State v. Tyler , 209 Utah Adv. Rep. 67 ( 1993 )

HOWE, Associate Chief Justice

(dissenting).

I dissent. I would dismiss the appeal because the appellate record is insufficient for us to fairly determine whether defendant was denied effective assistance of counsel.

Following the jury’s verdict, defendant moved for a new trial on the ground of ineffective assistance of counsel. The trial court denied the motion without a hearing. Defendant has appealed on the assumption that the record on appeal is adequate for us to determine that issue. However, deficiencies in the record leave me unable to make that determination.

For example, defendant contends that his first counsel was deficient in not seeking a prompt independent investigation of the origin and cause of the fire. His third counsel did obtain the appointment of a special investigator, but that was not until three and one-half months after the fire. We do not know to what extent that investigation was hampered by the delay. It does appear that because the fire scene had been cleaned and the damage caused by the fire repaired, the special investigator was limited to reviewing the investigation and report made by the fire department. However, the special investigator has not been deposed or had the opportunity to testify regarding any limitation he worked under. It appears to me that when a defendant contends that a fire originated differently than the fire department investigator has reported, an independent investigation may well be warranted. It is no answer to state, as does the majority, that defendant has not demonstrated that an earlier investigation would have aided him. Of course, defendant cannot show that. No one knows what, if anything, a timely independent investigation might have revealed. Under these circumstances, obtaining the fire department’s report, while helpful, may not have been sufficient to protect defendant’s interests.

Additionally, the record does not reflect if the first and second counsel interviewed any witnesses other than defendant. At trial there was contradictory testimony whether Ms. Tyler had called the police to report a fire, a disturbance, or both. A tape was made of the call to the police dispatcher that would have clarified that issue, but it was erased before defendant’s third attorney subpoenaed it. This was important because Ms. Tyler’s neighbor, from whose home she called the police, testified that Ms. Tyler called the police to report a fire. If true, that fact would tend to corroborate defendant’s position that Ms. Tyler set the fire and then blamed him.

Finally, there were fingerprints on the can of accelerant that was used, but they were not defendant’s prints. No investigation was made to determine whose prints they were.

The paucity of the record leaves too many questions unanswered for me to join the majority, which largely relies on assumptions made from the lack of evidence. I would dismiss the appeal without prejudice and allow defendant to collaterally attack his conviction under rule 65B, Utah Rules of Civil Procedure. An evidentiary hearing can then be held to determine the adequacy of defendant’s representation.

STEWART, J., concurs in the dissenting opinion of HOWE, Associate C.J.