State v. Heil

State v. Heil

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Jeffrey Alan Heil,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020738-CA
 

F I L E D
(March 10, 2005)
 

2005 UT App 117

 

-----

Fifth District, Cedar City Department

The Honorable Robert T. Braithwaite

Attorneys: Jeffrey T. Colemere, Murray, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

-----

Before Judges Bench, Greenwood, and Orme.

BENCH, Associate Presiding Judge:

    Defendant Jeffery Heil appeals the trial court's denial of his motion for a new trial from a conviction of aggravated assault, a second degree felony. See Utah Code Ann. § 76-5-103 (2003). First, Heil contends that a new trial should be granted because the trial court committed plain error by allowing Dr. Declore's unsigned, out-of-court statement into evidence. On appeal, he asserts that the statement is inadmissible hearsay and that the admittance of the statement violated his fundamental constitutional right to confront and cross-examine an adverse witness. At trial, however, defense counsel agreed to have Dr. Declore's statement read to the jury, and did not object when the court confirmed the stipulation in open court. Heil's plain error argument is therefore precluded by the invited error doctrine. See State v. Hall, 946 P.2d 712, 716 (Utah Ct. App. 1997).

    Second, Heil asserts a new trial should be granted because defense counsel rendered ineffective assistance. An ineffective assistance claim is a "mixed question of law and fact," and this court "defer[s] to the trial court's findings of fact, but review[s] its legal conclusions for correctness." State v. Classon, 935 P.2d 524, 531 (Utah Ct. App. 1997). "To establish an ineffective assistance of counsel claim, defendant must show, first, that counsel rendered a deficient performance that fell below an objective standard of reasonable professional judgment, and second, that counsel's deficient performance prejudiced defendant." State v. Villarreal, 857 P.2d 949, 954 (Utah Ct. App. 1993), aff'd, 889 P.2d 419 (Utah 1995).

    Heil contends that defense counsel failed to adequately investigate by not contacting Dr. Declore prior to trial, and therefore, did not meet the required standard of reasonable professional judgment. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland v. Washington, 466 U.S. 668, 691 (1984). "[W]hen the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether." Id. Based on Heil's representation that Dr. Declore's testimony would be supportive of defendant's self-defense theory, defense counsel made a reasonable decision that further investigation was not necessary.(1)

    Heil also contends that counsel was ineffective by not objecting to Dr. Declore's written statement. This court gives "trial counsel wide latitude in making tactical decisions," including a decision not to object to a particular piece of evidence, "and will not question such decisions unless there is no reasonable basis supporting them." State v. Bloomfield, 2003 UT App 3,¶30, 63 P.3d 110 (quotations and citations omitted). In its opening statement, the defense asserted that Dr. Declore's testimony would support Heil's self-defense claim. Later, defense counsel discovered that the testimony actually would be contrary to his client's case. In an effort to minimize the effect of this testimony, the defense stipulated to the written statement rather than to risk addressing the potentially more harmful live testimony. Defense counsel's choice cannot be questioned because it can be reasonably considered a tactical decision. See id. We conclude that defense counsel's actions in this case did not fall below the standard of reasonable professional judgment. Thus, Heil's claim of ineffective assistance fails.

    Third, Heil claims prosecutorial misconduct where the prosecution submitted and did not disclose on the record that the Iron County Attorney prepared Dr. Declore's statement. This court "will not reverse a trial court's [ruling] on prosecutorial misconduct absent an abuse of discretion." State v. Pritchett, 2003 UT 24,¶10, 69 P.3d 1278 (quotations and citation omitted).

    Though the county attorney prepared the Declore statement, both the prosecution and the defense, after talking via speaker phone to Dr. Declore, stipulated to the statement and agreed that it could be offered to the jury. There was no fraud on the court or fabrication of evidence where both parties agreed that the statement accurately portrayed Dr. Declore's opinion. Heil contends that the prosecution inappropriately offered inadmissible hearsay evidence to the jury by presenting the Declore statement. Where defense counsel strategically stipulated to the statement, it cannot be argued that the prosecution erred in presenting the statement to the jury. Heil did not show that the prosecution called matters to the jurors' attention that "they would not be justified in considering." State v. Tuckett, 2000 UT App 295,¶14, 13 P.3d 1060 (quotations and citations omitted). The trial court therefore did not abuse its discretion in its ruling on the claim of prosecutorial misconduct.

    Accordingly, the judgment of the trial court is affirmed.

______________________________

Russell W. Bench,

Associate Presiding Judge

-----

I CONCUR:

______________________________

Pamela T. Greenwood, Judge

-----

ORME, Judge (dissenting):

    I agree with Heil that defense counsel was remiss for not objecting to the admission of Dr. Declore's written statement and not insisting that Dr. Declore appear pursuant to subpoena and offer his testimony in person. I can conceive of no sound tactical basis for such decisions, and the prejudice is obvious.

    Had Dr. Declore appeared and been subject to live examination, it would have been easy for defense counsel to obtain the concession that even though medical experts would immediately know that Heil's kind of fracture was caused by punching rather than defending, a lay person would not ordinarily have that keen insight.

    Such a concession may well have preserved Heil's credibility in the eyes of the jury. Heil always admitted that he punched the "victim" several times in an effort to resist his attack, while also insisting that the physical encounter began when the "victim" tried to strike him with a tool--a blow that Heil says he fended off with his forearm.

    In the hands of competent counsel, Heil's misunderstanding about which part of the fray resulted in his fracture would have been shown to be no big deal. Thus, Dr. Declore's testimony, properly adduced, would have rehabilitated Heil's credibility rather than destroyed it, as the written statement, in context, did.

    I would reverse the conviction and give Heil a new trial.

______________________________

Gregory K. Orme, Judge

1. Heil's reliance on State v. Templin, 805 P.2d 182 (Utah 1990), is not well founded because defense counsel ultimately contacted Dr. Declore and fully intended to call him to testify. See id. at 187-88.