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McCloud v. State

Court of Appeals of Utah

March 14, 2019

Larry McCloud, Appellant,
v.
State of Utah, Appellee.

          Fourth District Court, Heber Department The Honorable Donald J. Eyre Jr. No. 070500212

          Andrew Parnes and Brent A. Gold, Attorneys for Appellant

          Sean D. Reyes and Erin Riley, Attorneys for Appellee

          Judge Kate Appleby authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.

          OPINION

          APPLEBY, JUDGE.

         ¶1 Larry McCloud appeals the denial of his petition for post-conviction relief. A jury convicted McCloud of several crimes related to his sexual abuse of his daughter (Victim). On direct appeal, this court affirmed his convictions. McCloud then filed a petition for post-conviction relief, arguing that his trial attorney (Trial Counsel) provided ineffective assistance by failing to consult expert witnesses and failing to obtain all of Victim's medical records before trial. The post-conviction court determined that McCloud's claims of Trial Counsel's ineffective assistance were procedurally barred because McCloud could have raised them on direct appeal. McCloud then amended his petition, arguing that his appellate attorney (Appellate Counsel) rendered ineffective assistance by failing to raise on appeal his claims of Trial Counsel's ineffective assistance. The post-conviction court dismissed McCloud's amended petition on the merits, concluding that Appellate Counsel's omission of the claims on appeal did not constitute constitutionally ineffective assistance of counsel.

         ¶2 McCloud raises two issues. First, he argues the post-conviction court erred in determining that his claims of Trial Counsel's ineffective assistance were procedurally barred. Second, he argues that Trial Counsel provided ineffective assistance by failing to consult expert witnesses and failing to obtain all of Victim's medical records before trial. We conclude that the post-conviction court erred in determining that McCloud's claims of ineffective assistance of Trial Counsel were procedurally barred. But we affirm its denial of McCloud's petition for post-conviction relief, concluding that he has not shown he received constitutionally ineffective assistance from Trial Counsel.

         BACKGROUND

         ¶3 When Victim was five years old, McCloud forced her to shower with him and asked her to touch his penis.[1] And on multiple occasions while Victim was between the ages of seven and ten, McCloud climbed into her bed, opened her legs, and penetrated her vagina with his tongue.[2]

         ¶4 Victim reported the abuse when she was sixteen. Based on her allegations, the State charged McCloud with one count of aggravated sexual abuse of a child-for the shower incident- and six counts of sodomy upon a child-for the subsequent incidents. Before trial, McCloud requested that Trial Counsel retain a false memory expert and a psychosexual profiling expert. But Trial Counsel did not consult any experts for the defense.

         ¶5 The State's case against McCloud primarily relied on Victim's testimony. At trial, she detailed the incidents of abuse for each count and, for some counts, identified specific dates on which the incidents occurred. The State did not present expert testimony.

         ¶6 As part of the defense, Trial Counsel presented McCloud's day planners and calendar notes as well as a "videotape taken at Christmas" to prove that McCloud and Victim were not together on some of the dates when the abuse allegedly occurred. Victim responded to this evidence by saying that, although she may have been confused about the specific dates, she was not confused about the abuse itself.

         ¶7 Further, Trial Counsel elicited testimony that, before reporting the abuse, Victim told her mother and various therapists and psychologists about showering with McCloud when she was young, but she did not report anything "inappropriate" until she was sixteen. On cross-examination, Victim admitted that, despite meeting "with a number of different people," she did not tell anyone "all the details" until "September or October of 2000." She specifically mentioned meeting with a psychiatrist or psychologist in August 2000-just weeks before reporting the abuse-and said she did not reveal all "the details" then.

         ¶8 Trial Counsel also highlighted group therapy sessions in which Victim could have reported the abuse, and mentioned Victim's medical history, including depression, asthma, and a hospitalization resulting from suicidal feelings. He elicited testimony describing "deteriorated" relationships between McCloud and Victim and McCloud and Victim's mother, and suggested that reporting the abuse was a way for Victim to "get back at her father." In closing argument, Trial Counsel asserted that Victim was "pushed" into making false allegations by various people, including her mother.

