Bisner v. State

Bisner v. State

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Russell E. Bisner,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030624-CA
 

F I L E D
(November 12, 2004)
 

2004 UT App 406

 

-----

Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: Russell E. Bisner, Gunnison, Appellant Pro Se

Mark L. Shurtleff, Jeffrey S. Gray, and Christopher D. Ballard, Salt Lake City, for Appellee

-----

Before Judges Bench, Greenwood, and Thorne.

GREENWOOD, Judge:

    Petitioner Russell E. Bisner appeals the trial court's dismissal of his petition for post-conviction relief following convictions for murder and aggravated robbery. We affirm.

    Petitioner argues that the trial court improperly granted the State's motion for summary judgment. Specifically, Petitioner asserts that (1) his trial counsel were ineffective, (2) his counsel on appeal were ineffective, (3) a conflict of interest existed between his trial and appellate counsel, and (4) the prosecutor withheld exculpatory evidence.

    "In reviewing a trial court's grant of summary judgment, we give no deference to its conclusions of law. Instead, we review the grant of summary judgment for correctness." Dick Simon Trucking, Inc. v. Utah Tax Comm'n, 2004 UT 11,¶3, 84 P.3d 1197. Furthermore, "[w]hen we review a grant of summary judgment, 'we review the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.'" Id. (citation omitted).

    Turning to Petitioner's first argument of ineffective assistance of trial counsel, Utah law bars post-conviction relief that "could have been but was not raised at trial or on appeal." Utah Code Ann. § 78-35a-106(1)(c) (2003). As Petitioner could have raised this issue on direct appeal, but did not, it is barred. See Carter v. Galetka, 2001 UT 96,¶14, 44 P.3d 626 (holding that a defendant must directly appeal an ineffective assistance of counsel claim absent unusual circumstances).

    Second, Petitioner argues that his appellate counsel were ineffective for not alleging on appeal that his trial counsel were ineffective because they failed to: (1) argue and present evidence supporting a self-defense claim, (2) provide Petitioner with discovery and keep him informed of the defense, (3) impeach State witnesses with their plea agreements, and (4) make known to the jury that the fatal shot ricocheted off the door before hitting the victim.

    To demonstrate ineffective assistance of counsel a defendant must show: (1) "'that his [or her] counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, [(2)] that counsel's performance prejudiced the defendant.'" Carter, 2001 UT 96 at ¶31 (quoting Parsons v. Barnes, 871 P.2d 516, 521 (Utah 1994)) (first alteration in original).

    Regarding Petitioner's claim that trial counsel failed to present evidence about his self-defense argument, deadly force is authorized if a person "reasonably believes that force is necessary to prevent death or serious bodily injury to himself[.]" Utah Code Ann. § 76-2-402(1) (2003) (emphasis added). Given the facts revealed at trial, it was unreasonable for Petitioner to believe that firing an assault weapon at the fleeing victim was necessary to protect himself from serious bodily injury. The victim was driving his truck away from Petitioner, Petitioner had the victim's weapon, and fired that weapon at the victim, striking him in the back of the head. Because Petitioner's self-defense claim had no chance of success, there was no prejudice. See State v. Kelley, 2000 UT 41,¶26, 1 P.3d 546 ("Failure to raise futile objections does not constitute ineffective assistance of counsel.").

    Petitioner's allegation that his trial counsel did not adequately communicate with him also fails for want of prejudice. Petitioner has not demonstrated that better communication with his trial counsel would have altered the outcome of his case.

    Next, Petitioner's claim that his trial counsel were ineffective because they did not impeach witnesses fails because Petitioner's trial counsel did indeed impeach witnesses Chris Lyman, Derek Pearson, Justin Koontz, and Dustin Symes.

    Petitioner's argument that his trial counsel did not present evidence that the fatal shot ricocheted similarly fails because the jury heard testimony from the medical examiner that the fatal shot ricocheted off the truck's doorframe. Therefore, because Petitioner's trial counsel were not ineffective, Petitioner's appellate counsel did not breach their duty by failing to raise an ineffective assistance of trial counsel claim.

    Third, Petitioner asserts that one of his appellate counsel had a conflict of interest because he was friends with Petitioner's trial counsel. "The right to conflict-free representation is guaranteed by the Sixth Amendment." State v. Lovell, 1999 UT 40,¶22, 984 P.2d 382. However, to demonstrate that that right was violated Petitioner must show both an actual conflict and that he was prejudiced by the conflict. See id. Since Petitioner has failed to demonstrate an actual conflict, this claim fails.

    Finally, Petitioner alleges that the prosecutor withheld exculpatory evidence, including a purported gunshot residue test, that would have shown that the victim had fired the rifle. However, even assuming the gunshot residue test was positive, it still does not support Petitioner's self-defense claim. Similarly, evidence of the victim's alleged drug use is not relevant to a theory of self-defense. Therefore, there was no prejudice.

    Accordingly, we affirm the trial court's grant of the State's motion for summary judgment.

______________________________

Pamela T. Greenwood, Judge

-----

WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

William A. Thorne Jr, Judge