McCloud v. State ( 2019 )

2019 UT App 35THE UTAH COURT OF APPEALS
LARRY MCCLOUD,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20170148-CA
Filed March 14, 2019
Fourth District Court, Heber Department
The Honorable Donald J. Eyre Jr.
No. 070500212
Andrew Parnes and Brent A. Gold, Attorneys
for Appellant
Sean D. Reyes and Erin Riley, Attorneys for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
APPLEBY, Judge:
¶1 Larry McCloud appeals the denial of his petition for post-
conviction relief. A jury convicted McCloud of several
crimes related to his sexual abuse of his daughter (Victim).
On direct appeal, this court affirmed his convictions.
McCloud then filed a petition for post-conviction relief,
arguing that his trial attorney (Trial Counsel) provided
ineffective assistance by failing to consult expert witnesses
and failing to obtain all of Victim’s medical records before
trial. The post-conviction court determined that McCloud’s
claims of Trial Counsel’s ineffective assistance were procedurally
barred because McCloud could have raised them on direct
McCloud v. State
appeal. McCloud then amended his petition, arguing that his
appellate attorney (Appellate Counsel) rendered ineffective
assistance by failing to raise on appeal his claims of Trial
Counsel’s ineffective assistance. The post-conviction court
dismissed McCloud’s amended petition on the merits,
concluding that Appellate Counsel’s omission of the claims on
appeal did not constitute constitutionally ineffective assistance
of counsel.
¶2 McCloud raises two issues. First, he argues the post-
conviction court erred in determining that his claims of Trial
Counsel’s ineffective assistance were procedurally barred.
Second, he argues that Trial Counsel provided ineffective
assistance by failing to consult expert witnesses and failing to
obtain all of Victim’s medical records before trial. We conclude
that the post-conviction court erred in determining that
McCloud’s claims of ineffective assistance of Trial Counsel were
procedurally barred. But we affirm its denial of McCloud’s
petition for post-conviction relief, concluding that he has not
shown he received constitutionally ineffective assistance from
Trial Counsel.
BACKGROUND
¶3 When Victim was five years old, McCloud forced her to
shower with him and asked her to touch his penis. 1 And on
multiple occasions while Victim was between the ages of seven
1. “Because this case comes before us after a jury verdict, we
recite the facts from the record in the light most favorable to the
jury’s verdict and present conflicting evidence only as necessary
to understand the issues raised on appeal.” Gregg v. State, 2012
UT 32, ¶ 2, 279 P.3d 396 (quotation simplified).
20170148-CA 2 2019 UT App 35McCloud v. State
and ten, McCloud climbed into her bed, opened her legs, and
penetrated her vagina with his tongue. 2
¶4 Victim reported the abuse when she was sixteen. Based
on her allegations, the State charged McCloud with one count of
aggravated sexual abuse of a child—for the shower incident—
and six counts of sodomy upon a child—for the subsequent
incidents. Before trial, McCloud requested that Trial Counsel
retain a false memory expert and a psychosexual profiling
expert. But Trial Counsel did not consult any experts for the
defense.
¶5 The State’s case against McCloud primarily relied on
Victim’s testimony. At trial, she detailed the incidents of abuse
for each count and, for some counts, identified specific dates on
which the incidents occurred. The State did not present expert
testimony.
¶6 As part of the defense, Trial Counsel presented
McCloud’s day planners and calendar notes as well as a
“videotape taken at Christmas” to prove that McCloud and
Victim were not together on some of the dates when the abuse
allegedly occurred. Victim responded to this evidence by saying
that, although she may have been confused about the specific
dates, she was not confused about the abuse itself.
¶7 Further, Trial Counsel elicited testimony that, before
reporting the abuse, Victim told her mother and various
therapists and psychologists about showering with McCloud
when she was young, but she did not report anything
“inappropriate” until she was sixteen. On cross-examination,
2. McCloud and Victim’s mother divorced when Victim was
three years old, and Victim’s mother was awarded custody. The
abuse occurred during Victim’s parent-time with McCloud.
20170148-CA 3 2019 UT App 35McCloud v. State
Victim admitted that, despite meeting “with a number of
different people,” she did not tell anyone “all the details” until
“September or October of 2000.” She specifically mentioned
meeting with a psychiatrist or psychologist in August 2000—just
weeks before reporting the abuse—and said she did not reveal
all “the details” then.
¶8 Trial Counsel also highlighted group therapy sessions in
which Victim could have reported the abuse, and mentioned
Victim’s medical history, including depression, asthma, and a
hospitalization resulting from suicidal feelings. He elicited
testimony describing “deteriorated” relationships between
McCloud and Victim and McCloud and Victim’s mother, and
suggested that reporting the abuse was a way for Victim to “get
back at her father.” In closing argument, Trial Counsel asserted
that Victim was “pushed” into making false allegations by
various people, including her mother.
¶9 After reviewing the evidence and arguments, the jury
convicted McCloud on the count of aggravated sexual abuse of a
child 3 and three of the counts of sodomy upon a child, but
acquitted him of the remaining three counts of sodomy upon a
child.
¶10 After trial, McCloud hired Appellate Counsel to appeal
his convictions. Appellate Counsel raised various claims of
ineffective assistance of counsel, but did not raise claims
regarding Trial Counsel’s failure to consult expert witnesses or
obtain exculpatory evidence, or any other claims that would
3. On direct appeal, because of a statute of limitations issue, this
court “direct[ed] that the conviction of aggravated sexual abuse
of a child be reduced to sexual abuse of a child,” a lesser
included offense. State v. McCloud, 2005 UT App 466, ¶ 1, 126
P.3d 775.
20170148-CA 4 2019 UT App 35McCloud v. State
have required an “extra-record investigation.” Instead, she
limited the appeal to issues that could be determined on the facts
“contained in the record.” She did not consider the “extra-
record” claims to be without merit, but thought McCloud had “a
good appeal already” and could raise “extra-record” issues in a
petition for post-conviction relief. Appellate Counsel knew she
could move to supplement the record on appeal under rule 23B
of the Utah Rules of Appellate Procedure, but believed such a
motion was “permissive and not required.” See Utah R. App. P.
23B. And she did not think failing to file a rule 23B motion
would bar McCloud’s claims for post-conviction relief.
¶11 This court affirmed McCloud’s convictions. State v.
McCloud, 2005 UT App 466, ¶ 1, 126 P.3d 775, cert. denied, 133
P.3d 437 (Utah 2006). Following our decision, McCloud filed a
petition for post-conviction relief, arguing that Trial Counsel
provided ineffective assistance by failing to consult expert
witnesses and failing to obtain all of Victim’s medical records
related to her reporting—or delay in reporting—the abuse. He
asserted that experts could have assisted Trial Counsel’s
investigation of Victim’s allegations and presented helpful
testimony at trial. He also argued that obtaining all of Victim’s
medical records was essential because they highlighted
inconsistencies in her testimony. And he claimed that, but for
Trial Counsel’s errors, a more favorable outcome at trial was
“reasonably probable.”
