.

I. FACTS

On appeal from a jury verdict, we view the evidence and all reasonable inferences in a light most favorable to that verdict and recite the facts accordingly. Cornia v. Wilcox, 898 P.2d 1379, 1382 (Utah 1995); State v. Dunn, 850 P.2d 1201, 1205-06 (Utah 1993). On December 17, 1982, defendant James Fred Gordon was staying at the Brigham City apartment of his ex-wife, Ann Marie Frigon, as he occasionally did after their divorce six years earlier. That day, Frigon was “shocked” to learn that she was pregnant with Gordon’s child. At about six or seven o’clock that evening, Gordon left the apartment, telling Frigon that he would be back in five minutes. Instead, he went to a bar and then to a friend’s house, returning to the apartment about six o’clock the next morning. Frigon was angry with Gordon, especially after smelling his shirt, which “reeked of cologne,” as she imagined that he had been with another woman. The two argued briefly before Gordon went to sleep.

A few hours later, Frigon found a plastic bag containing the drug lysergic acid diethyl-amide (LSD). She called the Brigham City Police Department and reported that Gordon was at her apartment and that he had some drugs. She met two officers outside her apartment and told them that there was LSD inside. Frigon explained that she knew it was LSD because Gordon had told her so and because she had seen him with LSD before. She stated that the LSD had fallen out of his coat pocket onto the floor and that she was afraid her young child might find and possibly eat it. Frigon gave the officers permission to enter her apartment to get the drugs.

Once inside the apartment, Frigon opened a closet and showed them the plastic bag protruding from a coat pocket. The bag contained a piece of graph paper with a unicorn design on it. Each square on the graph paper contained one dose or “hit” of LSD, and there were approximately sixty-five to seventy “hits” remaining on the paper.

The officers awoke Gordon and asked him to accompany them to the police station. He agreed and, while dressing, was advised of his Miranda rights. He asked the officers why they wanted to talk to him. They told him about the LSD in his coat pocket. Gordon responded, “Well, I know you’ve got me. What’s the punishment for that?” One of the officers told Gordon he did not know what charges he would face. Gordon asked Fri-gon if she had told the police about the drugs. When she remained silent, he asked her why. She responded, “Well, because I wanted to protect my family.”

At the police station, an officer read Gordon a written consent form explaining his Miranda rights which Gordon signed. Gordon admitted that the LSD was his. He explained that he had obtained it from someone in Salt Lake City, but he refused to identify the person. He said he did not intend to sell it.

An officer then called the county attorney to ask what charges should be filed. Due to the large number of doses of LSD, the county attorney told the officer to charge Gordon with possession with intent to distribute, a second degree felony. The officer told Gordon about the charges and possible penalties were he to be convicted. The officers then asked him if he would give them a written or taped statement. He refused and said he would no longer talk with them until he had spoken to an attorney.

II. PROCEDURAL HISTORY

The procedural history of this case is rather complex, but it is relevant in analyzing the merits of Gordon’s appeal. At Gordon’s first appearance at the circuit court in Brigham City, Box Elder County, the judge found him to be indigent and appointed attorney Clinton S. Judkins to represent him. Unbeknownst to Gordon, at that time Judkins was a part-time prosecutor for the city of Tre-monton, also located in Box Elder County. Following a jury trial on April 26, 1983, Gordon was convicted of the charged offense and later sentenced to a term of one to fifteen years in the Utah State Prison.

Judkins, on Gordon’s behalf, filed a timely notice of appeal. Later, Judkins filed a motion for a new trial based on newly discovered evidence, but the trial court denied the motion as untimely. In October 1983, the appeal was dismissed for failure to prosecute.

In July 1992, nearly nine years later, Gordon filed a motion in the trial court to be resentenced nunc pro tune¹ because of his attorney’s failure to prosecute his appeal. He contended that his constitutional right to an appeal was denied because Judkins had failed to pursue the appeal due to his conflict of interest as a city prosecutor. The court denied the motion as untimely and not supported “with sufficient affidavits or memo-randa as required by law.”

In January 1993, Gordon petitioned for a writ of postconviction relief. After an evi-dentiary hearing, the court denied the petition. In doing so, the court examined the retroactivity of State v. Brown, 853 P.2d 851, 857-59 (Utah 1992), in which we announced a prohibition against the appointment of attorneys with concurrent prosecutorial duties to represent indigent criminal defendants and a per se rule of reversal in such cases. The court concluded that Brown was not intended to be applied retroactively. Gordon appealed from that decision to this court.

