Opposition Brief — Taberon Dave Honie, Petitioner v. Robert Powell, Warden
Supreme Court briefOct 27, 2023
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RESPONDENT APPENDIX
TABLE OF APPENDICES
APPENDIX A:
Opening Brief of Appellant, Honie v. State, Case No. 20110620-SC,
dated October 1, 2012 ............................................... Resp. App. 001
APPENDIX B:
Appellee’s Brief, Honie v. State, Case No. 20110620-SC, dated
April 16, 2013 ............................................................ Resp. App. 280
APPENDIX C:
Reply Brief of Appellant, Honie v. State, Case No. 20110620-SC,
Dated June 4, 2013 ..................................................... Resp. App. 637
APPENDIX A
________________________________________________________________________
IN THE SUPREME COURT FOR THE STATE OF UTAH
________________________________________________________________________
TABERON DAVE HONIE,
)
)
Petitioner/Appellant,
)
Case No. 20110620
)
v.
)
District Court No. 030500157
)
STATE OF UTAH,
)
Death Penalty Case
)
Respondent/Appellee.
)
_______________________________________________________________________
OPENING BRIEF OF APPELLANT
________________________________________________________________________
On Consolidated Appeal from Orders of the Fifth Judicial District Court Granting
Summary Judgment on a Petition for Post-Conviction Relief and Denying
Rule 60(b) relief, The Honorable G. Michael Westfall, presiding.
________________________________________________________________________
Jon M. Sands
Federal Public Defender
Therese Michelle Day (Georgia Bar. No. 213810)
David Christensen (Utah Bar No. 15306)
Assistant Federal Public Defenders
850 West Adams Street, Suite 201
Phoenix, Arizona 85007
Tel. 602.382.2816
Attorneys for Petitioner/Appellant Honie
Thomas B. Brunker
Assistant Attorney General
160 East 300 South (Sixth Floor)
P.O. Box 14084
Salt Lake City, Utah 84114
Tel. 801.366.0180
Attorney for Respondent/Appellee
Resp. App. 001
TABLE OF CONTENTS
Table of Authorities ............................................................................................................... vi
Statement of Jurisdiction ....................................................................................................... 1
Statement of the Issues Presented for Review and Standard of Review ............................... 1
I.
Whether the district court erred in granting summary judgment on certain
claims involving ineffective assistance of trial counsel .................................. 1
II.
Whether the district court erred in dismissing certain claims involving
ineffective assistance of trial counsel, which survived the State’s first
Motion for Summary Judgment, but were dismissed following the State’s
Second Motion for Summary Judgment without providing Honie with
funding to investigate these claims ................................................................. 3
III.
Whether the district court erred when it denied Honie’s Motion for Relief
from Judgment pursuant to Utah Civil Rule 60(b)(6) ..................................... 4
IV.
Whether the district court erred in granting summary judgment on Honie’s
claim that trial counsel was ineffective for failing to object to the
destruction of evidence related to his intoxication .......................................... 4
Determinative Authorities ..................................................................................................... 5
Statement of the Case ............................................................................................................ 6
A.
Nature of the Case ........................................................................................... 6
B.
Course of Proceedings and Disposition Below ............................................... 6
C.
Statement of Facts ........................................................................................... 7
1. Introduction ..................................................................................................... 7
2. Trial counsel was responsible for the admission of Honie’s inculpatory
statements at trial ........................................................................................... 8
i
Resp. App. 002
3. Trial counsel persuaded Honie to waive his right to have a jury decide his
sentence without properly advising him of the rights he was waiving and
the implications to him of the waiver .............................................................. 17
4. Trial counsel conceded Honie’s guilt to aggravated murder at trial
and was responsible for introducing some of the most damaging
evidence against him ....................................................................................... 22
Post-Conviction Proceedings................................................................................................. 26
Summary of Argument .......................................................................................................... 39
Argument ............................................................................................................................... 42
I.
The district court erred in granting summary judgment on certain claims
involving ineffective assistance of trial counsel ........................................... 42
A. Trial counsel was ineffective for conceding Honie’s guilt to aggravated
murder without first investigating possible trial defenses, including the
defense of voluntary intoxication .............................................................. 45
1. There was significant evidence supporting a voluntary
intoxication defense that trial counsel failed to pursue and
investigate ...................................................................................... 45
B. Trial counsel was ineffective for introducing Honie’s inculpatory
statements at trial despite the State’s willingness to stipulate to their
inadmissibility ........................................................................................... 50
1. Trial counsel failed to suppress Honie’s statements despite
admitting he believed his statements were made in violation of
Miranda v. Arizona ....................................................................... 50
2. Trial counsel introduced highly prejudicial statements of Honie
at trial effectively ensuring he would be convicted of aggravated
murder, despite the fact that the State agreed to stipulate that that
the statements would be inadmissible at trial ............................... 53
C. Trial counsel was ineffective for introducing Honie’s alleged statement
that he sexually molested D.R. at the penalty phase ............................... 56
ii
Resp. App. 003
1. Trial counsel was ineffective for introducing Honie’s alleged
statement without first investigating D.R.’s statement that her
father, not Honie, was responsible for molesting her .................. 59
2. Trial counsel was ineffective for failing to consult with Honie
about this allegation before admitting his statement at the penalty
phase ............................................................................................... 61
3. Honie was prejudiced by trial counsel’s admission of his alleged
statement during the penalty phase and his failure to investigate
allegations that someone other than Honie was responsible for
molesting D.R. ............................................................................... 66
D. Trial counsel was ineffective for failing to properly advise Honie of his
rights to have a jury determine his penalty .............................................. 67
II.
The district court erred in granting summary judgment as to certain claims
involving ineffective assistance of trial counsel, which survived the State’s
first Motion for Summary Judgment, but for which the court denied funding
to develop these claims.................................................................................... 76
A. The district court found that Honie’s claims of ineffective assistance of
trial counsel for failing to conduct an adequate mitigation investigation
presented a genuine issue of material fact and, therefore, denied the
State’s first motion for summary judgment as to these claims .................. 76
B. The district court erred when it failed to provide funding in excess of the
statutory maximum for investigative and expert funds so that Honie
could develop his claims that survived summary judgment ..................... 78
C. The district court erred in granting the State’s second motion for
summary judgment because it failed to provide Honie with funding to
develop the claims that survived the State’s first motion for summary
judgment, and no other intervening factor justified the court’s new
factual findings .......................................................................................... 85
III.
The district court erred in denying Honie relief from judgment based on
Rule 60(b) ........................................................................................................ 91
iii
Resp. App. 004
A. The district court erred when it ruled that Honie does not the right to the
effective assistance of PCR counsel ......................................................... 93
1. The 2008 amendment to the PCRA violates due process under the
Utah Constitution ................................................................................. 93
2. The 2008 amendment to the PCRA violates the right to be free from
cruel and unusual punishments under the Utah Constitution .............. 96
B. The district court erred when it ruled that PCR counsel was not rendered
ineffective by the court’s failure to provide funding to Honie to pursue
state post-conviction relief ........................................................................ 101
1. PCR counsel’s performance fell below an objective standard of
reasonableness ..................................................................................... 101
a.
The only statement of prevailing professional norms is the ABA
guidelines ........................................................................................... 102
b. The failure to investigate relevant evidence in support of legitimate
claims which are known to counsel cannot be a strategic decision .. 105
2. The failure to investigate the specific claims raised in the 60(b)
motion resulted in prejudice to Honie .................................................. 107
C. Fetal Alcohol Syndrome ............................................................................ 108
D. Expert evidence regarding intoxication at the time of the offense ............ 110
E. Honie’s false confession of sexual assault of the child and exculpatory
evidence in the Child Abuse Neglect Report ............................................. 114
IV.
The district court erred in granting summary judgment on Honie’s claim
that trial counsel was ineffective for failing to object to the destruction of
evidence related to his intoxication ................................................................ 117
Conclusion ............................................................................................................................. 120
Certificate of Service ............................................................................................................. 121
iv
Resp. App. 005
ADDENDA
Utah Code Ann. § 78B-9-104-110; Utah Code Ann. § 78B-9-202(2)(a) and (4); Utah
Code Ann. § 76-2-306; Utah Code Ann. § 76-3-207(1); Utah Rules of Civil Procedure,
Rule 56, Rule 60(b), Rule 65C(a) and (p); Utah Rule of Criminal Procedure, Rule 8; Utah
Admin. R. R25-14-5 .............................................................................................................. 1
Excerpts from the 1989 American Bar Association Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases .................................................................. 2
Excerpts from the 2003 American Bar Association Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases .................................................................. 3
Transcript of First Interrogation, July 10, 1998 at 1:30 a.m . ............................................... 4
Transcript of Second Interrogation, July 10, 1998 at 5:30 a.m. ........................................... 5
Memorandum Re: Applicability of the 2008 Funding Amendments and Addendum A,
filed June 12, 2008................................................................................................................. 6
Motion for Payment of Expert Fees and Costs, filed April 9, 2009 ...................................... 7
Order Denying Motion for Relief From and to Set Aside Judgment, filed February 9,
2012 ....................................................................................................................................... 8
v
Resp. App. 006
TABLE OF AUTHORITIES
FEDERAL CASES
543 U.S. 175 (2004) .......................................................................................................... 45
Adams v. United States ex rel. McCann, 317 U.S. 269 (1942)) (emphasis added ...... 73, 74
Arizona v. Fulminante, 499 U.S. 279 (1991) ........................................................ 54, 65, 67
Arizona v. Youngblood, 488 U.S. 51 (1988).................................................................... 118
Bobby v. Van Hook, 130 S.Ct. 13 (2009) .......................................................................... 63
Douglas v. California, 372 U.S. 353 (1963) ............................................................... 71, 98
Evitts v. Lucey, 469 U.S. 387 (1985) ........................................................................... 70, 71
Florida v. Nixon, 125 S. Ct. 551 (2004) ............................................................................ 46
Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................... 70, 71
Furman v. Georgia, 408 U.S. 238 (1972) ................................................................... 94, 97
Gardner v. Florida, 430 U.S. 349 (1977).......................................................................... 97
Gregg v. Georgia, 428 U.S. 153 (1976) ................................................................ 70, 71, 94
Halbert v. Michigan, 545 U.S. 605 (2005) ........................................................................ 98
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .......................................................................... 95
Herrera v. Collins, 506 U.S. 390 (1993) ........................................................................... 97
Lockhart v. Fretwell, 506 U.S. 364 (1993).................................................................... 2, 43
Irvin v. Dowd, 366 U.S. 717 (1961) .................................................................................. 72
Mathews v. Eldridge, 424 U.S. 319 (1976) ....................................................................... 95
McFarland v. Scott, 512 U.S. 849 (1994) ......................................................................... 97
vi
Resp. App. 007
McMann v. Richardson, 397 U.S. 759 (1970) ................................................................... 43
Miranda v. Arizona, 384 U.S. 436 (1966) .................................................................. passim
Monge v. California, 524 U.S. 721 (1998) ........................................................................ 97
Morgan v. Illinois, 504 U.S. 719 (1992) ........................................................................... 72
Murray v. Giarratano, 492 U.S. 1 (1989) ......................................................................... 97
Powell v. Alabama, 287 U.S. 45 (1932) ................................................................ 42, 43, 52
Rhines v. Weber, 544 U.S. 269 (2005) .............................................................................. 99
Rompilla v. Beard, 545 U.S. 374 (2005) .................................................................... passim
Spaziano v. Florida, 468 U.S. 447 (1984) ......................................................................... 72
Strickland v. Washington, 466 U.S. 668 (1984) ......................................................... passim
Taylor v. Illinois, 484 U.S. 400 (1988).............................................................................. 46
Turner v. Louisiana, 379 U.S. 466 (1965) .................................................................. 72, 73
United States v. Cronic, 466 U.S. 648 (1984) ............................................................. 46, 53
Wainwright v. Witt, 469 U.S. 412 (1985) .......................................................................... 72
Wiggins v. Smith, 539 U.S. 510 (2003) ...................................................................... passim
Witherspoon v. Illinois, 391 U.S. 510 (1968) .................................................................... 72
STATE CASES
Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950 (Utah Ct. App. 1989) ...................... passim
Bullock v. Deseret Dodge Truck Ctr., 354 P.2d 559 (Utah 1960)........................... 2, 86, 90
Bundy v. Deland, 763 P.2d 803 (Utah 1988) ................................................................. 2, 44
vii
Resp. App. 008
Burningham v. Ott, 525 P.2d 620, Id. at 623 ................................................................. 2, 86
Franklin Covey Client Sales v. Melvin, 2000 UT App 110 2 P.3d 451 (Utah Ct.
App. 2000) ...................................................................................................... 91, 112
Gregg v. State, 2012 UT 32 279 P.3d 396 (Utah 2012) ............................................ passim
Holbrook Co v. Adams, 542 P.2d 191 (Utah 1975) ................................................. 2, 86, 90
Lander v. Industrial Comm'n., 894 P.2d 552 (Utah Ct. App. 1995) ................................. 95
Lucky Seven Rodeo Corp. v. Clark, 755 P.2d 750 (1988) .......................................... passim
Lund v. Brown, 2000 UT 75, 11 P.3d 277 (Utah 2000) ...................................................... 4
McBride v. Utah State Bar, 2010 UT 60 242 P.3d 769 (Utah 2010) ............................... 95
Menzies v. Galetka, 2006 UT 81, 150 P.3d 480 (Utah 2006) .................................... passim
Parsons v. Barnes, 871 P.2d 516 (1994) ................................................................. 3, 44, 67
State v. Bullock, 791 P.2d 155 (Utah 1989) .................................................................. 2, 43
State v. Ford, 2008 UT 66 199 P.3d 892 (Utah 2008) ..................................................... 93
State v. Garteiz, 688 P.2d 487 (Utah 1984) ....................................................................... 70
State v. Honie, 2002 UT 4 ............................................................................................. 6, 26
State v. Lovell, 2011 UT 36, 262 P.3d 803 (Utah 2011) ................................................... 96
State v. Taylor, 947 P.2d 681 (Utah 1997) ........................................................................ 77
State v. Templin, 805 P.2d 182 (Utah 1990)............................................................... passim
T.S. v. State, 2003 UT 54 82 P.3d 1104 (2003) ................................................................ 94
FEDERAL STATUTES
28 U.S.C. 2263 ......................................................................................................... 99, 100
viii
Resp. App. 009
28 U.S.C. 2265(a)(1)(A) .................................................................................................... 99
U.S. Const., art. III, § 2........................................................................................................ 5
U.S. Const., amend. V ......................................................................................................... 5
U.S. Const., amend. VI ........................................................................................................ 5
U.S. Const., amend. VIII ..................................................................................................... 5
U.S. Const., amend. VIII ................................................................................................... 68
U.S. Const., amend. XIV ..................................................................................................... 5
U.S. Const., amend. XIV ................................................................................................... 68
Utah Const. art. 1 § 12 ....................................................................................................... 93
Utah Const. art I, § 7............................................................................................................ 5
Utah Const. art I, § 7.............................................................................................. 68, 69, 70
Utah Const. art. I §§ 7........................................................................................................ 93
Utah Const. art I, § 9............................................................................................................ 5
Utah Const. art I, § 9.......................................................................................................... 68
Utah Const. art. I, § 9......................................................................................................... 97
Utah Const. art I, § 10.......................................................................................................... 5
Utah Const. art I, § 11.......................................................................................................... 5
Utah Const. art I, § 12.......................................................................................................... 5
STATE STATUTES
Utah Code Ann. § 76-2-306 .......................................................................................... 5, 47
Utah Code Ann. § 76-3-207(1) ............................................................................................ 5
ix
Resp. App. 010
Utah Code Ann. § 76-3-207(1)(c)(i) ........................................................................... 68, 70
Utah Code Ann. § 78B-9-104-110 ...................................................................................... 5
Utah Code Ann. § 78B-9-110 .............................................................................................. 1
Utah Code Ann. § 78B-9-202(2)(a) ..................................................................................... 5
x
Resp. App. 011
STATEMENT OF JURISDICTION
The Utah Supreme Court has consolidated Honie’s appeals from the grant of
summary judgment on his petition for post-conviction relief and the denial of Rule 60(b)
relief. (Addenda 8.) The Court has jurisdiction over Honie’s consolidated appeals from
the denial of post-conviction relief pursuant to Utah Code Ann. § 78B-9-110, and from
the denial of Honie’s Rule 60(b) motion. Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950
(Utah Ct. App. 1989).
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
AND STANDARD OF REVIEW
I.
WHETHER THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT
ON CERTAIN CLAIMS INVOLVING INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL.
Mr. Honie raised these claims 1 in his Amended Petition for Post-Conviction Relief
(“Amended Petition”) and in his Memorandum in Opposition to Motion for Summary
Judgment and to Dismiss. (ROA 64-67; 724-747; 766-771.) 2
Summary judgment is appropriate only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Utah R. Civ. P. 56(c). This Court has found that
These claims were unenumerated in Mr. Honie’s pleadngs. The district court assigned
the following numerical characterizations to these claims: 22, 23, 24, 27, 30, 31, 37, 38,
46, 53, 55, and 59.