         ¶9 After reviewing the evidence and arguments, the jury convicted McCloud on the count of aggravated sexual abuse of a child[3] and three of the counts of sodomy upon a child, but acquitted him of the remaining three counts of sodomy upon a child.

         ¶10 After trial, McCloud hired Appellate Counsel to appeal his convictions. Appellate Counsel raised various claims of ineffective assistance of counsel, but did not raise claims regarding Trial Counsel's failure to consult expert witnesses or obtain exculpatory evidence, or any other claims that would have required an "extra-record investigation." Instead, she limited the appeal to issues that could be determined on the facts "contained in the record." She did not consider the "extra-record" claims to be without merit, but thought McCloud had "a good appeal already" and could raise "extra-record" issues in a petition for post-conviction relief. Appellate Counsel knew she could move to supplement the record on appeal under rule 23B of the Utah Rules of Appellate Procedure, but believed such a motion was "permissive and not required." See Utah R. App. P. 23B. And she did not think failing to file a rule 23B motion would bar McCloud's claims for post-conviction relief.

         ¶11 This court affirmed McCloud's convictions. State v. McCloud, 2005 UT App 466, ¶ 1, 126 P.3d 775, cert. denied, 133 P.3d 437 (Utah 2006). Following our decision, McCloud filed a petition for post-conviction relief, arguing that Trial Counsel provided ineffective assistance by failing to consult expert witnesses and failing to obtain all of Victim's medical records related to her reporting-or delay in reporting-the abuse. He asserted that experts could have assisted Trial Counsel's investigation of Victim's allegations and presented helpful testimony at trial. He also argued that obtaining all of Victim's medical records was essential because they highlighted inconsistencies in her testimony. And he claimed that, but for Trial Counsel's errors, a more favorable outcome at trial was "reasonably probable."

         ¶12 The State moved to dismiss the petition, arguing that McCloud's claims were procedurally barred under Utah Code section 78B-9-106(1)(c) because he could have but did not raise them on direct appeal. It asserted that, even "if claims of ineffective assistance against [Trial Counsel] required supplementation [of the record on appeal], [Appellate Counsel] could have asked the Court of Appeals to remand for an evidentiary hearing pursuant to rule 23B [of the Utah Rules of Appellate Procedure]." Thus, all ineffective assistance claims "could have and should have been raised on direct appeal."

         ¶13 The State asserted that Trial Counsel's ineffectiveness could be addressed only in the context of a claim that Appellate Counsel was ineffective for failing to raise issues on appeal. That is, McCloud had to show that Appellate Counsel "omitted an issue which [was] obvious from the trial record," and "probably would have resulted in reversal." (Quotation simplified.) Essentially, the State argued McCloud was required to show both that Trial Counsel was ineffective at trial and that Appellate Counsel was ineffective for failing to raise Trial Counsel's ineffectiveness. See Hamblin v. State, 2015 UT App 144, ¶ 11, 352 P.3d 144 (explaining that "we must examine the merits of the claim of ineffective assistance of trial counsel to determine if appellate counsel rendered ineffective assistance" by omitting that claim (quotation simplified)).

         ¶14 McCloud opposed the motion to dismiss, asserting that the State's procedural bar argument "must be rejected." He said barring his claims would confuse the role of appellate counsel- who generally raises ineffectiveness claims only when the trial record is adequate to permit decision on the issue-with the role of post-conviction counsel-who generally raises ineffectiveness claims based on matters not contained in the record. McCloud acknowledged that rule 23B allows supplementation of the record upon "a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." (Quotation simplified.) But he argued that rule 23B does not require attorneys to "scrutinize their client's case for all possible extra-record claims of ineffective assistance of counsel during the direct appeal." Instead, he claimed "the permissive language of the rule" creates "a procedural means of establishing a record for" claims of which "counsel is aware."

