Taylor v. State

156 P.3d 739

2007 UT 12

Von Lester TAYLOR, Plaintiff and Appellant, v. STATE of Utah, Defendant and Appellee.

No. 20040262.

Supreme Court of Utah.

January 26, 2007.

Rehearing Denied March 27, 2007.

Richard P. Mauro, Salt Lake City, for plaintiff.

Mark L. Shurtleff, Att'y Gen., Thomas Brunker, Erin Riley, Asst. Att'ys Gen., Salt Lake City, for defendant.

DURHAM, Chief Justice:

INTRODUCTION

¶ 1 This case comes before us as an appeal from the district court's summary judgment order denying death row inmate Von Lester Taylor's petition for relief under the Post-Conviction Remedies Act (PCRA). Taylor argues that he is entitled to post-conviction relief primarily because he received ineffective assistance of counsel from both his trial and appellate counsel. Specifically, he argues that appellate counsel was ineffective for failing to (1) challenge Taylor's guilty plea; (2) conduct a mitigation investigation or challenge trial counsel's failure to investigate and present mitigation evidence; (3) challenge the jury instructions; (4) challenge the voir dire procedure; (5) challenge trial counsel's behavior during jury selection; (6) challenge the trial court's failure to order competency hearings; (7) challenge the admission of hearsay evidence at sentencing; (8) raise a claim of prosecutorial misconduct; and (9) raise various constitutional challenges to his death sentence. We address each of Taylor's claims in turn and ultimately affirm the district court's order of summary judgment.

BACKGROUND

¶ 2 In December 1990, Taylor escaped from a halfway house where he was housed while on parole following a prison term for aggravated burglary. Thereafter, Taylor and an accomplice, Edward Steven Deli, broke into the Tiede family cabin while the family was away. When Mrs. Kay Tiede returned to the cabin with her daughter, Linae Tiede, and her mother, Beth Potts, Taylor and Deli ordered them upstairs, tied them up, and killed Kay Tiede and Beth Potts. During the shooting, Linae started praying, but Taylor told her to stop because he was a "Devil worshiper." Taylor and Deli then told Linae to pack a suitcase so she could leave with them.

¶ 3 Mr. Rolf Tiede and his daughter Ticia Tiede returned to the cabin shortly after the shootings. Upon their arrival, Taylor ordered them into the garage, told Rolf Tiede to remove his clothing, and stole $105 dollars from his wallet. Although Rolf Tiede complied with all of Taylor's orders, Taylor shot him. After being shot, Rolf Tiede played dead, but Taylor returned and shot him in the head at point blank range, doused him in gasoline, and lit the cabin on fire. Taylor and Deli then fled the cabin with Linae and Ticia as hostages, stole Rolf Tiede's car, and led police on a high speed chase with the girls in the car before finally being caught and arrested. Rolf Tiede survived the ordeal.

¶ 4 After Taylor's arrest, Elliot Levine (trial counsel) was appointed as his defense attorney. Taylor eventually pled guilty to two counts of criminal homicide for the murders of Kaye Tiede and Beth Potts in exchange for the State's agreement to drop the remaining charges. The case proceeded to the penalty phase in May 1991. The jurors unanimously sentenced Taylor to death. In addition, the jurors unanimously found that the State had proven, beyond a reasonable doubt, that Taylor had committed the aggravating crimes of (1) attempted criminal homicide; (2) aggravated arson; (3) aggravated kidnaping; (4) aggravated robbery; (5) theft; (6) failure to respond to an officer's signal; and (7) possession of a firearm by a person on parole. A month after being sentenced, Taylor filed a motion to withdraw his guilty plea. The trial court denied the motion.

¶ 5 In October 1991, Taylor, through trial counsel, filed a notice of appeal with this court. Thereafter, Taylor fired his trial counsel, and the district court appointed Bruce Savage (appellate counsel) to represent Taylor. Appellate counsel filed a motion under rule 23B of the Utah Rules of Appellate Procedure with this court to remand to the district court for fact finding regarding Taylor's ineffective assistance of counsel claim. This court granted the motion.

¶ 6 The rule 23B hearing was held in May 1995. At the hearing, appellate counsel argued that trial counsel had provided ineffective assistance of counsel because (1) trial counsel's closing argument reflected his personal theory that the role of defense counsel was to encourage a defendant to admit his wrongdoing; (2) trial counsel advised Taylor that the evidence of the dismissed charges would not be raised in the penalty phase, and Taylor relied on this advice when pleading guilty; and (3) trial counsel's compensation from the State was so inadequate that he was not able to devote the necessary time and effort to this case or conduct an adequate mitigation investigation, thereby creating a conflict between his personal financial interests and Taylor's interests.