¶12 The State moved to dismiss the petition, arguing that
McCloud’s claims were procedurally barred under Utah Code
section 78B-9-106(1)(c) because he could have but did not raise
them on direct appeal. It asserted that, even “if claims of
ineffective assistance against [Trial Counsel] required
supplementation [of the record on appeal], [Appellate Counsel]
could have asked the Court of Appeals to remand for an
evidentiary hearing pursuant to rule 23B [of the Utah Rules of
20170148-CA 5 2019 UT App 35McCloud v. State
Appellate Procedure].” Thus, all ineffective assistance claims
“could have and should have been raised on direct appeal.”
¶13 The State asserted that Trial Counsel’s ineffectiveness
could be addressed only in the context of a claim that Appellate
Counsel was ineffective for failing to raise issues on appeal. That
is, McCloud had to show that Appellate Counsel “omitted an
issue which [was] obvious from the trial record,” and “probably
would have resulted in reversal.” (Quotation simplified.)
Essentially, the State argued McCloud was required to show
both that Trial Counsel was ineffective at trial and that Appellate
Counsel was ineffective for failing to raise Trial Counsel’s
ineffectiveness. See Hamblin v. State, 2015 UT App 144, ¶ 11, 352
P.3d 144 (explaining that “we must examine the merits of the
claim of ineffective assistance of trial counsel to determine if
appellate counsel rendered ineffective assistance” by omitting
that claim (quotation simplified)).
¶14 McCloud opposed the motion to dismiss, asserting that
the State’s procedural bar argument “must be rejected.” He said
barring his claims would confuse the role of appellate counsel—
who generally raises ineffectiveness claims only when the trial
record is adequate to permit decision on the issue—with the role
of post-conviction counsel—who generally raises ineffectiveness
claims based on matters not contained in the record. McCloud
acknowledged that rule 23B allows supplementation of the
record upon “a nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true, could support
a determination that counsel was ineffective.” (Quotation
simplified.) But he argued that rule 23B does not require
attorneys to “scrutinize their client’s case for all possible extra-
record claims of ineffective assistance of counsel during the
direct appeal.” Instead, he claimed “the permissive language of
the rule” creates “a procedural means of establishing a record
for” claims of which “counsel is aware.”
20170148-CA 6 2019 UT App 35McCloud v. State
¶15 McCloud noted that arguing Appellate Counsel’s
ineffectiveness would require him to show that the omitted
issues were “obvious from the record.” But rule 23B “provides
the possibility of remand if counsel can make a nonspeculative
allegation of facts not fully appearing in the record.” (Quotation
simplified.) Thus, if “the claim was solely ‘obvious from the
record,’” he argued, “there would be no need to make
application under Rule 23(B).” He concluded that “it is precisely
because claims of ineffective assistance of counsel are often
based on matters not contained in the appellate record that
[post-conviction petitions] are permitted.”
¶16 After reviewing the parties’ arguments, the post-
conviction court concluded that McCloud’s claims were
procedurally barred. It noted that, “‘ineffective assistance of
counsel should be raised on appeal if (1) the trial record is
adequate to permit decision of the issue and (2) [the] defendant
is represented by counsel other than trial counsel.’” (Quoting
State v. Litherland, 2000 UT 76, ¶ 9, 12 P.3d 92.) The court said,
however, that the Utah Supreme Court has “eliminated the first
part of the requirement” as a result of rule 23B and, “so long as
on appeal a defendant is represented by different counsel, an
ineffective assistance claim should (and certainly could) be raised
on appeal.” (Citing Litherland, 2000 UT 76, ¶ 17, and Cramer v.
State, 2006 UT App 492, ¶ 9, 153 P.3d 782.) But the court allowed
McCloud to amend his petition to include a claim for ineffective
assistance of Appellate Counsel.
¶17 After McCloud amended his petition, the court held an
evidentiary hearing to develop the record regarding Appellate
Counsel’s failure to argue that Trial Counsel was ineffective for
not consulting experts. McCloud testified that Trial Counsel
disagreed with his request to retain experts, responding that the
State would simply counter with experts of its own. Instead,
Trial Counsel asked for McCloud’s day planners “to use the
dates and information in them to prove that [Victim] lied.”
20170148-CA 7 2019 UT App 35McCloud v. State
According to McCloud, Trial Counsel “was confident that he
could prove [Victim] was lying” by presenting a video taken at
Christmas, as well as McCloud’s day planners and calendar
notes, even though “there were certain dates on which abuse
was alleged to have occurred regarding which he had no proof
[McCloud] was not with [Victim].” McCloud said that Trial
Counsel thought “if several of [Victim’s] representations (as to
dates) were proved to be false, the rest would be called into
question.”
¶18 McCloud also testified regarding his appeal. He said he
asked Appellate Counsel if he could raise ineffective assistance
of counsel claims based on Trial Counsel’s failure to consult and
call experts and obtain exculpatory evidence. But Appellate
Counsel said “no, . . . they could only appeal what was in the
record, or what took place at trial, and that the other issues could
be raised in post-conviction.” Further, McCloud said that
another attorney, “who had represented him briefly,” also “told
him that these other issues that were not raised on direct appeal
could be raised in post-conviction.”
¶19 Trial Counsel testified regarding his representation of
McCloud. He said he had practiced criminal law for twenty-five
to thirty years. In that time, he had used psychosexual profile
experts and false memory experts and had sometimes consulted
them before trial without calling them at trial. According to his
testimony, “multiple factors” go into his decision to consult or
retain experts, including “[i]nvestigation, the specific facts, the
defense you’re running, the type of case,” and “what you believe
is going to be necessary” to prevail. In McCloud’s case, his
strategy was to show that Victim “was making up a story and
was not accurate in what she was describing.” He said it was a
“he-said/she-said case with what [he] believed was compelling
evidence that would discredit the she-said aspect.” Although he
admitted that consulting experts would not have been
“inconsistent with [his] strategy,” he thought “that in some ways
20170148-CA 8 2019 UT App 35McCloud v. State
it made [his] theory of the case less focused and more diluted.”
And he “made a judgment call that . . . [using experts] might
cloud[] the water.”
¶20 Appellate Counsel testified regarding McCloud’s appeal.
She described rule 23B as “a rule of appellate procedure that is
designed for claims of ineffective assistance of counsel to be
added to the record.” She was “unclear on whether under 23B
the ineffective assistance of counsel claims need to be a little bit
apparent in the record or not.” But at the time of the hearing, she
thought “potential claims of ineffective assistance of counsel,
even those outside the record, must be raised through a 23B
motion on direct appeal.” Accordingly, her new practice was to
conduct “a thorough extra-record investigation and raise[] any
meritorious issues found.” She testified that, had she “believed
McCloud would be barred from raising [his claims] in post-
conviction, she would have conducted a thorough extra-record
investigation and raised any meritorious issues found.” And “[i]f
she were to do it over again, [she] would investigate everything
that [McCloud] told her that had a reasonable chance of
succeeding on a claim of ineffective assistance.”
