Burke v. State , 342 P.3d 299 ( 2015 )

2015 UT App 1_________________________________________________________
THE UTAH COURT OF APPEALS
RYAN DAVID BURKE,
Petitioner and Appellee,
v.
STATE OF UTAH,
Respondent and Appellant.
Opinion
No. 20130575-CA
Filed January 2, 2015
Third District Court, Salt Lake Department
The Honorable Paul G. Maughan
No. 120906001
Sean D. Reyes and Mark C. Field, Attorneys
for Appellant
Denver C. Snuffer Jr., Steven R. Paul, Daniel B.
Garriott, and Tahnee L. Hamilton, Attorneys
for Appellee
JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGE
MICHELE M. CHRISTIANSEN and SENIOR JUDGE PAMELA T.
GREENWOOD concurred.1
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah R.
Jud. Admin. 11-201(6).
Burke v. State
PEARCE, Judge:
¶1 A jury convicted Ryan David Burke of aggravated abuse
of a child, forcible sexual abuse, and dealing in material harmful
to a minor. This court affirmed those convictions on direct
appeal. Burke thereafter retained new counsel and filed a
petition for relief under the Post-Conviction Remedies Act,
alleging that his prior counsel’s performance fell below a
constitutionally adequate standard. Specifically, Burke averred
that his trial counsel failed to investigate a potential alibi
defense. The district court agreed and granted the petition. The
State appeals, contending that because the evidence did not
suggest the potential existence of an alibi defense, the district
court erred in determining that counsel performed deficiently by
deciding not to further investigate. The State also contends that
counsel’s decision was reasonable because of the prejudicial
nature of some of the evidence supporting the alibi defense. We
conclude that because counsel’s actions were not objectively
deficient, the district court erred in determining that counsel’s
performance was constitutionally ineffective. Accordingly, we
reverse the district court’s grant of Burke’s petition.
BACKGROUND
¶2 Burke attended a high school reunion on September 15,
2007, with an acquaintance (Father) he had known since middle
school. Burke left his car at Father’s house because Father had
agreed to give him a ride to and from the reunion. Father’s plans
changed and he chose to stay the night at the reunion venue. In
the early morning of September 16, Burke rode back to Father’s
house with other acquaintances.
¶3 At the house, Father’s twenty-year-old sister (Aunt) was
babysitting Father’s four-year-old child (Child). When Burke
arrived, Aunt told him he could sleep on a couch downstairs and
returned to her homework. Burke interrupted Aunt’s studies by
20130575-CA 2 2015 UT App 1Burke v. State
asking first for something to eat, then for instructions on how to
use the cable television, and finally for Aunt to keep him
company. While Burke and Aunt were sitting on the couch and
talking, Burke suddenly put both hands up Aunt’s shirt and
groped her. Aunt pulled Burke’s hands away and fled upstairs.
She then locked herself and Child in the master bedroom and
texted Father’s wife (her sister-in-law) to tell her what had
happened.
¶4 Burke stayed in the basement and ordered pornographic
movies through the cable television service at 1:30, 3:00, 3:30,
and 8:20 a.m. At some point during the night, Child awoke and
went downstairs. She recounted that Burke was watching ‚a
grownup movie‛ that included oral sex scenes. During one of
the movies, Burke held Child’s hand and forced her to touch his
penis.
¶5 The next morning, Aunt awoke and realized Child was
not in the master bedroom. As she called out Child’s name,
Burke came upstairs with Child on his shoulders. Aunt took
Child and told Burke to leave the house. Burke left but took
Father’s checkbook and passport with him. Burke then drove to
a grocery store and cashed three of Father’s checks. The store
time-stamped the first check at 9:18 a.m.
¶6 The State charged Burke with three sexual offenses and
six forgery offenses. Burke’s trial counsel filed a ‚Motion to
Trifurcate‛ seeking to separate the charges into three trials.
