State v. Bleazard

State v. Bleazard

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Blake Bleazard,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030402-CA
 

F I L E D
(October 7, 2004)
 

2004 UT App 351

 

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Third District, Salt Lake Department

The Honorable Dennis M. Fuchs

Attorneys: Gregory G. Skordas and Jack M. Morgan, Salt Lake City, for Appellant

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Orme.

BILLINGS, Presiding Judge:

    Defendant Blake Bleazard appeals his conviction of rape, a first degree felony. See Utah Code Ann. § 76-5-402 (1999). We reverse.

    At trial, the sole issue was whether the sexual intercourse was consensual. On appeal, Defendant argues that he received ineffective assistance of counsel. All criminal defendants have a right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate ineffective assistance of counsel, "the defendant must show that counsel's performance was deficient," and "that the deficient performance prejudiced the defense." Id. Counsel's performance is measured by "an objective standard of reasonableness," id. at 688, and the resulting prejudice is measured by whether there would have been a reasonable probability of a different result "sufficient to undermine confidence in the outcome." Id. at 694.

    Defendant argues that trial counsel's failure to present testimony from two potential witnesses--James and Brandy Lefler (the Leflers)--at trial constituted ineffective assistance of counsel.(1) Defendant's trial counsel subpoenaed the Leflers, but failed to provide adequate notice to the State as required by rule 16(d) of the Utah Rules of Criminal Procedure. On this basis, the trial court refused to permit these witnesses to testify at trial. Failure to provide adequate notice clearly constitutes deficient performance on the part of Defendant's trial counsel, and thus the issue is whether the absence of their testimony was prejudicial.

    The Leflers were prepared to testify that the victim had falsely accused James Lefler of rape eight years earlier. This testimony would have been admissible to attack the credibility of the victim under rule 608 of the Utah Rules of Evidence; because the outcome of the trial crucially hinged upon whether the jury believed the victim's version of events, such testimony would have been important to Defendant's defense at trial.

    Defendant's trial counsel made an additional error. Defendant moved to exclude a videotape of Defendant's police interview because it was highly prejudicial and its only relevance was to show that Defendant had intercourse with the victim, a fact to which Defendant had stipulated. Even if the Defendant's stipulation did not strip the videotape evidence of its relevance, see State v. Bishop, 753 P.2d 439, 475 (Utah 1988), the trial court considered the question of whether the videotape's probative value was substantially outweighed by the danger of unfair prejudice to be a close call. See Utah R. Evid. 403.

    While the trial court concluded that the videotape was admissible, it directed Defendant's counsel to prepare a cautionary instruction to mitigate the prejudicial effect of inflammatory comments on the videotape. Implicit in the trial court's direction to counsel is a recognition that the videotape testimony, absent a cautionary instruction, was likely overly prejudicial. Trial counsel's failure to prepare the instruction in these circumstances constituted deficient performance.

    Trial counsel's failure to provide the cautionary instruction, coupled with the absence of the Leflers' testimony, resulted in prejudice sufficient to undermine our confidence in the jury's verdict. Thus, Defendant did not receive effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-94 (1984).

    We therefore reverse Defendant's conviction.

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Judith M. Billings,

Presiding Judge

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I CONCUR:

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James Z. Davis, Judge

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ORME, Judge (concurring in the result):

    I agree with my colleagues that the conviction should be reversed and the case remanded for a new trial. I believe, however, that the pivotal error is more fundamental than a mere failure to propound a cautionary instruction. In my view, even if the videotape was admissible as substantive evidence and even if it had some marginal probative value notwithstanding Defendant's consistent acknowledgment that he had consensual sex with his friend, this minimal value was so thoroughly outweighed by the "danger of unfair prejudice" that it was error for the court to have admitted it. Utah R. Evid. 403. I believe our decision to reverse the conviction should be premised on this basis.

    I wish also to register a cautionary note for any retrial which might ensue on remand. It should not be assumed that the main opinion represents "law of the case" to the effect that the videotape may properly be admitted as substantive evidence, so long as an appropriate cautionary instruction is given. On the contrary, this court has not validated the trial court's conclusion that Defendant's stipulation did not render the videotape irrelevant. On the contrary, the majority engages in "[e]ven if" analysis in treating the relevance question. In short, while it is clear form the main opinion that even if the videotape may properly be admitted, defendant is entitled to a cautionary instruction, it is not clear that the videotape actually is admissible. On retrial, the State would be well-advised, if it feels the need to again introduce the videotape, to be much more focused in explaining the rationale for such admission in a case where Defendant chose not to testify, as is his right, while simultaneously acknowledging that he had sex with his friend, albeit consensual sex, and nothing in his videotaped statement is to the contrary.

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Gregory K. Orme, Judge

1. Defendant also claims that trial counsel made the same error for four additional witnesses; however, given our disposition of this appeal, we need not address Defendant's additional claims.