¶21 A child memory expert reviewed the records of
McCloud’s case and testified regarding how he could have
assisted the defense. He detailed various concepts that would
have been helpful, including “contextual embedding,” “script
memory,” “episodic memories,” “autobiographical memory,”
and “the shape of memories across time.” He said consulting an
expert in McCloud’s case was important because “the allegations
arose in an atmosphere of distrust and hostility between the two
homes of the parents, where there were suspicions of fears and
allegations of maltreatment going back” a number of years. He
described “triggering circumstances” surrounding Victim
reporting the abuse, which should have been investigated as
potential evidence of “motives to disclose and/or manufacture
an allegation for some secondary gain.” As examples of such
20170148-CA 9 2019 UT App 35McCloud v. State
circumstances, he mentioned Victim’s mental state—she would
malinger, or feign illness so as not to go to school—and the fact
that Victim was “medically noncompliant” and “questionably
cooperative in her own case.” He also identified “very strong
chronic stereotyping” of McCloud and repeated questioning of
Victim about potential abuse, which can “confuse the child and
increase the risk that the child will acquiesce and tell the
questioner what he or she thinks that person wants to hear, or
increase the risk that the child will be socialized into
manipulating others by saying inaccurate things.” And he said
“the interviews of [Victim] were not scientifically sound.” For
example, they “seemed to presume that the events had
occurred” and included statements “telling [Victim] she did not
do anything wrong and that it was not her fault,” which “are
value judgments that should not be made in the interview
process.”
¶22 A psychosexual profiling expert testified. He assists
defendants by providing “sexual risk assessments,” which
compare “the individual assessed against normative samples of
what is known to correlate with sexual deviance and/or
increased propensity to commit a sexual crime.” He prepared to
testify by reviewing a “psychosexual evaluation” of McCloud
that was done for purposes of sentencing and then conducting a
“mental status and clinical interview with McCloud in order to
assess whether his behavior was commensurate with the
previous reports.” The expert reported that McCloud “does not
demonstrate characteristics that are commensurate with
someone who has engaged in sexually deviant behavior, . . . or
who has any type of personality disorder that would increase the
risk to have engaged in that behavior or to engage in it in the
future.”
¶23 To develop the record regarding Trial Counsel’s failure to
obtain Victim’s medical records, McCloud sought to subpoena
records of Victim’s treatment with medical and psychiatric care
20170148-CA 10 2019 UT App 35McCloud v. State
providers. The court issued the subpoenas and, after in-camera
review of the records, provided one relevant document to the
parties. That document is a discharge summary of a meeting
between Victim and a doctor that occurred on August 23, 2000—
two weeks before Victim reported the abuse. It provides:
[Victim] has been having flashbacks and
nightmares about previous sexual abuse by her
biological father that occurred between the ages of
6 and 8. At that time it was discovered that he had
been having [Victim] shower with him, and was
washing her in the shower. He also insisted on
sleeping with [Victim]. [Victim] does not remember
him being inappropriate sexually in other ways,
and it is unclear whether this was actually a case of
molestation or a father with extreme boundary
problems. The mother did call the Division of
Family Services at the time, but no charges were
filed.
¶24 After reviewing the evidence and considering the parties’
arguments, the post-conviction court denied McCloud’s petition,
concluding that Appellate Counsel did not provide ineffective
assistance by failing to bring his claims on appeal. In its ruling,
the court noted that McCloud’s claims “by their nature are not
likely to be obvious from the record,” which is “the well-
established standard” of ineffective assistance for omitting issues
on appeal. But it then mentioned rule 23B and expressed
confusion regarding the corresponding responsibility of
“appellate counsel to investigate beyond the record for claims
not fully appearing in the record.”
¶25 The court first addressed Appellate Counsel’s omission of
the expert witness claim. Here, the court did not determine
whether Appellate Counsel’s failure to investigate the claim
constituted deficient performance. Instead, it disposed of the
20170148-CA 11 2019 UT App 35McCloud v. State
issue by determining that any error did not prejudice McCloud’s
appeal because there was “no evidence that the appellate court
would have granted” a rule 23B motion based on Trial Counsel’s
failure to consult expert witnesses. Specifically, the court
determined that Trial Counsel “did not perform deficiently—he
made a strategic decision to focus limited time on theories that
he believed to be likely of success.” And because McCloud could
not show that Trial Counsel performed deficiently, his claim of
ineffective assistance of Appellate Counsel failed for lack of
prejudice.
¶26 The court then addressed Appellate Counsel’s omission of
the claim of Trial Counsel’s failure to obtain all of Victim’s
medical records. Here, the court determined that Appellate
Counsel’s failure to supplement the record amounted to
deficient performance. The court said, “The State does not
address how [rule 23B’s] language may affect the well-
established standard that the claims must be obvious from the
trial record,” but “the Court . . . finds that [Appellate Counsel]
performed deficiently by failing to investigate this claim in a
Rule 23B motion.”
¶27 Ultimately, however, the court determined that Appellate
Counsel’s error did not prejudice McCloud because, on appeal, a
claim that Trial Counsel was ineffective by failing to obtain all of
Victim’s medical records would not have resulted in reversal. In
its analysis, the court first determined that Trial Counsel’s failure
to obtain Victim’s medical records constituted deficient
performance because it was a breach of the duty to investigate
“the underlying facts of the case.” But it concluded that Trial
Counsel’s investigation would have produced only the one
relevant medical record and having that record would not have
created “a reasonable likelihood of a more favorable outcome [at
trial].” (Quotation simplified.)
20170148-CA 12 2019 UT App 35McCloud v. State
¶28 The court explained, “[E]ven though [Trial Counsel] may
not have had the subject record, he apparently knew of its
contents and used that information in his questioning and in his
argument.” Victim’s testimony was “consistent with the newly
disclosed report” and Trial Counsel “appropriately questioned
[Victim] concerning her inconsistency and delay in reporting.”
Thus, Trial Counsel’s “deficient performance did not prejudice
[McCloud].” And because Trial Counsel’s actions did not
prejudice McCloud’s trial, Appellate Counsel’s “deficiency
therefore could not have prejudiced” the appeal.
¶29 After rejecting McCloud’s claims, the post-conviction
court denied McCloud’s petition and dismissed the case.
McCloud appeals.
ISSUES AND STANDARDS OF REVIEW
¶30 McCloud raises two issues on appeal. First, he argues the
post-conviction court erred in determining that his claims of
Trial Counsel’s ineffective assistance were procedurally barred
under section 78B-9-106(1)(c) of the Post-Conviction Remedies
Act (the PCRA). 4 Interpretation of the PCRA is a question of law,
4. The State argues this claim was not properly preserved for
appellate review. We disagree. “An issue is preserved for appeal
when it has been presented to the district court in such a way
that the court has an opportunity to rule on it.” Winward v. State,
2012 UT 85, ¶ 9, 293 P.3d 259 (quotation simplified). After
McCloud filed his post-conviction petition, the State filed a
motion to dismiss, arguing that claims of Trial Counsel’s
ineffectiveness were procedurally barred. McCloud opposed the
State’s motion, arguing that the procedural bar should not apply
in his case. And the post-conviction court ultimately ruled on the
(continued…)
20170148-CA 13 2019 UT App 35McCloud v. State
which we review for correctness without deference to a lower
court’s conclusions. Manning v. State, 2004 UT App 87, ¶ 8, 89
P.3d 196, aff’d on other grounds, 2005 UT 61, 122 P.3d 628.
¶31 Second, McCloud argues the court erred in determining
that Trial Counsel did not provide him with constitutionally
ineffective assistance of counsel. “When confronted with
ineffective assistance of counsel claims, we review a lower
court’s purely factual findings for clear error, but we review the
application of the law to the facts for correctness.” State v.