Counsel argued that combining the sexual offenses against
Child, the sexual offense against Aunt, and the forgery offenses
would violate Burke’s right to a fair trial because it was unlikely
that a single jury could separate and ‚give a fair and
dispassionate consideration to the evidence‛ of each offense.
(Citation and internal quotation marks omitted.) The State
responded that the charges should not be severed, because they
were ‚all part of a common scheme or a plan.‛ The district court
ordered separate trials of the sexual offense charges and the
20130575-CA 3 2015 UT App 1Burke v. State
forgery charges. The State then filed an amended information
containing only the three sexual offense charges.2 Accordingly,
no evidence was presented at trial regarding the checks.
¶7 The State presented testimony from numerous people,
including Child, Aunt, Father, Father’s wife, a detective who had
interviewed Child, and a police investigator. Burke’s trial
counsel introduced testimony from a child psychologist. Burke
did not testify.
¶8 Child testified that Burke had forced her to touch his
penis while watching a pornographic movie. Father testified that
Child had told him that Burke asked her to touch his penis
because he had an ‚owie.‛3 On redirect, the State elicited
testimony from the investigator that the fourth movie Burke had
ordered (the Fourth Movie) contained a scene in which ‚an adult
male [was] struck over the head with, like, a cane‛ (the Head-
Hitting Scene). The State then introduced the transcript of
Child’s pretrial interview. In that interview, Child reported that
Burke had been watching a pornographic movie, that the movie
included scenes of oral sex, that he forced her to touch his penis,
and that it was ‚*n+ight outside‛ when he did so. Child also
described what may have been a scene in one of the movies:
Child: And he watching a grown up movie with
me.
Detective: Where were you when it happened?
2. The record before us does not reveal whether the State
pursued the forgery charges.
3. On direct appeal, this court held that the district court had
properly admitted Father’s testimony as non-hearsay under rule
801(d)(1)(B) of the Utah Rules of Evidence. State v. Burke, 2011
UT App 168, ¶¶ 52–57, 256 P.3d 1102.
20130575-CA 4 2015 UT App 1Burke v. State
Child: In the house.
Detective: In your house? Where in your house?
Child: Downstairs and he was watching on the
movies, and, and, and, and it’s downstairs when he
(INAUDIBLE) daddy’s show and, and, and he
watching and, and, and (INAUDIBLE).
Detective: And what? I couldn't understand you.
Child: (INAUDIBLE) drops.
Detective: It dropped?
Child: Um-hmm (Affirmative).
Detective: What dropped?
Child: The ball on his head.
Detective: The ball dropped on his head?
Child: Um-hmm (Affirmative) cause they put it on
his head.
Detective: You did? Yeh.
In closing argument, the State connected Child’s description of a
ball being dropped on a man’s head to the Head-Hitting Scene:
In the [interview, Child] talks about a guy being hit
on the head with a ball or something like that. And
you heard—and also that Burke tells her he has an
owie. You heard from [the investigator] that in the
very beginning of [the Fourth Movie] there is a guy
there with a bandage on his head, a wound on his
head, and he’s getting hit on the head. Do I know
for sure if that’s the movie *Child+ saw? I don’t
know which movie she saw. But it wouldn’t be that
far of a leap to think that Burke said ‚Oh look. This
guy has an owie. I have an owie, kiss is [sic] it
better.‛
¶9 Burke’s defense focused on Child’s credibility. During his
cross-examination of Child, Burke’s counsel asked her if she
could recall a sequence of events related to the investigation.
After Child agreed that each event occurred, counsel revealed
20130575-CA 5 2015 UT App 1Burke v. State
that the events were fictitious. Counsel then asked Child if she
had ‚made that up‛ and if she ‚like*d+ to tell stories.‛ Child
answered affirmatively to both questions. Counsel also called a
child psychologist as an expert witness. The psychologist
explained that young children’s memories are often
reconstructed during their retellings. He testified that
reconstructed memories could more easily be contaminated due
to a variety of factors and that children might therefore recount
events that did not actually happen. In his closing argument,
counsel highlighted such ‚memory contamination‛ and noted
children’s susceptibility to adopting new desires and memories
that adults express in front of them. Counsel then showed
portions of Child’s interview transcript and pointed out sections
where Child had contradicted herself, made up a phone number,
admitted that she had made up the phone number, agreed that a
statement was true simply because the interviewer had stated it,
and denied that Burke had forced her to touch his penis.