2
Citations to the Record are as follows: TC ROA (Trial Record, No. 981500662); ROA
(Consolidated PCR Appeal, No. 20110620).
1
1
Resp. App. 012
[i]t is not the purpose of the summary judgment procedure to judge the
credibility of the averments of parties, or witnesses, or the weight of the
evidence. Neither is it to deny parties the right to trial to resolve disputed
issues of fact. Its purpose is to eliminate the time, trouble [,] and expense
of trial when upon any view taken of the facts as asserted by the party ruled
against, he would not be entitled to prevail.
Holbrook Co v. Adams, 542 P.2d 191, 193 (Utah 1975). Any showing in support of
summary judgment “must preclude all reasonable possibility that the loser could, if given
a[n evidentiary hearing], produce evidence which would reasonably sustain a judgment in
his favor.” Bullock v. Deseret Dodge Truck Ctr., 354 P.2d 559, 561 (Utah 1960); see
also Burningham v. Ott, 525 P.2d 620, 621 (Utah 1974) (Crockett, J., concurring in part)
(noting that Section 11 of Article I of the Utah Constitution assures “that any person who
. . . thinks he has a right to protect . . . [is] entitled to go to court and air his grievance and
have the difficulty resolved by the peaceable processes of justice.”) Id. at 623.
In order to prevail on claims of ineffective assistance of counsel, a petitioner must
demonstrate that counsel’s performance was “deficient,” meaning that counsel’s errors
were “so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the
Sixth Amendment.” Strickland v. Washington, 466 U.S. at 686 (1984); see also State v.
Bullock, 791 P.2d 155, 159-60 (Utah 1989); Bundy v. Deland, 763 P.2d 803, 805 (Utah
1988). The petitioner must also demonstrate that counsel’s “deficient performance
prejudiced [him,]” which requires the petitioner to show “that counsel’s errors were so
serious as to deprive the defendant of a fair trial[.]” Id; see also Lockhart v. Fretwell,
506 U.S. 364, 372 (1993) (noting that a finding of prejudice involves concepts of
2
Resp. App. 013
reliability and fairness). “‘In making this determination, an appellate court should
consider the totality of the evidence, taking into account such factors as whether the
errors affect the entire evidentiary picture or have an isolated effect and how strongly the
verdict is supported by the record.’” See Gregg v. State, 2012 UT 32 at ¶ 21, 279 P.3d
396 (Utah 2012) (quoting State v. Templin, 805 P.2d 182, 187 (Utah 1990)).
Under the Post-Conviction Remedies Act (PCRA), a petitioner “has the burden of
pleading and proving by a preponderance of the evidence the facts necessary to entitle the
petitioner to relief.” See § 78B-9-105(1). In order to survive a motion for summary
judgment, a petitioner must demonstrate that there is a genuine issue of material fact with
respect to each prong under Strickland. See Utah R.Civ.P. 56(c); see also Parsons v.
Barnes, 871 P.2d 516, 522 (1994). However, in reviewing a summary judgment, a
reviewing court must “liberally construe the facts and view the evidence in a light most
favorable to the party opposing the motion.” Lucky Seven Rodeo Corp. v. Clark, 755
P.2d 750, 752 (1988). And where there is a dispute as to a material factual issue on the
record, a reviewing court must reverse the trial court’s grant of summary judgment and
remand for further proceedings. Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 957
(1989).
II.
WHETHER THE DISTRICT COURT ERRED IN DISMISSING CERTAIN CLAIMS
INVOLVING INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WHICH SURVIVED
THE STATE’S FIRST MOTION FOR SUMMARY JUDGMENT, BUT WERE
DISMISSED FOLLOWING THE STATE’S SECOND MOTION FOR SUMMARY
JUDGMENT WITHOUT PROVIDING HONIE WITH FUNDING TO INVESTIGATE
THESE CLAIMS.
3
Resp. App. 014
Mr. Honie raised these claims in his Amended Petition and in his Memorandum in
Opposition to Motion for Summary Judgment and to Dismiss. (ROA 65-66; ROA 752766.) The same standard of review for Issue I applies to Issue II.
III.
WHETHER THE DISTRICT COURT ERRED WHEN IT DENIED HONIE’S MOTION
FOR RELIEF FROM JUDGMENT PURSUANT TO UTAH CIVIL RULE 60(B)(6).
Honie raised this issue in his Memorandum in Support of Motion for Relief From
and To Set Aside Judgment on September 20, 2011. (ROA 3358-3374.) While this
Court reviews the denial of a Rule 60(b)(6) motion under an abuse of discretion standard,
“the [district] court’s discretion is not unlimited” given the equitable nature of the rule.
See Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480 (Utah 2006). Therefore, “it is
an abuse of discretion for a district court to deny a 60(b) motion to set aside a default
judgment if there is a reasonable justification for the moving party’s failure and the party
requested 60(b) relief in a timely fashion. Id. (citing Lund v. Brown, 2000 UT 75, ¶ 9, 11
P.3d 277 (Utah 2000)).
IV.
WHETHER THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT
ON HONIE’S CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
TO OBJECT TO THE DESTRUCTION OF EVIDENCE RELATED TO HIS
INTOXICATION.
Honie raised this claim 3 in his Amended Petition and in his Memorandum in
Opposition to Motion for Summary Judgment and to Dismiss. (ROA 66; 766-770.) The
same standard of review for Issues I and II applies to Issue IV.
3
The district court numbered this as claim 35. (ROA 1027.)
4
Resp. App. 015
DETERMINATIVE AUTHORITIES
The following authorities are either determinative of this appeal or are of central
importance to the arguments herein: “No person . . . shall be compelled in any criminal
case to be a witness against himself.”
U.S. CONST., amend. V; “In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury . . . . and to have the assistance of counsel for his defence.” U.S. CONST.,
amend. VI; “Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U.S. CONST., amend. VIII; “[N]or shall any State
deprive any person of life, liberty, or property, without due process of law[.]” U.S.
CONST., amend. XIV; “The Trial of all Crimes, . . . shall be by Jury . . . .” U.S. CONST.,
art. III, § 2; “No person shall be deprived of life, liberty or property, without due process
of law.” UTAH CONST. art I, § 7; “[N]or shall cruel and unusual punishments be inflicted.
Persons . . . imprisoned shall not be treated with unnecessary vigor.” UTAH CONST. art I,
§ 9; “In capital cases the right of trial by jury shall remain inviolate.” UTAH CONST. art I,
§ 10; “Every person . . . shall have remedy by due course of law, which shall be
administered without denial or unnecessary delay; and no person shall be barred from
prosecuting . . . before a tribunal in this State . . . any civil cause to which he is a party.”
UTAH CONST. art I, § 11; “In criminal prosecutions the accused shall have the right . . . to
have a speedy and public trial by an impartial jury . . . .” UTAH CONST. art I, § 12; Utah
Code Ann. § 78B-9-104-110 (Addenda 1); Utah Code Ann. § 78B-9-202(2)(a) and (4)
(Addenda 1); Utah Code Ann. § 76-2-306 (Addenda 1); Utah Code Ann. § 76-3-207(1)
5
Resp. App. 016
(Addenda 1); Utah Rules of Civil Procedure, Rule 56, Rule 60(b), Rule 65C(a) and (p)
(Addenda 1); Utah Rule of Criminal Procedure, Rule 8 (Addenda 1); Utah Admin. R.
R25-14-5 (Addenda 1); American Bar Association 1989 Guidelines for the Appointment
and Performance of Counsel in Death Penalty Cases (Addenda 2); and American Bar
Association 2003 Guidelines for the Appointment and Performance of Counsel in Death
Penalty Cases (Addenda 3).
STATEMENT OF THE CASE
A. NATURE OF THE CASE
These consolidated appeals are from Orders from the Fifth Judicial District Court
in and for Iron County, Honorable G. Michael Westfall, presiding, granting the State’s
Motion To Dismiss Amended Petition and for Partial Summary Judgment, granting the
States Second Summary Judgment Motion, and denying Honie’s Motion for Relief From
and To Set Aside Judgment.
B. COURSE OF PROCEEDINGS AND DISPOSITION BELOW
Honie was convicted of aggravated murder and sentenced to death by a judge for
the death of Claudia Benn. See TR 05/18/99 at 495; see also TR 05/20/99 at 86. The
Utah Supreme Court affirmed his conviction and sentence on January 11, 2002. See State
v. Honie, 2002 UT 4. Honie thereafter sought state post-conviction relief from his
judgment and sentence, filing his Amended Petition for Post-Conviction Relief in the
Fifth Judicial District Court on December 1, 2003. (ROA 19-71.) The State moved for
summary judgment which was granted in part and denied in part. (ROA 212-217; 9656
Resp. App. 017
1058.) The district court found that Honie presented a genuine issue of material fact as to
certain claims involving the ineffective of assistance of trial counsel; however, due to the
statutory funding limits imposed by the PCRA in effect at that time, the court was unable
to provide funding in excess of the statutory maximums for Honie to develop these
claims for relief. (ROA 1246.)
The State later filed a second motion for summary judgment and the parties
litigated the issue of whether the 2008 Amendments to the PCRA were applicable to
Honie’s case. (ROA 1266-1269.) The district court found that the 2008 Amendments
were applicable to Honie’s case and that Honie was, therefore, entitled to request funds in
excess of the statutory maximums for attorney fees and expert and investigative
expenses. (ROA 2564-2577.) Despite this, the court refused to approve additional funds
for Honie to develop his claims of ineffective assistance of counsel for failing to perform
and reasonable mitigation investigation, which had survived the State’s first motion for
summary judgment. (ROA 2825-2839.) The district court thereafter granted the State’s
second motion for summary judgment on Honie’s remaining claims. (ROA 3315-3348.)
Honie then filed a Motion for Relief From and To Set Aside Judgment on September 20,
2011, which was denied. (ROA 3356-3357.) (Addenda 8.) This appeal follows.
C. STATEMENT OF FACTS
1. INTRODUCTION
This case arises from the tragic death of Claudia Benn on July 9, 1998, and the
subsequent conviction and death sentence imposed on Taberon Honie for her murder.
7
Resp. App. 018
Because these appeals are specific to the legal issues raised during Honie’s postconviction proceedings, the facts herein will be limited to those necessary to present
Honie’s legal issues. This in no way is intended to disregard the relevancy of the
underlying facts or to diminish the memory of what happened to Ms. Benn.
Honie’s post-conviction proceedings were unusually protracted due to the lack of
funding available for him to prosecute his post-conviction petition, which was further
complicated when the PCRA was amended in 2008. The pleadings are expansive,
especially in relation to funding issues, and became more complicated due to the
intervention by the Division of Finance. The facts relevant to this appeal concern trial
counsel’s failure to subject the prosecution’s case against Honie to the meaningful
adversarial testing required by our criminal justice system. Trial counsel failed to
conduct a reasonable investigation as to possible trial defenses as well as a reasonable
mitigation investigation that could have resulted in a sentence other than the death
penalty. Not only did trial counsel fail in his investigation and preparation for trial, but
he also unreasonably conceded Honie’s guilt to aggravated murder and was responsible
for introducing some of the most damaging evidence against Honie at trial.
2. TRIAL COUNSEL WAS RESPONSIBLE FOR THE ADMISSION OF HONIE’S
INCULPATORY STATEMENTS AT TRIAL.
Prior to trial, trial counsel filed a motion to suppress the statements Honie made to
the police, arguing that that they were involuntary, that they were made without proper
warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and that their admission
8
Resp. App. 019
would be prejudicial, and therefore excludable at trial, under the Utah Rules of Evidence.
(TC ROA 103-097) At the hearing on the motion, trial counsel informed the court that
while he filed a motion to suppress the statements, he really wanted to introduce two of
the three statements at trial and that he filed the motion to protect himself against a future
claim of ineffective assistance of counsel. TR 01/21/99 at 6. Trial counsel informed the
court, “So I am sort of doing this for the record, so the record’s clear that we are aware,
that is, there may be some Miranda violations in this case. And I want the record to
reflect that we are pointing those out.” Id. (alteration added). Trial counsel stated that he
thought that the latter two statements of Honie were reflective of what actually happened
during the crimes so he wanted them to be introduced into evidence. Id. He then added,
“So it is a motion to suppress[,] [b]ut it’s done primarily for an appeals court or another
lawyer to look at later on.” Id.
In response to trial counsel’s position, the state prosecutor stated,
This is a capital case . . . . [and] the state will concede if counsel feels that
in the best interest of his client, the accused, that these are statements that
should be suppressed[,] [t]he state does not want to overreach or push or
anything that may be on the edge of denying the defendant his fair day in
court or violating his constitutional rights. So I will concede to strike, omit,
not use and not refer to the three statements of Officer Davis in any of the
proceedings if that’s the request of the defendant.
Id. at 7. Trial counsel refused the prosecutor’s offer to stipulate to the inadmissibility of
the statements, and reiterated that the only reason he was challenging the use of the
statements at trial was because “I don’t want two years down the road somebody coming
back saying, hey, you should have moved to suppress those statements, because there was
9
Resp. App. 020
no Miranda given.” Id. 11. Perplexed by trial counsel’s position, the court found that
since the motion was filed, a hearing should be held. Id. at 12.
Unsurprisingly, trial counsel did little to challenge the admissibility of the
statements at the hearing. While there was testimony from several witnesses at the
preliminary hearing indicating that Honie was extremely intoxicated during the time
leading up to the crimes, trial counsel failed to call any of these witnesses to testify at the
suppression hearing. Tr. Preliminary Hearing 09/17/98 at 21, 29, 35, 62. While the
transcripts of the Honie’s statements also indicated he was not clearly coherent during the
interrogations, (Addenda 2 and 3), trial counsel failed to ask Detective Davis, the police
interrogator, at the suppression hearing about Honie’s level of intoxication during
questioning. Trial counsel also failed to ask Davis if Honie was given pain medication
when he was taken to the hospital following the first interrogation to receive treatment for
the gash on his hand. TR 01/21/99 at 37-38.
In fact, it was the court that raised the issue of intoxication with Davis at the
suppression hearing. TR 01/21/99 at 48. Davis stated that Honie smelled of alcohol
when he first interviewed him but he “did not feel that he was intoxicated to the point that
he didn’t understand what I was saying or what I was doing, what was going on. I mean,
he was intoxicated, yes, but not—he was not inebriated. I mean he knew what was going
on.” Id. at 49 (emphasis added). Even though Davis admitted that Honie was intoxicated
during the first interview, the only interview for which Honie was offered Miranda
10
Resp. App. 021
warnings, TR 01/21/99 at 35-36, trial counsel failed to follow up on this line of
questioning which went directly to Honie’s voluntariness.
Trial counsel, likewise, failed to impeach Davis’s statements regarding
intoxication even though Davis, during the course of the interrogations, was aware that
Honie had had much to drink that night and was at times incoherent during the
interrogation. During the first interrogation, which occurred on July 10, 1998 from
approximately 1:30 a.m. until 4:00 a.m., Honie was incoherent and made several
nonsensical statements. (Addenda 4 at 1-20.) There are notes in the transcript of the
interrogation where Honie was repeatedly incomprehensible. (Addenda 4 at 2-11.) The
transcript also indicates there is an entire tape missing because it was inaudible, “Note:
Interview continues on other tape, but is inaudible.” Id. at 11. At one point in the
interview Honie talks about another person being involved in the crime but is
incomprehensible. Id. at 5-6. Davis believed that Honie may be referring to the “devil”
and believed that Honie has conjured the “devil” through a Ouija board. Id. at 6. The
following exchange then occurred:
DAVIS:
Did you call him up on the Ouiji [sic]? Or not? (Can’t copy)
HONIE:
(Can’t copy). But, yes I did, sir, the occult wanted to (can’t
copy). Have you ever read Revelations?
DAVIS:
No.
HONIE:
You know, the end of time. It’s coming, sir. Satan is getting
all powerful.
11
Resp. App. 022
DAVIS:
So, you’re going to have to enlighten me, ‘cuz I’m-I’m lost! I
mean, excuse me, but I’m (can’t copy) I’m lost, I don’t know
what you’re trying to –you’re going to have to explain in
more detail, I guess . . . [because] I don’t understand what
you’re, where you’re . . . .”
HONIE:
(Can’t copy). . . I came up here in the middle of the night,
right? Followed my girlfriend over from the Hopi
reservation, she left me. And I followed her up, got a ride
with some Mormons. And I got out and this dude came up to
me and said, we don’t need them. We don’t them [sic], come
with me. He showed me this house, this little house around
here. He showed me this house, then he showed me a bunch
of food. I ate, I got my belly (can’t copy). Then he showed
what I had to do. At first, it was fun and games. A couple of
dealers here and there. I deserve to die, man, no, let’s get rid
of someone (can’t copy).
DAVIS:
Tell me more about tonight then.
HONIE:
He sent me out there, to the population up there.
DAVIS:
Hmm?
HONIE:
And he sent me out to the population and he sent me to
Draper.
DAVIS:
Well you ain’t going nowhere until we figure out what the
hell’s going on here. You won’t be going into Draper for
quite a while til [sic] we get all this thing resolved. Tell me
about the house, I’m still confused. Your girlfriend, what the
hell, you (can’t copy).
