State of Utah v. Mike S. Stidham

¶1 Defendant Mike S. Stidham appeals the denial of his motion

for a new trial following his conviction for simple assault with an

in-concert enhancement, a third degree felony. See Utah Code Ann.

§ 76-5-102 (LexisNexis 2012); id. § 76-3-203.1.1 Defendant contends

that the trial court erred in denying his motion for a new trial

State v. Stidham

20110540-CA 2 2014 UT App 32

because his trial counsel had a conflict of interest, he received

ineffective assistance of counsel, and sufficient evidence had

emerged after his conviction to justify a new trial. We conclude that

the contentions are well enough taken to warrant an evidentiary

hearing, and we remand for that purpose.

BACKGROUND

¶2 Defendant and two friends (Codefendant and Friend,

respectively) went to an "adult entertainment” club in Salt Lake

City. While at the club, Defendant and his friends were approached

by a bouncer. Defendant claims that the bouncer came to their table

looking to provoke a fight with the group. The bouncer, however,

testified that he approached the table to address the group's unruly

behavior. Regardless of the bouncer's motivation for confronting

the group, Codefendant responded by telling the bouncer to get

some beers for the group. The bouncer responded, "Fuck you, just

be respectful to the dancers.” Defendant testified that his group got

up to leave after the confrontation. The bouncer testified that

Defendant's friends challenged him to a fight and that he agreed,

hoping to get the men outside but not actually intending to engage

in fisticuffs.

¶3 As the group headed for the exit, the bouncer called for

another bouncer, and Friend yelled for his girlfriend (Girlfriend) to

get the car. According to the bouncer's testimony, Codefendant,

who was walking in front of him, knocked into him. The bouncer

testified that he took a step back from Codefendant and turned to

find Defendant right behind him. The bouncer admitted that he

reacted by pushing Defendant away. Defendant claimed that he

then put the bouncer in a headlock and brought him to the ground,

while the bouncer testified that Defendant punched him in the face.

A melee ensued, which a witness described as "a big pile,” with

other patrons and employees joining the fray, screaming, yelling,

or calling 911. The bouncer received multiple blows during the

chaos and suffered a broken nose, a fractured eye socket, and

damage to his knee, teeth, and head. Defendant sustained a head

State v. Stidham

2. Assault is ordinarily a class B misdemeanor, but it becomes a

class A misdemeanor if, inter alia, the victim sustains substantial

bodily injury. See Utah Code Ann. § 76-5-102 (LexisNexis 2012).

Assault becomes a third degree felony, as in Defendant's case, if the

offense would have been a class A misdemeanor but was also

committed in concert with two or more persons. See id. § 76-3-203.1.

20110540-CA 3 2014 UT App 32

injury and believed he had been cut with a sharp object during the

fight.

¶4 Defendant, Friend, and Codefendant eventually exited the

club. Girlfriend was waiting outside in a car. Friend got into that

car, and Defendant and Codefendant left in a truck. Police

responded to multiple calls about the fight and stopped the truck

soon after. As an officer approached the truck, he saw blood on

Defendant's face and hands. Defendant told the officer, "Well, the

bouncer put his hands on me so I beat him up.”

¶5 Defendant, Codefendant, and Friend were charged with

simple assault for their involvement in the fight. Defendant and

Codefendant retained the same counsel for their defense. At

hearings and appearances throughout the case, the trial court

repeatedly asked trial counsel if there was a conflict in his

representation of both clients. Each time, trial counsel stated that

there was no conflict.

¶6 On the morning of trial, Codefendant accepted a plea

bargain, pleading guilty to assault, a class A misdemeanor.2 Trial

counsel then met with both Defendant and Codefendant.

Codefendant expressed a desire to testify for Defendant, but trial

counsel was concerned that his doing so might negatively affect

Codefendant's later sentencing by the same judge. As a result, trial

counsel decided not to call Codefendant as a witness in

Defendant's trial.

¶7 At Defendant's trial, which was a bench trial, the State called

the bouncer and two other employees from the club. The two other

employees confirmed the bouncer's version of events, i.e., the

testimony of the three was cumulative. The State also called the

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20110540-CA 4 2014 UT App 32

police officer who arrested Defendant after the fight. Defendant

was the only witness called by his trial counsel. Defendant testified

that the bouncer initiated the fight and was the aggressor

throughout the altercation. Following the bench trial, Defendant

was found guilty of felony assault. Defendant later retained his

present counsel.