¶10 Counsel also pointed out that the Head-Hitting Scene was
part of the Fourth Movie, that the Fourth Movie was ordered at
8:20 a.m., and that the evidence showed Burke had left the house
by 8:30 a.m. Burke’s trial counsel asserted that, as a result, the
sexual offenses against Child could only have occurred within
that ten-minute window. Counsel used this to further
undermine Child’s credibility by explaining that because the sun
rose that day at 7:09 a.m., Child’s interview statement that the
abuse occurred at night ‚conflicts with what we have on the
hard evidence.‛
¶11 The jury convicted Burke on all of the sexual offense
charges. We affirmed those convictions on direct appeal.4 Burke
then filed a petition for relief pursuant to the Post-Conviction
4. See generally State v. Burke, 2011 UT App 168, 256 P.3d 1102.
20130575-CA 6 2015 UT App 1Burke v. State
Remedies Act (the PCRA).5 Burke’s petition stated eleven
grounds for relief. Only one is pertinent to this appeal—that his
trial counsel was constitutionally ineffective for failing ‚to
investigate potential exculpatory evidence of Mr. Burke’s
whereabouts when the crime was committed. Specifically, Mr.
Burke could not have committed the crimes because he was at
[the grocery store] at the time the witnesses testified the crimes
occurred.‛
¶12 In an affidavit attached to Burke’s petition, trial counsel
stated that he had incorrectly assumed that the forged checks
had been cashed at a nearby branch of a grocery store rather
than at a different branch farther away. Burke contended that his
trial counsel should have determined in which grocery store
Burke had cashed the stolen checks. Burke argued that had
counsel done so, counsel would have discovered a potential alibi
defense: given the time required to travel from the house to the
more distant grocery store, Burke could not have been present at
both the house when the Head-Hitting Scene played and at the
grocery store when the first check was cashed.
¶13 Burke’s petition included an affidavit from his
investigator. The investigator watched the Fourth Movie and
determined that the Head-Hitting Scene did not occur until
thirty-four minutes into the movie. Because the Fourth Movie
had been ordered at 8:20 a.m., Burke asserted that the scene
could not have aired before 8:54 a.m. Burke further noted that
the timestamp on the first check was 9:18 a.m. Thus, he would
have had no more than twenty-four minutes to travel from the
house to the grocery store. Burke retained a traffic engineer who
calculated the travel time necessary to get from the house to the
5. See generally Utah Code Ann. §§ 78B-9-101 to -405 (LexisNexis
2012).
20130575-CA 7 2015 UT App 1Burke v. State
grocery store as thirty-one minutes.6 The traffic engineer’s report
concluded that ‚in order for Ryan Burke to conduct a sales
transaction at [the grocery store] at 9:18 a.m. on Sunday,
September 16, 2007, he would have left [the house] no later than
8:47 a.m.‛7 Burke argues that, because the scene Child may have
described would not have been played until 8:54 a.m., this
evidence established an alibi.
¶14 The State responded to Burke’s petition by noting Child’s
testimony which suggested that scenes of oral sex were playing
at the time of the abuse. The State asserted that such scenes
could be found in any of the four movies Burke admitted
ordering. The State also pointed to testimony that the ordered
movies were ‚on demand‛ and could have been fast-forwarded.
