State of Utah v. Mueller

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State of Utah,
Plaintiff and Appellee,

v.

Jay Dee Mueller,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No.
Case No. 991049-CA

F I L E D
December 7, 2000  2000 UT App 346 -----

Seventh District, Monticello Department
The Honorable Lyle R. Anderson
 

Attorneys:
Kristine M. Rogers, Salt Lake City, for Appellant
Jan Graham and Scott Keith Wilson, Salt Lake City, for Appellee

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Before Judges Jackson, Davis, and Orme.

JACKSON, Associate Presiding Judge:

Mueller argues his trial counsel rendered ineffective assistance by failing to challenge juror Poole for cause and by failing to call the victim's mother as a witness. Our "review of counsel's performance [is] highly deferential," and is constrained by a strong presumption that counsel performed effectively. State v. Bryant, 965 P.2d 539, 542 (Utah Ct. App. 1998). Thus, we will reverse only if there is a "'"lack of any conceivable tactical basis" for counsel's actions.'" Id. (emphasis added) (citations omitted).

We need not speculate as to defense counsel's strategic reasons for not challenging juror Poole for cause, as those reasons are part of the record. Counsel and Mueller both affirmed at trial that they did not think Poole's limited literacy would render him incompetent, noting that his difficulty reading did not mean he lacked common sense. They also affirmed that they wished to proceed to trial, and challenging Poole might force a delay. Thus, counsel consciously decided not to object to juror Poole's being empaneled, and Mueller concurred.

Mueller acknowledges he failed to object, but argues that the error in allowing juror Poole to serve should have been plain to the trial court. However, "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." State v. Crosby, 927 P.2d 638, 644 (Utah 1996) (evaluating claim of plain error).

We also perceive a rational basis for counsel's failure to call the victim's mother as a witness. Mueller's argument was, in effect, that the victim's mother had framed him. Moreover, Mueller and the victim's mother were involved in an acrimonious separation and divorce. Under those circumstances, it would have been risky indeed to call her as a defense witness; doing so would have given her the opportunity to further impugn Mueller before the jury. Thus, we discern a sound tactical basis for counsel's failure to call the victim's mother. See Bryant, 965 P.2d at 542.

Affirmed.
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 

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WE CONCUR:
 

______________________________
James Z. Davis, Judge
 

______________________________
Gregory K. Orme, Judge