Without conducting plenary review of Gordon’s claims, we issued a September 24,1993 order stating in its entirety:

Having decided that Gordon was denied his constitutional right to appeal, this court remands the case to the trial court for resentencing, so that Gordon may raise the issues here presented in a first appeal as of right. State v. Hallett, [856 P.2d 1060, 1062 n. 2 (Utah 1993) ], noting proper re-sentencing procedure outlined in State v. Johnson, 635 P.2d 36, 38 (Utah 1981)[,] is under coram vobis through rule 65B(b), formerly rule 65B(i), of the Utah Rules of Civil Procedure.

The trial court is directed to have counsel on appeal appointed for defendant.

On remand, the trial court resentenced Gordon nunc pro tune to the same term as it had originally, one to fifteen years.

With new counsel, Gordon filed a motion for a new trial based upon (1) ineffective assistance of trial counsel because of his appointed defense counsel’s concurrent position as a city prosecutor, and (2) newly discovered evidence in the form of a new witness, Danny Burke, one of Gordon’s fellow inmates, who allegedly stated in 1983 that he was the owner of the drugs, that he had left them at Frigon’s apartment, and that Gordon had no knowledge of the drugs for which he was charged.² After a hearing, the trial court denied the motion on the grounds that the ease was remanded for the sole purpose of resentencing Gordon and that consideration of the motion was beyond the authority granted to the court. Furthermore, the court denied the motion on the merits, holding that (1) the prohibition against city attorneys representing criminal defendants was not retroactive, and (2) Gordon’s “proffered affidavit of Danny Burke (a fellow inmate) appears to be of dubious value.”

Gordon appealed to the court of appeals from his 1983 conviction and resentencing and from the denial of his motion for a new trial. Pursuant to rule 43 of the Utah Rules of Appellate Procedure, the court of appeals certified the case to this court to resolve the issue of whether the prohibition in Brown should be applied retroactively.

III. ANALYSIS

A Retroactivity of State v. Brown

In Brown, the defendant was represented by appointed counsel who was also a part-time city prosecutor. Brown, 853 P.2d at 856. He was convicted of second degree murder and aggravated assault. Id. at 852. On appeal, he contended that he was denied due process and the effective assistance of counsel when the court appointed a city prosecutor as his trial counsel. We agreed and reversed, holding:

Although we do not decide whether it is constitutionally impermissible to appoint a city attorney with prosecutorial responsibilities to represent an indigent defendant, we conclude that vital interests of the criminal justice system are jeopardized when [it occurs]. Consequently, we hold that as a matter of public policy and pursuant to our inherent supervisory power over the courts, as well as our express power to govern the practice of law, counsel with concurrent prosecutorial obligations may not be appointed to defend indigent persons. ...

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... [W]e announce a per se rule of reversal wherever such dual representation is undertaken so as to prevent its recurrence.

Id. at 856-57, 859 (emphasis in original).

Initially Gordon contends that by ordering his resentencing, this court “explicitly recognized that the prohibition against a part-time city prosecutor serving as an appointed defense attorney is applicable to Defendant’s case.” Gordon reads far too much into our order, which merely stated, “Having decided that Gordon was denied his constitutional right to appeal, this court remands the case to the trial court for resentencing, so that Gordon may raise the issues here presented in a first appeal as of right.” The order clearly did not address the merits of Gordon’s conflict-of-interest argument. It did not mention Brown or discuss its retroac-tivity. Rather, it merely required Gordon to be resentenced so that he could raise the argument on appeal.

Next, Gordon asserts that our decision in Brown entitles him to a new trial. Brown was expressly decided as a matter of public policy under our inherent supervisory power over the courts and our power to govern the practice of law, which powers are well settled. Brown, 853 P.2d at 857; see State v. Carter, 888 P.2d 629, 650 n. 32 (Utah) (and cases cited therein), cert. denied; — U.S. -, 116 S.Ct. 163, 133 L.Ed.2d 105 (1995). When we base a decision upon our supervisory power over lower courts, it is a clear indication that the decision will apply only to future cases. State v. Menzies, 889 P.2d 393, 407 n. 7 (Utah 1994) (“[T]he invocation of our supervisory powers ... demonstrates a commitment on the part of this court to prospectively prohibit the use of the offending language [in the jury instruction at issue].” (emphasis added)), cert. denied, — U.S. -, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995).