Momoh, 2018 UT App 180, ¶ 8 (quotation simplified); see also
Landry v. State, 2016 UT App 164, ¶ 22, 380 P.3d 25 (“In
reviewing a ruling on a petition for postconviction relief, we
review the district court’s findings of fact for clear error and its
conclusions of law for correctness.”).
ANALYSIS
I. Procedural Bar
¶32 We first address whether McCloud’s claims of Trial
Counsel’s ineffectiveness are procedurally barred under Utah
Code section 78B-9-106(1)(c). This case concerns the duty of
appellate attorneys to investigate claims of ineffective assistance
of counsel that depend on facts outside the trial record. McCloud
argues that we “must establish clear guidelines” regarding that
duty. We also note that the post-conviction court’s ruling and
Appellate Counsel’s testimony expressed confusion on this
issue, and we think a thorough analysis will be helpful in future
cases. As explained below, we conclude that in a category of
(…continued)
issue. Accordingly, we conclude that this claim was preserved
below and is properly before us on appeal.
20170148-CA 14 2019 UT App 35McCloud v. State
cases—including this case—a petitioner may bring ineffective
assistance of counsel claims in a petition for post-conviction
relief even when they technically could have been raised on
direct appeal. 5
¶33 The PCRA “establishes the sole remedy for any person
who challenges a conviction or sentence for a criminal offense
and who has exhausted all other legal remedies including direct
appeal.” Utah Code Ann. § 78B-9-102(1)(a) (LexisNexis Supp.
2018). Under the PCRA, a post-conviction petitioner may file an
action to vacate or modify his conviction based on ineffective
assistance of counsel. Id. § 78B-9-104(1)(d).
5. McCloud asks us to “address appellate counsel’s
responsibility to root out instances of trial counsel
ineffectiveness” and potentially move for remand under rule
23B. We note the need for guidance on this issue. For example, in
her testimony, Appellate Counsel said she now “believes that
potential claims of ineffective assistance of counsel, even those
outside the record, must be raised through a 23B motion” to
avoid a procedural bar at the post-conviction stage. Her current
practice is to “conduct a thorough extra-record investigation and
raise any meritorious issues found.” We think that, in many
cases, such a thorough extra-record investigation may go beyond
what is required of “objectively reasonable” appellate counsel.
See Ross v. State, 2012 UT 93, ¶ 44, 293 P.3d 345 (explaining that a
petitioner claiming ineffective assistance of appellate counsel
must “show that his counsel was objectively unreasonable in
failing to find arguable issues to appeal”). But Appellate
Counsel’s testimony highlights that a strict interpretation of
Utah Code section 78B-9-106(1)(c) would encourage—even
compel—a reasonable attorney to conduct such an investigation
to avoid barring claims on post-conviction.
20170148-CA 15 2019 UT App 35McCloud v. State
¶34 But “[p]ost-conviction relief is a collateral attack on a
conviction or sentence; it is not a substitute for appellate
review.” Taylor v. State, 2007 UT 12, ¶ 14, 156 P.3d 739.
Accordingly, the PCRA generally bars claims that could have
been but were not raised on direct appeal. Utah Code Ann.
§ 78B-9-106(1)(c).
¶35 “A defendant ‘could have’ raised a claim when he or his
counsel [was] aware of the essential factual basis for asserting
it.” Gordon v. State, 2016 UT App 190, ¶ 29, 382 P.3d 1063(quotation simplified). “Thus, the general rule is that the
procedural bar applies to claims known to a defendant or his
counsel” at the time of the defendant’s appeal. Pinder v. State,
2015 UT 56, ¶ 44, 367 P.3d 968.
¶36 Traditionally, “the general procedural rules applicable to
most issues raised on direct appeal did not always pertain to
claims of trial counsel’s ineffectiveness.” State v. Litherland, 2000
UT 76, ¶ 12, 12 P.3d 92. Prior to the enactment of rule 23B of the
Utah Rules of Appellate Procedure, claims regarding trial
counsel’s “investigation and preparation of a case” were not
barred on post-conviction because the trial record was
insufficient to allow those claims to be “dealt with on direct
appeal.” Hurst v. Cook, 777 P.2d 1029, 1036 n.6 (Utah 1989),
superseded by statute as stated in Pinder v. State, 2015 UT 56, 367
P.3d 968.
¶37 “On appeal, it is the defendant’s obligation to provide
supporting arguments by citation to the record. If an appellant
fails to provide an adequate record on appeal, [the appellate
court] must assume the regularity of the proceedings below.”
Litherland, 2000 UT 76, ¶ 11 (quotation simplified).
“Consequently, a defendant cannot bring an ineffective
assistance of counsel claim on appeal without pointing to
specific instances in the record demonstrating both counsel’s
20170148-CA 16 2019 UT App 35McCloud v. State
deficient performance and the prejudice it caused.” State v.
Griffin, 2015 UT 18, ¶ 16.
¶38 But “counsel’s ineffectiveness may have caused,
exacerbated, or contributed to the record deficiencies, thus
presenting the defendant with a catch-22 unique to claims of
ineffectiveness of trial counsel.” Litherland, 2000 UT 76, ¶ 12.
And because “the record [was] silent regarding counsel’s
conduct,” Griffin, 2015 UT 18, ¶ 16, “the dilemma of an
inadequate record created a regime that tended to channel
ineffectiveness claims into the [post-conviction] arena,”
Litherland, 2000 UT 76, ¶ 13.
¶39 Rule 23B, however, provides “a ready procedural
mechanism” that was “specifically designed to address the
inadequate record dilemma.” Id. ¶ 14. Under rule 23B, “‘[a] party
to an appeal in a criminal case may move the court to remand
the case to the trial court for entry of findings of fact[] necessary
for the appellate court’s determination of a claim of ineffective
assistance of counsel.’” Id. (quoting Utah R. App. P. 23B(a)). “The
motion [is] available only upon a nonspeculative allegation of
facts, not fully appearing in the record on appeal, which, if true,
could support a determination that counsel was ineffective.”
Utah R. App. P. 23B(a).
¶40 The Utah Supreme Court has described the effect of
rule 23B as follows: “where, on direct appeal, [a] defendant
raises a claim that trial counsel was ineffective (and assuming
[the] defendant is represented by different counsel than at trial),
[the] defendant bears the burden of assuring the record is
adequate.” Litherland, 2000 UT 76, ¶ 16. And “[i]f a defendant is
aware of any ‘nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true, could support
a determination that counsel was ineffective,’ [the] defendant
bears the primary obligation and burden of moving for a
temporary remand.” Id. (quoting Utah R. App. P. 23B).
20170148-CA 17 2019 UT App 35McCloud v. State
Essentially, “defendants are no longer presented with the catch-
22” of an inadequate record and “ineffectiveness claims may be
treated in the same manner as other issues on direct appeal.” Id.¶¶ 16–17.
¶41 Thus, appellate attorneys have a duty to investigate
potential ineffective assistance claims that are based on facts
outside the record. See id. ¶ 16. And if an ineffective assistance of
counsel claim could have been raised in a rule 23B motion, the
general rule is that it will be barred on post-conviction. See Todd
v. State, 2016 UT App 232, ¶ 8, 391 P.3d 261 (per curiam) (barring
ineffective assistance claims when the petitioner “failed to
demonstrate any new evidence that was not known to him at the
time he filed his direct appeal”).