(Addenda 4 at 6-7.) This bizarre exchange continued throughout the first interrogation.
(Addenda 4 at 6-20.) At one point in the middle of the first interrogation, Davis became
frustrated because Honie said he had blacked out and could not remember anything.
Davis told Honie, “I got my camera and I’m going to take a whole bunch of pictures of
12
Resp. App. 023
ya, okay? . . . [I]n the meantime, I want you to try to think about what—what happened
inside there and try to . . . .” Id. at 14. Honie interjected, “Sir, the only way I’m going to
figure it out is it will come to me in my sleep. I know it will. I know it will.” Id. at 15.
Honie was then stripped naked and Davis photographed his body including Honie’s
genitalia while he was still interrogating him. Id. at 15-17.
During this same initial multi-hour interrogation Honie was bleeding from a large
gash on his hand. Id. at 15. Davis was unaware of this because he left Honie handcuffed
behind his back for the duration of the first interview. TR 01/21/99 at 34. Davis only
become aware of the cut when he decided to take a break in the interrogation to process
Honie into the jail. At that point Davis asked Honie if he would consent to be taken to
the hospital to administer the rape kit. Honie replied, “Yeah, ‘cuz I don’t . . . look it
(can’t copy) at all the blood that’s on me, it’s from my cuts.” (Addenda 4 at 15.)
During the second interrogation, which occurred once they returned from the
hospital at approximately 5:30 a.m., Honie told Davis that his mind was not clear because
he had drunk “two half pints of Everclear, a pint, half pint of Jim Beam and half pint of
Yukon Jack and two cases of beer [and] . . totally blacked out.” 4 (Addenda 5 at 2.) A
little later in the same interrogation, Honie told Davis that he started drinking at 10:00
a.m. or 11:00 a.m. on July 9, 2012, with eight beers from a twelve-pack of beer. Id. at 9.
He then bought another twelve-pack, then two half-pints of liquor, then two more halfWhile there are inconsistencies in Honie’s recollection of the drugs and alcohol he
consumed during the day and evening of the incident, it is clear that he had consumed
significant quantities of alcohol and drugs which made him significantly intoxicated.
13
4
Resp. App. 024
pints of liquor, after which Honie blacked out. Id. at 10. When Davis reminded Honie
that he had admitted to killing Benn prior to going to the hospital, Honie said that he did
not remember that because, “[t]he other day when I talked to you, I was drunken [sic].
And in the hospital, I snapped. I mean . . . got sober.” Id. at 12. Honie told Davis that he
did not have a clear memory of the events because he had blacked out and was tired from
being up for two days. Id. at 13. Davis then asked Honie what drugs he had taken the
day of the incident in addition to all of the alcohol he had drunk and Honie responded
that he had taken “[b]asically all of them.” Id. Honie then said that he had smoked
marijuana, had taken crank, and then had smoked marijuana with cocaine on top of it.”
Id. at 13-14. While Honie told Davis about the extent of his drug and alcohol intake prior
to the interrogation, and that he was too drunk to remember what he told Davis during the
first interrogation, Davis, nonetheless, failed to read Honie his rights under Miranda
again.
In addition to the transcripts of the interrogations of Honie, trial counsel was
aware that Honie was extremely intoxicated at the time of the crime because Honie gave
detailed information to trial counsel and his defense team about the drugs and alcohol he
consumed on the day of the incident. 5 Honie told counsel that on the day of the incident,
he starting drinking at 8:00 a.m. (ROA 808.) He and a friend consumed an eighteenpack of Budweiser beer between the hours of 8:00 a.m. and 11:00 a.m. (ROA 809.)
(ROA 808-812.) Affidavit of Taberon Dave Honie, 03/11/05. Honie incorrectly stated
the relevant dates as being June 10-11, 1998. He corrected this in a subsequent affidavit
stating the relevant dates were July 9-10, 1998. (ROA 3503-3504.)
14
5
Resp. App. 025
Then they purchased another eighteen-pack between 12:00 p.m. and 1:00 p.m., and
continued to drink beer while doing other drugs. Id. Honie stated that along with the
beer, he smoked four to five bowls of marijuana. Id. He and his friend then purchased
and consumed three half pints of liquor, and smoked more marijuana. Id. Honie then
took two lines of methamphetamine and also smoked methamphetamine once. Id. Later
that day, Honie and his friend purchased and consumed another eighteen-pack of beer.
(ROA 810.) Honie then went to a bar and drank a pitcher of beer. Id. While Honie had
no memory after this, he was told that he smoked PCP with a drug dealer and then passed
out on the lawn of the home where he was staying. Id. Honie stated that he did not
remember being advised of his rights by the police and that his mind was not clear until
two days later. Id.
There was also testimony at the preliminary hearing that should have alerted trial
counsel that Honie’s level of intoxication on the night of the incident was significant.
Rick Sweeney, the taxi driver who took Honie to the vicinity of the victim’s house on the
night of the incident at 11:40 p.m., testified at the preliminary hearing 6 that Honie had
had too much to drink and was really drunk. Tr. Preliminary Hearing 09/17/98 at 35.
Carol Pikyavit, Benn’s daughter who was also Honie’s girlfriend, also testified at the
preliminary hearing 7 that Honie was intoxicated when she spoke with him on the phone
At trial, Sweeney also testified that Honie was intoxicated and smelled of alcohol. TR
05/17/99 at 269.
7
Pikyavit also testified at trial stating that Honie was intoxicated when she spoke with
him on the night of the incident. TR 05/17/99 at 250. She stated that she had seen him
15
6
Resp. App. 026
at 8:30 p.m. on the night of the incident. Tr. Preliminary Hearing 09/17/98 at 21. She
stated that she had seen him intoxicated before and that he was on his way to getting
extremely intoxicated. Tr. Preliminary Hearing 09/17/98 at 21.
Moreover, trial counsel was also aware that the police took a blood sample from
Honie approximately four and one-half hours after the incident, and submitted the blood
to be tested for alcohol and THC. (ROA 814-815.) The testing revealed that Honie’s
blood alcohol level was 0.07 four and one-half hours after the incident. (ROA 814-815.)
The blood test also revealed the presence of THC in his blood, both active and
metabolized. Id. No testing was requested by the police for the presence of
methamphetamine or phencyclidine. Id. And trial counsel failed to test this evidence
himself.
Despite the extensive evidence of Honie intoxication at the time of the crime and
during the initial police interrogation, trial counsel failed to introduce any witnesses who
could have testified to Honie’s demeanor and behavior in the hours leading up to the
incident and at the crime scene. Trial counsel also failed to introduce the blood test
indicating that Honie’s alcohol level was 0.07 four and one-half hours after the incident
and that his blood also had both active and metabolized THC. Instead, trial counsel did
little to challenge the admissibility of the statements at the hearing, and refused the
intoxicated before and that she knew that he was getting to the point of being “real
buzzed.” TR 05/17/99 at 250. She shared this information with the police. TR 05/17/99
at 250.
16
Resp. App. 027
State’s offer to stipulate to the statements’ inadmissibility at trial. The trial court denied
the motion to suppress Honie’s statements, finding that Honie’s initial waiver of rights
under Miranda during the first interrogation was valid for all three statements. (TC ROA
209-208, 199-198.)
3. TRIAL COUNSEL PERSUADED HONIE TO WAIVE HIS RIGHT TO HAVE A
JURY DECIDE HIS SENTENCE WITHOUT PROPERLY ADVISING HIM OF THE
RIGHTS HE WAS WAIVING AND THE IMPLICATIONS TO HIM OF THE
WAIVER.
At a pre-trial scheduling conference held approximately two weeks before trial,
trial counsel informed the trial court that he anticipated waiving the jury in the penalty
phase in order to “eliminate the need to death qualify the jury” and so that the evidence
would only have to be put on once, simplifying the process. TR 04/30/99 at 3-4. Trial
counsel described it as “short circuit[ing] things quite a bit, especially the death
qualification of the jury.” Id. at 4. Trial counsel informed the court that he had
discussed the waiver with Honie who agreed to it and that the State had provided that
necessary statutory consent. Id. at 4-5. The prosecutor asked the court for assurances
that the court would consider imposing the death penalty and the court stated that it
would impose the death penalty if it felt it was appropriate and the facts and
circumstances of the case warranted it. Id. at 7-8.
Because Honie was not present when the jury waiver was discussed, the court and
parties reconvened after a short break to go over the waiver. Id. at 8. Trial counsel again
expressed his interest in streamlining the trial and noted that the parties would have to
17
Resp. App. 028
call fewer witnesses during the penalty phase if the judge, rather than the jurors were to
consider sentencing. Id. at 9. The trial court agreed to allow Honie to waive jury
sentencing, and after trial counsel spent a brief moment with Honie reviewing the jury
waiver form 8, the following colloquy occurred:
8
MR. McCAUGHEY:
Right. Mr. Honie, you have executed a
document entitled Waiver of Jury in the Penalty
Phase. You have read that document, have you
not?
THE DEFENDANT:
Yes, sir.
MR. McCAUGHEY:
And you have talked to me about it?
THE DEFENDANT:
Yes.
MR. McCAUGHEY:
And I have asked you if you had any questions
about it. And you said you do not. Is that right?
THE DEFENDANT:
Yes.
MR. McCAUGHEY:
Do you understand what that does?
THE DEFENDANT:
Yes.
MR. McCAUGHEY:
You understand you are giving up your right to
have a jury of 12 people decide the penalty
aspect of this case if, in fact, you are convicted,
and agree to allow the judge to decide what
penalty would be imposed if there is a
conviction?
THE DEFENDANT:
Yes.
MR. McCAUGHEY:
And you and I have talked about that. In fact,
(TC ROA 425-423.)
18
Resp. App. 029
we talked about it for a while last night, did we
not?
THE DEFENDANT:
Yes we did.
MR. McCAUGHEY:
And I explained to you the ramifications of the
12 person jury, if one person descends [sic],
then the death penalty won't be imposed, and
that 10 people can agree and impose life in
prison without parole. I have explained that to
you?
THE DEFENDANT:
Yes.
MR. McCAUGHEY:
And if 10 or more people do not agree, then life
imprisonment with the possibility of parole will
be imposed?
THE DEFENDANT:
Yes.
MR. McCAUGHEY:
In spite of that, it's your decision to waive your
right to have a jury decide to waive [sic] the
penalty and have the court decide the penalty?
THE DEFENDANT:
Yes.
MR. BURNS:
You are doing that voluntarily?
THE DEFENDANT:
Yes.
MR. McCAUGHEY:
Nobody's coerced you or forced you?
THE DEFENDANT:
No.
MR. McCAUGHEY:
You are not under the effects of any alcohol or
drugs; is that correct?
THE DEFENDANT:
No.
MR. McCAUGHEY:
Are you thinking clearly today?
19
Resp. App. 030
THE DEFENDANT:
Yes.
MR. McCAUGHEY:
Any questions you want to ask me or the judge
about this?
THE DEFENDANT:
Not right now.
MR. McCAUGHEY:
Okay. So there is no doubt in your mind that
this is what you want to do; is that correct?
THE DEFENDANT:
Yes.
MR. McCAUGHEY:
And it's based on my advice as I explained to
you last night. It has to be your decision and
not mine?
THE DEFENDANT:
Yes.
MR. McCAUGHEY:
And it is your decision?
THE DEFENDANT:
Yes, it is.
MR. McCAUGHEY:
And that's what you want to do?
THE DEFENDANT:
Yes.
TR 04/30/99 at 11-13.
Following the colloquy, the trial court addressed Honie:
THE COURT:
Let me just add a couple of follow-up questions.
You said you weren't on any drugs, and that
includes any prescription medication I assume;
is that right?
THE DEFENDANT:
Yes, sir. No drugs at all.
THE COURT:
And, then, do you understand that to not receive
the death penalty you would have to have—I
don't know quite how to put this in layman's
terms and still be accurate legally—but with a
20
Resp. App. 031
judge, there is just one person you would have
to convince. There is a reasonable doubt with
12 jurors, you got 12 chances to convince
somebody that there is a reasonable doubt there.
So do you understand that you are reducing
your field there for 12 down to one?
THE DEFENDANT:
Yes.
THE COURT:
I don't want to insult your intelligence, but do
you understand that?
THE DEFENDANT:
Yes, I do?
THE COURT:
And you still want to go ahead with the waiver
of the jury for the penalty phase?
THE DEFENDANT:
Yes, sir.
THE COURT:
Mr. Burns, do you want to ask any additional
questions?
MR. BURNS:
I think the court and Mr. McCaughey have
covered it. And just supplemented [sic] the
record again by saying that the only reason the
state has consented and stipulated and agreed to
this is because it is this defendant's choice and
desire.
TR 04/30/99 at 14-15.
It is clear from the jury waiver form and colloquy that Honie was not advised of
his right to be tried by an impartial jury, a right that is crucial in a capital murder case. In
an affidavit presented to the district court during post-conviction proceedings, Honie
stated that his trial counsel encouraged him to waive jury sentencing because “the judge
was young and likely to go for a life without parole sentence.” (ROA 811.) Honie stated
21
Resp. App. 032
that he did not understand and that trial counsel failed to explain to him what the terms
mitigation and aggravation meant or “what would be the jury’s role in sentencing and
what was necessary for a death penalty sentence . . . .” Id. Honie also told trial counsel a
week later, which was the first time he saw him following the execution of his jury
waiver, that he had changed his mind and wanted to withdraw the waiver, but trial
counsel told Honie that it was too late, even though the trial was still a week away. Id.
4. TRIAL COUNSEL CONCEDED HONIE’S GUILT TO AGGRAVATED
MURDER AT TRIAL AND WAS RESPONSIBLE FOR INTRODUCING
SOME OF THE MOST DAMAGING EVIDENCE AGAINST HIM.
During opening statements at trial the prosecutor told the jurors that they needed
to be prepared to hear evidence about this “horrific, bloody, and brutal” case. TR
05/17/99 at 225. The prosecutor told the jury that Honie had been drinking when he went
to the victim’s home. TR 05/17/99 at 227-229. The prosecutor then told the jurors that
when the police arrived, they first found three little children with blood on them. TR
05/17/99 at 231. The police then encountered the “horrific and . . . brutal and . . .
bloody . . . . body of Claudia Benn in the corner with a knife in her head, with her glasses
off reaching for the phone.” TR 05/17/99 at 231. The prosecutor said, “She was bitten.
Her throat was sliced. And she was violated, both anally and vaginally, with a butcher
knife. And she was dead.” TR 05/17/99 at 231. He then explained how one of the
children did not have underwear on and was discovered to have been sexually violated
with a finger. He also explained how the bite mark on the victim was consistent with the
teeth of the defendant. The prosecutor finally told the jurors that the medical examiner
22
Resp. App. 033
would tell them that “Benn’s throat was slit at least three times, and perhaps four, so deep
that it nicked the spine, [and] that she was so violated vaginally and anally that it tore the
wall between the anus and the vaginal canal.” TR 05/17/99 at 232.
In response, Honie’s trial counsel then stood and told the jurors, “Much of what
Mr. Burns says is true.” TR 05/17/99 at 232. He then said, “I know in this case there is
no question of Mr. Honie’s guilt. You are going to find him guilty. The question in this
case is going to be one of punishment. And that question is what appropriate punishment
is there for Mr. Honie will be [sic] decided by the judge.” TR 05/17/99 at 233. Trial
counsel went on to explain that Honie would have pleaded guilty “because he admits his
crime” but because he was contesting some of the aggravating factors he wanted a trial.
TR 05/17/99 at 233.
Trial counsel then explained that while the judge will weigh the aggravating and
mitigating circumstances, the jurors would determine which aggravating factors existed.
TR 05/17/99 at 233-34. Trial counsel told the jurors that Honie was already guilty “of
aggravated murder because there is no question this crime was committed during a course
of a burglary, or an aggravated burglary.” TR 05/17/99 at 234. Trial counsel maintained
the theme of Honie’s guilt throughout the trial, including during closing argument, “Mr.
Honie’s . . . guilty of aggravated murder. I don’t think there is any way that I could stand
up here and argue to you that Mr. Honie did not commit a[n] . . . aggravated burglary. . . .
He did it. . . . I don’t think there is [sic] any justification or excuses.” TR 05/18/99 at
479.
23
Resp. App. 034
Trial counsel was also responsible for introducing Honie’s custodial statements at
trial. While the prosecutor upheld his agreement not to introduce these statements during
trial, co-counsel elicited testimony from Office Davis on cross-examination about
Honie’s statements in an attempt to demonstrate that Honie was remorseful about killing
Benn. TR 05/17/99 at 345-362. Having opened the door to the statements, the
prosecutor went into great detail about Honie’s statements on re-direct examination. TR
05/17/99 at 362-372. Co-counsel initially objected on the basis that she was concerned
that Honie’s statements about being involved in the occult would come in, as well as
other bizarre statements he made during his first interrogation. TR 05/17/99 at 363-64.
The prosecutor pointed out that he had previously offered to stipulate that the statements
would not come in at all at trial, but that the defense chose to introduce the statements.