         ¶15 McCloud noted that arguing Appellate Counsel's ineffectiveness would require him to show that the omitted issues were "obvious from the record." But rule 23B "provides the possibility of remand if counsel can make a nonspeculative allegation of facts not fully appearing in the record." (Quotation simplified.) Thus, if "the claim was solely 'obvious from the record, '" he argued, "there would be no need to make application under Rule 23(B)." He concluded that "it is precisely because claims of ineffective assistance of counsel are often based on matters not contained in the appellate record that [post-conviction petitions] are permitted."

         ¶16 After reviewing the parties' arguments, the post-conviction court concluded that McCloud's claims were procedurally barred. It noted that, "'ineffective assistance of counsel should be raised on appeal if (1) the trial record is adequate to permit decision of the issue and (2) [the] defendant is represented by counsel other than trial counsel.'" (Quoting State v. Litherland, 2000 UT 76, ¶ 9, 12 P.3d 92.) The court said, however, that the Utah Supreme Court has "eliminated the first part of the requirement" as a result of rule 23B and, "so long as on appeal a defendant is represented by different counsel, an ineffective assistance claim should (and certainly could) be raised on appeal." (Citing Litherland, 2000 UT 76, ¶ 17, and Cramer v. State, 2006 UT App 492, ¶ 9, 153 P.3d 782.) But the court allowed McCloud to amend his petition to include a claim for ineffective assistance of Appellate Counsel.

         ¶17 After McCloud amended his petition, the court held an evidentiary hearing to develop the record regarding Appellate Counsel's failure to argue that Trial Counsel was ineffective for not consulting experts. McCloud testified that Trial Counsel disagreed with his request to retain experts, responding that the State would simply counter with experts of its own. Instead, Trial Counsel asked for McCloud's day planners "to use the dates and information in them to prove that [Victim] lied." According to McCloud, Trial Counsel "was confident that he could prove [Victim] was lying" by presenting a video taken at Christmas, as well as McCloud's day planners and calendar notes, even though "there were certain dates on which abuse was alleged to have occurred regarding which he had no proof [McCloud] was not with [Victim]." McCloud said that Trial Counsel thought "if several of [Victim's] representations (as to dates) were proved to be false, the rest would be called into question."

         ¶18 McCloud also testified regarding his appeal. He said he asked Appellate Counsel if he could raise ineffective assistance of counsel claims based on Trial Counsel's failure to consult and call experts and obtain exculpatory evidence. But Appellate Counsel said "no, . . . they could only appeal what was in the record, or what took place at trial, and that the other issues could be raised in post-conviction." Further, McCloud said that another attorney, "who had represented him briefly," also "told him that these other issues that were not raised on direct appeal could be raised in post-conviction."

         ¶19 Trial Counsel testified regarding his representation of McCloud. He said he had practiced criminal law for twenty-five to thirty years. In that time, he had used psychosexual profile experts and false memory experts and had sometimes consulted them before trial without calling them at trial. According to his testimony, "multiple factors" go into his decision to consult or retain experts, including "[i]nvestigation, the specific facts, the defense you're running, the type of case," and "what you believe is going to be necessary" to prevail. In McCloud's case, his strategy was to show that Victim "was making up a story and was not accurate in what she was describing." He said it was a "he-said/she-said case with what [he] believed was compelling evidence that would discredit the she-said aspect." Although he admitted that consulting experts would not have been "inconsistent with [his] strategy," he thought "that in some ways it made [his] theory of the case less focused and more diluted." And he "made a judgment call that . . . [using experts] might cloud[] the water."