¶42 The general rule has various exceptions. For example, “a
petitioner is not procedurally barred from raising claims of
ineffective assistance of counsel if the same counsel represented
the petitioner at trial and on direct appeal.” Johnson v. State, 2011
UT 59, ¶ 11, 267 P.3d 880; see also Berrett v. State, 2018 UT App 55,
¶ 25, 420 P.3d 140 (explaining that “it is unreasonable to expect
an attorney to raise the issue of his own incompetence”
(quotation simplified)). Further, claims that “could and should
have been raised on direct appeal” may be raised in a petition
for post-conviction relief if there are “unusual circumstances
justifying [the petitioner’s] failure to do so.” Carter v. Galetka,
2001 UT 96, ¶ 14, 44 P.3d 626. “Under the unusual circumstances
test, we will address claims that are procedurally barred if the
petitioner can show ‘that there was an obvious injustice or a
substantial and prejudicial denial of a constitutional right.’”
Taylor v. State, 2007 UT 12, ¶ 122, 156 P.3d 739 (quoting Carter,
2001 UT 96, ¶ 15); see also id. ¶ 14 (“[O]n 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
20170148-CA 18 2019 UT App 35McCloud v. State
sentence, need to be addressed to ensure that substantial justice
is done.” (quotation simplified)). 6
¶43 But outside these exceptions, the procedural bar has been
strictly applied. See, e.g., Lafferty v. State, 2007 UT 73, ¶¶ 45, 52,
175 P.3d 530; Lynch v. State, 2017 UT App 86, ¶ 44, 400 P.3d 1047;
Hamblin v. State, 2015 UT App 144, ¶ 10, 352 P.3d 144. And
generally, “a claim that could have been brought on direct
appeal may not be reviewed unless the defendant’s failure to
bring the claim was the result of ineffective assistance of
[appellate] counsel.” Lafferty, 2007 UT 73, ¶ 44; see also Utah Code
Ann. § 78B-9-106(3) (establishing that “a person may be eligible
for relief on a basis that the ground could have been but was not
raised at trial or on appeal, if the failure to raise that ground was
due to ineffective assistance of counsel”); Ross v. State, 2012 UT
93, ¶ 52, 293 P.3d 345 (“[T]he appellate counsel claim is the
gateway to the otherwise procedurally barred trial counsel
claim.”).
¶44 “The standard for evaluating whether appellate counsel is
ineffective is the same Strickland standard used to determine
whether trial counsel is ineffective.” Kell v. State, 2008 UT 62,
¶ 42, 194 P.3d 913 (referring to Strickland v. Washington, 466 U.S.
688 (1984)). To prevail, “a petitioner must prove that appellate
counsel’s representation fell below an objective standard of
reasonable conduct and that the deficient performance
prejudiced him.” Lafferty, 2007 UT 73, ¶ 39 (quotation
simplified).
6. We note that “it is unclear whether the common law unusual
circumstances exception still exists after the 2008 amendments to
the [PCRA].” State v. Griffin, 2016 UT 33, ¶ 21, 384 P.3d 186. But
because McCloud filed his petition in 2007, “the common law
exceptions to the procedural bar are still applicable in this case.”
See Taylor v. State, 2012 UT 5, ¶ 11 n.3, 270 P.3d 471.
20170148-CA 19 2019 UT App 35McCloud v. State
¶45 But the Constitution does not require appellate attorneys
“to raise every nonfrivolous issue on appeal.” Id. ¶ 49 (quotation
simplified). Instead, they may “winnow out weaker claims in
order to focus effectively on those more likely to prevail.” Id.
(quotation simplified). Thus, when a claim of ineffective
assistance of counsel is based on the failure to raise a claim on
appeal, the petitioner “must show that the issue was obvious from
the trial record and probably would have resulted in reversal.” Id.
¶ 39 (emphasis added) (quotation simplified); see also Gregg v.
State, 2012 UT 32, ¶ 46, 279 P.3d 396 (determining appellate
counsel rendered ineffective assistance when “the record clearly
indicated that trial counsel failed to present key facts at trial that
would have likely had an effect on the trial’s outcome”).
¶46 In this case, a strict interpretation of our precedent would
strip McCloud of a remedy. First, under rule 23B, McCloud
“could have” raised claims of ineffective assistance of Trial
Counsel for failing to consult and call experts at trial and failing
to obtain all of Victim’s medical records. Both McCloud and
Appellate Counsel were aware of these potential claims and the
essential factual basis for asserting them. See Pinder, 2015 UT 56,
¶ 44. But Appellate Counsel did not file a rule 23B motion
because the claims were based on facts “outside the record” and
McCloud had “what she believed was a good appeal already.”
¶47 Further, we cannot say Appellate Counsel’s failure to
raise those claims on appeal constituted ineffective assistance
because they were not “obvious from the trial record.” See Gregg,
2012 UT 32, ¶ 44 (quotation simplified); see also, id. ¶ 45
(explaining that, “while appellate counsel is not obligated to
raise every nonfrivolous issue . . . this does not excuse appellate
counsel from ignoring obvious errors that would have
influenced the trial’s outcome”). It was obvious from the record
that Trial Counsel did not present expert testimony as part of the
defense, but the record did not reveal the reasons—or lack
thereof—supporting that decision. Nor did the record suggest
20170148-CA 20 2019 UT App 35McCloud v. State
that “the only reasonable and available defense strategy
require[d] consultation with experts or introduction of expert
evidence.” Harrington v. Richter, 562 U.S. 86, 106 (2011).
¶48 On the contrary, based on the record, it would have been
reasonable for Appellate Counsel to conclude that Trial Counsel
made a reasonable, strategic decision. See id. at 108–09
(explaining that “a competent attorney” could determine expert
testimony “might be harmful to the defense,” “shift attention to
esoteric matters of forensic science, distract the jury from
whether [the defendant] was telling the truth, or transform the
case into a battle of the experts”); see also State v. Hales, 2007 UT
14, ¶ 80, 152 P.3d 321 (determining counsel was ineffective for
not hiring an expert to rebut the State’s expert only because “the
centrality of [the expert’s] medical evidence to the jury’s
determination of [the defendant’s] guilt or innocence made an
expert necessary”); State v. King, 2017 UT App 43, ¶ 24, 392 P.3d
997 (determining after a rule 23B remand that the “election to
forgo expert testimony was sound trial strategy when trial
counsel reasonably determined that the testimony was likely to
be more harmful than helpful”).
¶49 Similarly, nothing in the trial record suggested to
Appellate Counsel that Trial Counsel failed to obtain all of
Victim’s medical records prior to trial. In fact, Trial Counsel
referenced Victim’s medical history at trial; he mentioned Victim
meeting with psychologists and psychiatrists, he referenced her
individual and group therapy sessions, he questioned her
regarding her physical health including past depression and
asthma, and he cited Victim’s hospitalization as a result of her
feeling suicidal. Because the record did not contain “red flags . . .
that should have sparked some [extra-record] investigation by
[A]ppellate [C]ounsel,” the choice not to investigate these claims
and raise them in a rule 23B motion did not constitute ineffective
assistance. See Ross, 2012 UT 93, ¶ 51.