TR 05/17/99 at 364. Co-counsel agreed with the prosecutor that the door had been
opened, giving him the right to question Davis about Honie’s statements and only asked
that any reference to the occult be prohibited. TR 05/17/99 at 366. The court expressed
his opinion that “this case is unusually graphic and grotesque” but held that because cocounsel opened the door to the statements, the prosecutor could question Davis about
them. TR 05/17/99 at at 367.
What followed was disastrous to Honie’s case and all but assured that he would be
convicted of aggravated murder. Davis testified that Honie initially lied by stating that a
hit man from the Mexican Mafia was contracted to kill Benn. TR 05/17/99 at 368. Davis
also said that Honie admitted to being a member of the occult and stated that a man
24
Resp. App. 035
involved in the murder shot a gun off and then fled the scene. TR 05/17/99 at 368. He
then said that Honie admitted to having sexual relations with Benn at some point long
before the night of the incident. TR 05/17/99 at 369. Davis said that Honie admitted that
he and Benn fell on the knife together, which resulted in her death but that he could not
explain how she had four knife wounds on her neck. TR 05/17/99 at 369-70. Davis
stated that Honie told him he thought about having anal intercourse with Benn during the
incident but changed his mind because he thought she was dead. TR 05/17/99 at 370.
Davis stated that Honie said he put his fingers inside her anal cavity and that he tried to
put his penis inside of her, which is why there was blood on her. TR 05/17/99 at 372.
Trial counsel was also responsible for introducing some of the most damaging
testimony against Honie at sentencing which was related to the charge that Honie had
sexually molested one of the children at the scene, D.R., by digitally penetrating her. TR
05/17/99 at 231-32. While the State presented evidence of this during the trial as an
aggravating factor to murder, the jurors did not find Honie guilty of aggravated sexual
abuse or attempted aggravated sexual abuse of a child. TR 05/18/99 at 496. Despite this,
trial counsel introduced an alleged statement made by Honie to Nancy Cohn, Ph.D., the
defense psychologist, in which he admitted to digitally penetrating D.R. TR 05/19/99 at
192. In his penalty-phase closing statement, trial counsel argued that this “admission”
indicated that Honie was remorseful. TR 05/20/99 at 76. Trial counsel also admitted
during his penalty-phase closing statement that he introduced this statement knowing that
the State’s evidence supporting this allegation was weak and that the victim had
25
Resp. App. 036
implicated her father, not Honie, in the molestation. The trial court relied on Honie’s
alleged statement to find aggravated sexual abuse of a child as a non-statutory
aggravating circumstance supporting the death penalty. (TC ROA 549-548.) The trial
court also referred to aggravated sexual abuse of a child in its Statement of Conviction
and Judgment of Death. (TC ROA 554.)
Honie was ultimately convicted of aggravated murder by the jury and sentenced to
death by the judge for the death of Claudia Benn. See TR 05/18/99 at 495; see also TR
05/20/99 at 86. The Utah Supreme Court affirmed his conviction and sentence on
January 11, 2002. See State v. Honie, 2002 UT 4.
POST-CONVICTION PROCEEDINGS
Honie filed his preliminary petition for post-conviction relief on February 26,
2003, (ROA 1-6) and, thereafter, filed his Amended Petition for Post-Conviction Relief
on December 1, 2003. (ROA 19-71.) In Response, the State moved for sanctions
pursuant to Rule 11 on April 30, 2004, which was denied by the district court on August
30, 2004. (ROA 103-106; 204-208.) The State then filed a Motion to Dismiss Amended
Petition and for Partial Summary Judgment on October 26, 2004. (ROA 212-217.)
The district court denied the State’s first motion for summary judgment, in part,
finding that several of Honie’s claims of ineffective assistance of trial counsel for failing
to adequately investigate and present mitigating evidence “raise[d] a genuine issue with
respect to whether trial counsel’s less-than-complete investigation was reasonable and,
26
Resp. App. 037
therefore, whether he failed to comply with prevailing norms of professional practice in
conducting his mitigation workup.” (ROA 1037-1038.)
Following the district court’s ruling, the State moved for discovery, (ROA 10961098) which was granted. (ROA 1133-1134.) In response, PCR counsel filed a motion
requesting additional funds to complete discovery and to stay the Response to the State’s
discovery motion. (ROA 1139-1141.) In this motion, PCR counsel informed the district
court that investigative “expenses submitted for payment have exceeded the amount
allowed by the regulations of the Division of Finance[,]” and that additional funds were
needed for “costs associated with the completion of the investigation including expert
fees for consultation and related services.” (ROA 1140.)
In support of his motion, PCR counsel submitted an additional affidavit from
Bruce Whitman, the PCR mitigation investigator, who outlined specific areas of
mitigation that warranted further investigation based on his preliminary review of
Honie’s background, including: Honie’s family history of serious mental illness and
seizure disorders which could have effected Honie’s braining function and behavior;
Honie’s history of multiple serious head injuries which could have affected his cognitive
functioning; Honie’s family history of severe alcoholism as well as Honie’s own longstanding addiction to alcohol and drugs which began early in his life, including
marijuana, inhalants, and heroin; the likelihood that Honie suffers from brain damage; the
likelihood that Honie suffers from neurological impairments caused by Fetal Alcohol
Syndrome (FAS) or Fetal Alcohol Effects (FAE) due to prenatal exposure to alcohol in
27
Resp. App. 038
his mother’s blood stream; and psychological trauma caused by witnessing violence in
the home and being sexually molested by a man in the community. (ROA 1149-1151.)
Whitman explained that further investigation was necessary to develop this mitigating
evidence including further interviews with witnesses and further record collection, which
then could be provided to counsel and experts who would be hired to determine Honie’s
cognitive functioning and mental health state. (ROA 1151-1154.)
Upon the request for additional funds, the Utah State Division of Finance moved
to intervene pursuant to R25-14-1 through 6 of the Utah Administrative Code. (ROA
1157-1159.) The Division of Finance also filed a Response to Honie’s request for
additional funds, arguing that Honie did not comply with the Division’s rules because he
failed to estimate the cost of the work to be performed by Whitman and other experts,
and failed to demonstrate that “this work is reasonable and necessary to the presentation
of his claims.” (ROA 1160-1166.) The Division of Finance further argued that the work
to be performed may be duplicative of work already before the court. (ROA 1160-1166.)
The State also opposed Honie’s request for additional funds stating that “[t]hrough a
combination of statute and administrative rule, the State of Utah provided Honie with a
maximum of $20,000 to cover the costs of investigators, expert witnesses, and
consultants. (ROA 1163.) (Addenda 1).
On November 20, 2006, the district court denied Honie’s funding request stating
he had already received the maximum amount of funding for investigation under Rule
R25-14-5. (ROA 1246.) The district court noted that because Honie’s claim challenged
28
Resp. App. 039
an administrative rule, “the Rulemaking Act requires that, before [he] may obtain judicial
review of Rule R25-14-5, he ‘shall exhaust [his] administrative remedies by complying
with the requirements of Section 63-46a-12.’” (ROA 1246-1247.) The district court
concluded that because Honie had not complied with the Rulemaking Act, the court did
not have jurisdiction to consider his motion for additional funding. (ROA 1247.)
On November 24, 2006, the district court denied Honie’s motion to stay his
response to the State’s requests for discovery, 9 rejecting Honie’s argument that he could
not respond to the State’s discovery requests without first obtaining additional funding.
The district court allowed Honie thirty days to comply or be subject to sanctions pursuant
to Rule 37. (ROA 1251-1252.)
On December 22, 2006, Honie submitted his Answers to Interrogatories and
Response to Request for Production of Documents in response to the State’s discovery
requests. 10 (ROA 1338-1358.) In response to the State’s request for the identities of
experts Honie intended to call, Honie stated that while he had identified several potential
experts he was not able to retain them at this time because he did not have any funding to
do so, but “in the event . . . [he] is able to obtain additional funding either from the State
In the interest in presenting this issue in a concise manner, the State’s Motion to Compel
Discovery, and the subsequent pleadings and Order related to this motion have been
omitted.
10
The Utah Supreme Court does not have a copy of the original of this document in its
file despite the State’s assertion to the contrary in its recent Response to Motion to
Complete and Supplement Record and to Stay Briefing, filed on September 25, 2012.
The only copy of this document in this Court’s record is a copy that is attached to the
State’s Second Motion for Summary Judgment filed on June 22, 2007, as “Exhibit B”. It
is this exhibit that the Court references with ROA numbers 1338-1358.
29
9
Resp. App. 040
of Utah, or through another source to enable him to retain those experts, [he] will
supplement his answers to interrogatories and provide the requested information.” (ROA
1339-1340.) In response to the State’s request for the identities and anticipated
testimony of the lay witnesses Honie intended to call, Honie stated that he was providing
as much information as possible given the limited funding that had been available for
investigation. (ROA 1341.) Honie noted that additional investigation was warranted
based on what counsel had learned up to this point and that if additional funding became
available, Honie would complete his investigation and supplement his answers to the
interrogatories. (ROA 1341.)
Honie stated that he intended to introduce the testimony of his father, Franklin
Honie, who was expected to offer testimony about Honie’s childhood and the
circumstances of his life as a child and young man. (ROA 1343.) Honie also intended to
introduce the testimony of his mother, Terresita Honie, who would testify about the
family history of depression, the events in Honie’s life that contributed to his drug and
alcohol abuse, the nature of the family makeup and family dynamics, the cultural and
religious practices in which Honie was raised, and the family’s disciplinary practices.
Terresita would also testify that she had a very difficult birth with Honie which required
an episiotomy to facilitate his parturition (ROA 1344.); that Honie did not cry for three to
five minutes, and that his head was misshapen and remained dark blue for a substantial
period after his birth[]” (ROA 1344.); that Honie was present when she attempted to kill
herself with a gun and how Honie’s father kicked open the bedroom door just in time to
30
Resp. App. 041
stop her from shooting herself (ROA 1344.); that Honie’s sister Francine attempted to kill
herself in her 20s, and that Honie was profoundly affected by the deaths of three elderly
women in the community with whom he was very close (ROA 1344-1345.); that Honie’s
father and brother Wilbur were severe alcoholics and that nearly everyone in Franklin’s
family drank heavily (ROA 1345.); that she was an alcoholic throughout Honie’s
childhood until he was in high school and that nearly all the males in her family were
alcoholics (ROA 1345.); that she and Franklin were engaged in “bootlegging” until they
caught Honie taking from their inventory and that Honie began using alcohol at a much
younger age than her other children and that he often came home very drunk (ROA
1345.); that Honie witnessed his parents being involved in a terrible car accident with a
dump truck, saw his father covered in blood, and that his “personality changed following
that incident[]” (ROA 1345.); that she suspected Honie was molested by John Boone, a
man whom Honie considered to be his best friend, and who was a school staff member
who was convicted of molesting more than a hundred boys on the Hopi reservation, but
that she was in denial about it and never properly pursued it. (ROA 1303-1304.)
Honie also intended to present the testimony of Roanna Jackson who observed
Honie while drunk on many occasions. (ROA 1346.) Jackson also witnessed Honie
falling from First Mesa, a distance of thirty to thirty-five feet, and landing head first at the
base of the cliff. (ROA 1346.) The incident resulted in Honie being airlifted to Flagstaff
Medical Center to be treated for head injuries.
31
Resp. App. 042
Honie intended to present the testimony of Sankey Jackson, a boyhood friend of
Honie’s who had been molested by John Boone and who would testify that Honie spent a
lot of time at Boone’s house. (ROA 1347.) Jackson would also testify that there were
several children on the reservation were also victimized by Boone but who were too
ashamed to come forward. (ROA 1347.)
Honie noted that he had shared with trial counsel, Cohn, and Cilwick certain
mitigating facts that were never investigated and witnesses who were never interviewed.
(ROA 1348.) Honie also told Cilwick that he had been abused by John Boone when he
was in grade school. (ROA 1350.) Honie said that he had gone to Boone’s home one day
after playing on the Mesa to take a shower because he was dirty and may have even
messed his pants. (ROA 1351.) While Honie was in the shower, Boone entered the
shower while naked and attempted to rape Honie. (ROA 1351.) Honie ran out of the
shower before anything could happen. (ROA 1351.) Boone later gave Honie ice cream,
drove him home and told him that if he told anyone about what happened his mother
might lose her teaching job. (ROA 1352.)
Honie provided Cilwick with detailed information about his alcohol and drug
abuse, as well as details about witnessing his parents being involved in a car accident and
about his fall from the Mesa. (ROA 1349-1350; ROA 1353-1354.) Honie also told
Cilwick that as an adult, he had been involved in a car accident in which he injured the
front part of his head. (ROA 1354-1355.) Honie shared all of the above information with
Cohn as well. (ROA 1355.)
32
Resp. App. 043
On May 8, 2007, a telephone status conference was held with the district court and
the parties. (ROA 1262.) The minutes from the status conference indicate that PCR
counsel submitted another request for additional funds which was pending before the
court and that PCR counsel was “exploring alternatives[]” for funding. (ROA 1262.)
The minutes also indicate that the State intended to file a new motion for summary
judgment. (ROA 1262.) The district court set the matter for a hearing in sixty days.
(ROA 1262.)
On June 21, 2007, the State filed a second motion for summary judgment. (ROA
1266-1269.) The State noted that since the district court’s denial of summary judgment
as to certain claims related to ineffective assistance of trial counsel for failing to perform
a reasonable mitigation investigation, the State conducted discovery and obtained an
affidavit from trial counsel. (ROA 1267.) The State then argued that based on trial
counsel’s affidavit and Honie’s proffer of what he could present if he had additional
funding to develop his claims, Honie could not demonstrate either deficient performance
or prejudice in trial counsel’s sentencing investigation and presentation. (ROA 1267.)
The State noted that just because Honie was denied funding to develop his claims, his
“financial hardship does not excuse his burden to establish prejudice.” (ROA 1312.) The
State observed that “[w]ithout the expert testimony, Honie cannot establish that his
counsel in fact overlooked any additional psychological evidence. . . . (citation omitted)
[and] Honie cannot meet his burden of proving a reasonable probability that the outcome
of the sentencing hearing would have been different. . . .” (ROA 1313.)
33
Resp. App. 044
The State also filed a motion to strike the affidavit of Bruce Whitman, pursuant to
Rule 56(c) and (e) of the Utah Rules of Civil Procedure. (ROA 1587-1588.) The State
argued that because Honie lacked the funds to present the testimony of Whitman, he
could not comply with Rule 56 which provides that affidavits submitted in opposition to
summary judgment must “show affirmatively that the affiant is competent to testify to the
matters stated therein.” (ROA 1587-1592.) The district court denied the motion finding
that Whitman was not incompetent to testify but rather that Honie lacked the funds to
continue to retain him as an expert. (ROA 1604.) The district court noted:
[F]or reasons of fundamental fairness it makes sense not to permit a court
to rule on a motion for summary judgment based upon evidence or
testimony that cannot be admitted or heard at trial because doing so would
be inconsistent with constitutional mandates or rules of evidence. But it is
not the case that Mr. Whitman cannot, for constitutional or evidentiary
reasons, testify at a trial. Instead, he will not be testifying because [Honie]
is unable to afford him as a witness.
(ROA 1604.)
In response to the State’s second motion for summary judgment, Honie filed a
Motion for Reasonable Attorney Fees and Funds to Complete Investigation and To Stay
Proceedings, Or, In The Alternative, To Allow Counsel to Withdraw. (ROA 1607-1608.)
Honie argued that he was unable to “effectively respond to the pending State’s [Second]
Motion for Summary Judgment without having completed the investigation.” (ROA
1610.) Honie noted that his efforts “to obtain additional funding through the
administrative process to complete the investigation and retain experts have not been
34
Resp. App. 045
successful to date and relief though [sic] that avenue does not appear to be forthcoming.”
(ROA 1611.)
In support of the motion, PCR counsel submitted an affidavit in which he stated
that in order to comply with his duties as post-conviction counsel he would be required to
exceed the statutory cap of $20,000 in order to hire necessary experts and complete the
investigation. (ROA 1634-1635.) PCR counsel stated that he petitioned the Division of
Finance requesting that the $20,000 cap be lifted in capital cases but had not yet received
a response. (ROA 1635.) He also stated that state defense agencies had been in
discussions with the Utah Attorney General’s office about increasing funding for capital
post-conviction cases as recently at October 16, 2007 but that nothing had been resolved.
(ROA 1635.)
PCR counsel also expressed concern that while he was assured by an assistant
attorney general for the Division of Finance that there was no communication between
the Division of Finance and the State, he believes that the two parties were “acting in
concert to prevent Mr. Honie from being able to present his case to the court by delaying
or refusing funding.” (ROA 1636.) PCR counsel noted that the State’s recent motion to
strike the affidavit of Whitman due to Honie’s inability to pay him to testify was
evidence of the collusion between the Division of Finance and the State. (ROA 1636.)
PCR counsel noted that the only way he could pursue further funding was to file a
civil lawsuit but that he was not willing to bear the financial cost of such an endeavor as
he had done so in a prior case and could not afford to do so again. (ROA 1636-1637.)