¶8 After Defendant's conviction, he was approached at a

sporting event by a man (Witness) he did not know but who

recognized Defendant and explained that he had been present

during the melee. Witness said that he believed that Defendant and

Codefendant were the victims and that he had seen the bouncers

attack Defendant and his friends. Witness told Defendant that, after

Defendant's group departed, he had seen the bouncers "compare

notes in an attempt to get their story straight before the police

arrived.”

¶9 Defendant's current counsel contacted Girlfriend, who

corroborated Witness's statement that the bouncer had been the

aggressor. Girlfriend stated that the bouncer had asked the group

to leave because they were "not tipping the dancers enough” and

that he seemed "intent on starting a fight from the very beginning

because he was taking off his watch as he approached their table.”

Girlfriend said that, after the skirmish started, she witnessed a

number of patrons and bouncers jumping into the fray, with the

total number of combatants reaching between ten and fifteen

people.

¶10 Following his conviction, Defendant was sentenced to thirty

days in the Salt Lake County jail and ordered to complete seventy

hours of community service. On the same day as his sentencing,

Defendant moved for a new trial, arguing that he had received

ineffective assistance of counsel and that new evidence warranted

a new trial. Defendant's motion was supported with affidavits from

his trial counsel, Girlfriend, and Witness.

¶11 In addressing Defendant's motion for a new trial, the court

stated that there was no conflict of interest and emphasized that

Defendant's trial counsel had consistently informed the court

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throughout the litigation that there was no conflict in his

representation of both Defendant and Codefendant. The court also

indicated that it believed the claimed conflict to be an "artificial

conflict” created after the fact. The court expressed its belief that

"[trial counsel] was, if anything, not aggressively representing . . .

[Codefendant]. His focus, clearly, was on [Defendant].”

¶12 The court recalled that Codefendant seemed willing to

testify at Defendant's trial and that he was not excused until it was

confirmed that he would not be called as a witness. The court

referred to statements by Codefendant at his sentencing hearing, at

which trial counsel failed to appear. At the sentencing hearing,

Codefendant said that he was "just along for the ride” and that

counsel's "concerns were toward [Defendant].” Consequently, the

court indicated that it did not believe that there was a conflict—at

least not one that prejudiced Defendant—and that Defendant's

contentions had "no persuasive value.”

¶13 With regard to the affidavits from Witness and Girlfriend,

the court concluded that their testimony would be merely

cumulative of Defendant's trial testimony. Concerning Girlfriend's

testimony, the court stated, "It was not ineffective counsel, there

are—she was clearly a girlfriend, she was there, she was available,

she was here. Her theory of the case was absolutely consistent with

the theory that was repeatedly presented.” In addressing Witness's

potential testimony, the court said that

he doesn't bring anything new, including the fact

that the bouncers got their story together. That,

again, was the theory of the defense throughout, was

that the bouncers were the aggressors, they were

working together, they were hanging, they were all

protecting the dancers and the other employees and

that [they] were all in cahoots, together.

The court also indicated that Girlfriend and Witness both had

credibility issues such that a competent attorney may have

properly decided not to call them as witnesses at trial even if fully

State v. Stidham

3. Girlfriend's bias is self-evident. But the court's theory of

Witness's lack of credibility is problematic. The court's stated

concern was that Witness came forward well after trial. It is

undisputed, however, that Witness did so only upon the

occurrence of a chance encounter with Defendant, with whom

Witness was not previously acquainted.

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aware of their intended testimony.3 Accordingly, the court denied

Defendant's motion for a new trial, and Defendant appeals the

denial of that motion.

ISSUES AND STANDARDS OF REVIEW

¶14 Defendant argues that the trial court erred in denying his

motion for a new trial. The denial of a motion for a new trial is

reviewed under an abuse of discretion standard. See State v. Lenkart,

2011 UT 27, ¶ 20, 262 P.3d 1.

¶15 Defendant also contends that his trial counsel was

ineffective. When reviewing a trial court's ruling on ineffective

assistance of counsel claims, we utilize a mixed standard of review.

"We review the trial court's application of the law to the facts

under a correctness standard. If there are factual findings to

review, we will not set them aside unless they are clearly

erroneous.” Id. (citation omitted).

ANALYSIS

¶16 Defendant's motion appears to have merit. In our view, the

trial court should not have decided the motion based only on

affidavits and argument. Under all the circumstances, the trial

court should have conducted an evidentiary hearing to more fully

evaluate Defendant's contentions before ruling on his motion for

a new trial. The trial court's disinclination to hold such a hearing in

light of the facts of this case was not consistent with the sound

exercise of discretion.