20170148-CA 21 2019 UT App 35McCloud v. State
¶50 Thus, because McCloud technically “could have” raised
these claims on appeal by moving to supplement the record
under rule 23B, our precedent dictates that they should be
barred, and he may only raise claims of Appellate Counsel’s
ineffectiveness for failing to raise them on appeal. See Litherland,
2000 UT 76, ¶¶ 16, 17. But our precedent also establishes that
Appellate Counsel was not ineffective for omitting McCloud’s
claims because they were not “obvious from the trial record.”
Gregg, 2012 UT 32, ¶ 44 (quotation simplified). A strict
interpretation of Utah Code section 78B-9-106(c) therefore would
foreclose any potential remedy for McCloud’s claims. We think
such a result would not only be “an obvious injustice,” see Taylor,
2007 UT 12, ¶ 122 (quotation simplified), but, as McCloud
argues, it would place an undue burden on appellate attorneys
“to root out instances of trial counsel ineffectiveness” to avoid a
procedural bar on post-conviction.
¶51 Accordingly, we conclude that in some cases—
highlighted by the facts of this case—a post-conviction petitioner
may bring ineffective assistance of trial counsel claims even
when they technically could have been raised on direct appeal.
Specifically, claims that could have been raised in a rule 23B
motion will not be barred on post-conviction when, as here, the
record on appeal did not indicate a reasonable probability that
developing those claims would have resulted in reversal. In such
cases, because the record would not lead a reasonable,
competent attorney to develop the claims on appeal, a petitioner
may pursue them in a petition for post-conviction relief. We
therefore agree with McCloud that the post-conviction court
erred in determining that his claims of Trial Counsel’s
ineffectiveness were procedurally barred.
II. Ineffective Assistance of Trial Counsel
¶52 Having determined that McCloud’s claims of Trial
Counsel’s ineffectiveness are not procedurally barred, we
20170148-CA 22 2019 UT App 35McCloud v. State
proceed to address those claims. McCloud argues Trial Counsel
was ineffective for (1) deciding not to consult experts for the
defense, and (2) failing to obtain all of Victim’s medical records.
We reject both arguments. As explained below, we conclude that
Trial Counsel’s decision against using experts did not constitute
deficient performance, and McCloud was not prejudiced by Trial
Counsel’s failure to obtain all of Victim’s medical records.
¶53 The United States Constitution guarantees “the right to
the effective assistance of counsel.” Strickland v. Washington, 466
U.S. 668, 686 (1984) (quotation simplified). “To warrant reversal
of a conviction, a [petitioner] alleging ineffective assistance of
counsel must establish both ‘that counsel’s performance was
deficient’ and that ‘the deficient performance prejudiced the
defense.’” Kell v. State, 2008 UT 62, ¶ 27, 194 P.3d 913 (quoting
Strickland, 466 U.S. at 687). “Because both deficient performance
and resulting prejudice are requisite elements of an ineffective
assistance of counsel claim, a failure to prove either element
defeats the claim.” State v. King, 2017 UT App 43, ¶ 16, 392 P.3d
997 (quotation simplified).
A. Expert Witnesses
¶54 McCloud argues that Trial Counsel was ineffective for
“failing to consult with and use experts” as part of the defense.
We disagree. Trial Counsel’s decision was objectively reasonable
and therefore did not constitute deficient performance.
¶55 “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.” Burke v. State, 2015 UT
App 1, ¶ 18, 342 P.3d 299 (quotation simplified). “Rare are the
situations in which the wide latitude counsel must have in
making tactical decisions will be limited to any one technique or
20170148-CA 23 2019 UT App 35McCloud v. State
approach.” Harrington v. Richter, 562 U.S. 86, 106 (2011)
(quotation simplified).
¶56 “Counsel’s decision to call or not to call an expert witness
is a matter of trial strategy, which will not be questioned and
viewed as ineffective unless there is no reasonable basis for that
decision.” State v. Walker, 2010 UT App 157, ¶ 14, 235 P.3d 766(quotation simplified). But even strategic decisions require an
adequate investigation of “the underlying facts of the case.” State
v. Hales, 2007 UT 14, ¶ 69, 152 P.3d 321 (quotation simplified).
¶57 “The specific facts of a case may require trial counsel to
investigate potential [expert] witnesses to determine whether
such testimony would be appropriate.” Landry v. State, 2016 UT
App 164, ¶ 32, 380 P.3d 25. An investigation also may reveal that
“expert evidence is critical to the [State’s] case,” requiring
counsel “to make a diligent investigation of the forensic evidence
and its potential weaknesses and garner the expertise necessary
to” adequately represent the client. Id. Essentially, investigation
“sets the foundation for counsel’s strategic decisions about how
to build the best defense.” Hales, 2007 UT 14, ¶ 69.
¶58 But counsel is not required “to fully investigate every
potential lead. Rather, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” King, 2017 UT App 43,
¶ 26 (quotation simplified). “Strategic choices made after less
than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support
limitations on investigation.” Id.¶59 Here, Trial Counsel decided against consulting experts in
preparation for trial. Thus, we must determine “whether that
decision could not have been considered sound trial strategy at
the time it was made.” Id. ¶ 17 (quotation simplified). If there
were “plausible tactical reasons” for Trial Counsel’s decision,
20170148-CA 24 2019 UT App 35McCloud v. State
McCloud’s claim fails. Zaragoza v. State, 2017 UT App 215, ¶ 31,
407 P.3d 1122.
¶60 McCloud asserts “there was absolutely no risk to hiring
experts, at least for consultation purposes, and there were
numerous reasons to consult them.” He claims “the record is
undisputed” that Trial Counsel’s decision was based solely on a
“gut feeling,” and argues that “experience alone” cannot excuse
an attorney from his duty to investigate.
¶61 McCloud’s argument misrepresents Trial Counsel’s
actions. After reviewing the record, we conclude that Trial
Counsel conducted an adequate investigation of the case and
made a reasonable decision that consulting experts was
unnecessary. See King, 2017 UT App 43, ¶ 26.
¶62 We agree that some of the experts’ insight was likely
relevant, and potentially helpful, to McCloud’s case. See, e.g.,
State v. Martin, 2017 UT 63, ¶ 30, 423 P.3d 1254 (determining
expert testimony “about why child victims make inconsistent
disclosures would be helpful” in a case of alleged sexual abuse
of a child); State v. Miller, 709 P.2d 350, 353 (Utah 1985)
(determining the same concerning expert testimony of the
“incongruity of [the defendant’s] personality traits with those of
individuals capable of and likely to commit sexual offenses
against children”); Washington v. Schriver, 255 F.3d 45, 57 (2d Cir.
2001) (noting that “[a]n emerging consensus in the case law
relies on scientific studies to conclude that suggestibility and
improper interviewing techniques are serious issues with child
witnesses” (citing cases)). Indeed, a reasonable attorney may
well have concluded that consulting them as part of the defense
was the best option.
¶63 But Trial Counsel’s testimony from the evidentiary
hearing highlights that it also was reasonable to believe
consulting them “would be fruitless” or even “harmful to the
20170148-CA 25 2019 UT App 35McCloud v. State
defense.” Harrington, 562 U.S. at 108. And although Trial
Counsel’s experience guided his decision, we disagree with
McCloud that he relied solely on a “gut feeling.” Trial Counsel
had practiced criminal law for twenty-five to thirty years. In that
time, he had used psychosexual profile experts and false
memory experts and sometimes had consulted them before trial
without calling them at trial. Trial Counsel testified that
“multiple factors” go into his decision to consult or retain
experts, including “[i]nvestigation, the specific facts, the defense
you’re running, the type of case,” and “what you believe is going
to be necessary” to prevail.