35
Resp. App. 046
PCR counsel noted his commitment to representing capital clients but stated that he could
not afford to support his family and make necessary monthly payments for his law firm
without further compensation. (ROA 1640.) PCR counsel concluded that his negative
experiences in this matter had persuaded him that he could no longer become involved in
capital cases, that the emotional toll and financial losses associated with this type of
representation made such continued representation untenable. (ROA 1640.)
Several motions by the State, the Division of Finance, and Honie ensued
throughout 2007 and 2008. In the interim, the PCRA was amended and the parties
briefed the applicability of 2008 amendments to the PCRA to Honie’s case. On
November 28, 2008, the district court issued is ruling on the applicability of the 2008
amendments to the PCRA. The applicability of the 2008 amendments to the PCRA to
Honie’s case were significant for two reasons: first, if they applied, Honie would be
entitled to request additional funding for attorney fees and investigatory funds; and
second, if they applied, Honie would no longer be entitled to the effective assistant of
post-conviction counsel recognized by this Court in the case of Menzies v. Galetka, 2006
UT 81.
The district court ruled that the funding amendments to the PCRA were procedural
in nature, not substantive, and applied retroactively to Honie’s case; therefore, PCR
counsel was
entitled to seek payment consistent with the procedures set forth by the new
funding amendments for work performed and litigation expenses incurred
on or after the effective date of May 5, 2008, and for all work completed
36
Resp. App. 047
and litigation expenses incurred prior to the effective date for which
payment had not been received.
(ROA 2570-2571.) The district court also noted that under the new funding provisions,
Honie would be entitled to “unlimited attorney fees [at] $125 per hour and unlimited
investigative funds to develop potentially meritorious post-conviction claims. . . .” 11
(ROA 2571.)
Thereafter, Honie submitted an invoice for outstanding attorney fees for work
performed from the time of appointment through January 28, 2009, and the court ordered
the fees to be paid. (ROA 2607.) Honie also submitted a request for approval of funds
for experts and investigation. (Addenda 7); (ROA 2670-2675.) Honie requested
additional funds so that Whitman could complete his mitigation investigation. (ROA
2671-2672.) Honie specifically noted that Whitman’s work was essential to performing
the mitigation investigation and would not be duplicative of work done by the trial team.
(ROA 2673.) Honie also requested funds to hire several experts to develop mitigation
evidence necessary to demonstrate prejudice on his claims of ineffective assistance of
counsel for failing to perform an adequate mitigation investigation.
In response to Honie’s request for funding for experts and investigation expenses,
two separate people from the Division of Finance filed a morass of multiple motions
objecting to disbursement of funds, requesting receipt of all motions related to
The draft legislation provided that the court could authorize attorney fees of $125 per
hour up to $60,000 and litigation expenses up to $20,000, but could “exceed the
maximum[s] only upon a showing of good cause. . . .” S.B. 277, (Addenda 6.)
37
11
Resp. App. 048
disbursement of funds, and objecting to the ex parte submission of invoices, to which
PCR counsel was required to respond. (ROA 2619-2625; 2648-2650; 2658-2660; 27632767; 2768-2772; 2773-2778; 2801-2812.)
On March 10, 2010, the district denied Honie’s requests for additional funds
finding that Honie “has not—and cannot—demonstrate good cause to exceed the
maximum sums authorized for litigation expenses under the PCRA.” (ROA 2836.)
Therefore, even though the district court previously found that Honie’s claims regarding
ineffective assistance of trial counsel for failing to adequately investigate and present
mitigating evidence “raise[d] a genuine issue with respect to whether trial counsel’s lessthan-complete investigation was reasonable[,]” (ROA 1037-1038), the district court
nonetheless found that Honie had not demonstrated good cause to exceed the maximum
funding levels under that statute and denied further funding to develop his claims. The
district court, thereafter, granted the State’s second motion for summary judgment,
ending Honie’s post-conviction challenges. (ROA 3315-3348.)
Within two months of the district court’s grant of summary judgment, Honie filed
a Rule 60(b) motion. (ROA 3356-3357.) This was a Menzies-style motion 12 based on a
claim of ineffective assistance of PCR Counsel, alleging that PCR counsel had become
aware of numerous and substantial issues relating to both his conviction and sentence
which had not been investigated by trial counsel, and that PCR counsel had also failed to
12
See Menzies, 2006 UT 81 at ¶ 75, discussed further in Section III.
38
Resp. App. 049
investigate these claims to present to the district court in his PCR proceedings. (ROA
3358-3373.)
The State filed its opposition arguing that Honie was not challenging his attorney’s
actions but, rather, only challenged the district courts funding decisions. (ROA 3557.)
Alternatively, the State argued that Honie failed to support his claim of ineffectiveness
against his PCR counsel by proffering evidence despite claiming to have had no ability to
continue the investigation, and that the proffers fail to support the claims of
ineffectiveness of trial counsel. (ROA 3561-3565.)
The district court ruled on Honie’s 60(b) motion on February 9, 2011. The order
adopted the State’s argument and language in denying Honie’s motion. (Addenda 8 at 816.) Thus, for the second time, due to either a failure or inability of his counsel to
conduct an adequate investigation, Honie was issued a death warrant without having had
an opportunity to present his claims, objectively determined to involve genuine issues of
material fact, to a court for a fair determination on the merits.
SUMMARY OF ARGUMENT
Issue I concerns the district court’s improper disposal of issues related to trial
counsel’s deficient and prejudicial performance on the State’s first motion for summary
judgment. The record in this case clearly supports Honie’s contention that trial counsel
utterly failed to subject the prosecution’s case to the meaningful adversarial testing
required by our criminal justice system. Trial counsel failed to conduct a reasonable
investigation in preparation for the merits phase of the trial and unreasonably decided to
39
Resp. App. 050
concede Honie’s guilt to aggravated murder before he first investigated potential trial
defenses. Trial counsel was responsible for introducing Honie’s involuntary and
prejudicial custodial statements which were made while he was intoxicated and
incoherent, despite the prosecutor’s willingness to stipulate to their inadmissibility. Trial
counsel was also responsible for introducing a false admission by Honie that he was
responsible for sexually assaulting a child at the scene. Trial counsel introduced this at
sentencing to demonstrate remorse even though the jurors did not find Honie guilty of
this crime and even though Honie had already made a statement of remorse during his
allocution to the jurors at the trial. All of these actions amounted to a violation of
Honie’s Sixth and Fourteenth Amendment rights to the effective assistance of counsel.
Honie presented enough information regarding these claims to present a genuine issue of
material fact and the district court erred when it granted the State’s motion for summary
judgment as to these issues.
Issue II concerns the district court’s improper dismissal of claims regarding trial
counsel’s deficient and prejudicial mitigation investigation, which the court initially held
presented genuine issues of material fact. The district court erred when it dismissed these
claims on the State’s second motion for summary judgment, without first providing
Honie with the funding necessary to develop these claims for an evidentiary hearing. The
mere passage of time and a cursory affidavit by trial counsel were not sufficient to
overcome the court’s initial finding that these claims presented genuine issues of fact
requiring development and an evidentiary hearing.
40
Resp. App. 051
Issue III concerns the district court’s improper denial of Honie’s 60(b) motion
claiming ineffective assistance of post-conviction counsel. The district court erred in
denying Honie’s right to effective assistance of post-conviction counsel under the Utah
Constitution. The liberty interest at stake outweighs the State’s interests and the cost of
providing effective assistance in post-conviction review. Also, the need for reliability in
a first-tier review of all claims, including those arising outside the trial record in death
penalty litigation, mandate effective assistance in post-conviction review. The district
court also erred in denying Honie’s motion on the merits, and the record shows that postconviction counsel was aware of available evidence to support the claims that survived
the State’s first summary judgment motion, but was unable to investigate these claims.
The failure to investigate available evidence in support of valid claims was deficient
performance that prejudiced Honie.
Issue IV concerns the district court’s improper dismissal of a claim regarding trial
counsel’s ineffectiveness for failing to object to the destruction of evidence of Honie’s
intoxication. Because Honie had a viable voluntary intoxication defense, which trial
counsel failed to pursue, Honie was prejudiced by the destruction of this crucial evidence.
While Honie did not respond specifically to the State’s motion to dismiss this claim, the
claim presented an important issue that, in light of Honie’s other claims regarding
intoxication, should have led the district court to find that summary judgment was not
appropriate for this claim.
41
Resp. App. 052
ARGUMENT
I.
THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON
CERTAIN CLAIMS INVOLVING INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
Trial counsel failed to subject the prosecution’s case against Honie to the
meaningful adversarial testing required by our criminal justice system. While trial
counsel proceeded to trial on a concession of guilt theory, he did so without first
investigating possible trial defenses, including the defense of voluntary intoxication,
which was strongly supported by the evidence. Moreover, trial counsel did nothing to
ameliorate the presentation of the case against Honie or to humanize Honie so that the
jurors could see him as a person who was a member of their community and not just an
anonymous man who was charged with the horrible crimes about which they were to
decide. Honie faced “an atmosphere of tense, hostile and excited public sentiment.”
Powell v. Alabama, 287 U.S. 45, 51 (1932). The allegations against him were grave, and
the State was seeking to impose the death penalty; therefore, the efforts of trial counsel
were especially important if Honie was to have any hope of challenging any aspect of the
State’s case at trial or avoiding the death penalty. Despite this, trial counsel not only
conceded Honie’s guilt to aggravated murder making him eligible for the death penalty,
but he was also responsible for introducing some of the most damaging evidence against
Honie at trial and sentencing. Such performance by counsel does not comport with what
is expected of counsel in a criminal case, especially when a man’s life is at stake.
42
Resp. App. 053
“‘[T]he right to counsel is the right to the effective assistance of counsel.’”
Strickland v. Washington, 466 U.S. at 686 (1984) (quoting McMann v. Richardson, 397
U.S. 759, 771, n.14 (1970)). In Strickland, the Court recognized that the right to counsel
is necessary to protect the fundamental right to a fair trial. Id. at 684; see also Powell,
287 U.S. at 71. Having a lawyer “present at trial alongside the accused, however, is not
enough to satisfy the constitutional command.” Strickland, 466 U.S. at 685. “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Id. at 686.
The Court promulgated a two-part test in Strickland. Id. at 687. First, the
defendant must demonstrate that counsel’s performance was “deficient,” meaning that
counsel’s errors were “so serious that counsel was not functioning as the ‘counsel’
guaranteed . . . by the Sixth Amendment.” Id; see also State v. Bullock, 791 P.2d 155,
159-60 (Utah 1989). Second, the defendant must demonstrate that counsel’s “deficient
performance prejudiced the defense[,]” which requires the defendant to show “that
counsel’s errors were so serious as to deprive the defendant of a fair trial[.]” Id; see also
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citing Strickland, 466 U.S. at 687)
(noting that a finding of prejudice involves concepts of reliability and fairness).
This Court has restated the Strickland standard as requiring a defendant to
demonstrate that “counsel rendered a deficient performance in some demonstrable
manner, which performance fell below an objective standard of reasonable professional
43
Resp. App. 054
judgment and . . . that counsel’s performance prejudiced the defendant.” Bundy v.
Deland, 763 P.2d 803, 805 (Utah 1988). This Court has also noted that “‘[i]n making
this determination, an appellate court should consider the totality of the evidence, taking
into account such factors as whether the errors affect the entire evidentiary picture or
have an isolated effect and how strongly the verdict is supported by the record.’” See
Gregg v. State, 2012 UT 32 at ¶ 21, 279 P.3d 396 (Utah 2012) (quoting State v. Templin,
805 P.2d 182, 187 (Utah 1990). Because trial counsel also represented Honie on direct
appeal, state post-conviction counsel timely challenged trial counsel’s ineffectiveness
during state habeas proceedings. See Parsons v. Barnes, 871 P. 2d 516, 521 (Utah 1994).
Under the PCRA, a petitioner “has the burden of pleading and proving by a
preponderance of the evidence the facts necessary to entitle the petitioner to relief.” See
§ 78B-9-105(1). In order to survive a motion for summary judgment, a petitioner must
demonstrate that there is a genuine issue of material fact with respect to each prong under
Strickland. See Utah R.Civ.P. 56(c); see also Parsons, 871 P.2d at 522. However, in
reviewing a summary judgment, a reviewing court must “liberally construe the facts and
view the evidence in a light most favorable to the party opposing the motion.” Lucky
Seven Rodeo Corp., 755 P. 2d at 752. And where there is a dispute as to a material
factual issue on the record, a reviewing court must reverse the trial court’s grant of
summary judgment and remand for further proceedings. Amica Mut. Ins. Co., 768 P. 2d
at 957.
44
Resp. App. 055
A. TRIAL COUNSEL WAS INEFFECTIVE FOR CONCEDING HONIE’S GUILT TO
AGGRAVATED MURDER WITHOUT FIRST INVESTIGATING POSSIBLE TRIAL
13
DEFENSES, INCLUDING THE DEFENSE OF VOLUNTARY INTOXICATION.
1. THERE WAS SIGNIFICANT EVIDENCE SUPPORTING A VOLUNTARY
INTOXICATION DEFENSE THAT TRIAL COUNSEL FAILED TO PURSUE AND
INVESTIGATE.
Trial counsel conceded during opening statements at trial that Honie was guilty of
aggravated murder. Because trial counsel first failed to investigate the circumstances of
the crime and possible defenses to murder and aggravated murder, it was unreasonable
for him to concede Honie’s guilt to aggravated murder and Honie was prejudiced by
counsel’s deficient performance. See Strickland, 466 U.S. at 690-91; see also Templin,
805 P.2d at 188.
On review of this claim, the district court ruled that trial counsel’s concession
strategy was not appropriate because it was not clear that trial counsel “fulfilled his duty
under Strickland to explain his concession strategy to Petitioner or whether Petitioner had
a sufficient understanding of the strategy trial counsel intended to employ.” 14 (ROA
Honie raised this claim in his Amended Petition for Post-Conviction Relief (“Amended
Petition”) and in his Memorandum in Opposition to Motion for Summary Judgment and
to Dismiss. (ROA 64-66); (ROA 724-726, 733-743, 766-771.)
13
14
The district court was correct in relying on Nixon to find that trial counsel’s concession
strategy was improper because he failed to inform Honie of his decision; however, in
dicta, the court also notes that there are cases in which a concession strategy would be
proper when the evidence supports it, and cites to Nixon for this proposition. It is
important to note that the reasoning in Nixon would not support the concession strategy in
Honie’s case as reasonable and proper because Nixon’s case was tried before a jury who
also was responsible for sentencing him. 543 U.S. 175, 183 (2004). In Honie’s case, the
45
Resp. App. 056
1004) (citing Florida v. Nixon, 125 S. Ct. 551, 560 (2004) (quoting Taylor v. Illinois, 484
U.S. 400, 417-18 (1988)); see also Strickland, 466 U.S. at 688. However, while finding
trial counsel’s performance deficient, the district court went on to hold that Honie failed
to prove prejudice because he relied on Cronic to argue presumed prejudice. (ROA
1005) (citing United States v. Cronic, 466 U.S. 648 (1984)).
The district court erred when it found that post-conviction counsel failed to argue
prejudice. While post-conviction counsel pointed out that this error was so grave that
prejudice should be presumed, he also argued that Honie was prejudiced by counsel’s
failure to present evidence of intoxication because it could have “been useful at both
phases of the trial. (ROA 771.) Post-conviction counsel noted that “there were
substantial indications that Honie was intoxicated at the time of the commission of the
offense[,]” including: Honie’s detailed statement to the defense team about the alcohol
and drugs he consumed on the night of the incident; the lab tests indicating that Honie’s
blood alcohol level was 0.07 four and one-half hours after the offense as well as the
presence of both active and metabolized THC in his system; and the testimony of lay
witnesses and police officers stating Honie was intoxicated both before the incident and
after the incident during police questioning. (ROA 767-768.)
Post-conviction counsel argued that had trial counsel developed evidence of
Honie’s intoxication at the time he was interrogated, trial counsel could have used that
jury was not responsible for deciding Honie’s sentence; therefore, Honie did not face the
risk of presenting inconsistent theories to the jury.
46
Resp. App. 057
evidence to argue that Honie’s statements were involuntary and therefore inadmissible.
(ROA 768-769.) Because trial counsel did nothing to exclude the statements, Honie was
prejudiced when the jurors heard highly inflammatory statements that implicated Honie
in the crimes and presented him in a very negative light. Post-conviction counsel also
argued that Honie was prejudiced by trial counsel’s failure to present a viable voluntary
intoxication defense: “The prejudice which resulted is that the jury was not able to hear
and consider valuable evidence which may have raised a reasonable doubt as to
aggravators and guilt.” (ROA 770.)
Under Utah law at the time, evidence of voluntary intoxication could have negated
the existence of the mental state necessary to be convicted of murder. See Utah Code
Ann. § 76-2-306. Given the strong evidence of Honie’s extreme intoxication at the time
of the incident, which is outlined in the fact section, supra, this was a viable defense that
should have been investigated by trial counsel. See Strickland, 466 U.S. at 691; see also
Templin, 805 P.2d at 188. Honie was prejudiced when trial counsel failed to pursue this
defense and failed to use Honie’s intoxication as mitigating evidence at sentencing.