¶ 7 The 23B court rejected Taylor's claims for ineffective assistance of counsel. Specifically, the court found that (1) trial counsel's closing argument did not reflect his personal belief, but was a strategic move designed to gain the jury's sympathy; (2) trial counsel did not advise Taylor that no evidence of the dismissed charges would be raised at the penalty phase; and (3) trial counsel's meager compensation, alone, was insufficient to support a claim for ineffective assistance of counsel. In addition to the above findings, the district court noted that even if trial counsel had been ineffective for failing to conduct an adequate mitigation investigation, Taylor had not demonstrated prejudice because he could not show a "reasonable probability" that the jury would have reached a different outcome if trial counsel had not committed the alleged errors.

¶ 8 Taylor, who continued to be represented by appellate counsel, appealed to this court. In State v. Taylor (Taylor I), 947 P.2d 681 (Utah 1997), we affirmed the 23B court's findings, holding that (1) the court did not err in finding that trial counsel had not misinformed Taylor about the scope of the penalty phase, id. at 685-86; (2) the court did not err in concluding that trial counsel "did not actually believe a defense attorney should help his client admit to his wrongdoing," id. at 686; (3) Taylor's inadequate compensation claims "failed to demonstrate an actual conflict of interest," id. at 688; and (4) Taylor "failed to identify deficiencies in [trial counsel's] performance," particularly in his closing argument, that "had any apparent effect on the outcome of his penalty trial," id.

¶ 9 After this court decided Taylor I, the district court appointed Richard Mauro to represent Taylor pursuant to the PCRA. Mauro filed a petition for relief under the PCRA in February 1999. After the parties resolved a variety of procedural and expense matters, the petition was amended in May 2002. The amended petition contained twenty-five grounds for relief.

¶ 10 In response to Taylor's petition, the State moved for summary judgment. Specifically, the State argued that Taylor's claims were procedurally barred and that appellate counsel had not overlooked any obvious claims that probably would have resulted in a reversal. In his response to the State's motion, Taylor filed the affidavits of a licensed psychologist, the director of the Salt Lake Legal Defender Association, and a paralegal trained in investigating capital cases.

¶ 11 The post-conviction court granted the State's motion for summary judgment. It recognized that each of Taylor's "claims ha[d] been raised in support of [Taylor's] more general assertion that he received ineffective assistance of both trial and appellate counsel." The court held that all ineffective assistance of trial counsel claims were procedurally barred because they "ha[d] been or could have been brought by [Taylor] through appellate counsel at the time of the 23(b) [sic] remand hearing." Thus, the court concluded, Taylor's ineffective assistance of trial counsel claims "only [needed to] be assessed in the context of ineffective assistance of appellate counsel." The court then proceeded to "review [Taylor's claims] against a standard of whether appellate counsel failed to raise an issue which was obvious from the record and which, if raised, would probably have resulted in a reversal."

¶ 12 After the post-conviction court granted the State's motion, Taylor appealed to this court. We have jurisdiction pursuant to Utah Code section 78-2-2(i) (2002).

STANDARD OF REVIEW

¶ 13 "`We review an appeal from an order dismissing or denying a petition for post-conviction relief for correctness without deference to the lower court's conclusions of law.'" Gardner v. Galetka, 2004 UT 42, ¶ 7, 94 P.3d 263 (quoting Rudolph v. Galetka, 2002 UT 7, ¶ 4, 43 P.3d 467). When confronted with ineffective assistance of counsel claims, we review a lower court's purely factual findings for clear error, but review the application of the law to the facts for correctness. Menzies v. Galetka, 2006 UT 81, ¶ 58, 150 P.3d 480.

ANALYSIS

¶ 14 Under the PCRA, Utah Code Ann. §§ 78-35a-101 to -304 (2002 & Supp. 2006), a person "convicted and sentenced for a criminal offense may file an action in the district court . . . to vacate or modify the conviction or sentence." Id. § 78-35a-104(1) (2002). Post-conviction relief is a collateral attack on a conviction or sentence; it is not a substitute for appellate review. Carter v. Galetka (Carter III), 2001 UT 96, ¶ 6, 44 P.3d 626. A defendant is not eligible for post-conviction relief on any ground that was raised on appeal or that could have been raised on appeal. Utah Code Ann. § 78-35a-106 (2002). Thus, on an appeal from a post-conviction order, this court will only address the merits of claims that could not have been raised prior to the post-conviction proceeding below or claims that, due to the gravity of a death sentence, need to be...