State v. Stidham

4. Codefendant did not submit an affidavit concerning what his

testimony would have been, nor was it otherwise proferred. In the

posture of this appeal, however, this lack is of no consequence. If

an actual conflict existed, as claimed, and the conflict impacted

counsel's decision not to call Codefendant, prejudice is presumed

and need not be shown, as more fully explained in this opinion. See

infra note 5 & ¶ 19.

5. In conducting an analysis of an ineffectiveness claim premised on

a conflict of interest, however, we presume prejudice if the

defendant demonstrates there was "an actual conflict of interest

[that] adversely affected his lawyer's performance.” Cuyler v.

(continued...)

20110540-CA 7 2014 UT App 32

I. The Trial Court Should Have More Fully Considered Whether

a Conflict of Interest Had Arisen in Trial Counsel's Joint

Representation of Defendant and Codefendant.

¶17 Defendant argues that although his trial counsel did not

originally have a conflict of interest in representing both him and

Codefendant, a conflict arose after Codefendant accepted a plea

deal. Defendant claims that trial counsel then declined to call

Codefendant to testify as a witness for Defendant because of

counsel's conflicting obligations to Codefendant. Defendant

maintains, and his trial counsel's affidavit supports the contention,

that Codefendant "wanted to testify on behalf of [Defendant] at his

trial” but that counsel "had concerns that [Codefendant]'s

demeanor might be perceived as too aggressive if he testified

before the Judge that would ultimately sentence him” soon after.

Defendant argues that "[b]ecause of these concerns [his trial

counsel] did not call [Codefendant] as a witness in [Defendant]'s

trial.”4

¶18 A defendant claiming he received ineffective assistance in

violation of the Sixth Amendment bears the heavy burden of

demonstrating that (1) trial counsel rendered deficient performance

that "fell below an objective standard of reasonableness” and (2)

defendant was "prejudiced” by the deficient performance of trial

counsel.5 Strickland v. Washington, 466 U.S. 668, 687–88 (1984). The

State v. Stidham

5. (...continued)

Sullivan, 446 U.S. 335, 348 (1980). Accord Mickens v. Taylor, 535 U.S.

162, 166–68 (2002).

20110540-CA 8 2014 UT App 32

defendant must demonstrate that a conflict of interest existed by

establishing that his trial counsel "was required to make a choice

advancing his own interests to the detriment of his client's

interests.” United States v. Horton, 845 F.2d 1414, 1419 (7th Cir.

1988). "To show that the alleged conflict adversely affected trial

counsel's performance, Defendant must establish that '(1) other

counsel likely would have approached the case differently and (2)

a tactical reason other than the alleged conflict [did not] exist[] for

[counsel's] decisions.'” State v. Person, 2006 UT App 288, ¶ 17, 140

P.3d 584 (alterations in original) (quoting State v. Lovell, 1999 UT 40,

¶ 24, 984 P.2d 382).

¶19 However, the United States Supreme Court has held that "a

defendant who shows that a conflict of interest actually affected the

adequacy of his representation need not demonstrate prejudice in

order to obtain relief.” Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980)

(internal citation omitted). Accord State v. Brandley, 972 P.2d 78, 85

(Utah Ct. App. 1998) ("[W]hen an ineffectiveness claim is grounded

on a conflict of interest, we presume prejudice if the defendant

demonstrates that an actual conflict of interest adversely affected

his lawyer's performance.”) (citations and internal quotation marks

omitted); State v. Johnson, 823 P.2d 484, 488 (Utah Ct. App. 1991) ("If

the defendant makes such a showing, prejudice need not be

demonstrated to prevail on the claim. The court will presume the

defendant was prejudiced by the lawyer's performance.”) (internal

citation omitted).

¶20 Defendant claims that his trial counsel's dual representation

created an actual conflict of interest that detrimentally affected

Defendant's trial "because it prevented counsel from calling

[Codefendant] as a witness.” And trial counsel's affidavit supports

this position. The trial court, however, rejected Defendant's

argument that there was a conflict, stating:

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That is so fully contrary to everything I

observed and everything that was placed on the

record by [trial counsel] when he was an attorney of

record and was an officer of the court that I can only

conclude that it is an after-the-fact contrivance to

create an artificial conflict. And it is so totally

contrary to everything on the record that I simply do

not believe that [trial counsel] actually ever took that

position and it is not persuasive as an affidavit,

because to believe a sworn affidavit, which I tend to

do, a sworn affidavit is for that very purpose, I

would have to disbelieve the statements of counsel.