¶64 The record shows that, based on various legitimate
considerations, Trial Counsel made a reasonable “judgment call”
against consulting experts in McCloud’s case. See State v. Franco,
2012 UT App 200, ¶ 8, 283 P.3d 1004 (explaining that “[t]he
concept of effective assistance must . . . contemplate the primacy
of counsel’s judgment, based on education, training, and
experience”). First, Trial Counsel thought involving experts
“might cloud[] the water” of the defense. That is, he believed
experts would make his theory of the case “less focused and
more diluted.” This was a reasonable concern. The United States
Supreme Court has noted that expert testimony may “shift
attention to esoteric matters of forensic science, distract the jury
from whether [the defendant is] telling the truth, or transform
the case into a battle of the experts.” Harrington, 562 U.S. at 108–
09.
¶65 Here, for example, the false memory expert mentioned
various concepts he believed were relevant to McCloud’s case,
including “contextual embedding,” “script memory,” “episodic
memories,” “autobiographical memory,” and “the shape of
memories across time.” And the psychosexual profiling expert
said that he compares “the individual assessed against
normative samples of what is known to correlate with sexual
deviance and/or increased propensity to commit a sexual crime.”
20170148-CA 26 2019 UT App 35McCloud v. State
Trial Counsel’s defense theory was that a “young girl was
making up a story and was not accurate in what she was
describing.” At the evidentiary hearing, he said “the more
specific you can be in defending your case, the greater the
likelihood of success, as opposed to a shotgun approach, hoping
the jury will buy one of the things you throw out.” He
considered McCloud’s case a “he-said/she-said case with what
[he] believed was compelling evidence that would discredit the
she-said aspect.” It was reasonable to conclude that focusing on
complex psychological concepts would have been more harmful
than helpful because of their potential to confuse the jury or
simply distract from stronger aspects of the defense. See King,
2017 UT App 43, ¶ 24 (determining that “trial counsel’s election
to forgo expert testimony was sound trial strategy when trial
counsel reasonably determined that the testimony was likely to
be more harmful than helpful to the defense”).
¶66 Presenting expert testimony also “would have increased
the likelihood of the prosecution’s producing its own” expert
testimony, further distracting the jury from evidence that Trial
Counsel believed was stronger and more specific. See Harrington,
562 U.S. at 108. And there was reason to believe that rebuttal
experts could have presented strong evidence to support
Victim’s story. See State v. Bair, 2012 UT App 106, ¶ 47, 275 P.3d
1050 (noting that “testimony that abuse victims often delay
reporting reflects a fact already recognized by Utah Courts—that
delayed discovery and reporting are common in child sexual
abuse cases” (quotation simplified)). Such evidence could have
made “the jurors more likely to convict.” King, 2017 UT App 43,
¶ 24 (quotation simplified). Thus, although the experts’ insight
might possibly have been useful to McCloud’s defense, it was
reasonable for Trial Counsel to “avoid activities that appear[ed]
distractive from more important duties” and spend his time and
resources preparing what he believed was a better strategy.
20170148-CA 27 2019 UT App 35McCloud v. State
Lynch v. State, 2017 UT App 86, ¶ 66, 400 P.3d 1047 (quotation
simplified).
¶67 We note there may have been more of a need to consult
experts if the State planned to present expert testimony of its
own. When expert testimony is a critical part of the State’s case,
a defense attorney may need to retain a rebuttal expert or at least
“make a diligent investigation of the forensic evidence and its
potential weaknesses and garner the expertise necessary to cross
examine the expert.” Landry, 2016 UT App 164, ¶ 32 (quotation
simplified); see also Gersten v. Senkowski, 426 F.3d 588, 612 (2d Cir.
2005) (determining trial counsel was deficient for failing “to
consult or call an expert on the psychology of child sexual abuse,
or to educate himself sufficiently on the scientific issues” when
such an expert was “the key prosecution witness”). But when
experts are not central to the State’s case, such a “diligent
investigation” is less likely necessary. Landry, 2016 UT App 164,
¶ 32. Here, the State did not present expert testimony and there
was no reason for Trial Counsel to think it would. See Hales, 2007
UT 14, ¶ 74 (highlighting that “[t]he State’s presentation of its
case at the preliminary hearing put [the defendant’s] trial
attorneys on notice that [expert testimony] was critical to the
State’s case”).
¶68 Further, Trial Counsel had worked with these specific
types of experts in the past. It was reasonable to rely on previous
consultations to determine whether, given the specifics of
McCloud’s case, a more in-depth investigation was necessary.
See King, 2017 UT App 43, ¶ 28 (determining trial counsel was
not “required to consult an expert to make a reasonable
determination regarding trial strategy” “in light of [her]
familiarity with [the relevant] issues and her previous
consultations”). Even when the State presents expert testimony
of its own, cross-examination conducted by an attorney with
sufficient independent knowledge of the issues will frequently
“be sufficient to expose defects in the expert’s presentation.”
20170148-CA 28 2019 UT App 35McCloud v. State
Harrington, 562 U.S. at 111; see also Landry, 2016 UT App 164, ¶ 34
(determining that, when counsel had “never before worked on
an arson case,” her “prior experience did not independently
provide her with the knowledge necessary to cast doubt on the
State’s case through effective cross-examination”). Given Trial
Counsel’s familiarity with the issues these experts consider,
there is no reason to think he “missed the opportunity to
understand . . . problems with the State’s case and highlight
them for the jury.” Landry, 2016 UT App 164, ¶ 37.
¶69 McCloud’s case depended on Trial Counsel’s ability to
bolster his credibility and undermine Victim’s version of the
story. Under the circumstances, it was entirely reasonable for
Trial Counsel, an experienced defense attorney, to believe he
could achieve that goal without the assistance of experts. See
State v. Walker, 2010 UT App 157, ¶¶ 14, 16, 235 P.3d 766(determining that an expert was “not critical” to explain how
post-traumatic stress disorder “impacted [the defendant’s]
actions” because defense counsel was able to address the issue
through examination of witnesses).
¶70 Indeed, a review of Trial Counsel’s strategy and “overall
performance indicates active and capable advocacy.” Harrington,
562 U.S. at 111. For example, Trial Counsel attempted to
discredit Victim’s allegations by using McCloud’s calendars and
calendar notes as well as a “video taken at Christmas,” which
showed that McCloud and Victim were not together on certain
dates the abuse allegedly occurred. McCloud argues this strategy
was unreasonable because McCloud “did not have a ‘complete’
alibi.” That is, there were a number of counts where it was
undisputed that McCloud and Victim were together. But Trial
Counsel considered this potential downside and concluded “that
if several of [Victim’s] representations (as to dates) were proved
to be false, the rest would be called into question.” He also noted
that an expert-based defense would have had the same
weakness. As he testified, although experts may have been able
20170148-CA 29 2019 UT App 35McCloud v. State
to “raise questions about [Victim’s] testimony,” they “would not
have been able to show conclusively” that the events did not
occur on certain days.
