Martin v. State

552 P.3d 758

2024 UT App 89

Joshua Dee MARTIN, Appellant,

v.STATE of Utah, Appellee.

No. 20210311-CA

Court of Appeals of Utah.

Filed June 21, 2024

Fourth District Court, Provo Department, The Honorable M. James Brady, No. 180401438

Joshua Dee Martin, Appellant Pro Se

Sean D. Reyes and Mark C. Field, Salt Lake City, Attorneys for Appellee

Judge John D. Luthy authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.

Opinion

LUTHY, Judge:

¶1 Joshua Dee Martin was convicted of sexually abusing his sisters-in-law. His direct appeal to our supreme court was unsuccessful. Following that appeal, Martin filed a petition, and then an amended petition (the Petition), for post-conviction relief in the district court, alleging claims of ineffective assistance of counsel. The district court granted summary judgment against Martin on his ineffective assistance claims and denied the Petition. Martin now appeals the denial of the Petition. Because we conclude as to each of Martin’s ineffective assistance claims that his trial counsel (Trial Counsel) and/or his appellate counsel (Appellate Counsel) performed sufficiently, we affirm the district court’s decision.

BACKGROUND¹

¶2 Martin was charged with four counts of aggravated sexual abuse of a child for sexually abusing his young sisters-in-law, A.L. and N.L. State v. Martin, 2017 UT 63, ¶ 6, 423 P.3d 1254. The charges stemmed from abuse that the girls first reported in October 2012. The girls’ mother (Mother) testified at an evidentiary hearing that she first learned of the abuse when N.L. told her about it during a televised religious conference for the family’s church. In Mother’s words, she and N.L. were alone and "in the middle of [watching] October General Conference on a Sunday afternoon session."² Mother said that she and N.L. were the only ones in the room when N.L. "looked up" and said, "Jesus told me I could tell you the secrets in my heart." N.L. then revealed that Martin, who was then twenty-seven years old, "had been touching her privates." N.L. was eight years old at the time of this disclosure.

¶3 On October 7, 2012, the day of N.L.’s disclosure, Mother gave a written report to the police. In that report, she indicated that on the day of the report, AL. had also revealed allegations of abuse against Martin, including that every time A.L. saw Martin, he would "hug[ ] her and put[ ] [his] hands down [her] pants if no one else [was] there." A.L. was ten years old at the time of this disclosure. The girls’ father (Father) also gave a written report, on or before October 23. In it, he said that Martin had admitted during a phone call that he had inappropriately touched at least one of the girls.

¶4 Both girls were interviewed at the Children’s Justice Center (CJC). The State designated as an expert witness the CJC forensic interviewer who had interviewed A.L. but not N.L. (Expert). Before trial, Trial Counsel filed a motion to exclude Expert’s testimony under rules 403, 608, and 702 of the Utah Rules of Evidence. At a hearing on the motion, Trial Counsel explained her³ argument under each of these rules. "[T]he district court ruled that [Expert] was qualified as an expert on why child victims of sexual abuse often make incomplete initial disclosures and disclose additional details and facts pertaining to their sexual abuse over time." Id. ¶ 10. "The court also allowed [Expert] to testify regarding common behaviors … of children who have been abused." Id. (cleaned up).

¶5 During a jury trial held in July 2015, Expert testified on those subjects. She also, however, impermissibly testified that "from [her] interviews with [A.L. and N.L.], the information that they seemed to say to [her] seemed credible." She then clarified that she "only interviewed one child." Trial Counsel indicated to the court that the bolstering statement was impermissible and asked that it be stricken and a curative instruction be given to the jury. The trial court granted the motion and struck the statement, and it also instructed the jury, "In one answer of [Expert’s] testimony she commented directly on her opinion of the credibility of a particular witness in this case. This was improper and the answer has been stricken from the record. [Expert] is not qualified to give any opinion regarding the credibility of any particular witness in this case."

¶6 AL. and N.L. also testified at trial. N.L. testified that on October 7, 2012, she and A.L. were playing bingo in their living room while watching the General Conference of The Church of Jesus Christ of Latter-day Saints when "Elder Packer[⁴] said that we shouldn’t keep secrets, because our body’s like a temple, and if, you’re keeping bad secrets then you’re hurting your temple." So, she explained, "[she] just decided to tell." According to N.L., Mother "was fixing dinner" in the kitchen at the time and N.L. went there to tell Mother about the abuse. For her part, A.L. testified that she did not recount any specific incidents of abuse to anyone on October 7 and that "the first person" she described her allegations to was one of the CJC interviewers.