. . . [A]s far as the validity, the believability of [trial

counsel's] sworn statement after the fact, I give it

none and it has no persuasive value for me.

The trial court relied on the fact that trial counsel was repeatedly

asked throughout the case whether there was a conflict in his

representation of both defendants. While the court ultimately

referred to this as the basis for not believing counsel's affidavit

about the claimed conflict, the fact that the court previously and

repeatedly felt the need to inquire about the possibility of a conflict

suggests the court's contemporaneous recognition of the distinct

possibility that a conflict existed or could arise. The court's

conclusion that trial counsel's affidavit was "an after-the-fact

contrivance” may be true, but it seems just as likely that the court's

earlier instincts were correct, namely that there was a conflict, and

that it was trial counsel's earlier claims to the contrary that were

the "contrivance,” or at least that his judgment was colored by his

own interest in continuing to represent both clients. We believe that

the trial court could have resolved this discrepancy only upon

hearing the live testimony of trial counsel, Defendant, and

Codefendant, with the opportunity for probing inquiry by the

court and cross-examination by counsel for the State.

¶21 The trial court went on to say that even presuming a conflict

existed, the court would "still need to consider whether or not it

prejudiced [Defendant].” The court then found that it did not. In so

ruling, the court overlooked the rule that in the event of an actual

State v. Stidham

6. The trial court may well be right that, on balance, trial counsel

need not have been concerned that Codefendant's testimony at trial

would have impacted his sentence. The problem, of course, is that

trial counsel claims to have concluded otherwise, and his analysis

may well have been tainted by his conflict of interest in

representing both Defendant and Codefendant.

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conflict prejudice is presumed under Cuyler v. Sullivan, 446 U.S. 335

(1980), and its progeny.6

¶22 The interests of justice would have been better served had

the court considered Defendant's motion for a new trial not just on

the paper record but, given its plausibility and serious implications,

through an evidentiary hearing. After such a hearing the court

could then properly determine, inter alia, whether a conflict of

interest existed that caused Defendant's trial counsel not to call

Codefendant. The court had obviously been sensitive to the fact

that there was a potential conflict given that Defendant and

Codefendant were represented by the same attorney, and the

possibility that such a conflict may have ripened warranted fuller

consideration through an evidentiary hearing—especially given

trial counsel's sworn statement suggesting that a key decision he

made in the handling of Defendant's case was influenced by his

concern about the impact Codefendant's testifying for Defendant

might have at Codefendant's sentencing.

II. The Trial Court Should Have Conducted an Evidentiary

Hearing to More Fully Evaluate Whether Trial Counsel Was

Ineffective.

¶23 As explained in Section I of this opinion, if the trial court

concludes on remand that there was an actual conflict that affected

the soundness of trial counsel's judgment, Defendant is entitled to

a new trial because prejudice is then presumed. But if the trial court

does not find that a conflict existed, it must consider whether a new

trial is nonetheless appropriate, and this will entail deciding, inter

alia, whether trial counsel's failure to call Girlfriend and

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Codefendant constituted deficient performance and whether any

such deficiency resulted in prejudice to Defendant.

A. Girlfriend's Testimony

¶24 The trial court rejected Defendant's claim that his trial

counsel's failure to call Girlfriend at trial constituted ineffective

assistance of counsel. The Utah Supreme Court has held that

[i]f counsel does not adequately investigate the

underlying facts of a case, including the availability

of prospective defense witnesses, counsel's

performance cannot fall within the "wide range of

reasonable professional assistance.” This is because

a decision not to investigate cannot be considered a

tactical decision. It is only after an adequate inquiry

has been made that counsel can make a reasonable

decision to call or not to call particular witnesses for

tactical reasons.

State v. Templin, 805 P.2d 182, 188 (Utah 1990) (footnote omitted)

(quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). While

Girlfriend was present throughout the course of the litigation and

trial counsel was aware that she had been at the club on the night

in question, trial counsel did not call her as a witness for

Defendant.

¶25 The trial court rejected the necessity of Girlfriend's

testimony because "[h]er theory of the case was absolutely

consistent with the theory that was repeatedly presented.” But the

fact that the State was able to present multiple "cumulative”

accounts in support of its theory of the case while Defendant was

the only witness in his own defense suggests that Girlfriend's

testimony may have helped tip the balance back in Defendant's

favor. That Girlfriend's testimony, even if subject to impeachment

State v. Stidham

7. As previously noted, see infra ¶¶ 7, 25, the State's evidence from

multiple witnesses was cumulative. Still, other bouncers were

called to testify in support of a common version of events. The bias

explained by the camaraderie among the bouncers is not

qualitatively unlike Girlfriend's favorable disposition toward

Defendant.