Thus, the State argued, even if the abuse occurred while the
Head-Hitting Scene was playing, that scene could have been
played at any time after 8:20 a.m. Lastly, the State claimed that
presenting this defense to the jury would have required Burke to
disclose that he had stolen Father’s checkbook and written
checks from it. Burke had previously moved to have the sexual
offense charges and the forgery charges tried separately, on the
ground that evidence of the forgeries ‚would stigmatize the
6. The traffic engineer’s tests occurred at the same time of day on
the same day of the week as Burke’s trip and assumed that
Burke would have obeyed all posted speed limits. The traffic
engineer’s routes also included a stop at a gas station where one
of Father’s checks was cashed. However, the record does not
indicate the time of day that particular check was cashed,
whether it was cashed by Burke, or whether it was cashed before
or after Burke’s visit to the grocery store.
7. In the same report, the traffic engineer also concluded that if
Burke had taken the shortest route, he would have had to leave
the house ‚no later than between 8:47 and 8:50 a.m.‛
20130575-CA 8 2015 UT App 1Burke v. State
defendant and thus make it questionable that the jury would
give a fair and dispassionate consideration to the evidence‛ of
the sexual offenses. (Citation and internal quotation marks
omitted.) The State argued that ‚*t+rial counsel does not perform
deficiently for not investigating and presenting evidence which
would be harmful to *Burke’s+ case and for which counsel had a
legitimate strategic reason not to present.‛
¶15 The district court ‚agree*d+ with the State that the
evidence regarding the forged checks [was] not necessarily
exculpatory‛ but ruled that trial counsel’s performance had been
deficient for ‚failing to make an adequate inquiry into the facts
regarding Mr. Burke’s alleged whereabouts . . . before making a
decision as to whether to introduce that evidence at trial.‛ The
district court relied on our supreme court’s conclusion in State v.
Lenkart that ‚trial counsel should [make] an adequate inquiry
into the facts and available evidence in the case before making a
reasonable decision on how to proceed.‛ 2011 UT 27, ¶ 36, 262
P.3d 1 (internal quotation marks omitted). The district court also
concluded that because the error ‚clearly altered the entire
evidentiary picture,‛ the error was prejudicial. Accordingly, the
district court granted Burke relief in the form of a new trial. The
State appeals.
ISSUES AND STANDARDS OF REVIEW
¶16 To establish that a defendant received ineffective
assistance of counsel, the defendant must demonstrate that
counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984); Lafferty v. State, 2007 UT 73, ¶ 10, 175 P.3d
530. The State first contends that, because the trial and post-
conviction evidence do not support the existence of an alibi
defense, Burke’s counsel could not have performed deficiently
by failing to investigate it. The State also contends that, because
a legitimate reason existed for not presenting the forgery
20130575-CA 9 2015 UT App 1Burke v. State
evidence to the jury, Burke’s counsel could have reasonably
decided to forgo investigation of that evidence. Thus, according
to the State, counsel’s performance was not objectively deficient,
and the district court erred in determining Burke received
constitutionally ineffective assistance of counsel.
¶17 These contentions concern the district court’s resolution
of the legal and factual questions involved in an ineffective-
assistance-of-counsel claim; we review the district court’s purely
factual findings for clear error and its application of the law to
those facts for correctness. Carter v. State, 2012 UT 69, ¶ 9, 289
P.3d 542.
ANALYSIS
I
¶18 We begin by considering whether the district court erred
in determining that Burke’s trial counsel rendered
constitutionally ineffective assistance by failing to investigate the
possibility of an alibi defense. The State contends that counsel’s
performance was not objectively deficient, because counsel’s
decision not to investigate further was reasonable given the
information he then possessed. ‚To establish that counsel was
deficient, a petitioner must overcome the strong presumption
that counsel rendered constitutionally sufficient assistance, by
showing that counsel’s conduct ‘fell below an objective standard
of reasonableness’ under prevailing professional norms.‛
Lafferty, 2007 UT 73, ¶ 12 (citation omitted) (quoting Strickland,
466 U.S. at 688). Burke responds that ‚*f+ailure to investigate
cannot be a defense strategy‛ and that ‚*i+t is instead an
abdication of duty.‛ Burke relies on State v. Lenkart, in which our
supreme court held that a defense attorney’s failure to
investigate physical evidence in a rape case constituted
objectively deficient performance. See 2011 UT 27, ¶¶ 28, 35, 262
P.3d 1.