Honie gave detailed information to trial counsel about the drugs and alcohol he
consumed on the day of the incident. 15 Honie also told counsel he did not remember
being advised of his rights by the police and that his mind was not clear until two days
later. (ROA 808-812; 3503-3504.) Trial counsel was also aware of the toxicology report
(ROA 808-812.) Affidavit of Taberon Dave Honie, 03/11/05. Honie incorrectly stated
the relevant dates as being June 10-11, 1998. He corrected this in a subsequent affidavit
stating the relevant dates were July 9-10, 1998. (ROA 3503-3504.)
47
15
Resp. App. 058
indicating the level of alcohol and marijuana in Honie’s system. (ROA 814-815.) Given
the length of time it took for police to conduct this test, Honie’s blood alcohol level
would have been significantly higher at the time of the incident. The blood test also
revealed the presence of THC in his blood, both active and metabolized. Id. While no
testing was requested by the police for the presence of methamphetamine or
phencyclidine, trial counsel failed to do any testing himself. Id.
Had counsel followed up on this report by hiring an expert to conduct a retrograde
extrapolation to determine what Honie’s blood alcohol level was at the time of the
incident, he would have learned that it was 0.15. ( ROA 3472.) Had trial counsel hired
an expert in alcohol and drug abuse, he would have also learned that the synergistic
effects of the drugs and alcohol consumed by Honie would have had “a significant effect
on his ability to consent to an interview by law enforcement officers.” Id. This
synergistic effect of taking the multiple drugs and alcohol would have also caused Honie
to be more intoxicated and cognitively impaired than if he had consumed one substance
alone. ( ROA 3480 at ¶ 11.) This evidence was presented to the district court during
post-conviction proceedings. (ROA 3356-3431.)
During post-conviction proceedings, the mitigation investigator who had reviewed
Honie’s file noted that despite the fact that there was substantial evidence that Honie
abused drugs and alcohol and was intoxicated at the time of the crime, trial counsel failed
to investigate this aspect of the case and failed to hire any experts who could have
48
Resp. App. 059
explained to the court how this may have affected Honie at the time of the crime. (ROA
817-830.)
Given the strong evidence of intoxication that was available to trial counsel, trial
counsel had an obligation to investigate voluntary intoxication as a possible defense at
trial before deciding on a concession theory. See Strickland, 466 U.S. at 690-91; see also
Templin, 805 P.2d at 188. While courts should give wide latitude to counsel’s
performance, the reasonableness of counsel’s decisions is measured by the
reasonableness of the investigation done in making such a decision. Wiggins v. Smith,
539 U.S. 513 (2003). Where counsel “does not adequately investigate the underlying
facts of a case, counsel’s performance cannot fall within the ‘wide range of reasonable
professional assistance[,]’ . . . because a decision not to investigate cannot be considered
a tactical decision.” Templin, 805 P.2d at 188. The Supreme Court has stated that
“[s]trategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690-91; see also Wiggins, 539 U.S. at 528.
In Gregg v. State, this Court found that counsel’s failure to conduct a reasonable
investigation into the underlying facts of a case constituted deficient performance. See
id. at 2012 UT 32, ¶ 24 (citing Templin, 805 P.2d at188-89). The Court noted that where
“counsel does not adequately investigate the underlying facts of a case, . . . counsel’s
performance cannot fall within the ‘wide range of reasonable professional assistance’”
49
Resp. App. 060
because “a decision not to investigate cannot be considered a tactical decision.” Gregg,
2012 UT 32, ¶ 24 (quoting Templin, 805 P.2d at 188) (internal quotation omitted).
Having failed to investigate this obvious defense to the charge of murder, it was
unreasonable for counsel to concede Honie’s guilt at trial. Honie was prejudiced by
counsel’s deficient performance because he had a viable defense to murder which was
never presented to the jurors. Instead, counsel presented no defense at trial, conceding
Honie’s guilt to aggravated murder, which ensured he would be eligible for the death
penalty from the moment the trial began. The district court erred when it held that trial
counsel’s concession theory was reasonable and that post-conviction counsel failed to
demonstrate that Honie was prejudiced by trial counsel’s concession theory. Because this
Court considers this claim in the context of the grant of summary judgment, it must find
that Honie has presented a genuine issue of material fact as to both aspects of this claim
that is sufficient to survive summary judgment. See Lucky Seven Rodeo Corp., 755 P. 2d
at 752; see also Amica Mut. Ins. Co., 768 P. 2d at 957.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR INTRODUCING HONIE’S
INCULPATORY STATEMENTS AT TRIAL DESPITE THE STATE’S WILLINGNESS
16
TO STIPULATE TO THEIR INADMISSIBILITY.
1. TRIAL COUNSEL FAILED TO SUPPRESS HONIE’S STATEMENTS DESPITE
ADMITTING HE BELIEVED HIS STATEMENTS WERE MADE IN VIOLATION
OF MIRANDA V. ARIZONA.
Honie raised this claim in his Amended Petition for Post-Conviction Relief (“Amended
Petition”) and in his Memorandum in Opposition to Motion for Summary Judgment and
to Dismiss. (ROA 67; ROA 724-733.)
16
50
Resp. App. 061
Trial counsel filed a motion to suppress the statements made to the police, arguing
that they were involuntarily made, that they were made without proper warnings pursuant
to Miranda, 384 U.S. 436, and that their admission would be prejudicial, and therefore,
excludable at trial under the Utah Rules of Evidence. (TC ROA 1-3-097.) As pointed
out in the fact section, supra, trial counsel filed this motion as a way to protect himself
against a future claim of ineffective assistance of counsel, rather than actually to succeed
in suppressing the statements. TR 01/21/99 at 6. While counsel admitted to the court
that he believed that Honie’s statements were involuntarily made, he nonetheless wanted
to introduce them at trial. TR 01/21/99 at 6. He also refused the State’s offer to stipulate
to the inadmissibility of the statements at trial. TR 01/21/99 at 11.
Despite there being a clear record of Honie’s intoxication at the time he was
questioned by police, which would have rendered his statements involuntary, trial
counsel failed to question Davis about this at the suppression hearing. Trial counsel also
failed to point out the fact that part of Honie’s interrogation took place while he was
stripped naked and photographed, and also while he was handcuffed behind his back for
several hours while he was bleeding from a large cut on his hand. Trial counsel failed to
call in any of the other officers who had encountered Honie that night who could have
testified about his conduct, statements and demeanor. Moreover, trial counsel failed to
have an independent expert test Honie’s blood sample, which had been obtained by the
police for other purposes, to test it for drugs and alcohol. In short, trial counsel did
nothing to challenge these highly damaging and involuntary statements, which were
51
Resp. App. 062
made without the benefit of Miranda warnings, and in fact, intended to introduce them
himself at trial. Given trial counsel’s lack of advocacy, the trial court denied the motion,
finding that Honie’s initial waiver of rights under Miranda during the first interrogation
was valid for all three statements. (TC ROA 209-208, 199-198.)
The appointment of effective counsel is essential to receiving a fair trial in a
capital case. See Strickland, 466 U.S. 668; see also Powell, 287 U.S. at 71. The United
States Supreme Court has found that this right is equally applicable to the pretrial stage of
a capital murder trial. See Powell, 287 U.S. at 67. In Honie’s case, trial counsel was
ineffective when he failed to attempt to suppress Honie’s highly prejudicial statements
prior to trial. See id. Trial counsel admitted to the trial court that he believed there was a
Miranda violation because Honie was only offered Miranda warnings during the first
interrogation, a time during which Detective Davis, himself, admitted that Honie was
intoxicated. Trial counsel also admitted that Honie’s statements were rendered
involuntary because he was too intoxicated to validly waive his constitutional rights.
Despite both of these factors, trial counsel failed to present readily available testimony
and evidence to support his challenge to the voluntariness of Honie’s statements.
It was clear from trial counsel’s statements during the suppression hearing that he
had already decided on his infelicitous concession strategy because he was intending to
introduce these statements at trial. This was unreasonable given how early in the case the
hearing occurred. The trial was still four months away and trial counsel had not yet
investigated possible defenses that could be used at trial. Given the fact that the state
52
Resp. App. 063
agreed to stipulate that the statements would be inadmissible at trial, counsel should have
agreed to the stipulation to keep the statements out of evidence until he had investigated
other possible strategies before deciding on a concession theory. See Strickland, 466
U.S. at 690-91; see also Templin, 805 P.2d at 188.
2. TRIAL COUNSEL INTRODUCED HIGHLY PREJUDICIAL STATEMENTS OF
HONIE AT TRIAL EFFECTIVELY ENSURING HE WOULD BE CONVICTED OF
AGGRAVATED MURDER, DESPITE THE FACT THAT THE STATE AGREED TO
STIPULATE THAT THE STATEMENTS WOULD BE INADMISSIBLE AT TRIAL.
In reviewing this claim, the district court recognized that trial counsel’s argument
on the motion to suppress statements was “ambivalent.” (ROA 1009.) However, the
court noted that in light of the overwhelming evidence of guilt, it was reasonable for
counsel to concede guilt and focus on saving his client’s life during the penalty phase.
(ROA 1010.) The court then found that because trial counsel intended to introduce
Honie’s statements during the penalty phase to demonstrate remorse, “there was nothing
counterproductive about allowing the admission of Petitioner’s incriminating statements
during the guilt or innocence phase of the trial.” (ROA 1010.) The court concluded that
“trial counsel’s legitimate strategy of conceding guilt in order to focus on presenting
mitigating evidence to the trial court” was not deficient performance. (ROA 1011.) The
court also noted that because post-conviction counsel relied on presumed prejudice under
Cronic, 466 U.S. 648, he failed to demonstrate that a genuine issue of fact existed that but
for trial counsel’s errors, the outcome of “either phase of Petitioner’s capital trial would
53
Resp. App. 064
have been different.” (ROA 1011.) Therefore, the court failed to address the prejudice
prong under Strickland.
The district court erred when it found that trial counsel’s concession theory was
reasonable because trial counsel had not first investigated possible defenses for trial,
including a voluntary intoxication defense. See Strickland, 466 U.S. at 690-91; see also
Gregg, 279 P.3d at ¶ 24; Templin, 805 P.2d at 188. The district court also erred when it
found that it was reasonable for trial counsel to introduce Honie’s statements to the jurors
at trial to demonstrate remorse at the penalty phase, because the jurors were not
determining the penalty. It also was not necessary to introduce these extremely
prejudicial statements to the jurors because Honie expressed remorse during his
allocution before the jury during the trial. TR 05/20/99 at 25-29. Moreover, while the
trial court said these statements were relevant to remorse, it did not rely on these
statements in making its finding of remorse during the penalty phase; instead, it relied
solely on the expression of remorse by Honie during his allocution. (TC ROA 544.)
In Arizona v. Fulminante, 499 U.S. 279 (1991), the Court explained that “[a]
defendant’s confession is ‘probably the most probative and damaging evidence that can
be admitted against him,’ . . . so damaging that a jury should not be expected to ignore it
even if told to do so, . . . and because . . . it is impossible to know what credit and weight
the jury gave to the confession.” Id. at 292 (internal citations omitted). Given the
powerful nature of a defendant’s inculpatory statements, it was unreasonable for trial
counsel to introduce Honie’s custodial statements at trial to demonstrate remorse, when
54
Resp. App. 065
remorse was a sentencing factor to be considered by the judge. See Strickland, 466 U.S.
at 686-87. Therefore, the district court’s finding of reasonableness was in error.
The combination of trial counsel’s ill-chosen and unreasonable decision to
concede Honie’s guilt at trial, along with the introduction of Honie’s highly prejudicial
and inculpatory statements, gives one the impression that Honie’s attorney was seeking to
prosecute, rather than to defend Honie. Trial counsel’s combined actions amount to a
complete failure to advocate on Honie’s behalf. Trial counsel’s sole reason for filing the
motion to suppress was to avoid an allegation of ineffective assistance of counsel down
the road, not to exclude Honie’s inculpatory statements from trial. He did nothing to
exclude prejudicial evidence from trial, and instead, introduced it himself. These actions
on the part of counsel amount to a complete failure to advocate for his client. This was
recognized by post-conviction counsel when he argued that trial counsel’s lack of
advocacy inherently prejudiced Honie, requiring no need to demonstrate prejudice under
Strickland. (ROA 724-725.)
Despite arguing Cronic error, however, post-conviction counsel also argued that
trial counsel’s deficient performance prejudiced Honie. Post-conviction counsel argued
that but for trial counsel’s errors in admitting these statements, the jurors would not have
heard about the gruesome and prejudicial facts of the crime. (ROA 732.) Postconviction counsel argued that Honie was prejudiced because when these statements
were introduced by trial counsel, the jurors heard “numerous damaging statements that
held Honie out to be liar, a sexual pervert, calloused and unfeeling to the point of
55
Resp. App. 066
attempting to sexually assault the victim after killing her. Id. Importantly, as postconviction counsel pointed out, the sole reason for introducing these statements was to
demonstrate Honie’s remorse, but trial counsel knew that Honie would express remorse
during his allocation, therefore there is no reasonable explanation for their admission.
(ROA 732-733.) Post-conviction counsel argued that this error was exacerbated by the
fact that trial counsel told the jurors that Honie was guilty of aggravated murder,
amounting to a failure to subject the State’s case to adversarial testing. Id.
The district court erred when it held that trial counsel was not deficient for
introducing Honie’s statements to the jurors at trial to demonstrate remorse under these
circumstances. The district court also erred when it failed to address prejudice under
Strickland, despite the fact that post-conviction counsel argued prejudice. Honie was
indeed harmed by trial counsel’s deficient performance, which ensured that he would be
convicted of aggravated murder and eligible for the death penalty. Because this Court
considers this claim in the context of the grant of summary judgment, it must find that
Honie has presented a genuine issue of material fact as to both aspects of this claim that
is sufficient to survive summary judgment. See Lucky Seven Rodeo Corp., 755 P. 2d at
752; see also Amica Mut. Ins. Co., 768 P. 2d at 957.
C. TRIAL COUNSEL WAS INEFFECTIVE FOR INTRODUCING HONIE’S ALLEGED
17
STATEMENT THAT HE SEXUALLY MOLESTED D.R. AT THE PENALTY PHASE .
Honie raised this claim in his Amended Petition for Post-Conviction Relief (“Amended
Petition”) and in his Memorandum in Opposition to Motion for Summary Judgment and
to Dismiss. (ROA 48, 66-67); (ROA 743-747.)
56
17
Resp. App. 067
One of the most prejudicial charges against Honie was the allegation that he had
sexually molested one of the children at the scene, D.R., by digitally penetrating her. TR
05/17/99 at 231-32. While the State presented evidence of this during the trial as an
aggravating factor to murder, the jurors did not find Honie guilty of aggravated sexual
abuse or attempted aggravated sexual abuse of a child. TR 05/18/99 at 496. Despite this,
trial counsel introduced an alleged statement made by Honie to Nancy Cohn, Ph.D., the
defense psychologist, in which he admitted to digitally penetrating D.R. TR 05/19/99 at
192. In his penalty-phase closing statement, trial counsel argued that this “admission”
indicated that Honie was remorseful. TR 05/20/99 at 76. Trial counsel also admitted
during his penalty-phase closing statement that he introduced this statement knowing that
the State’s evidence supporting this allegation was weak and that the victim had
implicated her father, not Honie, in the molestation:
Mr. Honie made th[is] admission of sexually violating that young girl.
That’s something he never had to do. We were aware early on that the
evidence on that particular aggravating circumstance was not very strong.
They had—in fact, Mr. Burns is aware and I’m sure would not even
disagree there was a statement from the girl, from Dakota, that her dad had
done that.
TR 05/20/99 at 76. The statement that trial counsel was referring to came from a report
by the social services staff responsible for caring for D.R. and the other children
following the incident. In the Report there is a note that states “En route to the Family
Support Center, [D.R.] told this worker her daddy (name unknown at intake), does this to
her, ‘my daddy does this to me’, she then demonstrated with her hand the finger, [sic] We
57
Resp. App. 068
were discussing the circus when [D.R.] out of the blue mentioned her daddy does the
finger to her.” (ROA 3518.) The trial court relied on Honie’s alleged statement to find
aggravated sexual abuse of a child as a non-statutory aggravating circumstance
supporting the death penalty. (TC ROA 549-548.) The trial court also referred to
aggravated sexual abuse of a child in its Statement of Conviction and Judgment of Death.
(TC ROA 554.)
On review of this claim, the district court recognized that the sentencing stage of a
capital murder trial “‘is the most critical phase of a death penalty case. . . .” (ROA 992.)