20110540-CA 12 2014 UT App 32

for bias, 7 matched Defendant's testimony might well have given

more credence to his theory of the case. In reconsidering the

motion for new trial, the trial court should hear and evaluate

Girlfriend's live testimony and make a more informed judgment

about the likelihood that trial counsel's decision not to call

Girlfriend was deficient and prejudiced Defendant.

B. Codefendant's Testimony

¶26 Additionally, even if on remand the trial court concludes

that there was no actual conflict that tainted trial counsel's

judgment in representing both Defendant and Codefendant, it still

may be that counsel's decision not to call Codefendant was

ineffective. The trial court should have more fully considered

Codefendant's likely testimony regarding what transpired at the

club on the night in question. The court should have taken

testimony from Codefendant about what his testimony would have

been had he been called at trial and from trial counsel about why

Codefendant was not called if that is not obvious from what

Codefendant says his testimony would have been. If the court

determines that it was deficient not to call Codefendant, then the

court must evaluate whether the exclusion of Codefendant's

testimony was prejudicial.

III. The Trial Court Should Have Conducted an Evidentiary

Hearing to More Fully Evaluate Whether Defendant's New

Evidence Warranted a New Trial.

¶27 In ruling on Defendant's motion for a new trial, the trial

court should have heard the live testimony of Witness. The court

disregarded his testimony because,

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20110540-CA 13 2014 UT App 32

again, [Witness] doesn't bring anything new,

including the fact that the bouncers got their story

together. That, again, was the theory of the defense

throughout, was that the bouncers were the

aggressors, they were working together, they were

hanging, they were all protecting the dancers and the

other employees and that [they] were all in cahoots,

together. That position was presented fully,

aggressively, appropriately . . . .

While Witness was not known at the time of trial and thus the

failure to call him does not implicate Defendant's right to effective

assistance by trial counsel, the trial court should have held an

evidentiary hearing to allow Defendant a chance to present

Witness's testimony so that the court could more fully consider

whether the evidence met the requirements of State v. James, 819

P.2d 781 (Utah 1991).

¶28 For a new trial to be ordered, James requires that the

evidence

(1) . . . must be such as could not with reasonable

diligence have been discovered and produced at the

trial; (2) it must not be merely cumulative; (3) it must

be such as to render a different result probable on the

retrial of the case.

Id. at 793 (emphasis added) (citation and internal quotation marks

omitted). In light of the circumstances of this case—in which

Defendant was tried by the court rather than by a jury—the trial

court was in a unique position to determine whether Defendant's

proffered evidence met the requirements of James. But to

meaningfully evaluate the motion for a new trial, Defendant should

be afforded the opportunity to fully present his new evidence to

the trial court rather than have the court pass on its credibility with

reference only to Witness's affidavit.

¶29 While the court perceived "significant” credibility issues

with Witness, which seem far from compelling, see supra note 3, and

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noted that the testimony mirrored Defendant's, the court should

have heard Witness's actual testimony in determining whether a

new trial should be ordered. Witness, arguably the most neutral

observer of the events as they unfolded if his testimony is credible,

seems to be in a unique position to testify about what happened

during and after the fight. That he came forward of his own accord

and had no prior affiliation with Defendant, if true, would lend

considerable credence to his account, making it qualitatively much

more important than testimony that is "merely cumulative.” If

believed, Witness's testimony might well create reasonable doubt

about Defendant's guilt. In any event, the evidence was such that

it warranted fuller consideration by the trial court.

¶30 In hearing the new evidence that Witness presents, the trial

court must bear in mind that the State was granted the opportunity

to present multiple witnesses, whose testimony was cumulative in

every sense of that term, in support of its theory of the case. While

the trial court noted that the new evidence is "absolutely consistent

with the theory that was repeatedly presented,” this perspective

does not take into account that only Defendant testified in his own

behalf and that his obvious self-interest may well have weakened

the strength of his testimony in the trial court's eyes. The new

evidence cannot be dismissed as "merely cumulative” when it

might help settle the balance in what amounted to a credibility

determination between Defendant's sole testimony and that of the

State's many witnesses.

¶31 We reverse and remand for the trial court to conduct an

evidentiary hearing in conjunction with Defendant’s motion for a

new trial. Upon hearing all the evidence, if the trial court concludes

that the motion is well taken, Defendant is entitled to a new trial.