20130575-CA 10 2015 UT App 1Burke v. State
¶19 The district court also relied on Lenkart, citing it for the
proposition that ‚trial counsel should have made an ‘adequate
inquiry’ into the facts and available evidence in the case before
making a reasonable decision on how to proceed.‛ Id. ¶ 36. The
district court then ruled that trial counsel’s performance was
objectively deficient because once Burke ‚communicated to his
trial counsel that he had a potential alibi placing him some miles
away from the home at the time the alleged crimes were
committed, at the very least his counsel had the duty to
investigate the facts surrounding *Burke’s+ purported alibi to
determine whether to introduce that information at trial.‛
¶20 However, Lenkart does not establish a per se rule that an
attorney’s failure to investigate always constitutes deficient
performance. ‚The Sixth Amendment *to the United States
Constitution] does not require counsel to . . . fully investigate
every potential lead.‛ Menzies v. State, 2014 UT 40, ¶ 183
(emphasis in original). ‚[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.‛ Strickland, 466 U.S. at
691; Menzies, 2014 UT 40, ¶ 183. ‚*S+trategic choices made after
less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation.‛ Strickland, 466 U.S. at 690–91; see
also State v. Montoya, 2004 UT 5, ¶ 24, 84 P.3d 1183 (‚Although
failure to investigate may, in some cases, satisfy the [deficient-
performance element] of the Strickland test, it is within counsel’s
discretion to make reasonable decisions regarding the extent to
which particular investigations are necessary.‛). ‚An attorney
can avoid activities that appear distractive from more important
duties‛ and is ‚entitled to . . . balance limited resources in accord
with effective trial tactics and strategies.‛ Harrington v. Richter,
131 S. Ct. 770, 789 (2011) (citation and internal quotation marks
omitted).
¶21 In order to ‚eliminate the distorting effects of hindsight,‛
our examination of an attorney’s tactical decisions must
20130575-CA 11 2015 UT App 1Burke v. State
‚evaluate the conduct from counsel’s perspective at the time.‛
See Strickland, 466 U.S. at 689. Therefore, to determine the
reasonableness of an investigation, ‚we look to the information
available to trial counsel‛ at the time the decision was made.
Taylor v. State, 2007 UT 12, ¶¶ 48–49, 156 P.3d 739. Here, we
must determine whether trial counsel’s decision not to further
investigate the possibility of an alibi defense was objectively
reasonable in light of the information counsel then possessed.
¶22 Burke’s trial counsel filed an affidavit in support of
Burke’s PCRA petition. Counsel stated therein that during his
initial meetings with Burke, Burke claimed not to have been at
the house during the early morning of September 16, 2007,
because he had gone to the gas station and forged a check to pay
for gas. Counsel admitted that he had not checked the time-
stamp on the check. Counsel further admitted that because he
did not consider the route Burke had taken from the house to the
grocery store exculpatory, he did not investigate it. Finally,
counsel stated that he had believed that these items ‚had
nothing to do with the sexual offense charges‛ and had therefore
assumed that they were not worth looking into after the State
filed the amended information charging Burke with only the
sexual offenses.8
8. ‚After an adverse verdict at trial even the most experienced
counsel may find it difficult to resist asking whether a different
strategy might have been better, and, in the course of that
reflection, to magnify their own responsibility for an unfavorable
outcome.‛ Harrington v. Richter, 131 S. Ct. 770, 790 (2011).