¶7 Mother also testified and agreed that N.L.’s disclosure happened during the afternoon session of the conference, but she said that "Elder Scott"⁵ was speaking at the time. She also testified on cross-examination, when asked about her written report to police, that she did not remember A.L. saying that Martin put his hands down her pants every time he saw her when no one else was around.

¶8 Father testified as well. Under cross-examination, he acknowledged that, notwithstanding what he had said in his report to police, Martin had not affirmatively admitted to molesting the girls.

¶9 During closing argument, Trial Counsel discussed topics such as witness "coaching," "inconsistencies in [the girls’] accounts," "the impossibility of [the] allegations," "fabrication," and credibility. Regarding inconsistencies, Trial Counsel said:

[Y]ou’ve heard a lot of testimony regarding the inconsistencies in [A.L.’s and N.L.’s] accounts of what they’re claiming happened with my client [Martin].

There are a lot of minor inconsistencies, and I’m not going to go through all of those with you. You guys have been taking notes. You can rely on your own memories and your own notes regarding those minor inconsistencies, but there are a number of major inconsistencies, or what we believe to be major inconsistencies.

She then described how A.L. had repeatedly changed her descriptions of how many incidents of abuse Martin had perpetuated against her, the order of those incidents, and the details associated with those incidents. She highlighted that many details in A.L.’s narrative had changed over time as A.L. reported them to different sources and then testified at trial. Trial Counsel then discussed inconsistencies in N.L.’s narrative as well. After this, she said, "So these are not minor … inconsistencies. These are major points, major changes in this testimony. We would ask that you consider that as you review the evidence in the case. Now, and again, it’s not mere incomplete or partial disclosures. These are major changes." She then discussed other topics—like "the impossibility of [the] allegations"—that further supported the defense’s theory of "suggestibility, fabrication, [and] coaching."

¶10 The jury convicted Martin on all four charges. See State v. Martin, 2017 UT 63, ¶ 14, 423 P.3d 1254. Martin appealed, and our supreme court affirmed his convictions. See id. ¶ 5. The supreme court determined that Trial Counsel’s "defense strategy at trial was to undermine the credibility of A.L. and N.L.," including "by highlighting inconsistencies in their disclosures and testimony about his sexual abuse." Id. ¶ 8. And the supreme court discussed various inconsistencies that Trial Counsel had highlighted. See id. ¶ 9.

¶11 The supreme court also addressed Martin’s argument that the district court had "made a variety of errors in admitting expert testimony by [Expert]." Id. ¶ 2. As to Martin’s argument that "the district court erred in allowing [Expert] to testify extensively about child memory and recall," id. ¶ 24 (cleaned up), the supreme court determined that this argument was unpreserved, see id. ¶¶ 25–26. But the supreme court also stated that "what Mr. Martin characterizes as [Expert’s] extensive testimony about child memory formation and recall amounted to brief remarks" that did not "call[ ] for expertise in the mechanisms of memory retrieval and recall" but "simply described trends and ten- dencies that were readily observable by a forensic interviewer with [Expert’s] level of training and experience." Id. ¶ 27 (cleaned up). The supreme court concluded, "When her testimony is viewed in context, we do not believe that [Expert] sought to testify to psychological or neuroscientific matters beyond the scope of her expertise." Id.

¶12 The supreme court then tackled Martin’s argument that "the district court should not have allowed [Expert] to testify regarding reasons why children will give differing disclosures of alleged abuse because this testimony was unhelpful, misleading and unfairly prejudicial and invaded the province of the jury." Id. ¶ 28 (cleaned up). It determined that the district court did not abuse its discretion in concluding that Expert’s testimony would be helpful to the jury. See id ¶ 30. It acknowledged that "there are powerful arguments why the expert testimony that the district court allowed in this case—testimony about the typical behaviors of child sex abuse victims and the manner in which they make disclosures about their abuse—should be excluded in particular cases," but it reasoned, "Mr. Martin submitted no meaningful data or other evidence to show the district court that the testimony the district court allowed was prejudicial, unreliable, or unhelpful. Nor has he cited or sought to apply any of the myriad cases directly analyzing this nuanced and challenging...