State v. Pierce

State v. Pierce

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Terrance Edward Pierce,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030319-CA
 

F I L E D
(April 14, 2005)
 

2005 UT App 172

 

-----

Second District, Farmington Department

The Honorable Glen R. Dawson

Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant

Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee

-----

Before Judges Bench, Greenwood, and Thorne.

THORNE, Judge:

    Terrance Pierce challenges his convictions by jury on three counts of aggravated sexual abuse of a child, each a first degree felony. See Utah Code Ann. § 76-5-404.1 (2003). Pierce alleges ineffective assistance of trial counsel arising from counsel's failure to request a jury instruction concerning the reliability of polygraph evidence that was admitted at trial by stipulation. We affirm.

    "To show ineffective assistance of counsel, 'a defendant must show (1) that counsel's performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel's deficient performance there is a reasonable probability that the outcome of the trial would have been different.'" Wickham v. Galetka, 2002 UT 72,¶19, 61 P.3d 978 (quoting State v. Smith, 909 P.2d 236, 243 (Utah 1995)). Pierce fails to satisfy either of these requirements.

    In evaluating the objective reasonableness of counsel's performance, we "indulge in the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Myers v. State, 2004 UT 31,¶20, 94 P.3d 211 (quotations and citation omitted). We will not second-guess trial counsel so long as "the challenged action might be considered sound trial strategy." Id. (quotations and citation omitted). Here, Pierce agreed to submit to a polygraph test upon the stipulation that the results would be admissible.(1) The polygraph examiner concluded that Pierce was deceptive during the test when he denied the acts charged. Pierce's counsel cross-examined the polygraph examiner on the reliability of the test results, and the jury was instructed that the examiner's testimony was not conclusive and was to be given only the weight that the jury felt it deserved. The prosecutor, in both his opening and closing statements, asked the jury not to convict Pierce solely on the polygraph results, but to consider those results only in the context of the other evidence. Under these circumstances, Pierce's counsel could have reasonably decided not to call further attention to the polygraph results by seeking an instruction specifically addressing them. Such a decision "might be considered sound trial strategy," id. (quotations and citation omitted), and thus, Pierce has not shown that his trial counsel's performance was objectively unreasonable.

    While we need not address the prejudice element, we note that the same factors that justify counsel's decision not to request an instruction suggest that the result of the trial would not have changed had an instruction been given. We also note that the other evidence against Pierce, including the victim's testimony and medical corroboration of the alleged abuse, was more than adequate to support the jury's verdict. Under the circumstances of this case as a whole, there is no "reasonable probability that the result would have been different absent the deficient performance" alleged by Pierce. State v. Bloomfield, 2003 UT App 3,¶8, 63 P.3d 110 (quoting State v. Finlayson, 956 P.2d 283, 293 (Utah Ct. App. 1998)).

    For the reasons stated herein, Pierce has failed to establish that his counsel was ineffective in failing to request a jury instruction on the reliability of polygraph evidence. Accordingly, his convictions are affirmed.

______________________________

William A. Thorne Jr., Judge

-----

WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

Pamela T. Greenwood, Judge

1. We note that admission of polygraph evidence upon stipulation in criminal trials is permitted only with certain safeguards to protect defendants from unfair prejudice:

The defendant's participation in the examination must be free and voluntary, and the trial court must have the discretion to exclude the evidence if it finds that the examiner was not qualified or that the conditions under which the test was given were unfair. The defendant must be allowed to cross-examine the examiner as to his expertise, the reliability of polygraph exams, the accuracy of the apparatus used, and all other points that bear on the accuracy of the polygraph in the particular case and in general. In addition, the jury should be instructed that the examiner's testimony as to the results of the test is not conclusive, but is to be taken only as expert opinion.

State v. Rebeterano, 681 P.2d 1265, 1268 (Utah 1984). Conspicuously absent from this list is any requirement that the jury be specifically instructed as to polygraph reliability.