‚Strickland, however, calls for an inquiry into the objective
reasonableness of counsel’s performance, not counsel’s
subjective state of mind.‛ Id.20130575-CA 12 2015 UT App 1Burke v. State
¶23 At the time counsel decided to not investigate further the
possibility of an alibi defense, he was aware that Burke had been
dropped off at Father’s house around 1:30 a.m. and that the
Fourth Movie was ordered at 8:20 a.m. As a result, the possible
alibi could only have exonerated Burke for acts committed after
8:20 a.m. at the earliest, leaving a more-than-six-hour window
for Burke to have committed the sexual offenses.9 Furthermore,
there was at least some evidence that the offenses against Child
had occurred before 8:20 a.m.: the sun had risen at 7:09 a.m. that
day, and Child had stated at her pretrial interview that the abuse
had occurred while it was still night outside. Child’s pretrial
interview did not expressly tie the time of her abuse to any
particular scene or movie. And the State’s attempt to bolster
Child’s trial testimony by theorizing that the Head-Hitting Scene
provided the impetus for the abuse did not arise until closing
argument.10 Thus, the information possessed by counsel at the
9. Consequently, this alibi would not have countered Aunt’s
allegations that Burke had groped her before she went to bed—
the basis for the forcible sexual abuse charge.
10. We note that there will be occasions when a prosecution
argument on a point is sufficiently likely that defense counsel
should anticipate and prepare for it and that failure to do so
could constitute deficient performance. But here, we cannot say
that the State’s attempt in closing argument to link Child’s abuse
to the Head-Hitting Scene should have been reasonably
anticipated. Child described two scenes during her pretrial
interview—one of oral sex and one of a ball dropping on a man’s
head—neither of which closely resembles the Head-Hitting
Scene’s depiction of a man being hit on the head with ‚a bamboo
stick or a cane.‛ Moreover, Child did not claim to have been
abused during any particular scene. Failure to anticipate that the
State would make this tenuous connection during closing
(continued...)
20130575-CA 13 2015 UT App 1Burke v. State
time of his decision suggested that an alibi for his whereabouts
after 8:20 a.m. would be of limited utility.
¶24 Counsel’s decision must also be considered in light of the
potential for the alibi evidence to prejudice Burke’s defense. An
alibi defense could have opened the door to the introduction of
evidence that Burke had stolen checks from the house and
cashed them after forging Father’s signature. According to
counsel, this evidence was ‚highly prejudicial‛ and ‚unduly
prejudic*ial+‛ to Burke’s constitutional right to a ‚fundamentally
fair trial.‛ Indeed, counsel sought to sever the charges against
Burke specifically to avoid the danger that prejudice from the
forgery evidence would spill over and taint the jury’s ability to
‚give a fair and dispassionate consideration to the evidence‛ of
the sexual offenses. (Citation and internal quotation marks
omitted.)
¶25 The question facing counsel, then, was whether to spend
time and resources investigating a potential alibi that could place
Burke away from the scene of the sexual offenses for only the
last hour of a nearly seven-hour period and that, if presented at
trial, may have opened the door to the admission of the ‚highly
prejudicial‛ evidence of Burke’s forgeries. We cannot say that, in
light of such a risk, an attorney’s decision to forgo further
investigation of a possible alibi for a relatively small portion of
the relevant time period constitutes objectively deficient
performance.
¶26 The district court determined that Burke’s trial counsel
had performed deficiently because ‚at the very least *Burke’s+
counsel had the duty to investigate the facts surrounding his
purported alibi.‛ However, as noted above, ‚*c+ounsel has a
argument at trial cannot be the basis for a finding of objectively
deficient performance during pretrial investigations.
