State v. Nelson

State v. Nelson

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Ryan D. Nelson,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010753-CA
 

F I L E D
(November 18, 2004)
 

2004 UT App 421

 

-----

Fourth District, Provo Department

The Honorable Gary D. Stott

Attorneys: Margaret P. Lindsay, Orem, and Michael D. Esplin, Provo, for Appellant

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

-----

Before Judges Davis, Jackson, and Thorne.

DAVIS, Judge:

    Defendant Ryan D. Nelson appeals his conviction of forcible sodomy, a first degree felony. We reverse.

    Defendant argues that his trial counsel's failure to file the required statutory notice of alibi, see Utah Code Ann. § 77-14-2 (2003), constituted ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, a defendant must establish that "(1) counsel's performance was deficient below an objective standard of reasonable professional judgment, and (2) counsel's performance prejudiced the defendant." State v. Martinez, 2001 UT 12,¶16, 26 P.3d 203; see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

    It is undisputed that Defendant's trial counsel failed to comply with section 77-14-2 and that, as a result, the trial court did not allow two of Defendant's alibi witnesses to testify at trial. We conclude that this failure constituted performance that "was deficient below an objective standard of reasonable professional judgment." Martinez, 2001 UT 12 at ¶16. Therefore, Defendant has established the first prong of the test for ineffective assistance of counsel.

    To establish the second prong, Defendant must "'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Carter v. Galetka, 2001 UT 96,¶31, 44 P.3d 626 (quoting Strickland, 466 U.S. at 694). The State argues that the testimony of Defendant's two alibi witnesses "could not have affected the outcome of the trial" because those witnesses would have testified about Defendant's whereabouts on a day other than the one when the alleged incident occurred. The State asserts that the alleged incident occurred on the "afternoon of August 3, 2000" and that the two alibi witnesses would have testified about Defendant's whereabouts on August 4, 2000. This argument is without merit and is unsupported by the record.

    The record contains the affidavits of both alibi witnesses, which provide, as the State correctly asserts, that if they had been allowed to testify at trial, both would have testified about Defendant's whereabouts on August 4, 2000. However, the record does not indicate that August 3, 2000 is the only date relevant to the alleged incident. On the contrary, after reviewing the record, it is clear that August 4, 2000 was within the time period the State believed the alleged incident occurred.(1) As such, the testimony of the two alibi witnesses concerning Defendant's whereabouts on August 4, 2000 would have been relevant to Defendant's alibi defense.(2) This is particularly true where the only alibi witness who was allowed to testify at trial--Defendant's father--provided inconsistent testimony and was Defendant's blood relative. The jury may well have assigned more credibility to Defendant's alibi defense had the two additional alibi witnesses been allowed to testify. Moreover, our review of the record indicates that, contrary to the State's assertion, there is not overwhelming evidence of Defendant's guilt. Accordingly, we conclude that "'there is a reasonable probability that, but for counsel's [failure to comply with section 77-14-2], the result of the proceeding would have been different.'" Galetka, 2001 UT 96 at ¶31 (quoting Strickland, 466 U.S. at 694). Therefore, Defendant has established the second prong of the test for ineffective assistance of counsel.

    Defendant has successfully established that he received ineffective assistance of counsel.(3) Therefore, we reverse his conviction and remand for a new trial.

______________________________

James Z. Davis, Judge

-----

WE CONCUR:

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge

1. The information charging Defendant provides that the alleged incident occurred "on or about August 04, 2000." In addition, during the prosecutor's opening statement at trial, he referenced the information and indicated that the alleged incident occurred "[o]n or about August 4 of the year 2000." Further, the instructions to the jury indicated that the alleged incident occurred "[o]n or about August 4, 2000."

2. On remand from our order pursuant to rule 23B of the Utah Rules of Appellate Procedure, the trial court also found that the testimony of the two alibi witnesses "was relevant to the issues presented at trial and to the defense presented by the [D]efendant."

3. Because Defendant's ineffective assistance of counsel claim is dispositive of his appeal, we need not address his remaining arguments. However, we note his argument that the trial court erred by inflexibly applying Utah Code section 77-14-2 to conclude that Defendant's two alibi witnesses could not testify. See Utah Code Ann. § 77-14-2 (2003). Section 77-14-2 provides that if a party fails to comply with its requirements, a trial court has discretion to exclude alibi evidence, but is not required to do so. See id. § 77-14-2(3), (4) (providing that if a party fails to comply with the requirements of section 77-14-2, the court "may exclude evidence offered to establish or rebut alibi," or "for good cause shown, waive the requirements of" section 77-14-2 (emphasis added)); State v. Ortiz, 712 P.2d 218, 219-20 (Utah 1985) (stating that the thrust of section 77-14-2 "is to allow a court, for good cause, to permit alibi testimony that has not been properly noticed," and that "[t]he overriding consideration in evaluating any notice-of-alibi claim must be the avoidance of unfair surprise or prejudice to either party, not an exaltation of technical formalities"). While not clearly apparent from the record, it appears as though the trial court may have failed to exercise any discretion in its application of section 77-14-2. However, it also appears that this failure is intertwined with, and likely the result of, the ineffective assistance Defendant received from his trial counsel. Accordingly, we resolve Defendant's appeal based upon his ineffective assistance of counsel claim.