         ¶20 Appellate Counsel testified regarding McCloud's appeal. She described rule 23B as "a rule of appellate procedure that is designed for claims of ineffective assistance of counsel to be added to the record." She was "unclear on whether under 23B the ineffective assistance of counsel claims need to be a little bit apparent in the record or not." But at the time of the hearing, she thought "potential claims of ineffective assistance of counsel, even those outside the record, must be raised through a 23B motion on direct appeal." Accordingly, her new practice was to conduct "a thorough extra-record investigation and raise[] any meritorious issues found." She testified that, had she "believed McCloud would be barred from raising [his claims] in post-conviction, she would have conducted a thorough extra-record investigation and raised any meritorious issues found." And "[i]f she were to do it over again, [she] would investigate everything that [McCloud] told her that had a reasonable chance of succeeding on a claim of ineffective assistance."

         ¶21 A child memory expert reviewed the records of McCloud's case and testified regarding how he could have assisted the defense. He detailed various concepts that would have been helpful, including "contextual embedding," "script memory," "episodic memories," "autobiographical memory," and "the shape of memories across time." He said consulting an expert in McCloud's case was important because "the allegations arose in an atmosphere of distrust and hostility between the two homes of the parents, where there were suspicions of fears and allegations of maltreatment going back" a number of years. He described "triggering circumstances" surrounding Victim reporting the abuse, which should have been investigated as potential evidence of "motives to disclose and/or manufacture an allegation for some secondary gain." As examples of such circumstances, he mentioned Victim's mental state-she would malinger, or feign illness so as not to go to school-and the fact that Victim was "medically noncompliant" and "questionably cooperative in her own case." He also identified "very strong chronic stereotyping" of McCloud and repeated questioning of Victim about potential abuse, which can "confuse the child and increase the risk that the child will acquiesce and tell the questioner what he or she thinks that person wants to hear, or increase the risk that the child will be socialized into manipulating others by saying inaccurate things." And he said "the interviews of [Victim] were not scientifically sound." For example, they "seemed to presume that the events had occurred" and included statements "telling [Victim] she did not do anything wrong and that it was not her fault," which "are value judgments that should not be made in the interview process."

         ¶22 A psychosexual profiling expert testified. He assists defendants by providing "sexual risk assessments," which compare "the individual assessed against normative samples of what is known to correlate with sexual deviance and/or increased propensity to commit a sexual crime." He prepared to testify by reviewing a "psychosexual evaluation" of McCloud that was done for purposes of sentencing and then conducting a "mental status and clinical interview with McCloud in order to assess whether his behavior was commensurate with the previous reports." The expert reported that McCloud "does not demonstrate characteristics that are commensurate with someone who has engaged in sexually deviant behavior, . . . or who has any type of personality disorder that would increase the risk to have engaged in that behavior or to engage in it in the future."

         ¶23 To develop the record regarding Trial Counsel's failure to obtain Victim's medical records, McCloud sought to subpoena records of Victim's treatment with medical and psychiatric care providers. The court issued the subpoenas and, after in-camera review of the records, provided one relevant document to the parties. That document is a discharge summary of a meeting between Victim and a doctor that occurred on August 23, 2000- two weeks before Victim reported the abuse. It provides:

[Victim] has been having flashbacks and nightmares about previous sexual abuse by her biological father that occurred between the ages of 6 and 8. At that time it was discovered that he had been having [Victim] shower with him, and was washing her in the shower. He also insisted on sleeping with [Victim]. [Victim] does not remember him being inappropriate sexually in other ways, and it is unclear whether this was actually a case of molestation or a father with extreme boundary problems. The mother did call the Division of Family Services at the time, but no charges were filed.

         ¶24 After reviewing the evidence and considering the parties' arguments, the post-conviction court denied McCloud's petition, concluding that Appellate Counsel did not provide ineffective assistance by failing to bring his claims on appeal. In its ruling, the court noted that McCloud's claims "by their nature are not likely to be obvious from the record," which is "the well-established standard" of ineffective assistance for omitting issues on appeal. But it then mentioned rule 23B and expressed confusion regarding the ...


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