The district court also recognized that “introducing aggravating evidence without a
tactical reason for doing so is counter-productive to defense counsel’s duty and
undermines his client’s interests at the penalty phase.” (ROA 992.) Nonetheless, the
district court held that trial counsel had a “legitimate tactical reason” for introducing this
statement as evidence that Honie accepted responsibility for his crime and was
remorseful. Id. The district court noted that the trial court could have justifiably relied
on evidence supporting this crime that was presented during the trial even though the
jurors failed to find that Honie was guilty of this accusation. (ROA 993.) The district
court also noted that because trial counsel furnished Cohn’s report to the State, the
prosecutor would have likely introduced this evidence himself. Id. The district court
relied on these two reasons to conclude that trial counsel’s decision to introduce this
statement at the penalty phase was a legitimate tactical choice. Id. The district court also
found that even if there was error, Honie was not prejudiced by it because “even without
58
Resp. App. 069
Petitioner’s admission, the trial court was fully aware of the evidence presented showing
that Petitioner had sexually molested [D.R.] during the course of the homicide and was
entitled to rely upon this evidence as an aggravating factor favoring the imposition of the
death penalty.” (ROA 994.)
1. TRIAL COUNSEL WAS INEFFECTIVE FOR INTRODUCING HONIE’S
ALLEGED STATEMENT WITHOUT FIRST INVESTIGATING D.R.’S
STATEMENT THAT HER FATHER, NOT HONIE, WAS RESPONSIBLE FOR
MOLESTING HER.
Trial counsel was ineffective for failing to investigate the facts and circumstances
behind this allegation when he knew that that D.R. had made a statement to social
services staff that her father was the one who molested her. See Rompilla v. Beard, 545
U.S. 374 (2005); see also Strickland, 466 U.S. at 690-91; Gregg, 279 P.3d at ¶ 24;
Templin, 805 P.2d 188. In Rompilla, the Court held that trial counsel was ineffective for
failing “to obtain and review material that counsel knows the prosecution will probably
rely on as evidence of aggravation at the sentencing phase of trial.” Id. at 377. The
Court found that because counsel knew the State would rely on his client’s significant
felony history in asking for the death penalty, it was unreasonable for counsel to fail to
obtain the client’s prior conviction file, which was readily available. Id. at 383-84. The
Court noted, “[I]t is difficult to see how counsel could have failed to realize that without
examining the readily available file they were seriously compromising their opportunity
to respond to a case for aggravation.” Id. at 386. The Court also noted that obtaining
information that trial counsel knows the State will use against his client “is not simply a
59
Resp. App. 070
matter of common sense[,]” but an obligation under the American Bar Association
(ABA) Standards for Criminal Justice which state:
It is the duty of the lawyer to conduct a prompt investigation of the
circumstances of the case and to explore all avenues leading to facts
relevant to the merits of the case and the penalty in the event of conviction.
The investigation should always include efforts to secure information in the
possession of the prosecution and law enforcement authorities. The duty to
investigate exists regardless of the accused’s admissions or statements to
the lawyer of facts constituting guilt or the accused’s stated desire to plead
guilty.
Id. at 387 (quoting ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.)). The
Court concluded, “It flouts prudence to deny that a defense lawyer should try to look at a
file he knows the prosecution will cull for aggravating evidence . . . . No reasonable
lawyer would forego examination of the file . . . .” Id. at 389.
Honie’s case presents similar circumstances to those in Rompilla; however,
Honie’s case is further complicated by the fact that trial counsel, and not the State, was
responsible for admitting this harmful evidence during the penalty phase. Just as in
Rompilla, trial counsel had a duty to further investigate D.R.’s statement that her father,
and not Honie, had molested her, and failed to do so. Trial counsel was aware that the
State would be using this information as an aggravating circumstance at trial, and the
State, in fact, did do so. Moreover, trial counsel should have been aware that even
though the jurors did not find Honie guilty of this charge beyond a reasonable doubt at
trial, the State, nonetheless could argue this evidence as a non-statutory aggravating
circumstance during the penalty phase. Therefore, trial counsel, on this basis alone, had a
60
Resp. App. 071
duty to follow up on the information contained in the Child Abuse Neglect Form by
interviewing the social services staff who cared for D.R. following the incident and to
whom D.R. made the statement. Trial counsel should have also interviewed D.R.’s
father, and investigated his background to see if there was any information to substantiate
her statement. (ROA 3517-3520.) Trial counsel’s performance was deficient because he
failed to follow-up on obvious “red flags” indicating that someone other than Honie was
responsible for molesting D.R. See Rompilla, 545 U.S. at 392-93.
2. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CONSULT WITH
HONIE ABOUT THIS ALLEGATION BEFORE ADMITTING HIS STATEMENT
AT THE PENALTY PHASE.
Another troubling aspect to this claim is the fact that trial counsel introduced this
statement without having ever spoken with Honie about whether he had actually
committed this crime. This was especially important because Honie always maintained
his innocence as to this charge. Honie never told the police that he had violated D.R.
During the interviews with Davis, Honie told Davis that he did not sexually abuse any of
the children and that they were “the gems of my eyes.” TR 05/17/99 at 356, 359. Honie
also never admitted to violating D.R. at trial. During his allocution at trial, Honie
expressed remorse and asked for forgiveness for his actions, specifically for killing Benn
TR 05/20/99 at 27, 28. However, Honie did not say that he violated D.R.
During post-conviction proceedings, Honie presented an affidavit to the district
court in which he stated that trial counsel “never talked to me about the State’s allegation
that I had sexually assaulted [D.R.] or asked me if I had done that.” (ROA 3512.) Honie
61
Resp. App. 072
stated that he “did not molest or sexually assault [D.R.] on the night of the homicide . . .
[or] at any time prior to that date.” Id. Honie explained that he informed the defense
investigator that both he and Carol Pikyavit, D.R.’s aunt, “had been suspicious that
[D.R.’s] biological father, Jamie Rogers, had been sexually abusing D.R..” Id. at 2.
Honie further added that he was never shown the “Child Abuse Neglect Report”
implicating D.R.’s father in the molestation. (ROA 3513.)
In his affidavit, Honie stated that he told Cohn that he did not molest or sexually
assault D.R., but that he felt pressured by Cohn to falsely admit that he did. (ROA 3514
at ¶8.) Honie stated that during the psychological evaluation, Cohn told Honie that the
only way he would be able to get a life sentence was to admit to everything the State was
alleging against him. Id. at ¶8. Honie told Cohn that he “did not remember many of the
events that occurred at Claudia Benn’s home on the night of the murder due to [his]
alcohol and drug consumption, but that [he] knew [he] did not molest or sexually assault
[D.R.].” Id. at ¶9. Nonetheless, Cohn continued to put pressure on Honie to say that he
did until Honie finally told Cohn, “[J]ust give them what they want to make it easier on
them and you.” Id. at ¶ 9. Honie also stated that Cohn never told him about the Child
Abuse Neglect Report or that Dakota had implicated her biological father in the
molestation. (ROA 3515 at ¶11.)
In Strickland, the Court recognized certain basic duties of counsel representing a
criminal defendant: the duty of loyalty, the duty to avoid conflicts of interest, and the
duty “to consult with the defendant on important decisions and to keep the defendant
62
Resp. App. 073
informed of important developments in the course of the prosecution.” 466 U.S. at 688.
While the Court found that more specific guidelines were not appropriate and that “[t]he
proper measure of attorney performance remains simply reasonableness under prevailing
professional norms.” Id. (explaining that prevailing norms of practice as reflected in the
American Bar Association standards and the like are guides to determining what is
reasonable). The Court also explained that counsel has a duty to make reasonable
investigations and that strategic choices made after less than complete investigation are
only reasonable to the extent that professional judgment would support such limits to
investigation. Id. at 691. The Court reiterated these principles in Bobby v. Van Hook,
130 S.Ct. 13 (2009), where it acknowledged that “[r]estatements of professional
standards . . . can be useful as ‘guides’ to what reasonableness entails. . . where they
describe the professional norms prevailing when the representation took place.” Id. at 16
(citing Strickland, 466 U.S. at 688).
Trial counsel’s failure to consult with Honie about using this statement during the
penalty phase violated one of the basic duties of counsel recognized specifically in
Strickland which is “to consult with the defendant on important decisions and to keep the
defendant informed of important developments in the course of the prosecution.”
Strickland, 466 U.S. at 688; see also Commentary, 1989 ABA Guideline 11.4.2
(“Counsel has a duty to interview the client, to keep the client informed of developments
and progress in the case, and to consult with the client on strategic and tactical matters.”)
Id.; 1989 ABA Guideline 11.4.2 (“Trial counsel should maintain close contact with the
63
Resp. App. 074
client throughout the preparation of the case, discussing (inter
- - - -alia)
- - the investigation,
potential legal issues that exist or develop, and the development of a defense theory.”)
Id.
Moreover, trial counsel had a duty to ask Honie about his statement to Cohn to
determine its veracity, especially in light of the fact that trial counsel was aware that D.R.
had said that her father, and not Honie, had molested her. Commentary, 1989 ABA
Guideline 11.4.1 (“Client interviews are vital for establishing the trust between attorney
and client necessary to allow the attorney to learn the facts. Counsel cannot frame an
adequate defense without knowing what is likely to develop at trial, including
information that is or appears to be incriminating.”) Id. These duties and requirements
were even more essential in Honie’s case as he was facing the death penalty. See
Commentary, 1989 ABA Guideline 11.4.2 (“Counsel’s general duty to maintain client
contact is compounded in a capital case. The complexity and unique nature of the legal
proceedings, stemming from their potentially lethal outcome, mandate careful
consultation with the person who may be killed.”) Id.
The district court offered two reasons in support of finding trial counsel’s
admission of this statement a tactical decision: (1) first, it noted that the trial court could
have justifiably relied on the evidence presented during the trial even though jurors failed
to find that Honie was guilty of this allegation beyond a reasonable doubt; and (2)
second, it noted that because trial counsel furnished Cohn’s report to the prosecutor, the
prosecutor would have introduced the statement himself. As to the first reason, the
64
Resp. App. 075
district court overlooked the fact that the sentencing court did, in fact, rely on Honie’s
admission to Cohn to find aggravated sexual abuse of as a child a non-statutory
aggravating circumstance. (TC ROA 548.) Also, the district court fails to distinguish the
impact of circumstantial evidence versus a defendant’s own admission. There is no
question that Honie’s own statement would have been perceived by the court as far more
compelling than the circumstantial evidence the State presented at trial. See Fulminante,
499 U.S. at 292 (finding that “[a] defendant’s confession is ‘probably the most probative
and damaging evidence that can be admitted against him[.]’”) Id. (internal citations
omitted). Therefore, it is not clear that the trial court would have found this evidence as a
non-statutory aggravating circumstance if trial counsel had not admitted this statement
during the penalty phase.
As to the second reason of the court, the court treats the admission of the statement
as a foregone conclusion, when, in fact, trial counsel could have also elected not to
present Cohn’s testimony to avoid producing her report to the prosecutor and introducing
Honie’s statement. Moreover, there is no indication that trial counsel met with Honie
prior to his interview with Cohn to prepare him and to discuss with him the possible
impact of any statements he may give during his interview and evaluation with Cohn.
See 1989 ABA Guideline 11.8.3 (“Counsel should discuss with the client the possible
impact on the sentence and later potential proceedings . . . of statements the client may
give in interviews.”). Id. There is also no indication that trial counsel adequately
explained to Cohn what her role was as a mitigation investigator or that she understood
65
Resp. App. 076
what her role was in this capacity. At sentencing, Cohn testified that the majority of her
work entailed doing competency evaluations for both the defense and the prosecution and
that she had only served as a defense consultant in two capital cases.
When asked what
she believed her role in Honie’s was she stated, “I view myself as though I were a courtappointed expert in all cases, which means that I have a neutral opinion when I go in . . .
.” Given that Cohn’s practice was almost entirely based on competency evaluations and
given the fact that she viewed herself as a court-appointed expert, rather than as a defense
expert, it is clear that she failed to understand what her role was as a mitigation expert for
Honie. In any event, neither reason by the district court can support a conclusion that
trial counsel’s admission of this statement was a reasonable tactical decision.
3. HONIE WAS PREJUDICED BY TRIAL COUNSEL’S ADMISSION OF HIS
ALLEGED STATEMENT DURING THE PENALTY PHASE AND HIS FAILURE TO
INVESTIGATE ALLEGATIONS THAT SOMEONE OTHER THAN HONIE WAS
RESPONSIBLE FOR MOLESTING D.R.
Honie was prejudiced by trial counsel’s introduction of his alleged statement
because the trial court relied on his statement to find aggravated sexual abuse of a child
as a non-statutory aggravating circumstance. (TC ROA 548.) Honie was also prejudiced
by trial counsel’s failure to introduce the report in which D.R. stated her father, and not
Honie, was responsible for molesting her. Moreover, had trial counsel investigated the
facts and circumstances of this allegation by interviewing social services staff, D.R.’s
father, and other relevant witnesses, including Carol Pikyavet, who suspected that D.R.’s
father was molesting D.R., he could have used this information to either exclude any
66
Resp. App. 077
reference to this allegation during trial and sentencing, or impeach the witness who
referred to it at trial. Furthermore, he may have clarified the issue for himself as well and
chosen not to introduce it during sentencing. Honie was prejudiced when both the jury
and the judge heard allegations that he had sexually molested a child without also hearing
this powerful countervailing evidence. While the jury did not find evidence of this
beyond a reasonable doubt, there is no telling what influence it had on their decision to
find Honie guilty of aggravated murder. See Fulminante, 499 U.S. 279. Moreover, the
trial court had a right to know about the evidence calling into question Honie’s guilt for
aggravated sexual abuse of a child, and may have chosen not to find it as a non-statutory
aggravating factor.
The district court erred when it held that trial counsel had a “legitimate tactical
reason” for introducing this statement as evidence of Honie’s remorse and that Honie was
not prejudiced by trial counsel’s decision. Because Honie demonstrated that there is a
genuine issue of material fact with respect to each prong under Strickland, see Utah
R.Civ.P. 56(c); see also Parsons, 871 P.2d at 522, this Court must find that that this claim
is sufficient to survive summary judgment. See Lucky Seven Rodeo Corp., 755 P. 2d at
752; see also Amica Mut. Ins. Co., 768 P. 2d at 957.
D. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PROPERLY ADVISE
HONIE OF HIS RIGHTS TO HAVE A JURY DETERMINE HIS PENALTY 18.
Honie raised this claim in his Amended Petition for Post-Conviction Relief (“Amended
Petition”) and in his Memorandum in Opposition to Motion for Summary Judgment and
to Dismiss. (ROA 64); (ROA 752-766.)
67
18
Resp. App. 078
Trial counsel encouraged Honie to waive jury sentencing in favor of having the
trial court determine the appropriate penalty without adequately inform Honie about the
trial and sentencing process in his case and the consequences of his waiver. Because
Honie had a state statutory right to be sentenced by a jury in his capital murder case, it
was incumbent upon counsel to ensure that Honie was fully informed about his options
and the consequences of waiving a jury. See UTAH CODE ANN. § 76-3-207(1)(c)(i). The
jury waiver form that was executed and the colloquy that occurred were inadequate to
ensure that Honie’s waiver of jury sentencing was made knowingly, intelligently and
voluntarily, in contravention to the Eighth and Fourteenth Amendments of the United
States Constitution and their counterparts in the Utah Constitution. See id.; see also U.S.
CONST., amend. VIII; U.S. CONST., amend. XIV; UTAH CONST. art I, § 9; UTAH CONST.
art I, § 7.
During post-conviction proceedings, Honie argued that neither the jury waiver
form, nor the waiver colloquy with counsel and the court informed him of his right to be
sentenced by an impartial jury. (ROA 759.) Honie argued that he “was not advised that
he and his counsel would have a part in picking [the] jury and that the persons who
demonstrated bias against Honie to the point they could not fairly consider and weigh the
evidence would not be allowed to sit in judgment.” Id. Honie also argued that the
court’s colloquy advised him that he would “have to convince” either the judge or jury,
leading Honie to believe that it would be easier for him to convince the judge rather than
twelve jurors. (ROA 762.) Importantly, Honie further argued that neither the court nor
68
Resp. App. 079
counsel informed him that the jurors would have to find that the totality of aggravating
factors outweighed the mitigating factors beyond a reasonable doubt for the death penalty
to be considered. Id. Honie also argued that neither the court nor trial counsel explained
what aggravating and mitigation evidence was and failed to determine whether Honie
understood these terms. (ROA 763.)
In an affidavit presented to the district court during post-conviction proceedings,
Honie stated that his trial counsel encouraged him to waive jury sentencing because “the
judge was young and likely to go for a life without parole sentence.” (ROA 811.) Honie
stated that he did not understand and that trial counsel failed to explain to him what the
terms mitigation and aggravation meant or “what would be the jury’s role in sentencing
and what was necessary for a death penalty sentence . . . .” Id. Honie also told trial
counsel a week later, which was the first time he saw him following the execution of his
jury waiver, that he had changed his mind and wanted to withdraw the waiver, but trial
counsel told Honie that it was too late, even though the trial was still a week away. Id.
The district court rejected Honie’s claims finding that Honie had failed to
demonstrate both deficient performance and prejudice. (ROA 1015.) The district court
found:
While it may be true that the precise meaning of ‘aggravating factor’ and
‘mitigating factor’, the statutory procedures involved at the penalty phase,
the fact that the jury must be impartial, and the fact that the sentencing
authority may consider evidence of aggravating factors at the penalty phase
that were not found beyond a reasonable doubt at the guilt or innocence
phase are aspects of the overall capital sentencing process, these specific
circumstances are not unique to jury sentencing.
