State v. Bullock , 119 Utah Adv. Rep. 33 ( 1989 )

ZIMMERMAN, Justice:

(concurring).

I fully concur in the Chief Justice’s opinion. My concurrence with the majority, however, should not be read as a rejection of all the points made so forcefully by Justice Stewart in his dissent. In some particulars, I agree with his assessment of the admissibility of the evidence. However, I cannot agree that any of this warrants our reaching the merits.

Trial counsel consciously chose a strategy that differs from that which appellate counsel thinks might have succeeded below and which Justice Stewart states would have resulted in the exclusion of virtually all of the State’s evidence. However, there is certainly no assurance that the trial court, or a majority of this Court, would accept the proposition advanced by appellate counsel and by Justice Stewart that the children were so tainted by Barbara Snow’s activities that they could never take the stand. Absent the acceptance of that proposition, one cannot say that trial counsel's trial strategy was wrong, much less that it was incompetent. If trial counsel had chosen a different strategy and had succeeded in excluding the testimony of Barbara Snow and the videotapes of the children, he would still have faced the live testimony of several of the children. It is difficult to conclude that, tactically speaking, having the children testify live in the absence of Snow would have been better for the defense than having the children appear by videotape and focusing the whole trial on Snow and the manner in which the State’s case was prepared.

The very subtlety and complexity of such judgments argue strongly for not considering the merits of challenges to conscious steps taken to implement them. For this reason, we should adhere to the principle that underlies the ineffective assistance of counsel standard of Strickland and the invited error exception to the plain error and manifest injustice rules — parties must generally abide by conscious choices they and their counsel make during trial. Justice Stewart has not shown why that principle does not apply here.