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State v. Gardner

Court of Appeals of Utah

June 21, 2018

State of Utah, Appellee,
David Russell Gardner, Appellant.

          Eighth District Court, Duchesne Department The Honorable Samuel P. Chiara No. 131800128

          Laura J. Fuller, Attorney for Appellant

          Sean D. Reyes and William M. Hains, Attorneys for Appellee

          Judge Kate A. Toomey authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen concurred.

          TOOMEY, JUDGE

         ¶1 David Russell Gardner was convicted of eleven counts of first-degree felony rape against a fourteen-year-old victim (Victim). He appeals his convictions, contending the district court erred in denying his motion to suppress because his confession to police was made in violation of his Fifth Amendment rights. He also contends the district court exceeded its discretion when it rejected his guilty plea. Finally, he contends he received constitutionally ineffective assistance of counsel. We conclude Gardner knowingly and voluntarily waived his right to counsel and his confession was therefore not in violation of his constitutional rights. Gardner failed to preserve his challenge to the rejected guilty plea, and he has not shown that his counsel's performance was deficient or that the deficient performance, if any, was prejudicial. Accordingly, we affirm.


         ¶2 Victim and her mother reported to police that Gardner had raped Victim and that she was pregnant with his child.[1]During an interview at the Children's Justice Center, Victim disclosed that Gardner raped her no less than eleven times in a span of six months. Officers interviewed Victim about these allegations. They also interviewed Gardner's son, who reported he had observed Gardner sexually abusing Victim and that Gardner told him that he would kill him if he ever disclosed what he saw.

         ¶3 Based on these allegations, the police determined they needed to question Gardner. Two officers (First Officer and Second Officer) were in the interrogation room with Gardner. Gardner received Miranda warnings and he affirmed that he understood them. Gardner then asked why he was being questioned, and First Officer said it was about Victim. Gardner immediately asked for his attorney. First Officer asked if it was the same attorney who had represented him in connection with prior charges, and Gardner responded in the affirmative. Before the officers could leave to try to reach his attorney, Gardner "immediately launched into a monologue concerning an assault [against him] purportedly involving [Victim's] mother." He also explained, unprompted, that Victim's mother had threatened to report to the police that Gardner had sexually abused Victim. He spoke to the officers for nearly three minutes without the officers asking any questions or responding in any way.

         ¶4 First Officer again asked if Gardner wanted his attorney and, when Gardner answered in the affirmative, left to try to contact the attorney. Gardner continued to speak to Second Officer, unprompted, until First Officer returned. When First Officer returned, he told Gardner that he could not reach Gardner's attorney and that he was not going to ask Gardner any questions. Despite saying this, First Officer then added, "This thing is, what you just have to think about, is that is there a possibility that this child she's carrying is yours?"[2] Gardner attempted to respond, but the officers cut him off and left the room.

         ¶5 Gardner sat alone in the interrogation room for almost five minutes before opening the door and asking Second Officer to return. Both officers returned and did not ask any questions, and Gardner explained that the reason he wanted his attorney present was to "corroborate his story concerning the alleged assault perpetrated on him by [Victim's] mother." He further explained that he did not need his attorney present, because "there [was] no way that baby was [his]." First Officer again left to try to reach Gardner's attorney, and Gardner continued to talk to Second Officer, who offered to take a statement from Gardner with respect to the alleged abuse by Victim's mother.

         ¶6 When First Officer returned, he informed Gardner that his attorney did not want to represent him in connection with these new allegations but that his attorney generally advised him to remain silent. First Officer said that Gardner's silence would not matter, because they had enough evidence to arrest him for rape.[3] Although the officers explained that the interrogation was over because he was being arrested, Gardner asked them to remain in the room and talk with him and then posed questions about DNA testing. After discussing the different means of testing DNA, Gardner stated, "I'm taking responsibility for me. I did it."

         ¶7 After his arrest, Gardner filed a motion to suppress his confession, alleging that the officers violated his Fifth Amendment rights in obtaining it because the officers continued to question him after he had invoked his right to counsel. The court denied the motion because it determined that, from the beginning of the interview, Gardner's "actions clearly showed he was willing to talk to the Officers independent of counsel." Without being asked any questions, Gardner explained that he had problems with Victim's mother, and later-after again being asked if he wanted his attorney present before he continued to talk with the officers-Gardner "continu[ed] into a story involving [Victim] and her mother." The court found that only after this exchange did First Officer "initiate a question by asking [Gardner] to think if there was a possibility the child [Victim] was carrying was his." The court further found that even when the officers attempted to end the interrogation on two occasions, Gardner reinitiated the conversation with respect to Victim and her mother. The second time, after the officers explained that they had enough evidence to arrest him, [4] Gardner asked them to stay and then confessed to the crime.

         ¶8 The court concluded that he "knowingly and intelligently waived his right to counsel during interrogation." In support of this conclusion, it found that Gardner had "experience in the criminal justice system" as a convicted sex offender and that "during this particular interrogation, [Gardner] was due in court on an unrelated crime." The court further found that, being familiar with his rights, Gardner "chose to speak without his attorney present after the Officers clearly warned him that he was not obligated to do so" and there was "no dispute ...

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