Furthermore, our decision in Brown announced for the first time that counsel with concurrent prosecutorial duties could not represent indigent defendants, a clear change from past procedures. We have previously held that when a new rule governing criminal procedure constitutes a clear break with the past, it is not generally applied retroactively. State v. Hoff, 814 P.2d 1119, 1123 (Utah 1991) (declining to retroactively apply strict compliance of rule in taking of guilty pleas); Andrews v. Morris, 677 P.2d 81, 95 (Utah 1983) (declining to retroactively apply reasonable doubt standard of proof in sentencing defendant convicted of capital offense); see also State v. Long, 721 P.2d 483, 492 (Utah 1986) (“from this date forward,” defendants are entitled to cautionary instruction regarding eyewitness testimony when that testimony is a central issue).

In Brown, we expressly declined to decide whether the appointment of attorneys with concurrent prosecutorial duties was constitutionally impermissible. Brown, 853 P.2d at 856. However, even where we have adopted a new rule that is of a constitutional dimension, we have been reluctant to give it retroactive effect. See, e.g., Neel v. Holden, 886 P.2d 1097, 1103-05 (Utah 1994) (due process affords inmates disclosure of contents of their files, including psychological reports, prior to parole hearing; decision to apply prospectively only); Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 913-14 (Utah 1993); Andrews, 677 P.2d at 88.

Other reasons favor only prospective application of Brown. The primary purpose of the prohibition in Brrnm was clearly prophylactic, that is, to forbid “such dual representation ... so as to prevent its recurrence.” 853 P.2d at 859 (emphasis added). Applying Brown retroactively would unjustly benefit many defendants who received competent, effective assistance of counsel, despite their counsel’s concurrent prosecutorial duties. Finally, the goal of maintaining the efficient administration of justice also strongly favors the prospective application of Brown. See Labrum, 870 P.2d at 912; Andrews, 677 P.2d at 91 (both examining these factors on collateral review in deciding against retroactivity).

Having concluded that the prohibition in Brown should be applied only prospectively, we must determine whether on this direct appeal, Gordon is nevertheless entitled to benefit from its holding. In Menzies, one year after the defendant was convicted, we disapproved of a “reasonable doubt” jury instruction in another case. 889 P.2d at 407 n. 7. On appeal, Menzies argued that he was entitled to benefit from the new case. We concluded that our invocation of supervisory powers “is a clear indication that we would strike down only future verdicts based on the offending [jury instruction].” Id. (emphasis in original). Thus, under Menzies, when under our supervisory powers we articulate a new cautionary policy, the defendants on appeal will not benefit from the new policy. Similarly, in Hoff ~we held that the defendant on appeal did not benefit from State v. Gibbons, 740 P.2d 1309, 1312 (Utah 1987), which mandated strict compliance with the rule governing the taking of guilty pleas. 814 P.2d at 1122. We concluded that Gibbons applied only to guilty pleas taken after its issuance. Id. at 1124. Likewise, we consistently limited the benefit of the cautionary instruction on eyewitness identifications that we mandated in State v. Long, 721 P.2d 483, 492 (Utah 1986), to cases tried after its date of issuance. See State v. Griffiths, 752 P.2d 879, 881 n. 3 (Utah 1988); State v. Branch, 743 P.2d 1187, 1190 (Utah 1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1597, 99 L.Ed.2d 911 (1988); State v. Suniville, 741 P.2d 961, 965 (Utah 1987); State v. Jonas, 725 P.2d 1378, 1380 (Utah 1986). We did so because we decided Long under our supervisory powers, despite our concern that a conviction without such an instruction “could well deny the defendant due process of law under article I, section 7 of the Utah Constitution.” Long, 721 P.2d at 492.

We note that in two cases involving constitutional issues, we applied prior hold-mgs to claims pending in the district court and to those on appeal. See State v. Taysom, 886 P.2d 513, 513 n. 3 (Utah 1994) (addressing authority of court commissioners); Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 913-14 (holding that inmates have due process right to review information considered by parole board). However, these cases do not apply here. In Brown, we merely articulated a new cautionary policy under our supervisory powers. We conclude that Gordon does not benefit from the prohibition in Brown since his 1983 trial occurred well before we issued Brown in 1992.