69
Resp. App. 080
(ROA 1015-1016.) The district court then went on to find that the “critical issues” with
respect to the waiver of a jury at sentencing were the fact that one person rather than
twelve would decide the sentence and because the imposition of the death penalty
requires a unanimous vote, and a defendant waiving a jury forgoes the unanimity
requirement. Id. at 1016. The district court then concluded that the colloquy was
adequate to inform Honie of his rights because “it is possible to have a knowing,
voluntary, and intelligent waiver of a jury even without an explanation of the nature and
extent of the right to a jury trial.” Id. at 48-49 (citing State v. Garteiz, 688 P.2d 487, 48788 (Utah 1984)).
The district court also found that Honie was not prejudiced because there is no
constitutional right to jury sentencing under either the Utah or Federal Constitutions. Id.
at 49. While there is no constitutional right to jury sentencing, Utah law provides that
capitally convicted defendants have a statutory right to have a jury determine their
penalty. UTAH CODE ANN. § 76-3-207(1)(c)(i). Therefore, the procedures used to either
grant or waive this right must comply with due process and the need for reliability in
capital cases under both the Utah and Federal Constitutions. See, e.g., Evitts v. Lucey,
469 U.S. 387, 393 (1985); see also Gregg v. Georgia, 428 U.S. 153 (1976) (finding that
when a defendant’s life is at stake, a court must be “particularly sensitive to insure that
every safeguard is observed.”) Id. at 187; Ford v. Wainwright, 477 U.S. 399 (1986)
(finding that capital proceedings must aspire to a heightened standard of reliability
70
Resp. App. 081
because “execution is the most irremediable and unfathomable of penalties; that death is
different.”) Id. at 411 (citations omitted).
This argument can be analogized to the United States Supreme Court’s treatment
of direct appeals in criminal cases. See Lucey, 469 U.S. 387. In Lucey, the United States
Supreme Court held that even though the Constitution does not require states to grant
appeals of right to criminal defendants, once a state provides a criminal defendant a right
of appeal, the procedures used to guarantee this right “must comport with the demands”
of due process. Id. at 393. The Court therefore found that where a State affords a right of
appeal, it must supply an attorney to an indigent appellant to make the right to appeal
more than a “meaningless ritual.” Id. (quoting Douglas v. California, 372 U.S. 353, 358
(1963)). Just as in Lucey, the right to have a jury determine sentencing in capital cases in
Utah takes on a constitutional dimension, which requires the waiver of this right to
comport with Due Process principles in both the Utah and Federal Constitutions.
Moreover, because Honie was facing the death penalty, and his waiver directly
implicated his sentence, the Eighth Amendment required a more thorough colloquy to
ensure his waiver was validly given. See Gregg, 428 U.S. 153; see also Ford, 477 U.S.
399.
The district court was incorrect when it held that “the fact that the jury must be
impartial . . . [was] not unique to jury sentencing.” The error is obvious on its face;
however, the error also fails to recognize the deeply rooted principle in capital sentencing
jurisprudence which requires that jurors sitting on capital cases not be biased in their
71
Resp. App. 082
views on capital punishment. See Witherspoon v. Illinois, 391 U.S. 510 (1968); see also
Wainwright v. Witt, 469 U.S. 412 (1985); Morgan v. Illinois, 504 U.S. 719 (1992). In
Morgan, the Court acknowledged that it has emphasized “that there is not ‘any one right
way for a State to set up its capital sentencing scheme,’ . . . and that no State is
constitutionally required by the Sixth Amendment or otherwise to provide for jury
determination of whether the death penalty shall be imposed on a capital defendant[.] . .
.” Id. at 726 (quoting Spaziano v. Florida, 468 U.S. 447, 464 (1984)). However, the
Court also noted that where a State has chosen “to delegate to the jury this task in the
penalty phase of capital trials in addition to its duty to determine guilty or innocence of
the underlying crime[,]” it must do so in a manner that comports with the Due Process
Clause of the Fourteenth Amendment. Id.
The Court found that the notion of jury impartiality was deeply rooted in its
precedent, and that long before the Court recognized a Sixth Amendment right to trial by
jury in state criminal cases, it held that the Fourteenth Amendment’s Due Process Clause
independently required jurors deciding any cause to be impartial. Id. (citing Irvin v.
Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379 U.S. 466 (1965)). The Court
stated:
Although this Court has said that the Fourteenth Amendment does not
demand the use of jury trials in a State’s criminal procedure, (citations
omitted), every State has constitutionally provided trial by jury. . . . In
essence, the right to jury trial guarantees to the criminally accused a fair
trial by a panel of impartial, ‘indifferent’ jurors.”
72
Resp. App. 083
Id. at 726-27. The Court also found that “due process alone has long demanded that, if a
jury is to be provided the defendant, regardless of whether the Sixth Amendment requires
it, the jury must stand impartial and indifferent to the extent commanded by the Sixth
Amendment.” Id. at 727 (citing Turner, 379 U.S. at 472). Given this reasoning, it
follows that when a defendant is waiving his state statutory right to jury sentencing, his
waiver must comport with the due process principles required by the Utah and the
Federal Constitutions.
The district court, therefore, was incorrect when it held that “it is possible to have
a knowing, voluntary, and intelligent waiver of a jury even without an explanation of the
nature and extent of the right to a jury trial.” (ROA 1016-1017.) In Garteiz, this Court
found that a judge’s determination of guilt following the waiver of a jury trial should not
be questioned unless it is clear that the “waiver was not freely and intelligently made.”
Id. at 488 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269 (1942))
(emphasis added). Garteiz was not a capital case and under the circumstances specific to
that case, the Court found that the defendant’s waiver had been validly given.
Unlike in Garteiz, Honie’s waiver was not validly given because he had a due
process right to be informed of his right to be sentenced by twelve jurors who would
impartially decide his sentence, and that a special voir dire process would occur to ensure
that no juror with a bias regarding the death penalty would be allowed to decide his
sentence. This was crucial information for Honie who was encouraged by trial counsel to
waive jury sentencing in favor of the judge, who trial counsel told him was not likely to
73
Resp. App. 084
impose the death penalty. Given the gruesome and highly charged nature of the crime,
and without understanding that he had a right to impartial and unbiased jurors, Honie
opted to waive jury sentencing in favor of a judge who was required by the oath of his
office to be unbiased.
In Garteiz, this Court recognized the perils a defendant faces when waiving
important rights:
The courtroom is an inherently intimidating place. Criminal defendants,
especially those unfamiliar with . . . courtroom procedure, are even more
likely to be intimidated that other spectators or trial participants. Further,
when courts are overcrowded and defendants are with court-appointed
counsel, the potential is great that economic concerns, time pressures and
other stresses on the court and counsel may influence a decision that should
be made carefully, thoughtfully, and with the benefit of accurate, objective
information about the alternatives.
Id. at 489 (Durham, J., concurring specially). These considerations were especially true
in Honie’s case where trial counsel made several statements indicating that having the
judge, rather than a jury, determine the sentence would streamline the trial saving time
and energy that would otherwise be spent death qualifying jury. Trial counsel stated that
waiving the jury would “eliminate the need to death qualify the jury” and allow him to
only have to put on the evidence once simplifying the process. TR 04/30/99 at 3-4. Trial
counsel also described the waiver of the jury as “short circuit[ing] things quite a bit,
especially the death qualification of the jury.” Id. at 4. While there are many important
considerations in waiving a jury, streamlining a capital murder trial is not one of them.
74
Resp. App. 085
The district court erred when it held that Honie was adequately informed of his
rights. While there may be some question under Utah law about the extent to which a
defendant must be informed of his rights when he waives a jury trial, it is clear that in a
capital murder case it must include an explanation that the defendant is waiving his right
to jury free from bias and prejudice in order to comport with due process and the need for
reliability in capital cases under the Utah and Federal Constitutions. The district court
also erred in finding that Honie was not prejudiced because there is no constitutional right
to jury sentencing under either the Utah or Federal Constitutions.
Under the same
reasoning explained above, Honie was prejudiced because he was not informed of his
right to be sentenced by a jury free from bias and prejudice. Because of this, he waived
jury sentencing in favor of the judge who counsel told him would likely impose a life
sentence. Once he had time to reflect on his decision he told counsel he wanted to
withdraw his jury waiver but counsel told him it was too late, even though it was not.
Because this Court considers this claim in the context of the grant of summary judgment,
it must find that Honie has presented a genuine issue of material fact as to both aspects of
this claim that is sufficient to survive summary judgment. See Lucky Seven Rodeo Corp.,
755 P. 2d at 752; see also Amica Mut. Ins. Co., 768 P. 2d at 957.
75
Resp. App. 086
II.
THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO
CERTAIN CLAIMS INVOLVING INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL,
WHICH SURVIVED THE STATE’S FIRST MOTION FOR SUMMARY JUDGMENT,
19
BUT FOR WHICH THE COURT DENIED FUNDING TO DEVELOP THESE CLAIMS.
A. THE DISTRICT COURT FOUND THAT HONIE’S CLAIMS OF INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL FOR FAILING TO CONDUCT AN ADEQUATE
MITIGATION INVESTIGATION PRESENTED A GENUINE ISSUE OF MATERIAL
FACT AND, THEREFORE, DENIED THE STATE’S FIRST MOTION FOR SUMMARY
JUDGMENT AS TO THESE CLAIMS.
Several of Honie’s claims involving ineffective assistance of counsel for failing to
conduct an adequate mitigation investigation survived the State’s first motion for
summary judgment because the district court found that they “raise[d] a genuine issue
with respect to whether trial counsel’s less-than-complete investigation was reasonable
and, therefore, whether he failed to comply with prevailing norms of professional practice
in conducting his mitigation workup.” (ROA 1037-1038.) The district court enumerated
these claims, 20 which include the following issues: (1) trial counsel failed to develop any
evidence or raise any issue regarding Honie’s intoxication at the time of the incident or
explain his extensive polysubstance abuse and the impact it likely had on him at the time
of the incident; (2) trial counsel failed to develop any evidence or raise any issue
regarding Honie’s mental illnesses; (3) trial counsel failed to have Honie evaluated for
the long-term effects of polysubstances abuse or for brain damage; (4) trial counsel failed
Honie raised this claim in his Amended Petition for Post-Conviction Relief (“Amended
Petition”) and in his Memorandum in Opposition to Motion for Summary Judgment and
to Dismiss. (ROA 65-66); (ROA 766-784.)
20
The district court enumerated these claims as 27, 28, 41, 55 (partial), and 63 “as they
relate to the investigation and presentation of a mitigation case.” (ROA 1040.)
76
19
Resp. App. 087
to investigate and present expert testimony on Honie’s level of intoxication at the time of
the offense, during the subsequent police interrogations, and during the time he waived
his rights pursuant to Miranda; and (5) trial counsel failed to investigate and present
relevant mitigating evidence and expert testimony related to Honie’s background and
experiences, family history, social situation, and mental state. (ROA 1040); (ROA 1064,
1066, 1068-1069.)
In reaching its conclusion, the district court recognized the duty of defense
attorneys to conduct a reasonable mitigation investigation. (ROA 1033) (citing State v.
Taylor, 947 P.2d 681, 687-88 (Utah 1997); Strickland, 466 U.S. at 690-91; Wiggins v.
Smith, 539 U.S. 510 (2003)). The district court relied on the affidavit of Whitman, the
PCR investigator, who “opined that [Honie’s] ‘original mitigation case presented an
incomplete picture of his life experience as a child and an adult,’ . . . and that trial counsel
‘did not present the most important mitigating evidence—the correlation between
[Honie’s] unconventional social behavior through his life and credible scientific
explanations for these behavior patterns.’” (ROA 1035.) The district court specifically
noted :
Whitman indicates that the deficiency of trial counsel’s mitigation workup
is clearly demonstrated by counsel’s failure to investigate and seek expert
analysis of [Honie’s] various psychological disorders and depression,
failure to seek expert analysis of alleged child abuse committed against
[Honie], failure to investigate and seek proper expert analysis of [Honie’s]
interpersonal relationships and his alcohol and substance abuse, failure to
investigate and present mitigating evidence with respect to the relationship
between [Honie’s] cultural background and his dysfunctional and traumatic
upbringing and family life as contributing factors to his conduct at the time
77
Resp. App. 088
of the homicide, and failure to fully investigate and present mitigating
evidence concerning the nature and extent [of Honie’s] alcohol and drug
intoxication at the time of the offense affected his judgment and mental
state.
(ROA 1035-1036.)
The district court reasoned that under Wiggins, “if evidence known to trial counsel
‘would lead a reasonable attorney to investigate further,’ . . . by force of logic, because
trial counsel had information suggesting that additional investigation into mitigating
evidence was warranted, counsel’s failure to conduct a more thorough mitigation
investigation was unreasonable and constitutes deficient performance under Strickland.”
(ROA 1037.) The district court noted that “based upon the pleadings, there is little to
suggest that Mr. Whitman is not correct in his assessment, for the most part, that trial
counsel did not investigate potentially significant areas of mitigation.” (ROA 1037.) The
district court then concluded that “Whitman’s affidavit raises a genuine issue with respect
to whether trial counsel’s less-than-complete investigation was reasonable and, therefore,
whether he failed to comply with prevailing norms of professional practice in conducting
his mitigation workup.” (ROA 974-1038.)
B. THE DISTRICT COURT ERRED WHEN IT FAILED TO PROVIDE FUNDING IN
EXCESS OF THE STATUTORY MAXIMUM FOR INVESTIGATIVE AND EXPERT
FUNDS SO THAT HONIE COULD DEVELOP HIS CLAIMS THAT SURVIVED
SUMMARY JUDGMENT.
While these claims survived summary judgment, Honie was initially unable to
receive additional funding to develop these claims because he had already exceeded the
statutory maximum for funding. (ROA 1246.) However, the PCRA was later amended
78
Resp. App. 089
in 2008, which, in part, increased the amount of funding available to post-conviction
petitioners and also allowed funding beyond the statutory maximums upon a showing of
good cause. (ROA 2237-2239.) After the implementation of the amended PCRA, the
district court held that the 2008 Amendments “apply retroactively to [Honie’s] pending
cause of action for post-conviction relief”. (ROA 2570.) The district court specifically
noted, “[C]ounsel for [Honie] is entitled to seek payment consistent with the procedure
set forth by the new funding amendments for work performed and litigation expenses
incurred on or after the effective date of May 5, 2008, and for all work completed and
litigation expenses incurred prior to the effective date for which payment has not been
received.” (ROA 2570-2571.)
Honie, thereafter, submitted an invoice for outstanding attorney fees for work
performed from the time of appointment through January 28, 2009, and the court ordered
the fees to be paid. (ROA 2607.) Honie also submitted two requests for approval of
funds for experts and investigation so that he could investigate and develop the claims of
ineffective assistance of counsel that had survived summary judgment. (Addenda 7);
(ROA 2670-2675.) In his motions Honie requested additional funds so that Whitman
could complete his mitigation investigation. (ROA 2671-2672.) Honie specifically noted
that Whitman’s work was essential to performing the mitigation investigation and would
not be duplicative of work done by the trial team. (ROA 2673.)
Honie also requested funds to hire several experts to develop mitigation evidence
necessary to demonstrate prejudice on his claims of ineffective assistance of counsel for
79
Resp. App. 090
failing to perform an adequate mitigation investigation. Honie requested funds to hire an
expert who could testify about the degree to which Honie was impaired at the time of the
crime based on his alcohol consumption. (ROA 2672.) This was something that trial
counsel failed to do and a question that was unsettled in the mind of the sentencing judge.
(ROA 2672-2673.)
Honie requested funds to hire an expert who could evaluate Honie for Fetal
Alcohol Syndrome (FAS), (ROA 2674.), and to hire an expert who could evaluate the
long-term impact of substance and alcohol abuse in Honie, as well as the effect the
combination of drugs and alcohol Honie consumed on the day and evening of the incident
had on Honie and whether it affected his ability to recognize the wrongfulness of his
conduct or his ability to conform his conduct to the requirements of the law. (ROA
2674.)
PCR counsel attached an affidavit to his funding request in which he stated that he
had conferred with a separate FAS expert who believed that none of the testing
performed by Dr. Cohn was adequate to determine whether Honie suffered cognitive
deficits from FAS that would have affected his judgment. (ROA 2680.) This was
especially important because the sentencing judge found Dr. Cohn’s testimony to be “of
marginal value.” (ROA 2682.)
The district court denied Honie’s requests for additional funds finding that Honie
“has not—and cannot—demonstrate good cause to exceed the maximum sums authorized
for litigation expenses under the PCRA.” (ROA 2836.) While the court found that both
80
Resp. App. 091
of Honie’s requests for funding were legitimate, it found that it could not grant funding
because Honie failed to demonstrate “that the work done to date and the future work
identified is reasonably likely to develop evidence or legal arguments in support of his
claim[s]” of ineffective assistance of counsel for failing to conduct an adequate
mitigation investigation. (ROA 2835-2836.)
The district court’s ruling
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