20130575-CA 14 2015 UT App 1Burke v. State
duty only to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.‛
Menzies v. State, 2014 UT 40, ¶ 183 (emphasis added) (citations
and internal quotation marks omitted). Given the information
trial counsel possessed here—including the limited time the alibi
could account for and the potentially prejudicial nature of the
evidence supporting that partial alibi—we will not second-guess
counsel’s decision to forgo further investigation of the alibi. See
Strickland v. Washington, 466 U.S. 668, 689 (1984) (‚*I+t is all too
easy . . . , examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.‛). We conclude that counsel’s
decision therefore did not fall ‚below an objective standard of
reasonableness.‛ See id. at 688. Consequently, the district court’s
determination that Burke’s trial counsel performed deficiently
by failing to further investigate was erroneous.11
11. The apparent strength of the ultimately unsuccessful defense
strategy Burke’s counsel presented underscores the
reasonableness of his pretrial decision not to further investigate
the alibi. At the time counsel made that decision, he had
evidence supporting a credibility defense. For example, the
transcript of Child’s interview contained several inconsistencies:
Child first stated that Burke had forced her to touch his penis but
then denied it, and Child was told not to make up information if
she did not know the answer but then immediately made up a
phone number in response to a test question. Even if counsel had
fully investigated the alibi and uncovered all of the information
Burke appended to his PCRA petition, a subsequent decision to
eschew the alibi defense would have been objectively
reasonable.
20130575-CA 15 2015 UT App 1Burke v. State
II
¶27 The State also contends that the evidence presented at
trial and in post-conviction proceedings would not support an
alibi defense. The State asserts that, in order to find that a
potential alibi defense existed, the district court had to make
four assumptions: (1) that the scene Child described in her
testimony was the Head-Hitting Scene, (2) that any abuse
occurred during or after that scene, (3) that the scene could not
have played before 8:54 a.m., and (4) that Burke had to have left
the house no later than 8:50 a.m. in order to forge a check at the
grocery store at 9:18 a.m. The State argues that ‚[e]ach of these
assumptions is unsupported by the trial and post-conviction
evidence.‛ Given our conclusion that trial counsel’s performance
was not objectively deficient, we need not address whether the
district court clearly erred in implicitly finding that evidence
supported these assumptions.
¶28 Even assuming without deciding that evidence was or
could properly have been adduced to support these
assumptions, the State’s arguments illuminate the problems
counsel would have faced in presenting an alibi defense. First, in
Child’s pretrial interview, she described a scene in which a ball
dropped on a man’s head. The proponent of an alibi defense
would have had to convince the jury that this description could
only refer to the Head-Hitting Scene in which a man was hit on
the head with ‚a bamboo stick or a cane.‛ Second, trial counsel
would have had to present evidence that the abuse had occurred
during the Head-Hitting Scene in the Fourth Movie. But Child
did not link the time of the abuse to any particular scene in any
of the movies. Third, trial counsel would have had to argue that,
once ordered, the Fourth Movie was not fast-forwarded.
However, a cable company representative testified that the
movie could be fast-forwarded. And fourth, trial counsel would
have had to convince a jury that Burke could not have reached
the grocery store in less than twenty-four minutes. See supra ¶ 12
& n.6. While it is true that the shortest drive time recorded by
20130575-CA 16 2015 UT App 1Burke v. State
Burke’s traffic engineer was twenty-seven minutes and forty-
three seconds, the engineer’s calculations assumed that Burke
would have driven no faster than the posted speed limits, that
Burke spent one minute walking to his car, that Burke stopped at
an intermediate gas station for five-and-a-half minutes, and that
Burke took three-and-three-quarter minutes to make his
purchase at the grocery store. The apparent weaknesses of the
links in this chain buttress the conclusion that Burke’s attorney’s
decision not to further investigate this alibi defense was
objectively reasonable.
CONCLUSION
¶29 ‚There are countless ways to provide effective assistance
in any given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.‛
Strickland, 466 U.S. at 689. We conclude that trial counsel’s
performance here did not fall below an objective standard of
reasonableness, because the information counsel possessed at the
time he decided not to further investigate the alibi indicated that
the alibi pertained to only a fraction of the relevant time period
and could have opened the door to the introduction of
prejudicial evidence. Consequently, the district court erred in
determining that counsel’s performance was objectively deficient
and that Burke received ineffective assistance of counsel.
¶30 Reversed.
20130575-CA 17 2015 UT App 1