Justice Stewart’s dissent, joined by Justice Durham, states that Brown “implicated a defendant’s Sixth Amendment right to counsel” and that “the issues underlying Brown are of a constitutional nature.” Yet the Brown opinion, authored just three years ago by Justice Durham and joined by Justice Stewart (writing a concurring opinion on another issue), examined the conflict of interest question at length and concluded:

[W]e do not decide whether it is constitutionally impermissible to appoint a city attorney with prosecutorial responsibilities to represent an indigent defendant.... [W]e hold that as a matter of public policy and pursuant to our inherent supervisory power over the courts, as well as our express power to govern the practice of law, counsel with concurrent prosecutorial obligations may not be appointed to defend indigent persons....

Brown, 853 P.2d at 856-57 (emphasis in original). The dissent would now apparently reverse Gordon’s 1983 conviction because of his constitutional right to have trial counsel who did not have concurrent prosecutorial duties, even absent a showing of prejudice. We had the clear opportunity to enunciate such a holding in Brown but expressly refused to do so. We should not do so now.

The dissent relies upon cases in which the conflict of interest arose out of joint representation of multiple defendants, where, for example, one codefendant elected to plead guilty and testify against the other. See State v. Smith, 621 P.2d 697, 699 (Utah 1980). This represents a direct conflict of interest. However, the conflict of interest faced by an appointed defense counsel who also has concurrent prosecutorial duties in another jurisdiction is much more remote. Here, where Gordon was convicted in a trial conducted before we issued Brown, we should require Gordon to show ineffective assistance of his defense counsel.

B. Ineffective Assistance of Counsel

Although Gordon is not entitled to a per se reversal because of his trial counsel’s concurrent prosecutorial duties, he is free to contend, and does contend, that he was denied due process of law and the effective assistance of counsel as a result of his counsel’s representation. To demonstrate that his defense counsel’s assistance was so inadequate as to constitute lack of counsel under the Sixth Amendment, Gordon must show that (1) his counsel’s performance fell below an objective standard of reasonable professional judgment, and (2) he was prejudiced by the deficient performance. State v. Lopez, 886 P.2d 1105, 1113-14 (Utah 1994) (citing Strickland v. Washington, 466 U.S. 668, 690-94, 104 S.Ct. 2052, 2066-68, 80 L.Ed.2d 674 (1984)). These factors are not applied as a mechanical test but are meant to help us answer the ultimate question of whether the “defendant receive[d] a fair trial.” State v. Frame, 723 P.2d 401, 405 (Utah 1986).

Gordon contends that his trial counsel failed to adequately investigate the possibility that the LSD underlying his conviction belonged to another person. At the trial, Frigon asserted that a “Mexican” woman named “Cathy” from West Valley City and three other people whom she had never met came to her apartment at approximately one o’clock the morning Gordon was arrested. Cathy allegedly described some LSD that featured a unicorn design like that on the LSD stamps police recovered from Gordon’s coat pocket. The visitors stayed an hour to an hour and a half. According to Frigon, when she found the bag containing the LSD later that morning, she assumed Cathy had mistakenly left it. Frigon testified that because she was angry with Gordon, she put the LSD in his coat pocket and called the police to have him arrested. Just after Gordon was arrested, Cathy allegedly came back to the apartment to reclaim the drugs. It was not until two days later that Frigon told the police about Cathy. Gordon asserts that his trial counsel failed to investigate whether the LSD belonged to Cathy and the other visitors.

We have held that “a decision not to investigate cannot be considered a tactical decision. It is only after an adequate inquiry has been made that counsel can make a reasonable decision to call or not to call particular witnesses for tactical reasons.” State v. Templin, 805 P.2d 182, 188 (Utah 1990). In Templin, we held that the defendant, convicted of rape, was denied the effective assistance of counsel because his counsel did not contact several potential witnesses named by the defendant. Id. at 187-88. We reversed his conviction after concluding that the witnesses could have bolstered the defendant’s assertion that the victim was a willing partner in the sexual activity, the only issue in contention at trial. Id. at 188-89.