¶71 Further, Trial Counsel effectively cross-examined the
State’s witnesses, including Victim, highlighting inconsistencies
in her testimony and the fact that, despite speaking with various
doctors about McCloud’s behavior, she delayed reporting the
abuse for a number of years. He also elicited testimony of
“deteriorated” relationships between McCloud and Victim and
between McCloud and Victim’s mother, and suggested that
reporting sexual abuse was a way for Victim to “get back at her
father.” And in his arguments to the jury, he asserted that Victim
was “pushed” into making false allegations by various people,
including her mother.
¶72 By not consulting experts, Trial Counsel did not forgo
“the opportunity to pursue a more effective strategy, instead
pursuing theories that were much weaker.” Landry, 2016 UT
App 164, ¶ 38. Indeed, the record shows that Trial Counsel
investigated the facts of the case and developed a reasonable
trial strategy based on that investigation. See Archuleta v. Galetka,
2011 UT 73, ¶ 140, 267 P.3d 232 (“So long as trial strategy
decisions are based on thorough investigation of the law and the
facts relevant to plausible options, they are virtually
unchallengeable.” (quotation simplified)). In Trial Counsel’s
words, he made a “judgment call” that McCloud’s case was
“solid enough” and that involving experts would “cloud[] the
water.” Thus, even if McCloud’s “proposed approach to his
defense might actually have amounted to a better strategy than
the one [Trial Counsel] chose,” Trial Counsel was not ineffective
because there was a “conceivable tactical basis for [his] actions.”
State v. Wright, 2013 UT App 142, ¶ 20, 304 P.3d 887.
¶73 In sum, we conclude Trial Counsel fulfilled his duty to
investigate the facts of the case; and based on that investigation,
20170148-CA 30 2019 UT App 35McCloud v. State
made “a reasonable decision” that consulting experts was
unnecessary. See Strickland, 466 U.S. at 691. Thus, Trial Counsel’s
decision was objectively reasonable and did not constitute
deficient performance. McCloud’s claim of ineffective assistance
consequently fails.
B. Medical Records
¶74 McCloud argues that Trial Counsel provided ineffective
assistance by failing to obtain all of Victim’s medical records. We
reject this claim because McCloud has failed to show prejudice.
See State v. Beckering, 2015 UT App 53, ¶ 29, 346 P.3d 672 (“In the
event it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, we will do so without
analyzing whether counsel’s performance was professionally
unreasonable.” (quotation simplified)).
¶75 To show prejudice, “the [petitioner] bears the burden of
proving that counsel’s errors actually had an adverse effect on
the defense and that there is a reasonable probability that, but
for counsel’s errors, the result of the proceeding would have
been different.” State v. Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082(quotation simplified). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.(quotation simplified).
¶76 After in-camera review of Victim’s medical records, the
post-conviction court provided the parties one paragraph of a
discharge summary of a meeting between Victim and a doctor
on August 23, 2000. McCloud claims this document “provides
significant evidence that just two weeks before her statements to
law enforcement, [Victim] was denying that she had been
abused.” On the contrary, the document says that Victim “has
been having flashbacks and nightmares about previous sexual
abuse by her biological father that occurred between the ages of
6 and 8” and notes McCloud showering with Victim and
20170148-CA 31 2019 UT App 35McCloud v. State
insisting on sleeping with her. Indeed, the document seems to be
affirmative evidence of abuse. And, if presented at trial, it could
have been harmful to McCloud.
¶77 Granted, presenting the document at trial could have
discredited Victim by highlighting her delay in reporting the
abuse and the fact that she did not reveal “all of the details” until
shortly before going to the police. That is, the document states
that Victim “does not remember [McCloud] being inappropriate
in other ways, and it is unclear whether this was actually a case
of molestation or a father with extreme boundary problems.”
¶78 But this evidence merely would have been cumulative of
what was presented to the jury. See State v. King, 2012 UT App
203, ¶ 34, 283 P.3d 980 (determining counsel’s failure to seek
discovery of mental health records was not prejudicial when the
“information [was] merely cumulative of the evidence presented
to the jury”). On cross-examination, Victim testified that, despite
meeting “with a number of different people,” she did not tell
anyone “all the details” until “September or October of 2000.”
And she specifically mentioned meeting with a psychiatrist in
August 2000—referencing the meeting from the relevant
document—and said she did not reveal all “the details” at that
time. The jury heard her say that, in August 2000, she revealed
only that McCloud “made [her] shower with him,” and that a
therapist she had been seeing “knew a little bit more about the
touching and stuff like that, but as far as the oral stuff, nobody
knew.”
¶79 As the post-conviction court noted in its ruling, “even
though [Trial Counsel] may not have had the subject record, he
apparently knew of its contents and used that information in his
questioning and in his argument.” Thus, we conclude that any
exculpatory evidence contained in the medical record “would
merely [have been] cumulative and reaffirm[ed] what the jury
20170148-CA 32 2019 UT App 35McCloud v. State
already knew.” State v. Burnside, 2016 UT App 224, ¶ 33, 387 P.3d
570.
¶80 Further, regardless of whether Trial Counsel was aware of
the relevant document, we agree with the post-conviction court
that he “actively and capably advocated for [McCloud’s]
defense.” For example, Trial Counsel elicited testimony from
Victim that, in 1998, she met with a “psychiatrist or
psychologist” and said only that McCloud “made [her] shower
with him and that made [her] uncomfortable.” He also
attempted to discredit Victim in his arguments to the jury. He
said, “[E]leven years ago, [Victim] told her mother I showered
with daddy. It made me uncomfortable. [And] [m]other said,
[Victim] did he touch you in anyway inappropriately? No he
didn’t [Victim said].” Trial Counsel continued, “She’s told that
story how many times since? At least three, maybe four. I
showered with my dad, it made me uncomfortable.” He then
noted that Victim talked to multiple psychologists and
psychiatrists and “told that same story. It was uncomfortable to
shower with my dad, end of discussion. No talk of improper
touching, no talk of inappropriate touching, no talk about
anything of an illegal or improper nature.” And Trial Counsel
concluded, “Several psychologists, psychiatrists, therapists later,
I don’t believe she’s told us everything. So push her, push her,
push her. And some 11 years later we hear the same story that
was told here in court today.”
¶81 In short, the information Trial Counsel failed to obtain “is
merely cumulative of the evidence [that was] presented to the
jury.” King, 2012 UT App 203, ¶ 34. And Trial Counsel seems to
have otherwise mounted an overall effective defense. Harrington
v. Richter, 562 U.S. 86, 111 (2011) (“[W]hile in some instances
even an isolated error can support an ineffective-assistance claim
if it is sufficiently egregious and prejudicial, it is difficult to
establish ineffective assistance of counsel when counsel’s overall
performance indicates active and capable advocacy.” (quotation
20170148-CA 33 2019 UT App 35McCloud v. State
simplified)). Thus, we conclude that McCloud has failed to show
a reasonable probability that, but for Trial Counsel’s failure to
obtain all of Victim’s medical records, the result at trial would
have been different. See Munguia, 2011 UT 5, ¶ 30. McCloud’s
ineffective assistance claim accordingly fails.
CONCLUSION
¶82 The post-conviction court erred in determining that
McCloud’s claims of ineffective assistance of Trial Counsel were
procedurally barred. But we affirm the court’s denial of
McCloud’s petition for post-conviction relief, concluding that
McCloud has not shown he received constitutionally ineffective
assistance from Trial Counsel.
20170148-CA 34 2019 UT App 35