This case is easily distinguishable from Templin because Frigon was unable to identify the persons who were allegedly in her apartment the morning of Gordon’s arrest. She testified that she did not know Cathy’s last name or the names of the other persons. Gordon’s trial counsel cannot be faulted for failing to contact these unidentified witnesses.

Approximately two months after his trial, Gordon filed a motion for a new trial in which he submitted the affidavit of a fellow inmate at the Utah State Prison named Danny Burke. Burke asserted therein that he had been at Frigon’s Brigham City apartment at approximately eleven o’clock the night before Gordon was arrested. He left when Gordon did not return as Frigon expected. According to Burke, it was not until he had returned to Salt Lake City that he realized he had left his bag of LSD at Fri-gon’s apartment. Gordon admitted in his 1994 motion for a new trial that Burke’s testimony “was unavailable at the time of Defendant’s trial.” That being the case, Gordon’s trial counsel again cannot be faulted for failing to contact this witness to testify at trial.

Gordon has failed to demonstrate that his counsel’s performance fell below an objective standard of reasonable professional judgment. Therefore, we do not reach the second prong of the Strickland test, whether Gordon was prejudiced by his counsel’s performance.

C. Motion for a New Trial

Following this court’s September 24, 1993 order remanding for resentencing, Gordon filed a motion for a new trial based upon (1) ineffective assistance of trial counsel because of his appointed defense counsel’s concurrent position as a city prosecutor, and (2) newly discovered evidence, i.e., the testimony of Danny Burke. After a hearing, the trial court denied the motion on the grounds that the case was remanded for the sole purpose of resentencing Gordon and that consideration of the motion was beyond the authority granted to the court. Alternatively, the court also denied the motion on the merits.

Gordon contends that the posteon-vietion motion was properly before the trial court. We disagree. The order expressly “remand[ed] the case to the trial court for resentencing, so that Gordon may raise the issues here presented in a first appeal as of right.” The only effect of the order was to provide Gordon with another opportunity to pursue the direct appeal that he was previously denied. In other words, Gordon’s resentencing merely returned him to the position he was in before his appeal was dismissed. It did not allow him another opportunity to present postconviction motions.

In Hallett, cited in our order remanding for resentencing, the trial court on postcon-viction review determined that the defendant had been denied his right to appeal. Hallett, 856 P.2d at 1061. Rather than merely resen-tencing him so that he could pursue an appeal, the trial court proceeded to consider the merits of the other claims raised in the defendant’s habeas proceeding. Id. at 1062. We held that the trial court erred in doing so because its action was contrary to the well-established principle that postconviction proceedings are not meant to be substitutes for direct appellate review and because it gave the defendant an adjudication on the merits to which he was not entitled. Id. We held:

Once a trial court on habeas review determines that a defendant has been denied the constitutional right to appeal, a direct appeal should be provided immediately, without adjudication of any other claims, such as ineffective assistance of counsel.

Id. (emphasis added). Although in this case it was an appellate court on habeas review which determined that Gordon had been denied his right to appeal, our holding in Hailed, applies here. The trial court correctly determined that it was inappropriate to adjudicate Gordon’s claims of ineffective assistance of counsel and newly discovered evidence.³

We affirm Gordon’s conviction.

ZIMMERMAN, C.J., and RUSSON, J., concur in HOWE’S, J., opinion.

1 . Nunc pro tunc "applie[s] to acts allowed to be done after the time when they should be done ... with the same effect as if regularly done." Black’s Law Dictionary 964 (5th ed. 1979); see also State v. Johnson, 635 P.2d 36, 38 n. 1 (Utah 1981) ("Nunc pro tunc, which means ‘now for then,’ is probably a misnomer for this circumstance, where the court is resentencing to give the judgment of conviction not retroactive but present effect — 'then for now.’ ").

2 . No affidavit of Mr. Burke was attached to the motion, and there is no copy of it in the record.

3 . In State v. Rawlings, 829 P.2d 150, 154 (Utah Ct.App.1992), the court of appeals stated, “When resentencing takes place to allow a first appeal of right, as set forth in Johnson, this should not rule out the procedural possibility that post-conviction motions may be appropriately heard in the sentencing court.” Insofar as Rawlings departs from our analysis here and in Hallett, it is disavowed.